BAIL PROVISIONS IN THE CODE OF CRIMINAL PROCEDURE (CRPC)

ABSTRACT

This research paper deals with bail provisions in the Code of Criminal Procedure (CrPC). The Code of Criminal Procedure, 1973 (CrPC) provides comprehensive provisions for bail, a mechanism designed to balance an accused individual’s right to personal liberty with the need for justice. Article 21 of the Indian Constitution guarantees the protection of life and personal liberty, encompassing the right to live with dignity and liberty. This fundamental right forms the basis for seeking bail when arrested. Bail ensures temporary release from custody under conditions that guarantee the individual’s appearance during investigation and trial. This document delves into the classification of offenses into bailable and non-bailable categories, the statutory provisions under Sections 436 to 439, regular bail, interim bail, anticipatory bail, default bail, and special considerations for vulnerable groups. Anticipatory bail was introduced under Section 438 of the Code of Criminal Procedure, 1973, and was recommended by the Law Commission of India in its 41st report to address the misuse of legal processes by influential persons filing false cases to harass or disgrace others. The provision ensures that individuals accused of offenses, who are unlikely to abscond or misuse their liberty, are not unnecessarily subjected to custody before being granted bail. Rooted in the legal principle of the “presumption of innocence,” anticipatory bail aligns with Article 11 of the Universal Declaration of Human Rights, which upholds the innocence of the accused until proven guilty. This provision reflects a balance between protecting individual liberty and maintaining justice.

KEYWORDS

Bail, Code of Criminal Procedure (CrPC), Anticipatory Bail. Bailable Offenses, Non-Bailable Offenses, Regular Bail, Interim Bail, Default Bail, Personal Liberty, Article 21 of the Constitution, Judicial Discretion, Bail Cancellation

INTRODUCTION

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”. – Justice V.R. Krishna Iyer.

‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. The term “bail” is not explicitly defined in the Criminal Procedure Code (CrPC), but it is referenced multiple times within the code and remains a crucial concept in the criminal justice system. It aligns with the fundamental principles outlined in Part III and Part IV of the Indian Constitution, as well as the protection of human rights as stipulated in international treaties and covenants.

Article 21 of the Constitution of India states that no person can be deprived of life or personal liberty except according to the procedure established by law. It guarantees fundamental rights for all persons to live with human dignity and personal liberty, thereby giving us the right to demand bail when arrested by any law enforcement authority.

The provision of bail, particularly anticipatory bail, is grounded in the legal principle of “presumption of innocence,” meaning that every individual accused of a crime is presumed innocent until proven guilty. This fundamental principle is outlined in Article 11 of the Universal Declaration of Human Rights.

According to Black’s Law Dictionary, bail refers to the act of securing the release of an individual from legal custody by providing a guaranteeing that the person will appear at the specified time and location and submit to the jurisdiction and judgment of the court.

MEANING AND CONCEPT

According to Black’s Law Dictionary, bail is defined as the “security required by a court for the release of a prisoner who must appear at a future time.” The purpose of arrest is to bring the accused before the court to deliver justice. However, if this goal can be achieved without arresting the individual, it is unnecessary to infringe upon their liberty. For this reason, bail allows for the conditional release of the accused.

The term “bail” refers to the conditional release of an accused from detention on a crime with a promise to appear in court for trial or any further judicial process. The main goal of bail is to preserve the freedom of the accused while protecting justice. This is under the law’s presumption of innocence. It involves facilitating the release of an accused person facing some charges; in this case, giving the assurance of appearing before other court proceedings and thus staying under the authority of the court. The aim of bail is to strike a balance between protecting individual liberty and ensuring justice is served in the interest of society.

The term “bail” is not explicitly defined in the Criminal Procedure Code (CrPC), 1973. However, the terms “Bailable Offense” and “Non-Bailable Offense” are defined in Section 2(a) of the CrPC. Provisions regarding bail and bail bonds are outlined in Sections 436-450 of the CrPC.

CLASSIFICATION

Bailable Offenses: According to Section 2(a) of the Criminal Procedure Code (CrPC), a bailable offense is an offense declared as bailable in the First Schedule of the Code or under any other applicable law. Where an offense is a bailable offense, bail is a matter of right of the accused. No one, not even the police, can withhold a grant of bail if the accused offers to give bail. According to Section 436 of the CrPC, 1973, a person arrested without a warrant for a bailable offense has the right to be released on bail at any time during custody or at any stage of legal proceedings. These are the offenses where granting bail is a matter of right for the accused. Some examples can be – Minor offenses like public nuisance, simple assault, etc.
Non-bailable Offenses: A non-bailable offense is any offense that does not fall within the bailable category. The accused in a non-bailable offense cannot claim his right to bail as a matter of right. Instead, it is left at the discretion of the court to decide whether to allow bail or not, depending on the conditions not being met. These conditions involve cases wherein there are justifiable reasons to believe that the offender committed an offense that is liable for capital punishment or life imprisonment. The accused may also be denied bail if the accused is charged with a cognizable offense and has been convicted previously for an offense punishable by death, life imprisonment, or imprisonment for seven years or more. The accused may also be denied bail if the accused has been convicted twice or more for cognizable and non-bailable offenses. The granting of bail in these cases is at the discretion of the court. Some examples can be – Serious offenses like murder, rape, or dacoity.

TYPES

In India, bail can be classified according to the type of offense, the stage of the legal proceedings, and the specific circumstances under which it is requested. The main categories of bail are as follows:

Regular Bail – Regular bail can be defined as the type of bail that is granted to a person who has been arrested and is in police or judicial custody. The provisions of this bail are mentioned under Sections 436 and 437 of the CrPC. Section 439 of CrPC grants special powers to the Sessions Court or High Court for bail in non-bailable cases. The purpose of granting this form of bail is to secure the temporary release of the accused until trial proceedings are concluded.
Interim Bail – Interim Bail or temporary bail is granted for a short duration until the application for regular or anticipatory bail is decided. This is granted at the discretion of the court to provide temporary relief until the court decides on the application for regular or anticipatory bail.
Anticipatory Bail – This form of bail is granted to a person who anticipates an arrest for a non-bailable offense and is governed under the provisions of Section 438 of the CrPC . The purpose behind granting such bail is to prevent undue harassment or arrest based on false or frivolous allegations. The key feature of this bail includes that it can be applied for before any actual arrest takes place and that the courts may impose conditions like surrendering a passport or regular reporting to the police.
Default Bail – The bail that is granted when the investigating agency fails to complete its investigation and file a charge sheet within the prescribed statutory period is known as Default bail. Section 167(2) of the CrPC governs the provisions of a default bail and its purpose is to prevent indefinite detention of the accused. The time limit provided to be detained for offenses punishable with imprisonment of 10 years or more is 90 days and for other offenses is 60 days.
Bail on Bond – Bail on bond is a form of bail where the accused is released from custody after signing a bond, often with a surety, assuring their presence in court when required. The bond is a lawful commitment in which the convicted person or the surety agrees to pay a predetermined amount if the convicted one fails to fulfil the agreed bail conditions, for instance, attending hearings. This type of bail ensures the accused has a financial responsibility to attend court proceedings, motivating them to comply with the legal requirements.
Special Provisions for Certain Categories of Individuals –

6.1 – Bail for Women, Children, and Infirm Persons – Pregnant women and mothers of young children are generally given leniency. Juveniles, who are subject to the Juvenile Justice (Care and Protection of Children) Act, 2015, are also treated with emphasis on rehabilitation rather than detention. And, in cases of infirm persons, the courts may grant bail on humanitarian grounds.

6.2 – Bail Under SC/ST (Prevention of Atrocities) Act, 1989 – Certain provisions under this act limit the granting of anticipatory bail to individuals accused of committing offenses against members of Scheduled Castes or Scheduled Tribes.

CANCELLATION OF BAIL

The cancellation of bail granted involves revoking the bail previously granted to an accused due to a violation of its conditions or new circumstances that warrant such a decision. This ensures that bail is not misused and that the accused does not obstruct the course of justice. Under Section 437(5) of the CrPC, the court that granted the bail has the authority to cancel it if necessary under certain conditions. According to Section 439(2), the Sessions Court, High Court, or Supreme Court can cancel bail on their own initiative and order the accused’s detention. Additionally, under Section 389(2), an appellate court can revoke the bail and direct the accused to be arrested and taken into custody.

The cancellation of bail can occur for several valid reasons. One of the primary grounds is the breach of conditions, where the accused fails to adhere to the terms set during the grant of bail, such as leaving the jurisdiction or failing to appear for court hearings. Another ground is the misuse of liberty, which involves engaging in unlawful activities while on bail, such as threatening witnesses or tampering with evidence. Non-appearance in court without a legitimate excuse is also a reason for bail cancellation. Additionally, if new evidence emerges that suggests the accused poses a greater risk to justice or society, it can lead to the revocation of bail. Interfering with the investigation or trial by attempting to influence witnesses or officials is another valid ground for the cancellation. Lastly, if the release of the accused threatens public safety or order, bail may be cancelled to protect the community.

The procedure for the cancellation of bail begins with the filing of an application, which can be made by the prosecution, the complainant, or any party affected by the bail. The jurisdiction for such an application depends on the court that granted the bail. According to Section 437(5), the court that initially granted the bail can handle the cancellation, while under Section 439(2), the Sessions Court or High Court has the authority to cancel the bail. A hearing is then conducted where the accused is allowed to explain their conduct and respond to the allegations against them. If the court finds sufficient grounds for cancellation, it may revoke the bail and order the arrest of the accused.

LANDMARK CASE LAWS

Several key landmark cases in India have played a crucial role in shaping the interpretation and application of bail provisions under the Criminal Procedure Code (CrPC). These cases have clarified important aspects such as the principles for granting bail, the discretion of the courts, and the conditions under which bail can be granted or revoked. The judgments from these cases have established foundational principles and guidelines that continue to influence the criminal justice system.

One of the landmark judgments is Brij Mohan v. State of Haryana (2013) 8 SCC 115, wherein the Supreme Court held that in cases of non-bailable offenses, denial of bail cannot be on the grounds of the seriousness of the offense. The Court stressed that factors like the seriousness of the charge, the likelihood of the accused fleeing, and the danger of intimidating witnesses must be weighed before bail can be granted or denied. It reiterated the principle that bail should be the norm, not jail.^[1]
Another landmark judgment dealt with the issue of detention of undertrial prisoners for a long time, which, according to the Court was unconstitutional as it violated Article 21 of the Constitution, which guarantees the fundamental right to personal liberty. Hussainara Khatoon v. Home Secretary, State of Bihar (1979) 3 SCC 791. The case highlighted the right to seek bail for undertrials who had been in custody for unreasonable lengths of time without a trial, reinforcing that the right to bail is crucial to upholding personal liberty.^[2]
In State of Rajasthan v. Balchand (1977) 4 SCC 308, the Supreme Court propounded that bail is the rule and jail is an exception. It was of the view that the question of granting bail should not depend on the nature of the offense but should rather consider the conduct of the accused, the likelihood of his absconding, and the possibility of the evidence being tampered with. The Court thus established the rule that courts must consider all relevant circumstances before denying bail.^[3]
In the case of K.K. Verma v. Union of India (1957) AIR 1967 SC 130, it was again held that granting of bail in non-bailable offenses is within the discretion of the court and it has to be exercised having regard to the gravity of the offense, likelihood of the accused fleeing from justice, and whether he might intimidate witnesses.^[4]
D.K. Basu v. State of West Bengal (1997) 1 SCC 416, which deals with custodial violence, indirectly impacts the bail provisions by reiterating the importance of personal liberty and the procedures governing arrest and detention. The judgment stresses that bail is a basic safeguard to prevent arbitrary detention.^[5]
The case Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 expanded the scope of anticipatory bail under Section 438 of the CrPC. The Court ruled that even for non-bailable offenses, anticipatory bail could be granted if there were no concerns about the accused absconding or tampering with evidence. This judgment broadly expanded judicial discretion in granting anticipatory bail.^[6]
In Maneka Gandhi v. Union of India (1978) 1 SCC 248, the Supreme Court made an important observation on personal liberty under Article 21 of the Constitution: “Any unlawful detention or refusal of bail without sufficient reason would violate the constitutional right to life and liberty.” Though it was not a case about bail, it contributed to the general understanding of bail as protection against arbitrary detention.^[7]

CONCLUSION

The bail provisions under the CrPC aim to balance individual liberty with the needs of public safety and justice. While bail for bailable offenses is a guaranteed right, courts have discretionary power in granting bail for non-bailable offenses, considering the interests of justice and public order. The system ensures that individuals are not deprived of their freedom without due process, as enshrined in Article 21 of the Constitution. Section 438, which provides for anticipatory bail, plays a vital role in protecting the liberty of individuals who may face unjust arrest based on non-bailable offenses, reflecting the presumption of innocence. However, it is important to note that anticipatory bail is not an automatic right, and courts have emphasized the need for its cautious application.

Despite these robust legal safeguards, the system faces several challenges. Judicial discretion in granting bail can sometimes lead to inconsistent outcomes, while socioeconomic disparities and procedural delays continue to undermine the fairness and efficiency of the bail process. The legal framework needs to be continually reformed to address these challenges and ensure a more equitable and transparent bail system. It is essential that the bail process not only upholds the constitutional rights of individuals but also ensures that justice is administered fairly and impartially.

The bail provisions under the CrPC serve as a crucial safeguard for individual liberty, ensuring that the accused are not unjustly detained and can prepare for their trial. However, it is equally important to recognize the need for reforms that address the complexities of judicial discretion, procedural delays, and other systemic challenges. By maintaining a balance between individual rights and public safety, the bail system can contribute to a just and equitable legal process, upholding the principles of justice and human rights.

REFERENCES

Waghmare, S. (2021). Bail provisions under the Code of Criminal Procedure. [online] ipleaders. https://blog.ipleaders.in/bail-provisions-under-the-code-of-criminal-procedure/ ( Last accessed – December 12, 2024 (Anon., n.d.) (Kelkar, 2021) )
(Anon., n.d.) https://www.iilsindia.com/study-material/320679_1601207180.pdf
R.V. KELKAR’S CRIMINAL PROCEDURE, 6TH EDITION, 2016 (Waghmare, 2021).
SARKAR, THE CODE OF CRIMINAL PROCEDURE.
The Indian Constitution Art. 21
Code of Criminal Procedure, 1973 § 167 cl. (2)
Code of Criminal Procedure, 1973 § 2 cl.(a)
Code of Criminal Procedure, 1973 § 436
Code of Criminal Procedure, 1973 § 437
Code of Criminal Procedure, 1973 § 438
Code of Criminal Procedure, 1973 § 439

^[1] Brij Mohan v. State of Haryana (2013) 8 SCC 115

^[2] . Hussainara Khatoon v. Home Secretary, State of Bihar (1979) 3 SCC 791

^[3] State of Rajasthan v. Balchand (1977) 4 SCC 308

^[4] K.K. Verma v. Union of India (1957) AIR 1967 SC 130

^[5] D.K. Basu v. State of West Bengal (1997) 1 SCC 416

^[6] Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565

^[7] Maneka Gandhi v. Union of India (1978) 1 SCC 248

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