Intricacies of Bail in India: Unveiling Different Categories and Impacts

Introduction

Article 21 of the Indian Constitution grants the right to life and personal liberty to every individual. It upholds the fundamental right to live with dignity and personal freedom, which includes the entitlement to seek bail when detained by any law enforcement agency. In India, bail is the legal mechanism that reconciles the accused person’s right to freedom with the public interest of ensuring their appearance in court for trial. It involves the judicial release of an accused person from custody, subject to the condition that they will appear in court at a later stage. Criminal offenses in India are categorized as bailable and non-bailable crimes.

The provisions and regulations pertaining to bail are outlined in the Code of Criminal Procedure, 1973, specifically from Section 436 to 450. Section 436 stipulates that a person accused of a bailable offense has the right to be released on bail at any stage of the legal proceedings. This means that even if a person is arrested for a bailable offense, they can be promptly granted bail. It is the accused person’s right to obtain bail under this section, and neither the court nor the investigating officer can refuse it.

Section 437 defines the non-bailable offences, bail can be granted at the discretion of the Court on the conditions given under this section. It refers to a Court other than a High Court or Court of Sessions. In a case, it was held that it is on the court to grant bail under Section 437 and it cannot be arbitrary, or vague. In other words, the discretion to grant bail should always be exercised by the court judicially and not according to whim, caprice, or fancy.[1] In the case of Hussainaira Khatoon v State of Bihar, a question was raised about delaying bail and the ambit under Article 21 of the Constitution.[2]

Kinds of Bail

1. Regular Bail

Regular bail refers to a legal mechanism through which a court can order the release of a person in custody on suspicion of committing an offense, with the condition that they do not obstruct the course of justice. This kinds of bail may involve executing a bond with sureties. When a person is arrested for a bailable offense, they have the right to be released as outlined in Section 436 of the Code of Criminal Procedure (CrPC).

The court imposes a statutory duty on the police officer to grant bail upon request. Additionally, the maximum period of detention for an undertrial prisoner is defined, stating that if the accused has been detained for a duration equivalent to 50% of the maximum imprisonment term for the offense during the investigation, they shall be released by the court upon executing a bond, with or without sureties.

On the other hand, for a person detained on suspicion of committing a non-bailable offense, the grant of bail is discretionary, and it can be availed only if a strong case is presented. However, bail for non-bailable offenses can be granted based on specific grounds, including:

• If the accused is below or at 16 years of age.
• If the accused is a woman.
• If the accused is ill or infirm.
• For habitual offenders, bail is granted only under special circumstances.

Section 437 of the CrPC applies to bail petitions submitted in magistrate’s courts. The decision to grant or reject regular bail is based on judicial discretion governed by the regulations outlined in Section 437 of the CrPC. On the other hand, Section 439 applies to bail applications submitted in Courts of Sessions or High Courts.

2. Anticipatory Bail

Anticipatory bail can be sought under Section 438 of the Code of Criminal Procedure (CrPC) by any individual who anticipates being charged with a non-bailable offense. The application for anticipatory bail should be filed in the High Court or Sessions Court having jurisdiction over the alleged crime. Anticipatory bail is sought prior to arrest, and if granted by the court, it prevents the police from arresting the individual. The Supreme Court, in the case of Sushila Agarwal and others v. State (NCT of Delhi) and others, clarified that anticipatory bail remains in effect until the end of the trial and is not limited to a fixed duration.[3]

Certain conditions must be met for the grant of anticipatory bail, including:

1. Reasonable Apprehension: There should be a reasonable belief or fear that the accused person may be arrested in connection with the case for which anticipatory bail is being sought.
2. Bailable Offense: The offense in question must be bailable, meaning it is eligible for bail as per the provisions of the law.
3. Pre-Arrest Application: The application for anticipatory bail must be submitted before the arrest takes place. Once the person is arrested, they would need to seek regular bail.
4. Not a Habitual Offender: The person seeking anticipatory bail should not have a history of being a habitual offender.
5. No Departure from the Country: After the grant of anticipatory bail, the accused should not leave the country without appropriate permission from the court.

These conditions help guide the court’s decision-making process when considering an application for anticipatory bail.

3. Interim Bail

Interim bail is a temporary form of release granted to individuals during the pendency of an application for anticipatory or regular bail, providing them a brief respite from custody. It allows the accused to remain free for a limited time while they prepare for bail hearings. However, it is conditional and subject to the court’s discretion, with the possibility of extension based on circumstances. If the interim bail expires and the accused fails to meet the necessary requirements or pay the specified amount, their freedom is revoked, and they may be taken back into custody. This form of bail serves as an important interim measure, preventing unnecessary detention while maintaining fairness and flexibility in the legal process.

What is Interim Bail?

It serves as a stop-gap arrangement between the time of arrest and the final determination of bail. The primary purpose of interim bail is to provide a degree of relief to the accused. It can be particularly valuable in cases where the accused requires medical attention, needs to attend to urgent personal or family matters, or faces undue hardship due to prolonged detention.

Interim bail differs from other types of bail in several key ways:

• Duration: Interim bail is typically granted for a shorter period compared to regular or anticipatory bail, often pending the resolution of the main bail application.
• Conditions: The conditions attached to interim bail in India may be more stringent than those for regular bail, as it is considered a temporary measure.
• Purpose: Interim bail is primarily intended to provide immediate relief while the regular bail application is processed, whereas other types of bail may serve more general purposes.

Legal Basis for Interim Bail

Although the [Code of Criminal Procedure (“CrPC”)] now Bharatiya Nagarik Suraksha Sanhita (“BNSS”)) does not explicitly define interim bail, it establishes the legal framework that allows courts to grant such relief.

The interim bail meaning is understood within the context of specific provisions, including Section 437 of the CrPC (S.480 of BNSS), which addresses bail in non-bailable cases and empowers Magistrates to grant bail under certain conditions, such as the accused’s likelihood to appear for trial and the absence of reasonable fears of absconding.

S.482 of the BNSS: enables individuals to seek bail before being arrested for a non-bailable offense; the principles and discretionary powers outlined here can also be relevant to interim bail.

(S.483 of the BNSS) grants special powers to the High Court and the Court of Session regarding bail, allowing them to grant bail in any case, including non-bailable offenses.

Courts interpret these provisions to allow interim bail as a temporary measure while a final decision on a bail application is pending. The meaning of interim bail encompasses this discretionary authority, which is based on the principles of justice and the need to balance the rights of the accused with societal interests.

Characteristics of Interim Bail

Interim bail has the following elements:

1. It is a short-term measure typically granted while awaiting a decision on a regular or anticipatory bail application.
2. Courts often impose specific conditions to ensure the accused’s appearance at trial and to safeguard the interests of justice. These conditions may include surrendering their passport, regularly reporting to the police station, not leaving the jurisdiction without permission, and providing sureties or bonds.
3. Interim bail can be revoked if the accused violates any imposed conditions or if the court finds it necessary for the integrity of the proceedings. Revocation involves a hearing and a decision by the court.

Grounds for Granting Interim Bail

When deciding whether to grant interim bail, courts consider various factors that help clarify the interim bail meaning.

One significant factor is medical conditions; if the accused has a serious illness that requires urgent or specialized treatment, the court may grant interim bail to facilitate necessary medical care. Additionally, if the prison environment poses a health risk due to the accused’s medical condition, interim bail may be granted to protect their well-being.

Humanitarian factors also play a role in the decision. If the accused is the sole breadwinner or caregiver for dependents, the court may consider granting interim bail to prevent undue hardship on their family. The age and overall health of the accused are relevant as well, with elderly individuals or those with chronic health conditions more likely to receive interim bail to mitigate potential risks associated with incarceration.

Courts may also consider delays in the investigation; if the investigation is taking an unreasonably long time despite the accused’s cooperation, interim bail may be granted to prevent prolonged detention without a clear cause. The COVID-19 pandemic further influenced these decisions, as courts have considered interim bail to alleviate overcrowding in prisons and reduce health risks related to virus transmission.

Case Laws

Several important cases illustrate the meaning of interim bail and its underlying principles.

• In Prahlad Singh Bhati v. NCT, Delhi (2001), the court granted interim bail to prevent irreparable harm to the accused’s reputation in light of serious allegations.[1]
• In Sukhwant Singh & Ors v. State of Punjab (2009), the Supreme Court held that interim bail is a measure designed to protect the reputation of the accused. The court also affirmed its inherent power to grant bail to an individual whose bail application is still pending resolution.[2]
• In Badresh Bipinbai Seth v. State of Gujarat (2015), the Supreme Court ruled that Section 438 of the CrPC should be interpreted liberally, considering Article 21 of the Constitution of India, 1950, which ensures the right to life and personal liberty.[3]
• In Sushila Aggarwal v. State of NCT of Delhi (2020), the Supreme Court determined that interim bail should not be subject to time limitations.[4]
• Recently, the Supreme Court granted interim bail in the case of Arvind Kejriwal v. Directorate of Enforcement (2024) to the Delhi Chief Minister in the liquor policy case to campaign for the Lok Sabha elections.[5]

Interim bail is a crucial legal tool that provides temporary relief to individuals awaiting trial, allowing them to remain free while preparing for their hearings. It is supported by legal principles that emphasize justice and can come with specific conditions.

4. Default Bail

According to Section 167 of the Code of Criminal Procedure (CrPC), when a person is arrested and the investigation cannot be completed within 24 hours, they must be presented before a Magistrate. The Magistrate can then authorize their detention for a maximum period of 15 days. Typically, this detention period is extended by an additional 15 days to allow the police or investigating agency to complete their investigation. However, Section 167(2) of the CrPC specifies that in cases involving offenses punishable by death, life imprisonment, or imprisonment of at least 10 years, the detention period cannot exceed 90 days.

For other offenses, the limit is 60 days. If the police or investigating agency fails to file a chargesheet or complaint within the specified period, the accused is entitled to default bail. This right is absolute and not at the discretion of the Court. If the accused can demonstrate that the required 60 or 90 days have passed since their arrest without any chargesheet or complaint being filed, the Court is obligated to grant them default bail.

5. Medical Bail

Medical Bail are kinds of bail granted to individuals based solely on medical grounds. It is primarily considered in cases where the person’s health condition requires immediate medical attention or specialized treatment. When medical bail is granted, the Courts typically do not delve into the merits of the case or assess whether the usual criteria for bail are fulfilled. The focus is primarily on the individual’s medical needs and ensuring their well-being.

Grounds for granting bail to both bailable and non-bailable offences

The grounds for granting bail to both bailable and non-bailable offences are based on certain factors. One of the key considerations is the presumption of innocence, where the accused is given the benefit of the doubt regarding their involvement in the crime. Furthermore, an inquiry into the offence is necessary to establish the extent of their involvement. Additionally, bail may be granted if the offence is of a minor nature that does not carry a punishment of imprisonment for ten years or more, life imprisonment, or the death penalty. These factors play a crucial role in determining whether bail can be granted to the accused.

Conclusion

In conclusion, bail serves as an essential aspect of the criminal justice system in India, providing individuals with the opportunity to secure their release from custody during the course of legal proceedings. The Indian Constitution recognizes the right to life and personal liberty, granting individuals the fundamental right to seek bail and live with dignity and personal freedom. The Code of Criminal Procedure, 1973, governs the regulations and procedures related to bail in India.

Bail considerations are based on various factors, including the presumption of innocence, the need for an inquiry into the offence, and the severity of the crime committed. The granting of bail is determined by judicial discretion, ensuring a fair balance between individual rights and the interests of justice.

Overall, bail plays a vital role in safeguarding the rights and liberties of individuals, allowing them to participate in their defence and ensuring their presence in court proceedings. It is an indispensable tool in the criminal justice system, upholding the principles of fairness, protection, and human dignity.

FAQs

[1]Jai Prakash Singh v State of Bihar (2012) 2 SCC 565.

[2] Hussainaira Khatoon v State of Bihar, 1979 AIR 1369.

[3]Sushila Agarwal and others v. State(NCT of Delhi) and others, 2020 5 SCC 1.