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Clear-headed approach: On the judiciary, the police and the grant of bail.

GS Paper – 2, Judiciary, Indian Constitution

Prelims: Types of Offences, Power to grant bail, CrPC, Supreme Court’s Judgements.

Mains: Effects of indiscriminate arrests on society, Constitutional Protection.

What is Bail?

A bail is a legal procedure granted to an accused before their trial in court. Through the means of this legal agreement, an accused can pay a sum of money to the court in the assurance of their presence in court on the decided date and time. Bail is considered an important criminal procedure in democratic countries like ours.

Bail is defined differently in different countries. In the UK, a person on bail is obligated to abide by a set of restrictions. On the other hand, in the US, bail only refers to a bail bond of some sort of monetary or property deposit.

Where is bail defined in the Indian Constitution?

In the Indian Constitution, bail is defined and explained in the Criminal Procedure Code, 1973. This section also defines the bailable and non-bailable offences in India. The Constitution of India also defines bail as a fundamental right of any Indian who is accused of a civil or criminal offence.

What is Bail and What are its Types?

• Definition: Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.
  • In Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhry (1973) case, the Calcutta High Court explained the principle behind giving Bail.
• Types of Bail in India:
  • Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.
  • Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
  • Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.
    • The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country, or reporting to the police station regularly.

What are the Judicial Interpretations of Pre-Arrest Bail?

• The Supreme Court (SC) of India has held that the power to grant pre-arrest bail is an extraordinary power to be exercised only in exceptional cases.
• Gurbaksh Singh Sibbia vs State of Punjab (1980) case: SC ruled that “Sec. 438(1) should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution.”
  • Granting of anticipatory Bail as a matter of right of an individual should not be limited by time.
  • The Court could impose appropriate restrictions on a case-by-case basis.
• Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: SC overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time.”
• SS Mhetre vs State of Maharashtra & Ors (2010) case: SC held that “life/duration of an order granting anticipatory Bail could not be curtailed.”
• Sushila Aggarwal and others v. State (NCT of Delhi) (2020): The Court held that Anticipatory bail as a ‘general rule’ will not be limited to a fixed period of time.