BAIL AND BAIL BOND

PRESENTED BY – DITIPRIYA HAZRA

 CONTENT:

• 1. Introduction
• 2. Meaning of Bail and Bail Bond
• 3. Classifications of Bail and Bail Bond
• 4. Objective behind granting Bail
• 5. Bailable offences vs Non Bailable offences
• 6. Bail in case of Bailable offences
• 7. Bail in case of Non-Bailable offences
• 8. Anticipatory Bail
• 9. Special powers of High Court or Court of Session regarding Bail
• 10. Cancellation of Bail
 INTRODUCTION:

• Bail has been defined in the Law Lexicon as the security for the appearance of the accused person,
on the giving which he is released pending trial and investigation.
• Bail means entrustment of the accused to his sureties, who are bound to produce the accused in
court whenever required. Bail means a security taken from a person to appear on a fix date before
the Court. Bail is release from the custody of a person charged with an offence, on that person she
legal status of bail.
• As per the definition given under BlackLaw’s Dictionary, the meaning of the Bail Bond is when
collateral is used to keep a defendant out of the Jail before hearing. It’s a percent of total bond. It is
taken if the person does not appear in the Court. A bail bondman help to pay the bond debt.
• The amount is to be paid by the surety at the time of the bail-bond is 10%-20% as fixed by the
Court. The Court may ask for the payment of full bond at the time of release.
• In case the defendant fails to fulfil the promise and doesn’t appear in the Court then the liability is
on the surety to pay the fine.( Exception- Death of the person).
Classification of bail:
Depending on the stage of the criminal proceeding, a person may ask for one of four types of bail in India:

1.Regular Bail: Regular bail is frequently issued to an individual who has previously been arrested and detained by police.
The accused has the right to be freed from such confinement under Section 437 and Section 439 of the CrPC. So, a
regular bail is simply the release of an accused from jail to ensure his attendance at the trial.

2.Interim Bail: Interim bail is bail issued for a short period. Interim bail is granted to an accused before the hearing for
regular or anticipatory bail.

3.Anticipatory Bail: If a person suspects that he may be arrested for a non-bailable offence, he may petition for
anticipatory bail. In recent years, this has become an important problem because corporate competitors and other
prominent persons sometimes seek to frame their opponents with fake charges. It’s similar to obtaining advance bail under
Section 438 of the CrPC. A bail under Section 438 may be bail before arrest, and an individual cannot be arrested by the
police if the court has granted anticipatory bail.

4.Statutory Bail: The remedy of statutory bail, also known as default bail, is distinct from bail obtained in the ordinary
procedure under CrPC Sections 437, 438, and 439. As the name implies, statutory bail is given when the police or
investigating agency fails to file its report/complaint within a certain time frame.
Types of Bonds:

Personal Bond:
A Judge may allow an accused to release him on bail by taking bond stating that a criminal defendant will appear at the future
court dates.The accused doesn’t have to post bail, but will forfeit the amount in the bond if the promise to appear is broken.
Here the offence committed by him is not of very serious nature or a minor crime of non-violent in nature.It is also known as
release of recognizance bond. Here no need to pay any amount for getting the Bail.

Surety Bond:
This type of bond involves a friend or relative, with the help of a bail agent can get a bail for the accused. If the accused is not
able to pay a large amount in cash for the bail, a Bail agent from a surety company will promise tp pay the entire amount of
the bond to get the bail of the accused. If the accused not appears in the Court the bail agent has to pay the entire amount
promised for the bond. As in this surety bond a friend or relative is involved, the bond agent believe that the accused will
appear for the trial without fail.

Property Bond:
If the accused is not able to pay the bail amount in cash but one can obtain the bail by showing property in lieu of cash.The
accused have to show the equal value of the property in exchange to the cash. But if the accused fails to appear before the
Court on the stipulated date, the property kept as guarantee will be foreclosed by the Court.
Objectives behind granting Bail:
The object of bail is not to penalize the accused but to ensure his presence in the Court and the amount of security must be
fixed with due regard to the means of the accused and the nature of the offence. As per Section 440(1) of the Code, the
amount should not be too high to nullify the right to be released on bail under Section 436(1) of the Code.
Further, Section 440(2) of the Code, empowers the High Court & the Court of Session to direct that the bail had by the
police officer or Magistrate be reduced. Though there is no specific provision for appeal against refusal to grant bail under
Section 436(1) , the High Court or the Court of Session can be moved for bail under Section 439 of the Code.

Bailable vs Non Bailable offences:

Section 2 (a) of the Criminal Procedure Code defines ‘ Bailable Offence’ means an offence which is shown as bailable in
the first schedule , or which is made bailable by any other law for the time being in force, and ‘ non-bailable’ means any
other offence.
In case of Bailable offence the accused arrested has the right to be released on bail. Section 50(2) of the CrPC, makes it
obligatory for the Police Officer to inform him of his right to be released on bail, but in case of non-bailable offence it’s the
Court discretion to grant bail. Non Bailable offence implies an offence where grant of bail is discretionary with the Court,
but the discretion must be exercised on well principles for the grant of Bail. Justice Krishna Ayyer said, that Bail is the rule
& imprisonment is an exception.
Bail in case of Bailable offenses:
Section 436(1) of the CrPC provides that, when any person ( except the person accused of non-bailable offence) is
• Arrested; or
• Detained
 Without warrant by an officer in charge of a Police Station
 Appears or is brought before a Court
 And is prepared to give bail
 At any time while in the custody of such officer
 At any stage of the proceeding before such Court
 Then such person shall be released on bail
The officer-in charge of the Police Station has no right to be released on bail on arrest under a warrant, unless the
endorsement has been made under the warrant itself.
Accused shall be released on bail, as a matter of right provided that- where such person indigent and is unable to furnish
surety discharged him on his executing a bond without sureties.

Section 436 (2) of the CrPC states where a person has failed to comply with the conditions of bail bond as regards the
time & place of place of attendance.
Court may refuse to release him on bail.
When on the same occasion in the same case appears before the Court- person bound by such bond to pay the penalty
thereof under sec 446.
Conditions:
Firstly, That the person has been accused of a bailable offence.
Secondly, that such person has been arrested or detained by an officer in charge of a police station without
warrant or has been appeared or brought before the Court.
Thirdly, that he is prepared to give bail.

Sanjay Chandra vs CBI [ AIR 2012 SC]: It was held that the principle purpose of bail is to ensure that the
accused person will return for trial , if he is released after arrest.

State of Rajasthan vs Bal Chand [ AIR 1977 SC 224]: The provision of bail restore the liberty of the arrested
person without jeo-paradize the object of arrest. Therefore the general rule of bail is not jail.

Moti Ram vs State of M.P.[ AIR 1978 SC 1594]:The right to released on bail under section 436(1) cannot be
nullified indirectly by fixing too high the amount.
Section 440(1) specifically provide the amount of every such bond. [ Bail Bond should not be excessive.]
Rasiklal vs Kisore Khanchand Wadhwani , AIR 2009:
In the case of bailable offences, there is no question of discretion in granting bail. So, the right to be released on bail in
case of a bailable offence is a legal and constitutional right of the accused person , refusal of this right is a curtailment of
the right of personal liberty guaranteed by Article 21 of the Constitution of India.

Insertion of new section 436-A

Max period for which an undertrial can be detained by 2005 amendment;

--------This section allows a person to be released his own surety if he has already spend half
of the minimum sentence for the alleged crime in jail.
However, this does not apply if death is punishments specified for the offence.

Bail on the expiry of the period prescribed for investigation: ( Default bail):
If the investigation of an offence is not completed within the prescribed period ( 90/60 days) then the accused person
shall be released on bail if he is prepared and does furnish bail.
Guidelines given by the Supreme Court in Satyendra Kumar Antil vs Central Bureau of Investigation (2022) 10
SCC 51:

1. The Government of India may consider the introduction of a seperate enactment in the nature of a bail Act so as to
streamlime the grant of bails.
2. The investigating agencies and their officers are duty-bound to comply with the mandate of the Section 41 and 41A of
the Code and the directions issued by this Court in Arnesh Kumar. Any dereliction on this part has to be brought to the
notice of the higher authorities of the Court.
3. The Courts will have to satisfy themselves on the compliance of Section 41 and Section 41A of the Code. Any non-
compliance would entitle the accused for grant of bail.
4. All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be
followed under Section 41 and Section 41A of the Code.
5. There needs to be strict compliance of the mandate laid down in the judgement of this Court in Siddarth vs State of
Uttar Pradesh 2021 in which it was held that the investigating officer need not arrest each and every accused at the time
of filling chargesheet.
6. The High Courts are directed to undertake the exercise of findings out of the undertrial prisoners, who are not able to
comply with the bail conditions. After doing so, appropriate action will have to be taken in the light of section 440 of the
Code, facilitating the release while insisting upon sureties the mandate bof Section 440 of the Code has to be kept in
mind.
7. Bail application ought o be disposed of within a period of two weeks except if the provisions mandate otherwise, with
the exception being an intervening application. An application of anticipatory bail are expected to be disposed of within a
period of six weeks with the exception of any intervening application.
 SECTION 437
When bail may be taken in case of non-bailable offence:

Section 437(1) - Accused or suspected person committed of non-bailable offence

Accused arrested or detained without warrant. Except in following cases.
1. Committed offence shall not be punishable with death or life imprisonment.
2. He shall not be previously convicted.
Section 437 (2) - No reasonable ground then grant of bail.
Section 437(3)- Conditioned may be imposed in the following cases. Accused suspected of the commission of an offence
which may be extend to 7 years imprisonment or under IPC CHAPTER VI, XVI, XVII-- any such offence is released on
bail. Three conditions -- 1) shall attend the Court.
2)not commit similar offence
3) no inducement, threat or promise
Section 437(4) Given reason in writting by Court to grant bail or not.
Section 437(5) Cancellation of Bail:- Re-arrest and commit him to custody.
Section 437(6): If trial is not concluded within 60 days.
Section 437(7): Reasonable grounds for believng that accused is not guilty , it shall release the accused.
 Non-Bailable under section 437:

Bail depends upon the discretion of the Court. Conditions are- below 16years of age. sick., infirm, for other reason.
One shall not be released on bail if the following conditions are fulfilled.
1. Punishable with death or life imprisonment
2. Previously convicted of an offence:-
a. Punishable with death or life imprisonment
b. or imprisonment for 7 years or more
c. or had been previously convicted on two or more occasions.
Dr. Vinod Bhandhari vs State of M.P ( A.I.R. 2015 SC):
Court should certainly be taken into consideration the delay in concluding the trail while deciding the bail application.
Other factors viz.,
Seriousness of the offence and the possibility of the accused influencing course of trial are equally important.

Gurcharan Singh vs State ( Administration) [ AIR 1978 SC 179]:

Supreme Court provided guidelines in respect of Section 437 of CrPC:
• Nature and gravity of charge
• The danger of the likelihood of the accused person’s absconsing if he is released.
• The danger of witness being tempered with.
• Position and status of the accused.
• Health, age, & sex of the accused.
• Prevention of offence being repealed.
Anticipatory Bail ( Pre-Arrest Bail):

Anticipatory Bail is not defined in the Code of Criminal Procedure , 1973, it is a preventive relief which was not even a part
of the earlier 1898 code.
As the name suggests , is bail granted to a person in anticipation and apprehending arrest.The term was first mentioned in the
41st Law Commission Report 1969 in which need is felt to include such provision to safeguard an accused who is
apprehending or has a reason to believe that he may get arrested for a non-bailable offence.
When a person has reason to believe that he may be arrested on the accusation of commuting a non-bailable offences then he
can move to the High Court or the Court of Session under section 438 of the CrPC.

Conditions of Anticipatory bail:

i. that the person shall make himself available for interrogation by a police officer as
and when required;
ii. 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. 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 .
Special power of the High Court or Court of Session regarding Bail ( Section 439):

Under section 439 of the Code, the High Court and the Court of Session has been given special powers in relation to
bail.
Sub-section 1 states that, 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.

Kirpa Shankar vs Emperor (1947) :

This section gives an unfettered discretion to the High Court or the Court of Session to admit an accused person to
bail, but that discretion must be exercised judicially. The power of the High Court and of a Court of Session to grant
bail is not fettered by the restrictions contained in section 437.
Cancellation of Bail:

Section 437 of the CrPC ,1973 States that 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.
Section 439(2) of the CrPC, 1973 states that A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.

Grounds of Cancellation of Bail:

• Abuse of Bail: If the person misuses the freedom granted to him by bail for unlawful activities.
• Interference with Justice: If the accused tries to obstruct the legal process or interferes with how justice is served.
• Tampering with Evidence: If there is reason to believe that the accused is trying to destroy or manipulate evidence
crucial to the case, this can lead to bail cancellation.
• Sound Judicial Discretion: Courts have the authority to cancel bail if it is deemed necessary in the interests of
justice. This discretion should be exercised judiciously and not arbitrarily.
• Flight Risk: If it becomes evident that the accused is planning to flee the jurisdiction to avoid prosecution, the court
may cancel his bail.
• Other Serious Circumstances: Any situation that makes it unfair to allow the accused to remain free on bail while
awaiting trial.
There are established legal principles that empower courts to cancel bail, even without the presence of new supervening
circumstances.
Conclusion:
Bail is an important check and balance to ensure that no innocent person is punished until proven guilty. But the
complicated system of bail in the country’s criminal law system often fails to appreciate it. Grant or refusal of bail
depends on factors that are remotely connected with the merit of the case. The recommendations of the Law Commission
in its 268th report on bail reforms are important and they should be implemented so that a fair and transparent system of
bail evolves in our criminal law system. This would go a long way in upholding the rights of life and liberty enshrined in
the Indian Constitution.