Bail in India | Top 3 Considerations of Bail in India: Complete Guide

Webster’s Dictionary defines bail in India as “a security given for due appearance of prisoner in order to obtain this release from imprisonment; a temporary release of a prisoner upon security”. Following is a detailed account of what is bail and how one can avail bail in India.

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Introduction: Bail in India

Every Indian citizen has a fundamental right to freedom guaranteed under Article 21 of the Indian Constitution, which specifically states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” However, anyone who violates this law is bound to face penalties. In such a case, his freedom may be restricted depending upon the intensity of the crime that is committed. Every accused whom the state has charged with the accusations of a non-bailable offence can not only avail to a good defense but the authorities may also release him/ her on bail.

Concept of Bail in India

Generally, bail means the discharge of an accused person on a temporary basis. The term bail has been derived from the French word ‘bailer’ meaning ‘to deliver or to give’. The provisions in context with the bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code. 

Bail as a concept acts as security, the accused person blocks, on the basis of which he can be released on a temporary basis. It should also be noted that the person needs to appear in court whenever demanded by the court. 

The course of bail is ongoing beside the trial of the accused person which might be still pending. The bail procedure in India is a legitimate practice. Generally, a person seeks this alternative in order to avail his release per from the police custody. 

Concept of Security
Bail in India

Grounds for Bail to be granted

India is a democratic nation and the basic notion of democracy is that every individual must have personal liberty and freedom. It is the foremost right of an individual which is protected by the state. Thus, the law of bail in India and personal liberty goes hand in hand. Furthermore every individual including the accused individual has the right to seek bail in order to get him discharged from custody until and unless proven guilty by the legal system. 

The basic agenda behind arresting and detaining a person behind the jail is that when the accused is required by the court during the trial, he must appear for the same. The bail procedure in India is a complex mechanism; it is measured to be very delicate and conflicting at the same time. 

Sometimes when the bail is not given to the accused person it may curtail the liberty of the accused innocent. But at the same time granting bail may effect in giving extra-liberty and freedom to the real culprit.

Considerations while granting bail by the Court

How does it work?
How does Bail Work?

While judging bail applications, the Courts cannot go into the question of credibility and dependability of the witnesses put up by the prosecution. The inquiry of credibility and reliability of prosecution witnesses can only be tested during the trial. The Supreme Court has stated few factors to be taken into contemplation, before granting bail in India.

Top 3 considerations while granting bail in India by the court

  1. The nature of allegation and the severity of sentence in case of conviction and the nature of supporting proof 
  2. Reasonable hesitation of tampering of the witness or apprehension of threat to the complainant
  3. Prima facie (first hand) approval of the Court in support of the charge

At times certain matters need investigation for the Court to effectively decide upon the bail application (format below): 

  1. Whether there is or is not a practical ground for believing that the applicant has committed the offence 
  2. The nature and severity of the charge
  3. The severity of the sentence which might fall in the particular circumstances in case of a conviction
  4. The likelihood of the applicant absconding, if discharged on bail
  5. The character and status of the candidate
  6. The likelihood of the offence being constant or repeated on the assumption that the accused is responsible of having committed that offence in the past
  7. The likelihood of the witnesses being corrupted with
  8. Opportunity of the applicant to arrange his defense on merits

Bail in India Application Format PDF

Circular for Bail Application with Bail Format.pdf– Click to download.

It is necessary that the Courts should provide investigating authorities with realistic time to carry out their investigations. It is similarly necessary that the Courts strike a correct balance between this condition and the equally convincing consideration that a citizen’s liberty cannot be curtailed unless the facts and circumstances completely justify it. 

Upon the interpretation for the bail application under Section 437 CrPC, it is examined that the legislature has used the words “reasonable grounds for believing” instead of “evidence”. Thus, the Court has merely to assure as to whether the case against the accused is genuine and whether there is prima facie evidence to maintain the charge.

The Court, at the instance of adjudicating bail applications, after taking such factors into account, is at authorization to impose reasonable conditions to be put up with by the applicant.

Types of Offences under Bail in India

Bailable Offence 

It is the kind of offence in which an accused person is granted bail. This type of offences is usually punishable by the court with less than three years of imprisonment. In this offence the chances of getting bail in India are much elevated. 

Bailable offence- Bail in India
Bailable offence

Under Section 2(a) of the code and Section 436 of Code of Criminal Procedure, 1973, lays down that an individual accused of bailable offence under IPC can be granted bail. Conditions for bail in bailable offence are:

  1. There are adequate reasons to believe that the accused has not committed the offence.
  2. There is sufficient reason to perform further enquiry in the matter.
  3. The individual is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

Non- bailable Offence

It is the type of offence for which an accused individual is not entitled to get bail in India. These are the offences which are non-bailable in nature and are not revealed as bailable under the first schedule of the code.  These offences are grievous in nature in comparison to bailable offences. 

In the case of non-bailable offences the sentence is three years or more. Section 437 of Code of Criminal Procedure, 1973 says that the accused does not have the right to apply for bail in non-bailable offences. It is prudence of the court to grant bail in case of non-bailable offences. But there are some exceptions in non- bailable offence:

Non Bailable offence- bail in india
Non Bailable Offence
  1. If the alleged is a woman or a child
  2. There is lack of proof 
  3. If there is hindrance in lodging FIR by the accuser
  4. Or if the accused is fatally sick.

Types of Bail in India

Anticipatory Bail

Under Section 438 of the code, the term anticipatory bail is the bail granted by the court in anticipation of the capture. When this bail is granted to an individual it ensures that in case if the person is arrested in the near future then such person shall be discharged on this anticipatory bail in India. No questions can be raised on the discharge unless the person executing this bail is arrested.  Therefore it relies upon the arrest that the order granting such bail becomes operative.

The following provision of section 438 of the code was suggested by the law commission. On its 48th report, they stated that, when any person having the reasonable uneasiness that he may be accused of committing the offence of non-bailable character then such person can apply for anticipatory bail in the high court or the sessions court. 

Anticipatory bail in india
Anticipatory Bail

The role of the court having capable authority shall give him direction under section 438 of the code that during the time when he gets arrested he shall be released on bail. Although following conditions should be considered while approving or rejecting the application filed for anticipatory bail in India:

  1. The accusation made shall be crucial and serious
  2. Likelihood of the candidate to flee or abscond from justice
  3. When the accusation is made with the purpose of humiliating or injuring the person by making him arrested through that accusation
  4. The applicant filing for the anticipatory bail shall have the practical apprehension of getting arrested
  5. It is the obligation of the person to appear or make himself available when required by the police officials for the inquiry.
  6. The applicant shall not go outside the territory of India without taking the former permission of the court.

Temporary Bail

Every court which has command to try bail matter has authority to allow a temporary bail or parole to an accused. Temporary bail means the accused is freed from custody or jail for specific time. Only after conclusion of that time the accused has to return to jail or in custody as the case may be. Parole is another variety of temporary bail.

Objective of Granting one
Temporary Bail

Interim Bail

Mostly Interim Bail is granted to the offences which involve traveling. It is also granted to women, children, people who have crossed the age of 70 years or to the students who are appearing for any test. This must be noted that interim bail does not indicate that in future date regular bail in India may be granted. It can be granted only on merit source. 

The only situation where interim bail may not be granted is in offences which has death punishment. But this condition does not apply to women, children and aged person. Where an order of interim bail in india has been approved in favor of accused the ordering authority cannot impose any condition while granting bail.

Interim Bail
Interim Bail

Distinction between Bail and the Anticipatory Bail

Under section 437 of the code, it has been declared that a regular bail is accessible. It is granted to a person after the arrest when he is in the legal or police custody.  However, an anticipatory bail in India is available before arrest or if the person has reasonable apprehension of capture.

Factors to consider while Granting Bail

The Courts in India have accepted liberal use of discretionary power of bail in order to avoid the long pre-trail imprisonment. The Courts in India typically keep the following factors into consideration while exercising their discretionary powers:

  1. The nature of allegation
  2. The nature of the proof in support of the accusation
  3. The severity of the punishment which conviction will involve
  4. Whether the sureties are self-sufficient or indemnified by the accused

On the other hand, if the crime charged is of the highest extent, then the court may reasonably assume that no amount of bail would secure the presence of accused at the stage of sentence.

stamp, imprint, release

Regarding the monetary surety in furnishing the bail, the Supreme Court emphasized upon the following dynamics to be kept into account:

  1. Residence in the society
  2. Employment, status, family ties and relations
  3. Reputation, temperament and monetary position
  4. Prior criminal traces
  5. The record of responsible members of society who would vouch for his reliability
  6. The nature of offence charged and the apt sentence for the crime
  7. Any other issue indicating the ties of the community or bearing on the risk of willful failure to appear

The accused, therefore, in appropriate scenarios, after considering the above dynamics, should be discharged on his personal bond without monetary obligation. 

Grounds for Cancellation of Bail

Bail in India once awarded can be cancelled only under special circumstances. Thus, Section 439 of the code presents very wide powers on the High Court and the Session Court. The ground for cancellation of bail should be those which arose after the grant of bail. Also it should be preferable to the behavior of the accused while on bail. 

Submission of charge-sheet following to admission of bail in exercise of the power under proviso (a) to Section 167 is not an enough ground for cancellation of bail. The order cancelling bail should not be subjective, even if the bail was granted in a non-bailable offence. Following are some of the vital grounds on which bail may be cancelled:

  1. When the accused continues or repeats the identical offence while he is on bail
  2. Where the accused tampers with the prosecution proof or otherwise impedes the course of justice
  3. Or where fresh proof for believing that the accused has been responsible of an offence punishable with death or imprisonment for life has been discovered
  4. Where bail is granted in mistaken exercise of discretion
  5. Or where the accused runs away to a foreign country or goes underground or beyond the management of his sureties
  6. When he commits acts of aggression, in revenge, against the police and the prosecution spectator 

FAQ’s regarding Bail in India

Is release on bail in india, mandatory?

In the case of bailable offence it is mandatory to award bail to the arrested person and in case of non-bailable offence it depends upon the prudence of the court. 

What is the maximum period for which an under-trial prisoner can be in custody? 

Under section 436 A of the code, the detention phase for an under-trial prisoner (except for the one who is accused of the criminal offences punished by with death or life imprisonment) shall be released from detention if the person has been detained for one half of the maximum sentence offered for the offence committed by him.

When may bail be taken in case of non-bailable offences?

It depends upon the judgment of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds.

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