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Types of Bail under CrPC

Bail means short-term release of an accused person awaiting trial. Bail is the judicial release of an accused charged with the certain offence by imposing some restrictions on him and compelling him to remain within the jurisdiction of court. So, if we look on the background history of this concept. Originally, the word is derived from the old French word 'bailer' which means to give or to deliver.

The idea of bail was first institute in England. Getting inspired from that India also, then introduced this concept. The concept of bail has come under the extent of human rights since the UN declaration of Human Rights of 1948. Law commission in its 41st report conduct out the recommendations to the parliament and these recommendations were examined and incorporated by parliament in criminal procedure code, 1973.

Streamlining of the law on bails was organized in the structure of basic principles of personal liberty to see that these are concisely affected and a flexible mechanism adapted to secure attentiveness of the community through an exercise of judicial discretion. The approach appears to be constant with the policy and motive of the institution of bail.

According to this act the offences are categorized into two categories:

Bailable offence (it is the type of offence in which the accused person is granted bail. Under section 2(a) of the code this term has been defined) and Non Bailable offence (it is the type of offence in which accused is not entitled to get bail). So, the question lies here is that 'cases in which bail may granted'? In the case of bailable offence it is mandatory for the court to grant the bail to accused person and in cases of non bailable offence it depends on the discretion of the court whether court thinks fit to grant bail to accused or not.

There are commonly 3 types of bail in which accused can seek his remedy:

The provisions relating to the bail and bonds have been given under section 436 to 450 of the Criminal Procedure Code. These provisions foresee in the code gives the brief concerning the provisions of the bail.

Let's discuss each section in brief:
Legal Provisions:
Section 436 (in what cases bail is to be taken) � This section makes provision for a bail of a person who is accused of any offence other than non bailable offence. The conditions of bail which is given under this section are:
  1. He has been arrested or detained without warrant by an officer in charge of a police station.
  2. He appears or brought before a court.
  3. He must be prepared at any time while in the custody of such officer or at any stage of the proceeding before court to give bail.

This section also empowers the court to grant the bail only on executive bond from the accused without taking any sureties for his appearance. In Aftab Ahmad V. State of U.P (1990), court held that an indigent person may be discharged on executing bond (a formal written agreement by which a person undertakes to perform/abstain from doing a certain act. Failure to do so, may attract monetary penalty) without sureties (a promise to fulfil an undertaking; or a promise to answer for the debt/default of another).

The power of magistrate to grant a bail doesn't depend on his competence to try the case but on the punishment prescribed for the offence.

For Example:
You are accused of causing hurt u/s 323 I.P.C. were arrested on 1 April 2009 and have been not able to provide bail. You must be released on bail/personal bond without guarantee by 8 April 2009. According to the sub clause (2) of this section if the person has failed to comply with the condition on which he had received bail (for example- regarding to time and place of attendance) is bound to pay the penalty imposed by the court under this section.

The catch of this section is that in this section bail is the legal and fundamental right of the accused and court is also bound to grant bail to the accused only under bailable offence. If than also any police officer detained the accused or doesn't provide bail to him than he is liable for the wrongful confinement under I.P.C. This was held in the landmark judgment of Supreme Court in Vaman Narain V. State of Rajasthan (2009).

The basic rule against this is that India is a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. It is the fundamental right of an individual which is secured by the state. Thus, the idea of bail and personal liberty goes hand in hand and consequently every individual involving the accused person has the right to look for bail in order to get him release from imprisonment until and unless proven guilty by a court of law. As stated under Article 21 of the Indian Constitution that the life and personal liberty of a person cannot be deprived except by the procedures laid down by the law.

Section 436(A) of CrPC:

This section was inserted via amendment in 2005. It deals with the maximum period for which an under trial prisoner can be detained. As per the section if a person has go through detention for a period of nearly one half of the maximum period of imprisonment describe for the offence for which he is being tried, he shall be free by the Court on a personal bond with or without guarantee. This imprisonment must be during the investigation, inquiry or trial of the case and not during the serving of judgment after the conviction.

The Court can also order imprisonment for a longer period than one half of the said period or get release on bail in lieu of the personal bond if it deems this fit with reasons after listening the Public Prosecutor. A person can nevertheless not be detained even by a court order after the maximum length of imprisonment provided for the offence during investigation, inquiry or trial even if release is not permitted. It does not apply to persons charged for the offences including death sentence.

For example:
You are an accused of committing a theft u/s 379 IPC and have been in jail for 3 years or more. It's your right to be free on bail/personal bond u/s 436A Cr.P.C. In Mantoo Majumdar v. State of Bihar, the Supreme Court held that the under trials right to personal liberty and direct the release of the petitioners on their own bond and without the sureties as they had so far finished six years await their trial in prison.

Section 437 (Bail in non bailable offence):

When any person accused of or suspected of the commission of any non bailable offence is arrested on detained/appears or is brought before a court (other than High court/ court of session), he may be released on bail, but:
  1. Such person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment.
  2. If such offence is a cognizable offence and he had been previously sentence of an offence punishable with death, life imprisonment for 7 years or more, or he had been earlier convicted on two or more instance of a non bailable and cognizable offence. But a person who is:
    1. Under age of 16 years
    2. A woman
    3. A sick
    4. Infirm person may be released on bail even if the offence charged is punishable with death on imprisonment for life or the accused is previously convicted.

This section basically dealing with the bail of an accused person who committed a non bailable offence. This section also provides other mandatory provision (for example � according to 437(2), if there is no sufficient ground for believing that accused is guilty of a non bailable offence but there is sufficient ground for further inquiry, he can be released on bail) and guidelines while granting a bail (nature and seriousness of the offence, reasonable apprehension of witness being tempered etc.).

In Kalyan Chandra Sarkar v. Rajesh Yadav under para 11 it was notice that:
The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Under section 437A of CrPC, it has been defined that in order to appear in the higher court and when the higher court issues the notice against the decision of the court it becomes obligatory for the trial court or the appellate court which requires the accused to fulfill the bail bond with sureties.

Section 438 (Anticipatory Bail):

According to the ordinary law, the bail is provided after the arrest but anticipatory bail is pre arrest bail which is taken prior to arrest. Anticipatory bail is stated under Section 438 of CrPC which defines that when the courts feels that the accused is falsely involved in the case and arrest would harm his honour and dignity than with imposing certain conditions court grant anticipatory or pre arrest bail to the accused person.

There is no provision on the limit of anticipatory bail but the common limit is all over the trial or proceedings. Anticipatory bail is back in Uttar Pradesh after nearly 33 years. The provision was thrown out in 1976 during the emergency. In Samunder Singh vs. State of Rajasthan (1987), it was upheld that all the circumstances related to dowry death was not allowed for the anticipatory bail.

  1. There should be reasonable apprehension of arrest- The pre arrest bail is granted by the court only when the person satisfies the court that he is falsely involved in the case.
  2. Non Bailable offences - Pre arrest bail is only granted in the matters of non bailable offences.
  3. Application must be given before the arrest of the accused
Both the session court and high court has the power to permit anticipatory bail but in accordance with the plan of action first the application of anticipatory bail must file in session court and if its banish by the court than the accused can challenge it in high court.

Section 439 (special power regarding bail):

The high court or court of session can issue a direction that any accused of an offence and in custody should be released on bail. If the offence is of the nature defined in 437(3). It can direct any condition imposed by a magistrate when releasing any person on bail be set aside or modified.

Cancellation of Bail:

The power to cancel the bail has been given to the court and not to the police officer. Secondly, the court which accepted the bail can alone cancel it. The bail granted by police officer cannot be cancelled by the court of a magistrate. For cancellation of the bail in such a situation, the power of high court or session court has to be involved.

It is major to doubt first and then demonstrate but the presumption of innocence is also necessary. With this concept, the provision of granting bail was introduced. It has shown as a remedy to let the innocent man is saved from expend his time in jail earlier his trial and also allows him to increase his case preparation while permitting the lawyer to create a good understanding of the case. The basic law relating to bail is laid down in sections 436,437, 438 and439 of the code.

It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of whom he can be released on a short-term basis but needs to present in court whenever required by the court. The procedure of bail takes place while the trial of the accused person is still undecided. Normally, a person seeks this option in order to get himself free from the police custody. These provisions foresee in the code gives the brief concerning the provisions of the bail. The process of bail is a lawful process.

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