A Brief About the Provisions of Regular Bail

The provisions related to bail are defined under chapter XXXIII of CrPC, 1973. The concept of bail is an important aspect of the Indian legal system that plays a crucial role in protecting individual rights and maintaining social justice. There are three types of bail, namely regular bail, interim bail, and anticipatory bail. Regular Bail allows the accused person to be released from custody on the execution of a bond, with or without sureties, while interim bail is granted to the accused for a short period during the pendency of their bail application.

Anticipatory bail is granted to a person apprehending arrest for a non-bailable offence. Section 437 and section 439 of the CrPC provide the accused the right to be released from custody. The Indian constitution’s Article 21 gives the right to life and personal liberty, which enables individuals to apply for bail when detained by any law. The provision for regular bail involves fulfilling certain conditions, such as producing sureties, giving an undertaking, and others, for the release of the accused

Definition and Concepts of Bail

The concept of bail refers to the release of an accused person from the custody of the police. The term ‘bail’ is not defined under the Criminal Procedure Code (CrPC), sections 437 and 439 talk about the provision related to bail. Bail can be granted in both bailable and non-bailable offences, but there are certain conditions to be done when granting regular bail in the case of non-bailable offences.

Section 437 of the CrPC discusses the provision for bail in cases of non-bailable offences. If the police have arrested an individual for a non-bailable offence, they can apply for bail, and it depends upon the discretion of the court whether or not to grant bail based on certain conditions.

On the other hand, section 439 talks about the provision granting powers to the high court or court of session regarding bail. These provisions are in place to ensure that the judicial system is fair and just and that an accused person is given the opportunity to defend themselves without being held in custody.

Types of offences

There are two types of offences defined under CrPC. The offences are defined as follows :

1.  Bailable offences – Bailable offences are those offences which are considered as less serious in nature and for which the punishment is imprisonment of 3 years or less than 3 years. Bailable offences are defined under section 2(a) of CrPC. In the cases of non-bailable offences, police have the power to grant bail to the accused person at the time of arrest with or without sureties.

 2.  Non-bailable offences – Non-bailable offences are those which are serious in nature and the punishment is imprisonment of 3 years or more. Section 2(a) defined, ‘non-bailable offences as any other offences. In cases of non-bailable offences bail cannot be granted by police. The competent Courts have the authority to release the accused on bail or not in case of non-bailable offences.

 Types of bails

1.      Regular bail – Regular bail is granted to accused individuals who are already in legal custody or jail. This type of bail allows the individual to be released from custody upon execution of a bond, either with or without sureties. The accused has the right to be released from jail under section 437 and section 439 of the CrPC.

2.      Anticipatory bail – Anticipatory bail is defined under section 438 of CrPC. Anticipatory bail is to be granted to those individuals who are apprehending arrest. In this, if a person thinks or knows that he may be arrested for a non-bailable offence, he may apply for anticipatory bail. Under section 438 one can apply for anticipatory bail. Anticipatory bail is bail before the arrest, and one cannot be arrested once the court grants the anticipatory bail to that person. After the anticipatory bail, the accused person has to present for the investigation by the police.

3.      Interim bail –  Interim bail is a bail which is provided for a short period of time. Interim bail is provided to the accused person before the actual bail hearing or anticipatory bail.

Conditions/grounds for regular bail

The conditions for obtaining regular bail in cases of bailable and non-bailable offences can differ. In case of bailable offences bail can be granted immediately but in case of non-bailable offences bail is not granted immediately.

In case there is no availability of evidence to prove the crime against the accused person. That the accused is suffering from any health issues, the accused is a minor or a female. The offences committed do not require punishment of imprisonment for 10 years or death or life sentence. Involvement in the crime of the accused, and no proof found during the investigation or during trial are certain grounds where bail can be granted to the accused.

Procedure for obtaining regular bail

The procedure for obtaining regular bail is as follows;

• The first step is filing a bail application before the competent court by the accused person through their counsel. The bail application must contain the conditions or grounds for bail and why the accused person may be released on bail. Also the relevant facts of the case and information about the accused person, background, character and relation to the crime. In a bail application, one can also mention judgment and case law to support the bail application.
• The second step is the order by the Court. After receiving an application for bail the court will consider whether to grant bail or not. It depends upon the discretion of the court. The court while deciding may consider factors such as the seriousness and nature of offences, evidence by the prosecution, tampering of evidence or witnesses by the accused etc.
• The final step is submitting a bail bond by the accused person if the bail is granted. The accused person may be released from custody by payment of a certain amount decided by the court. The bail bond is deposited as a guarantee that the accused person shall appear before the court as and when required. If the accused person does not appear before the court after bail the court has the right to cancel the bail bond and can issue a non-bailable warrant against the accused.

Bail in cases of non-bailable offences:-

The provisions related to bail in case of non-bailable offences are defined under 437 of CrPC,1973.

Bail is a fundamental right of every individual person. The purpose of granting bail is to protect the rights and liberties of the accused person until their trial concludes as it is a long process. In case of bailable offences bail may be granted immediately. But in the case of non-bailable offences bail is not granted immediately, as it depends on the discretion of the court, whether to grant bail or not. While granting bail in case of non-bailable offences, some factors must be taken into consideration. 

whether there are chances of absconding of the accused or attempt to tamper with the evidence, if they were released on bail and Medical needs, nature of the offence, criminal records of an arrested person, evidence in support of the prosecution case, age of the arrested person at the time of arrest, severity of punishment for example punishment for life imprisonment or death penalty, etc. 

If it seems to the court that there are no reasonable grounds or evidence to prove the offences or no evidence to prove the crime. Non- availability of witnesses or evidence during investigation, enquiry or trial of the case. whether the sureties are independent or indemnified by the accused persons.

In the case Nethra vs. State of Karnataka (2022), the High Court held that bail to a female applicant may be granted for a non-bailable offence even though the offence is punishable with life imprisonment or the death penalty.

Also granting bail in cases of non-bailable offences is at the discretion of the court. While granting bail there are some restrictions imposed on this power of court.

 Which court has jurisdiction /power over such matters

 In case of bailable offences, the bail can be granted by the police or cna forwarded to the magistrate court. Section 436 of CrPC talks about bail in case of bailable offences, according to the section the accused person as a matter of right can immediately be released on bail by police after receiving a bail bond from the accused.

In case of the offences alleged by the accused are both bailable and non-bailable then the offences shall be considered non-bailable offences. In this case, bail cannot be granted immediately. Section 436A defined that where an accused is an under trial prisoner other the offences for which the punishment is death, and has been in jail for a period of more than half of the punishment defined under IPC for the alleged offence he can be released on personal bond with or without sureties. 

The Supreme Court in the case of Rasiklal vs. Kishore Wadhwani, held that in case of a bailable offence as soon as it appears to the police or the Court that the accused is ready to furnish bail bond, the police or the Court is bound to release the accused on bail on such conditions as he may appear before the police officer or the Court when required. In bailable offences, bail is a right provided to the accused person.

Section 439 of CrPC, the High Court and Session Court have jurisdiction to decide matters of non-bailable offences.

Ground for cancellation of bail

There are certain grounds for cancellation of bail as follows;-

1.  In case of non-appearance before the court on the prescribed date and time.

2.  Misuse of bail granted to the accused by not following the terms and conditions on which the bail was allowed.

3.  In case of interference or attempt to interfere in the proceedings of the Court.

4.  Tampering with the evidence threatening witnesses or trying to interfere in the investigation.

5.  Possibility of trying to leave the State or the Country.

6.  Any other circumstances which can lead to an unfavourable, unjust trial. Involvement in any other offences or trying to commit any crime. 

Difference between the Indian and UK  bail law

The difference between Indian and UK bail law are as follows;-English law has separate laws relating to collateral. The UK Bail Act 1976 governs the procedures and provisions related to bail law. The main instrument of the law/legislation is to reduce the number of persons serving sentences in places of deprivation of liberty. 

The law also contains provisions facilitating legal aid for the accused. The act recognises bail as a general right. In India, the Supreme Court held that there has to be a separate law on bail as CrPC, despite several amendments remaining as original as drafted by British colonial. The Supreme Court held that “bail is the rule, jail is the exception”. 

Disposing of Bail applications is easier in the UK, and US than in India. In India, the CrPC is the primary legislation that deals with the law on bail, but the CrPC does not define bail. The Supreme Court suggests that the Indian Government may frame a similar bail law to The UK, after considering all aspects of a criminal trial.

Conclusion

The concept of bail is an important aspect of the Indian legal system, playing an important role in protecting individual rights and upholding social justice. There are three types of bail in Indian law. Sections 436, 437 and  439 of the Criminal Procedure Code refer to the provision of regular bail. The decision to release a person on bail remains with the court.

 A court may consider several aspects when granting bail for a crime not subject to bail. The accused must post bail and appear in court at the specified time and date. In the event of a no-show, bail may be revoked by court decision. When issuing bail, the court must consider the defendant’s education, income, employment and background. This is an important aspect of the criminal justice system because it ensures that a person is not detained without trial for an extended period of time.

This article has been contributed by Suhana, an Advocate.