The jurisprudence of bail

30 Aug 2022 The jurisprudence of bail

GS Paper 2: Functioning of the Judiciary.

What is the meaning of Bail?

• The word Bail comes from the French word bailer, which means ‘to give or deliver’. 
• Bail is referred to as the temporary release of the accused in a criminal case in which the court has a trial pending and is yet to announce the judgment.
• It is held by the person charged concerning the escape or the continuation of criminal activity.The bail is effective the moment a person is arrested. 

What are the types of Bail in India?

Types of Bail in India:

• Regular Bail: This kind of bail is granted to the person who has been arrested or is in police custody. It is filed under sections 437 and 439 of CrPC.
• Interim Bail: This is short-term bail granted for a short period of time. It is granted before the hearing for the grant of normal or anticipatory bail.
• Anticipatory Bail: Anticipatory bail falls under section 438 of CrPC by the session court or the high court. A person can apply for anticipatory bail when an individual finds out that he could be arrested for a non-bailable offense. Usually, such situations arise when business rivals and people try to frame false cases against their competitors.

What is  the broad spectrum of provisions  that govern bail in India?

• The jurisprudence of bail is anchored on the bedrock of Article 21 of the Constitution which safeguards not only life but also liberty by commanding that liberty can be deprived only through the procedure established by law, which must be “just, fair and reasonable”.
• The Supreme Court in its various judgements has time and again reiterated that “bail is the rule and jail is the exception”.
• A conjoint reading of Section 436 (bailable offences)and 437 (non-bailable offences) of the CrPC makes it clear that the wisdom of the legislature is to secure bail as the rule and jail as the exception.

What is the meaning of pre-arrest bail and statutory bail?

• Pre-arrest bail envisaged under Section 438 of the Code of Criminal Procedure (CrPC) enables the accused to approach a Sessions court or High Court seeking a direction to release him on bail in case he is arrested on a non-bailable offence. 
• Statutory bail as conceived under Section 167 of the CrPC, vests with the accused the right to be released if the investigation is not completed within ninety days or sixty days, as the case may be, depending on the severity of the alleged offence.

What are differences between bailable and non-bailable offenses?

• Bailable Offence: The CrPC defines “bailable offence” as an offence which is shown as bailable in the First Schedule of the CrPC , or which is made available by any other law for the time being in force.
• Non-Bailable offence: means any other offence not defined in the first schedule of the CrPC. While bail is a matter of right in bailable offences, in non-bailable offences, the grant of bail is at the discretion exercised by the judge taking note of the factual aspects of the case.

What are the primary purposes of bail in a criminal case?

Supreme Court in Sanjay Chandra vs CBI (2011) case declared the primary purpose of bail

• To relieve the accused of imprisonment.
• To relieve the State of the burden of keeping him, pending the trial.
• To keep the accused constructively in the custody of the Court, whether before or after conviction. 
• To assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

Why is the grant of bail is fundamentally important in Indian condition?

• Prolonged detention of an accused pending trial may convert the process itself into a punishment rendering a finding of acquittal practically useless as the accused would have suffered much of the punishment by then. Unless bail is granted to an accused who is presumed to be innocent in the eyes of the law until guilt is proven, he may not be able to take the necessary steps lawfully permissible to defend himself. That’s why the Supreme Court has time and again reiterated that “bail is the rule and jail is the exception”.
• Justice Krishna Iyer in  “The issue of ‘Bail or Jail” insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

What guides the grant of regular bail?

The grant of regular bail is usually guided by triple test

• The  ascertainment of whether the accused is at flight risk.
• Possibility of tampering with the evidence 
• Influencing witnesses.
• In addition to the above three Supreme Court in P. Chidambaram Case (2019), held that the gravity of the offence may also be an additional consideration which may be ascertained by the sentence prescribed for the offence alleged to have been committed.

Why is Bail rejected?

• The court has the discretionary power of cancelling bail at any stage.
• This comes under sections 437(5) and 439(2) of the CrPC.
• Grounds of cancellation of bail take place when a person is indulged in criminal activity and misuse of their liberty.
• If the accused interferes with the course of the investigation.
• When the pieces of evidence or witnesses are tampered with.
• The accused flies to another country or threatens the witness, which creates problems with a smooth investigation.
• Being unavailable during the period of investigation and going underground.
• The high court and session court, having the power to grant bail, use their power to cancel the granted bail.
• When the accused is framed under special statutes like the Unlawful Activities Prevention Act, the Narcotic and Psychotropic Substances Act and the Prevention of Money Laundering Act, all of which impose extremely rigid conditions for the grant of bail.

Sources: The Hindu, Legal service India, India Today

Source Links:

1.The Hindu: https://bit.ly/3L2uv4z

2.Legal Service India: https://bit.ly/3BCbtPz

3.India Today: https://bit.ly/3RT8yY2

khushhal chauhan