"Bail is a Right; Jail is an Exception" - S.C.

The term Bail is not defined anywhere in the code, but in the attempt of definition, it means setting a person at liberty after arrest on a charge. Such liberty is granted to the accused after fulfillment of paramount condition i.e. Security. In Bail, security is provided through the filling of bail bonds and through a person who acts as a security that accused person would not run away from the eyes of law after being released.

Section 437 and 439 of the Criminal Procedure Code 1973 deals with the provision regarding bail in non-bailable offences. As per section 437 & 439 bail in non-bailable offences is not a matter of right. Bail-in offences of grievous nature are at the discretion of the Court. The Court shall look into the facts and circumstances of the case before granting bail.

Bail is a legal process that allows a person arrested or detained on suspicion of committing a crime to be released from custody pending trial. In India, the Code of Criminal Procedure, 1973 (CrPC) governs the process of granting bail. While bail is an issue of right in bailable offenses, it does not exist as an issue of right in non-bailable offenses.

Meaning of Bail:
Bail is a security given by for the due appearance of a man captured or detained to get his or her brief discharge from legitimate guardianship or detainment. In precedent-based law, a denounced individual is said to be confessed to bail, when he or she is discharged from the care of the officers of court.

Definition of bail, as per the Black's Law Dictionary is that bail is – "the security required by a court for the release of a prisoner who must appear at a future time.

In criminal law, 'bail' intends to set free, free or convey the blamed from capture or out for care, to the keeping of different people, on their endeavor to be in charge of his or her appearance at a specific day and place to reply to the charge against him or her. These people are called his or her sureties.

Type Of Offenses:
These are following offenses

1. Bailable Offense: Bailable offenses are less severe offenses. These offenses are mostly those that are punishable with imprisonment for less than three years or with only a fine. Example: A wrongful restraint offense is subject to bail under Section 341 of the IPC.
    
2. Non-Bailable Offense: Non-bailable offenses are offenses where an accused does not have the right to exempt himself from bail. These are offenses punishable by death and rigorous imprisonment for more than seven years. Example: The IPC's Section 302 addresses the crime of murder.
    
3. Cognizable Offense: As per the CrPC, a cognizable offense is an offense in which the police officer can arrest the convict without a warrant and can initiate an investigation without the intervention of the court. Cognizable offenses are generally heinous in nature.
    
4. Non-Cognizable Offense: Non-cognizable offenses are those where the police administration does not have the unfettered authority to arrest without a warrant. These offenses are petty and menial and do not entail stringent punishments under the law.

Bail in Non-Bailable Offenses:
When Bail may be taken in case of Non-Bailable Offence:
Section 437 of Cr.P.C. empowers the Court or a police officer to release an accused on bail in a nonbailable case. When a person is accused of or suspected of committing a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before the Court (other than the High Court or Court of session), he may be released on bail after recording the reasons in writing. An accused person shall not be granted bail if there are reasonable grounds for believing that:

1. he has been guilty of an offence punishable with death or imprisonment for life;
2. if such an offence is a cognizable offence, and
3. he had been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for more than seven years, or
4. he had been convicted twice or more in the past for a cognizable offence punishable with imprisonment for three years or more but not less than seven years.

If at the stage of enquiry, trial or investigation it appears to the police officer or the Court that the accused has committed a bailable offence but initially it was opined that a non-bailable offence has been committed by him, in such a case, the police officer or the court has to grant bail to such person. It is the discretion of the police officer or the Court to get a bond executed by him with or without sureties for his appearance.

This section talks about cancellation of bail. If an accused person violates any conditions of the bond, then, the magistrate who released such person under sub-section (1) or (2) may cancel the bail and direct that such person be arrested and commit him to custody. This power is only with the Magistrate and therefore, the police officer cannot cancel the bail.

In case of a default bail, the Magistrate under this sub-section is empowered to cancel it. Such a bail can be cancelled by the Magistrate who has granted the default bail. It can also be cancelled under section 439 (2) of the Code.

This sub-section talks about the release of an accused on bail after conclusion of the trial but before the judgement is delivered. If the Court is of the opinion that the accused person is not guilty, it shall release him on the execution of a bond with or without sureties for securing his appearance to hear the judgement on the specified date fixed by the Court.

Direction for grant of Bail to Person Apprehending Arrest:
Sec. 438 of Cr.P.C. is related to anticipatory bail and was amended in the year 2005. An application for anticipatory bail can be moved directly to the High Court or the Court of Session as both have concurrent jurisdiction for the purpose of granting anticipatory bail.

When any person has anticipation of arrest that he may be arrested at any time and the offence committed by him is a non-bailable offence, such person may apply for anticipatory bail through an application to the concerned High Court or the Court of Session. Upon receiving an application for anticipatory bail, the court will examine whether there is any reasonable ground or not for such an application and if court is satisfied that there are chances of applicant getting arrested, then the Court shall release him on bail.

The following factors will be taken into consideration by the court before granting anticipatory bail:

1. The nature and gravity of the accusation,
2. The antecedents i.e. previous record of the applicant,
3. The possibility of the applicant to flee from justice, and
4. Whether the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

The High Court or the Court of Session, after going through the above-stated factors, have three options:

1. It may reject the application, if the court thinks that there is no reasonable ground, or
2. It may issue an interim order for the grant of anticipatory bail, or
3. It may neither reject nor grant any interim anticipatory bail but rather fix a date for the next hearing.

Special Powers of High Court or Court of Session regarding Bail:
Sec. 439 of Cr.P.C. empower to the High Court or the Court of Session to grant bail and to cancel the bail. The High Court or the Court of Session may grant bail to the accused person and may impose any condition if the offence is of nature specified in section 437(3) of the Code. If the Magistrate imposes unreasonable conditions while granting bail to the accused person, such conditions can be set aside or modified by the High Court or the Court of Session under subsection (1) (b).

The High Court or the Court of session shall give notice of the application for bail to the Public Prosecutor before granting bail to the accused person, when such person commits the offence punishable with life imprisonment which is triable exclusively by the Court of Session or not.

Case Law:

1. Gurucharan Singh vs State (Delhi Administration)1978 - The Supreme Court stated that "Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment."
2. Sanjay Kumar Gupta v. the State of U.P., (2021) - The Supreme Court observed that after being taken into custody, the accused person does not possess the right to file anticipatory bail, but he is at full liberty to go for regular bail under Sections 437 and 439, as the case may be.

Conclusion:
The issue of bail in non-bailable offenses has been a matter of debate and discussion in the legal system for a long time. The Supreme Court has issued guidelines on the application of bail in non-bailable offences, but challenges remain in its implementation.

One of the main challenges is the inconsistent interpretation and application of guidelines by the lower courts, which has resulted in arbitrary denial of intervention. The lack of clear and specific criteria for determining whether a case qualifies has also created confusion and uncertainty in the decision-making process.

Moreover, the socio-economic status of the accused and the nature of the offense have generally influenced the court's bail decision, despite the guidelines recommending an objective and non-discriminatory approach towards him. In conclusion, the Supreme Court's direction on bail in non-bailable offenses is a step in the right direction towards ensuring fairness and justice in the legal system.

Written By: Navratan Badiyasar, 4th Year law student, Department of Law - Central University of Kashmir, Ganderbal, J&K
E-mail: [email protected]