The Code of Criminal Procedure, 1978 is the basic law dealing with the Bail laws in India. Various amendments have been done in the said Code of Criminal Procedure but it remains the basic act for all kinds of criminal trials in Indian criminal law system. In Indian criminal laws the bails have been categorized in two broad categories which are bailable offence and non bailable offence. The Bail laws in India can thus be divided into two vertical parts and the various provisions of law dealing with the issue of Bail laws in India by the courts which are as under:
IN WHAT CASES BAIL TO BE TAKEN:
(1) When any person other than person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.
[Explanation:—Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.]
(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.
CrPC (Amendment) Act, 2005 has further amended the said provisions to the following effects:
In respect of bailable offences, a person has to remain in jail for his inability to furnish bail till the case is disposed of, Sub-section (1) has been amended to make a mandatory provision that if the arrested person is account of a bailable offence and he is an indigent and cannot furnish surety, the Court shall release him on his execution of a bond without sureties.
436A. Maximum period for which an under-trial prisoner can be detained:– Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishment under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties.
Provided further that no such person shall I any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation: In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. As remedial measure section 436A has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishment, has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.
437. WHEN BAIL MAY BE TAKEN IN CASE OF NON-BAILABLE OFFENCE:
(1) 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 a Court other than the High Court or Court of Session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such 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 of more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but not less than seven years].
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years of is a woman or is sick or infirm.
Provided further that the Court may also direct that person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
Provided also that the mere fact than an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.]
[Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.]
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail,] or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of or attempt to commit, any such offence, is released on bail under sub-section (1) [the Court shall impose the conditions,
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is suspected, and
(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 so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,
and may also impose, in the interests of justice, such other conditions as it considers necessary.]
(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its [reasons or special reasons] for so doing.
(5) Any Court which has released a person on bail under sub-section (1),
or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trail of person accused of a non-bailable offence and before judgment is delivered the Court is of 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, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
Cr PC (Amendment) Act, 2005 further amends the said section to following effect:
Section 437 has been amended to provide that if a person commits a cognizable and non-bailable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years, he shall not be released except in the circumstances specified in the provision.
If has further been provided that if an accused appears before the Court while in judicial custody and prays for bail, or prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the offence alleged to have been committed by the accused is punishable with death, imprisonment for life or imprisonment for life or imprisonment for not less than 7 years.
Under sub-section (3) the Court has got the discretion to impose certain conditions for the grant of bail. Under section 441(2), where any condition is imposed for the release of a person on bail, the bond shall contain that condition also. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witness, sub-section (3) has been amended to specify certain conditions, which are mandatory.
438. DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST:
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity or being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeming anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may thinks fit, including:
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant in conformity with the direction of the Court under sub-section (1).
Cr PC (Amendment) Act, 2005 has further amended the said section to the following effect:
Section 438 has been amended to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances; (ii) if the Court does not reject the application for the grant of anticipatory bail, and makes a interim order of bail, it should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties; and (iii) the presence of the person seeking anticipatory bail in the Court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.
439. SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL:
(1) A High Court or Court of Session may direct:
(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court Session may direct that any person who has been released on bail under this Chapter be arrested and commit him custody.
AN OVER VIEW OF THE LAW ON BAILS IN CRIMINAL LAW OF INDIA:
The criminal jurisprudence system in India presumes any body as accuse till he is not proved guilty hence the provisions relating to various cases of grant of bail has been inserted in the Criminal Procedure Code of India. The statutory provisions with regard to the bail provides a lot of discretion and freedom to the court concerned to grant or refuse the bail to an accused.
We can broadly categorize the cases as bailable and non-bailable cases which determine whether the accused is entitled to bail in criminal case or not. A detailed list of the offenses is given in the First schedule of the Code of Criminal Procedure, 1908 which enlist the nature of the offences and the courts before such offences are to be tried.
BAILABLE OFFENCE: Bailable offence means that a person can be granted bail by the police officer conducting the investigation in the case. The police officer may impose certain conditions for granting bail in such cases and ask the accused to fill some bonds which are called surities.
NON BAILABLE OFFENCES: In such offences the police officer has no powers to grant bail and he can only arrest the person and produce before the court concerned. The courts have the power to grant bail in such cases which is further categorized as various types of courts viz the court of Magistrate, court of Sessions judge etc.
One can easily say that to a large extent the discretion to grant bail is vested with the courts only who are trying the matter, in some cases the court of sessions or the High Court have the powers to grant anticipatory bail . The guiding factor is such cases is “Bail not Jail.”