Harshad Bandodkar

Assistant Professor
VVM’s G R Kare College of Law
 Introduction

 The object of arrest and detention of the accused person is primarily to

secure his appearance at the time of trial and

 To ensure that in case he is found guilty he is available to receive the

sentence.

 It is a matter of common experience that the judicial machinery, more

particularly in India, is ill-equipped to provide a speedy trial to the accused

in conformity with well-established principles of criminal jurisprudence.
 Important Definitions
 There is no definition of bail in the Code, although the terms “bailable

offence” and “non-bailable Offence” have been defined.

 The word Bail is derived from French verb-”baillier”, which meant “to give or

deliver”

 Law Lexicon-

 “security for the appearance of the accused person on giving which he is

released pending trial or investigation

 Concise Oxford English Dictionary
 “temporary release of an accused person awaiting trial, something on condition that

a sum of money is lodged to guarantee his appearance in Court”

 According to Black’s Law Dictionary

 to “procure the release of a person from legal custody, by undertaking that he/she

shall appear at the time and place designated and submit him/herself to the
jurisdiction and judgment of the court
 History
 The concept of bail can be traced back to 399 B.C, when Plato tried to create a bond

for release of Socrates

 In medieval England, the sheriffs originally possessed the sovereign authority to

release or hold suspected criminals

 The Statute of Westminster (1275) limited the discretion of sheriffs with respect to

the bail.

 Although sheriffs still had the authority to fix the amount of bail required, the

statute stipulates which crimes are bailable and which are not.
 In the early 17th century, King Charles I ordered noblemen to issue him loans.

Those who refused were imprisoned

 The Habeas Corpus Act 1679 states, "A Magistrate shall discharge prisoners from

their Imprisonment taking their Recognizance, with one or more Surety or

Sureties, in any Sum according to the Magistrate's discretion ….

 The Bail Act 1976 was enacted with the aims of creating more conditions by which

defendants could be denied bail and also redefining the parameters of fulfilling
bail
 Bail is the Rule, Jail is the Exception

 An accused person cannot be detained in judicial custody for a long time by

refusing him bail, if the legal system is not in a position to provide speedy
trial.

 If release on bail is denied to the accused, it would mean that though he is

presumed to be innocent till the guilt is proved beyond reasonable doubt, he

would be subjected to psychological and physical deprivation of jail life.

 Therefore Bail is intended to combine the administration of justice with the

liberty and convenience of the person accused.

 Granting Bail at Different Stages

 The question of grant or refusal of bail to accused arises at different stages of

investigation and trial.

 The said question also crops up after a person is convicted and during

appeal proceedings at different points of time.

 The decision regarding granting of bail can be reviewed any time during

investigation , trial or appeal proceedings in the light of fresh material and

new circumstances as the principles of res judicata does not apply to bail
 Nature of Bail Order and Objective

 Bail order is final and not interlocutory

 It helps assure reappearance of the accused and secondly.

 It prevents the un-convicted individuals from suffering

unnecessary imprisonment.
 Circumstances in which Bail is Mandatory

 1) In case of Bailable Offences-Sec.436 CrPC- Sec 478 of BNSS

 Where the arrestee is not accused of non-bailable offence and prepared to

give bail, such person shall be released.

 In all bailable offences, bail can be claimed as of right.

 But if a person fails to comply with 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 as he appears in the court.

  The only discretion available with the police is to release the accused either

on a personal bond or with sureties

 The Magistrate cannot authorize detention of a person who is willing to

furnish bail with or without sureties even for the purposes of aiding the
investigation.

 Vaman Narain Ghiya v. State Of Rajasthan 2009,

 It was observed The Court has no jurisdiction when granting bail under

section 436 cr.p.c, even to impose any condition except demanding of

security.
 2) Where investigation is not complete within time prescribed (Bail on
default (section 167(2) CrPC)- (Sec 187 (2) BNSS)
 A person arrested without a warrant cannot be detained by the police for

more than 24 hours.

 If the police officer considers it necessary to detain such a person for a

longer period for purpose of investigation, he can do so only after obtaining

special order of a Magistrate under S.167 CrPC- Sec 187 of BNSS.
 According to S.167(2)- (Sec 187 (2) BNSS), period of detention of

accused shall not exceed

 90 days where investigations relates to offences punishable with

death, LI of imprisonment of less than 10 years.

 60 days when investigation relates to any other offence

 Where investigation is not completed within prescribed period,

accused can apply for default bail.

 3) No reasonable grounds for believing that he has committed the
offence-Sec.437(2) CrPC- Sec 480 (2) BNSS (in non-bailable offence)

 Where a person accused or suspected of commission of any non-bailable

offence is arrested, and it appears to the court,

 At any stage of investigation, inquiry and trial, that there are no reasonable

grounds for believing that the accused has committed a non-bailable

offence,

 But there are sufficient grounds for further inquiry into his guilt, the

accused shall, be released on bail or with the discretion of the court on the
execution by him of a bond without sureties for appearance.
 4) Where trial is not over within prescribed period

 If, in any case triable by a magistrate, the trial of a person accused of any

non-bailable offence is not concluded within a period of 60 days from the

first date fixed for taking the evidence in the case,

 Such person shall, if he is in custody during the whole of the period, be

released on bail to the satisfaction of the magistrate , unless the magistrate

directs otherwise by recording reasons for doing so.
 5) where there are no reasonable grounds to believe accused
guilty-Sec.437(7) CrPC- Sec 480 (7) BNSS
 If at any time after the conclusion of the trial of a 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 on bail, if he is in custody, on execution by him

of a bond without sureties for his appearance to hear judgment delivered.

 6) Under Trial Prisoners- Sec 436A CrPC- Section 479(1) of BNSS

 Person undergoing sentence other than punishment of death or life

imprisonment can be granted bail if he has undergone one –half of the

maximum period of imprisonment specified for an offence

 In case of first time offender, the person can be granted bail if he has

undergone one-third of maximum period of imprisonment.

 Temporary release

 Cooperation is a must
 Thaniel Victor V. State

 It was held that , when a person is granted bail, he is deemed to be in the

custody of the court.

 Issma V. State of Up

 It was held that, as soon as an accused surrenders before a court, he submits

to the jurisdiction of the court and the right of the police to arrest him does
not exist thereafter.

 When an accused surrenders and is then released on personal bond, he

remains in the custody of court.

 Mohd Tariq V. Union of India

 The right to be released on bail cannot be nullified indirectly by

fixing too high the amount of bond or bail to be furnished by the

person seeking release.
 Different Types of Bail

 Regular Bail

 The Court orders the release of a person who is under arrest, from police

custody after paying the amount as bail money

 An accused can apply for regular bail under Sec 478, 480 and 483

 Interim Bail

 It is a direct order by the court to provide temporary and short term bail to

the accused until his regular or anticipatory bail application is pending

before the court.
  The SC noticed the misuse of interim bail by the accused in Rukhmani

Mahato V. The State of Jharkhand

 The court should exercise caution while dealing with interim bail

 Anticipatory Bail

 It is a direct order of Sessions or HC to provide pre-arrest bail to an accused

of crime

 When the person has an apprehension of being arrested the person can

apply for anticipatory bail.

 May go against the person, as it might alert the investigating agency