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About BAIL

"A person is innocent unless proven guilty,”

Indian criminal justice system is based on the presumptions of innocence. Presumption of innocence refers to the belief that a person is innocent until convicted or proven guilty. Hence, if a person is accused of committing a crime or other conduct contrary to the law and is arrested for trial, he has the right to be released on the condition that he would follow the court's instructions. Bail is the legal term for conditional release. It can be described as the conditional release of a criminal suspect from police or judicial custody in lieu for his appearance in court when needed or his continued presence within the jurisdiction of said court. Black’s Law Dictionary defines a bail as “the security required by a court for the release of a prisoner who must appear at a future time.”  

Types of Bail in Indian Judicial System

1. Regular bail: An individual accused of a crime may seek bail under sections 437 and 439 if that person is already been arrested and is kept in police custody. Hence, regular bail is the release of an accused person from custody in order to ensure his appearance at the trial.

2. Interim bail: Interim bails can be granted pending the disposal of the main bail application which may require a longer time to decide. It's a crucial provision since the accused is in danger of being arrested before his bail application is heard. Supreme Court judgment in Lal Kamlendra Pratap Singh v. State of UP[1] stated that in appropriate cases, “interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation”.

3. Anticipatory bail: Anticipatory bail is a direction to release a person on bail that is issued even before the arrest. It is also referred as “pre-arrest bail”. This provision allows a person to seek bail in advance of an arrest on suspicion of a non-bailable offence. It is only issued by the Sessions Court and High Court under section 438 of Cr.P.C.[2] Anticipatory bail is granted under three conditions:

• The individual must make himself available for interrogation by a police officer as needed.
• A person must not, directly or indirectly, provide any enticement, threat, or promise to any person familiar with the facts of the case in order to persuade him not to reveal that information to the court or to any police officer.
• Without the consent of the court, the person may not leave India.

In the case of Gurbaksh Singh Sibbia v. State of Punjab[3], it was decided that section 438 of the Criminal Procedure Code was designed to safeguard persons who are falsely accused by their rivals in order to disgrace them or imprison them for other reasons.

4. Bail after conviction: After being convicted, a person can ask for bail in appellate court after filling the criminal appeal. Section 389 of Cr.P.C.[4] contains the provisions related to bail after conviction.

5. Bail on Default: According to Section 167(2) of the Criminal Procedure Code[5], if the investigation is not completed within the allowed maximum period of 24 hours from the time of arrest, the accused is to be released on bail, regardless of the nature of the accusation. If an individual is held and the matter is under investigation, the individual must be released after 90 days if the investigation team fails to finish the probe in those 90 days. However, in that instance, the offence under investigation must be punishable by death, life imprisonment, or a minimum of ten years in jail. For any other offence, on failure of filing charge sheet within 60 days, person has to be released after this time frame.                                                            
6. In Sanjay Dutt v. State, Through CBI[6], the court decided that if the accused person does not make an application to "avail" the right before the charge sheet is filed, the court will not grant bail.

Section 436(a) 

This section specifies maximum period for which an under trial prisoner can be detained. If the offender has been detained for more than half of the term of imprisonment prescribed for that offence throughout the trial, the Court may release him on personal bail with or without sureties. In a series of decisions, the Supreme Court has stated that speedy trial is a fundamental right of an accused under Article 21 of the Indian Constitution, and that if this right is violated, the judiciary can restore it via bail. This right, however, is not absolute and is contingent on the facts of the case. Furthermore, the offence must not be punishable by death in order to qualify for relief under this clause.

In the case of Bhim Singh v. Union of India[7], the Supreme Court ordered that jurisdictional Magistrates/Sessions Judges identify under-trial prisoners who had served half of the maximum term of imprisonment prescribed for the crime and issue an appropriate judgement releasing them on bail.

Circumstances when bail is granted by police:

In the case of a bailable offence, the police have the authority to grant bail; however, once the challans are filed in court, the accused person must fill out the prescribed bail bond in order to receive regular bail from the court.

Rights if Arrested 

1. When a person is arrested by the police, he has the right to know what crime he is accused of committing.

2. It is the duty of the police officer to notify the accused's nearest relatives of his arrest.

3. If a person is arrested for a bailable offense, he is entitled to be released on bail immediately at the police station upon furnishing a reasonable bail bond.

4. An individual cannot be detained in police custody for more than 24 hours.

[1] Lal Kamlendra Pratap Singh v. State of UP , AIR 2009,  4 SCC 437

[2] THE CODE OF CRIMINAL PROCEDURE, 1973, § 438, No. 2, Acts of Parliament, 1973 (India).

[3] Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632

[4] THE CODE OF CRIMINAL PROCEDURE, 1973, § 389,  No. 2, Acts of Parliament, 1973 (India).

[5] THE CODE OF CRIMINAL PROCEDURE, 1973, § 162(2),  No. 2, Acts of Parliament, 1973 (India).

[6] Sanjay Dutt v. State, Through CBI , AIR 1994, 5 SCC 410

[7] Bhim Singh v. Union of India, AIR 2015, 13 SCC 605