“The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a
socially sensitized judicial process” – Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
Concept of Bail – Introduction
The concept of bail, which is a basic part of the Indian criminal
jurisprudence and it is well recognized principle among all the judicial systems of
the world. Bail, in law, means procurement of release from prison of a person
awaiting trial or an appeal, by the deposit of security to ensure his submission at
the required time to legal authority. The monetary value of the security, known
also as the bail, or, more accurately, the bail bond, is set by the court having
jurisdiction over the prisoner. The security may be cash, the papers giving title
to property, or the bond of private persons of means or of a professional
bondsman or bonding company. Failure of the person released on bail to
surrender himself at the appointed time results in forfeiture of the security.
Courts have greater discretion to grant or deny bail in the case of persons under
criminal arrest.
For an investigation to commence, a crime must be committed which is punishable under the Bhartiya Nyaya Sanhita, 2023 (BNS) (formerly Indian Penal Code, 1860) or any other penal statute.
i. Cognizable Offences
Most cognizable offences are non-bailable and are of a more serious nature than non-cognizable offences. In cases involving cognizable offences, a police officer may, in accordance with the First Schedule or under any other law, arrest without a warrant.
ii. Non-Cognizable Offences
Those offences of which Police cannot take cognizance is a non-cognizable offence. In cases of non-cognizable offences, a police officer has no authority to arrest without a warrant from the magistrate; the police must obtain an order under Section 174(2) of BNSS from the magistrate. Once such an order is obtained, the police may treat the case in the same way as a cognizable offence.
Stages of Bail
i. Anticipatory Bail under Section 482 BNSS
The Honourable High Courts and Courts of Sessions are empowered under Section 482 of BNSS to issue directions to granted the bail to a person apprehending arrest. Anticipatory bail can only be sought for offences that are non-bailable in nature. While making such directions, the concerned court can put the person under conditions depending on the case-specific facts including that a person shall make himself available for interrogation by a police officer as and when required, a condition to not tamper with evidence, etc.
ii. Statutory Bail under Section 483 BNSS
Section 483 of BNSS grants special powers to High Courts and Courts of Sessions for granting bail to a person accused of an offence and who is in custody on conditions that the said court deems fit. No High Court or Court of Sessions shall grant bail to a person accused of an offence triable under Section 65 or Section 70(2) of BNS without giving prior notice of the application for bail to the Public Prosecutor. Additionally, the presence of the first informant or any other person authorised by him/ her is also obligatory at the time of hearing the application for bail for a person accused of an offence triable under Section 65 or Section 70(2) of BNS.
iii. Cancellation of bail Section 480 BNSS
Any court granting bail under Section 480 of BNSS can cancel a bail that has been granted and direct that the person in question be arrested and committed to custody. The same can be done under Section 480(5) of BNSS. Similarly, a High Court and a Court of Session can cancel the bail granted under Section 483, by invoking powers under Section 483(3) of BNSS.
In the case of Union of India V Nirala Yadav13 our Hon’ble Apex court
held that Magistrate should decide the application for statutory bail on the same
day it is filed.
In Thangavel Ravi Vs. State of A.P14
our Hon’ble High Court opined
that where the petitioner therein was alleged to have committed the offence
punishable under Section 307 IPC and did not cause any hurt, held that case
falls under the first part of Section 307 IPC and the prescribing imprisonment
which may extent to ten years and the maximum period of detention in custody
would be 60 days as contemplated under the proviso (a) (ii) of Section 167(2) of
Cr.P.C Accordingly, if the charge sheet is not filed within 60 days of date of
detention, petitioner is entitled to be released on bail.
Recently, Hon’ble Apex Court in Rakesh Kumar Paul vs. State of
Assam15(16-08-2017), held that an accused is entitled to statutory bail
(default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the
police failed to file the charge-sheet within 60 days of his arrest for the offence
punishable with ‘imprisonment up to 10 years.