Bail and Bonds

 Bail and Bonds

Meaning & Object 

Meaning : Term bail has not defined in the Code. In Gurbaksh Singh v. State of Punjab AIR 1980 SC 1632 it was held by Supreme Court that grant of bail means to set at liberty a person prisoned, on security being taken for his appearance. In Moti Ram v. State of M.P., AIR 1978 SC 1594 Supreme Court held that it is a process to set a person free who is under arrest or detention by taking security for his appearance. The expression 'bail' covers both release on one's own bond, with or without sureties.

The law of bail has to balance two conflicting concepts. On one hand there is a solemn principle of criminal law that the accused is presumed to be innocent until proven guilty and on the other hand there is a requirement for the society that it has to be shielded from criminals. Supreme Court in Gudikanti v. Public Prosecutor, AIR 1978 SC 429 held that basic rule should be 'bail not jail' except where there are circumstances suggesting accused fleeing from justice, possibility of repeating the offences and like.

Object: Personal liberty is one of the most valuable Fundamental Right given under the Constitution. The principle underlying the release on bail is that the accused is presumed innocent until proven guilty. A person released on bail is considered to be in constructive custody of the Court. [Sunil Fulchand v. Union of India, AIR 2000 SC 1023].

Principle regarding bail: The principle behind grant of bail in criminal cases is based on two factors:

(a) The State is duty bound to protect the interest of society at large and save it from criminals.

(b) The person is presumed innocent until proved guilty and he cannot be deprived of his right to liberty unless there are grounds for doing so.

The Code has classified offences into bailable and non-bailable. In bailable offence the accused gets the bail as a matter of right while in a non-bailable offence the grant of bail is the discretion of the court.

When Bail may be granted as a matter of right.

As we have discussed earlier, in bailable offences the accused gets bail as a matter of right whereas in non-bailable offences the grant of bail is a matter of discretion. Apart from this, following are the instances where the accused can secure bail as a matter of right.

Bailable offences

Section 436(1) of the Code lays down that where a person accused of a bailable offence is arrested or detained without warrant or appears or is brought before a court and is prepared to give bail, the police officer or the court having custody of such person shall release him on bail. The police officer of coun, instead of taking bail from such person, may even release him on executing a bond without sureties. Hence, in bailable offence accused can be released both by the court and by police officer.

Section 436(2) further says that where a person so released has failed to comply with the conditions of the bail as regards the time and place of attendance, the court may refuse to release him on bail, when on subsequent occasion in the same case he appears or is brought in custody before the court. It means that once a bail has been granted in a bailable offence the accused loses his right to bail subsequently in the sale case, if he fails to comply with the conditions of bail.

Proviso of Section 436(1) of the Code provides that if the person is indigent person then the Court of the police officer shall, instead of taking bail from such person, discharge him on his executing a bond without sureties.

Explanation to Section 436(1) has been added by Amendment Act of 2005. It provides that where the person is unable to give bail within a week of his date of arrest, it shall be sufficient ground for the officer or the court to presume that he is an indigent person for the purpose of this proviso.

Maximum period of detention for an undertrial

Section 436A, added by Amendment Act of 2005, provides if that a person (not accused of zn offence carrying death penalty) during the period of investigation, inquiry or trial has undergone detention for a period extending up-to one-half of the maximum period of imprisonment specified for the offence under that law, he shall be released by the court on his personal bond with or without sureties.

The court may order continued detention of such person, after hearing the public prosecutor and for reasons to be recorded in writing, even longer than half of the said period. In any case, the person shall not be detained, during the period of investigation, inquiry or trial, for more than maximum period of imprisonment provided for the offence under the law.

When investigation is not complete within prescribed period

Section 167(2) provides that where a person is in custody and the investigation is not completed within :

• Ninety days (where investigation relates to offence punishable with death, imprisonment for life or imprisonment for 10 years or more); or
• Sixty days (where investigation relates to any other offence) then the person is entitled to get bail as a matter of right after expiry of such period.

He should be ready to furnish bail and agree to the conditions of the bail. Every person released under this section shall be deemed to be released under Chapter XXXIII [relating to bails] of the Code.

• Necessity of further investigation but no reasonable ground for believing that accused has committed non-bailable offence.

Section 437(2) provides that where a person accused of or suspected of a commission of a non- bailable offence is arrested or detained without warrant, or appears or is brought before the court and it appears to such police officer or the court that there are no reasonable ground for believing that accused has mited a non bailable offence but there are sufficient ground for further inquiry into his guilt then the accused shall be released on bail after recording reasons.

• When the trial is not over within prescribed period

Section 437(6) provides that if the case is triable by Magistrate and the trial of any person accused of anon-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence then such accused shall, if he is in custody for whole of period, be released on bail, unless the Magistrate directs otherwise.

• Where there are no reasonable grounds for believing accused to be guilty

Section 437(7) provides that if any time after conclusion of trial of a person accused of a non-bailable offence and before judgment is delivered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused if he is in custody.

Bail in non-bailable offences

Section 437 and 439 provides for the provisions relating to grant of bail in non-bailable cases. Section 437 deals with the courts of Magistrates while Section 439 deals with Court of Session and High Court.

Section 437 lays down that when any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before the court other than the High Court or Court of Session he may be released on bail.

Section 437 uses the word 'may'. The use of word 'may' clearly indicates that the court has discretion in granting bail. This provision is applicable to the courts other than High Court or Court of Session. Therefore, it can be said that Section 437 is applicable to Magistrate Courts.

Section 437(1)(i) and 437(1)(ii) provides two instances where the accused shall not be released:-

(i) If it appears a reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life;

(ii) If the offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convictest.on.the.Or more occasions of a cognizable offence punishable with imprisonment three years or more but less than seven years.

SC in Prahlad Singh Bhati vs. NCT DELHI if the prescribed punishment is imprisonment for life or death and the offence is exclusively triable by the Court of Sessions, then the Magistrate has no jurisdiction to grant bail unless the case is covered by provision appended to Section 437.

Special provision for child, woman, sick or infirm person

Provise of Section 43711) lays down that if a person referred to in Section 437(1)(0) and 437(1)(i) under age of sixteen years or is a woman or sick or infirm person then the court may direct the release of such person. Section 437(1) provides that the court may direct the person referred in Section 437(1)(a) to be released on bail if the court is satisfied that it is just and proper to do to. This provision is also discretionary and not mandatory.

Opportunity of hearing to Public Prosecutor

Fourth proviso of Section 437(1) provides that if the offence alleged to have been committed by the accused person is punishable with death, imprisonment for life or imprisonment for seven years or mons then before releasing him on bail an opportunity of hearing is to be given to the Public Prosecutor.

Bail with conditions

Section 437(3) provides that where a person accused of an offence punishable with imprisonment which may extend to seven years or more or of offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment, conspiracy or attempt to commit any such offence is released on bail the court shall impose the conditions

(a) That such person shall attend in accordance with the conditions of the bond;

(b) That such person shall not commit an offence similar to the offence of which he is accused;

(c) That such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence. The court may also impose such other conditions as it thinks fit.

Considerations for grant of bail in non-bailable offences

Grant of bail in non-bailable offences is a matter of discretion. Discretion needs to be exercised on sound judicial principles and in a reasonable manner. It is to be remembered that object of detention pending criminal proceedings is not punishment and the bail is a rule and jail is an exception. Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. At the stage of granting Bail a detailed examination of evidence need not be undertaken.

1. Nature and gravity of offence;

2. Severity of punishment;

3. Nature of evidence in support of accusation;

4. Antecedents of the accused;

5. Danger of evidence and witnesses being tampered with;

6. Possibility of accused fleeing from justice;

7. Position of accused with reference to the victim;

8. Likelihood of repeating offence;

9. Health, age and sex of the accused;

10. Circumstances in which crime was committed etc.

Powers of High Court and Sessions Courts

Section 439 provides powers of High Court and Sessions Court to release the accused on bail. It also empowers them to impose conditions while granting bail if the offence is of the nature specified in Section 437(3). It also empowers them to modify or set aside the conditions imposed by the Magistrate at the time of releasing the accused on bail. If the case is exclusively triable by Court of Session or punishable with imprisonment for life, the High Court or Court of Session before releasing the accused on bail shall issue notice to the Public Prosecutor. In Sharad vs. State of Maharashtra (2019), Supreme Court held that an accused after withdrawing his bail application before the High Court can file a subsequent bail application before the Sessions Court. Amendment Act of 2018 inserted a proviso to Section 439. It provides that High Court or Court of Session shall before granting the bail to a person who is accused of an offence under Sections 376(3), 376 AB, 376-DA or 376-DB of Indian Penal Code shall give a notice to the public prosecutor within a period of fifteen days from the date of receipt of notice of such application. 

Amendment Act of 2018 also inserted Clause (1A) to Section 439. It makes the presence of infor mant or any person authorized by him obligatory at the time of hearing for bail application of a person accused under Sections 376(3), 376-AB, 376-DA or 376-DB of Indian Penal Code.

Anticipatory Bail

Section 438 deals with the provisions relating to anticipatory bail. It empowers High Court and Session Court to grant anticipatory bail.

Meaning: The term 'anticipatory bail' has not been defined in the Code. The bail is granted in antici pation of arrest. When anticipatory bail is granted then in the event of arrest the person arrested in released on bail. Only after arrest the order granting anticipatory bail becomes operative. [Union of India v. Padam Narain, (2008) 13 SCC 305].

• The whole framework of anticipatory bail has been revised by Amendment Act of 2005. 

Who can grant anticipatory bail and when can it be granted?

According to Section 438 High Court and Court of Session can grant anticipatory bail. The person applying for grant of anticipatory bail must have 'reason to believe' that he may be arrested. Such reason must be founded on reasonable ground and it should not be mere 'fear'. Supreme Court in Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 observed that the applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that it must be founded on some reasonable grounds. It should not be some sort of vague apprehension. Anticipation of such arrest must be in respect of a non-bailable offence, it is immaterial whether the offence is cognizable or non-cognizable. It is also irrelevant whether the offence is under Indian Penal Code or any other law.

Section 438(1) lays down certain factors which are to be taken into consideration while granting antici patory bail. These factors are:-

(i) Nature and gravity of the accusation;

(ii) Antecedents of the applicant including the fact as to whether he has previously undergone im-prisonment on conviction by a Court in respect of any cognizable offence;

(iii) Possibility of applicant to flee from justice;

(iv) Whether the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.