The concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
The institution of bail like any other branch of law has its own philosophy and to understand the same it is necessary to go through its various stages No one can question the importance of bail in the administration of criminal justice system and it is a very valuable branch of procedural law.
History of bail Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
In the ancient period, criminal justice was so quick and the crime rate was so the law that the criminal trial got concluded in a day or two. That is why the provision of bail was unknown to society. With the passage of time the criminal trials got delayed day by day and a basic principle of law developed that one cannot be convicted unless the guilt of a person is not proved. On the basis of the principle, it was deemed unjust to keep a person behind the bar on the basis of an assumption that his guilt is likely to be proved after the conclusion of a trial. The concept of bail emerged to save a person from the police custody which may be for a longer period because the justice delayed has become the normal phenomenon of our criminal justice.
Meaning of Bail Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
Webster’s Dictionary defines bail as follow:
“Bail is security given for the due appearance of a prisoner in order to obtain this release from imprisonment; a temporary release of a prisoner upon security; one who provides bail.
The word “bail” has, nowhere, been defined in the Code of Criminal Procedure. The old and the new Code have defined the expression “bailable” and “non-bailable offences” in section 4(1)(b) and section 2(a) respectively Bailable offence has been defined to mean an offence which is made bailable by any law for the time being in force, and the expression “non-bailable” to mean any offence other than bailable
Object Behind the Grant of Bail Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
The basic goal 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 in court for the trial. The process of bail is a complex mechanism, it is considered to be very delicate and conflicting at the same time. The reason it is very delicate is that an accused seeks for bail when the trial is pending in the court and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not granted to the accused person it may curtail the liberty of the innocent accused or while granting bail may result in giving extra-liberty and freedom to the actual culprit.
Kinds of Bail under the Code of Criminal Procedure
The basic rules of grant or denial of bail may simply be summarized as:
- There are only two kinds of offences bailable and non-bailable offences
- In case of bailable offences section 436 CRPC it is the right of accused to demand and be granted bail.
- The certain basic criteria while exercising his judicial discretion for grant or denial of bail in case of non-bailable offences has been laid down in section 437 Carps in the cases related to non-bailable offences. Some of these criteria include the nature of the offence, past criminal records and probability of guilt.
Bailable Offences – Section 436 of the Code of Criminal Procedure
The right to claim bail granted by this section in a bailable offence is an absolute and indefeasible right and there is no question of discretion in granting bailFurther, Section 50 (2) makes it obligatory for a police officer affecting an arrest without a warrant in a bailable offence to inform the accused of his/her right to be released on bail. Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
This section provides as follows:
- That when a person not accused of a non-bailable offence is arrested or detained, s/he can, as of right, claim to be released on bail, if s/he is prepared to give bail
- Such police officer or court may, instead of taking bail from the accused person, discharge him/her on executing a bond without sureties for her/ his appearance
- The section covers all cases of persons accused of bailable offences and, against whom security proceedings have been initiated under chapter VII of the Code
Read Also: Regular, Interim and Anticipatory Bails under Code of Criminal Procedure Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
In Vinod Bhandari Versus State of M.P. 2015, the Hon’ble Supreme court noted that the real reason for not granting bail to an accused is to ensure his availability during the trial. In this case, as the amount of investigation that had to be covered was huge, the Supreme Court noted that even though the concerns of the High Court could be true, the accused cannot be put in jail for an indefinite time as the case date was not fixed.
“Delay in commencement and conclusion of the trial is a factor to be taken into account and the accused cannot be kept in custody for an indefinite period of the trial is not likely to be concluded within a reasonable time.”
Non-Bailable Offences – Section 437 of the Code of Criminal Procedure
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 a High Court or court of session, he may be released on bail, subject to the two exceptions provided in Section 437
These exceptions will not apply to a person under the age of 16, a woman or a sick and infirm person.
The word ‘may’ in this provision clearly indicates that the police officer or the court has got discretion in granting bail. However, there are certain principles which should guide police officers and the courts in the exercise of this discretion. Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
“The courts can for guidance look to the following circumstances-
(i) The enormity of the charge,
(ii) The nature of the accusation,
(iii) The severity of the punishment which the conviction will entail,
(iv) The nature of the evidence in support of the accusation,
(v) The danger of the accused person’s absconding if he is released on bail,
(vi) The danger of witnesses being tampered with,
(vii) The protracted nature of the trial,
(viii) Opportunity to the applicant for preparation of his defence and access to his counsel,
(ix) The health, age and sex of the accused,
(x) The nature and gravity of the circumstances in which the offence is committed,
(xi) The position and status of the accused with reference to the victim and the witnesses,
(xii) The probability of accused committing more offences if released on bail, etc.,
(xiii) Interests of society”
Compulsory / Default Bail under section 167(2) of the Code of Criminal Procedure
The time limit of 60/90 days when the accused can be remanded was fixed to put pressure on the police to complete the investigation at the earliest. The failure of the police to do so and file the charge sheet within the prescribed time of 60/90 days will entitle the accused to compulsory bail’. Further, when the investigation into an offence which triable by a magistrate as a summons case is not concluded within 6 months from the date of the arrest of the accused, the magistrate has to make an order stopping a further investigation into the offence, subject to certain conditions.
Calculation of 60/90 days for default bail Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
The period of 60/90 days is to be calculated from the date when the accused person is first produced before the magistrate and an order is passed remanding her/him to such custody as the magistrate considers necessary, and not from the date of arrest.10 While calculating the period of 60/90 days under section 167(2) (a), the period of detention authorized by the magistrate under section 167(2) must be included.11 In offences where the sentence up to 10 years’ imprisonment is provided, the challan has to be filed within 60 days and in cases where the sentence period is not less than 10 years, challan has to be filed within 90 days.
In Jigarmayur Bhai Shah Versus State Of Gujarat, the Hon’ble Gujarat High Court held that “It is not mandatory or obligatory on the part of the Magistrate to enlarge the accused on bail, once the period of sixty days from the first date for taking evidence is over. There is an inbuilt exception. Reliance was placed on an Orissa High Court judgment, Chhabi v. State of Orissa; 1995(2) Cri 2773. Hence, it was held that depending upon the facts and circumstances of the case, the gravity of the offence, quantum of punishment and the manner in which the petitioner was involved in the offence, the petitioner shall not be enlarged on bail for reasons to be recorded despite the completion of the period of sixty days.”
Anticipatory Bail under section 438 of the Code of Criminal Procedure
Under section 438 of the code, it has been stated that the term anticipatory bail can be understood through the expression anticipatory. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person is arrested in the near future then such person shall be released on this anticipatory bail. No questions can be raised on the release unless the person executing this bail is arrested and therefore it totally depends upon the arrest that the order granting such bail becomes operative.
Conditions under section 438 of the code involve the following things.
- The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
- The arrest of such person shall be in respect of the accusation of him committing the non-bailable offence or cognizable offence and the courts having competent jurisdiction shall direct that in the event of the arrest the person shall be released.
In Shri Gurbaksh Singh Sibbia And Others Versus State Of Punjab Supreme Court Of India Held That “The filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. Anticipatory bail can Be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. A ‘blanket order’ of anticipatory bail should not generally be passed”
Bail During Revision / Appeal before Session Court of High Court Under Section 389 Cr. P.C.:
- The Sessions Court and the High Court in the exercise of revision and appellant power can call for records of inferior courts for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. When such revisional or appellant Court calls for the record of an inferior Court, he may direct that the execution of the sentence or order be suspended and, in case the accused is in confinement, then he may be released either on bail or on his own bond pending the examination of the record. Bail u/s 437, 438, 439, 167(2) and 389 of the Code of Criminal Procedure
Author: This article was written by Ishmeet Kaur, B.A. LLB, student of Government Mohindra College, Patiala.
Note: For any further information or any query you may contact us on 9855677966 or via email info@bhandarilawfirm.com
