Dr.

RAM MAONHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

BHARATIYA NAGRIK SURAKSHA SANHITA

CONCEPT, PURPOSE, AND GENERAL OVERVIEW OF BAIL

SUBMITTED TO:

Dr. Prem Kumar Gautam

Associate Professor

Dr. Ram Manohar Lohiya National University, Lucknow

SUBMITTED BY:

Avantika Kakran

Roll No.- 220101050

Section- A

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BAIL- CONCEPT, PURPOSE AND GENERAL OVERVIEW..............................3

Introduction............................................................................................................3

Bail – History.........................................................................................................3

Concept of bail.......................................................................................................5

Purpose of Bail.......................................................................................................6

Conditions for Rejection of Bail............................................................................7

Types of Bails........................................................................................................8

Regular Bail...........................................................................................................8

Interim Bail............................................................................................................8

Anticipatory Bail....................................................................................................8

Cancellation of Bail.............................................................................................10

Major case laws....................................................................................................10

Conclusion...........................................................................................................12

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 BAIL- CONCEPT, PURPOSE AND GENERAL OVERVIEW

Introduction
Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’.

 The term bail has been defined in the Bhartiya Nagrik Suraksha Sanhita under Section
2(1)(b) and remains one of the most vital concepts of the criminal justice system in
consonance with the fundamental principles enshrined in Parts III and IV of the
Constitution along with the protection of human rights as prescribed under international
treaties/covenants.

 Definition of Bail: Wharton’s Lexicon and Stroud’s Judicial Dictionary defines Bail as
“the setting free of the defendant by releasing him from the custody of law and entrusting
him to the custody of his sureties who are liable to produce him to appear for his trial at a
specific date and time.”

 The position with respect to bail can be described as what was held in Vaman Narain
Ghiya v. State of Rajasthan, “Bail” continues to be understood as a right for the assertion
of freedom against the State imposing restraints.

 Since the Universal Declaration of Human Rights of 1948, to which India is a signatory,
the concept of bail has found a place within the scope of human rights.

 The dictionary meaning of the expression ‘bail’ denotes security for the appearance of a
prisoner for his release.

 Bail may thus be regarded as a mechanism whereby the State devolves upon the
community the function of securing the presence of the prisoners and at the same time,
involves the participation of the community in the administration of justice.

Bail – History
The concept of bail can be traced back to 399 B.C. when Plato tried to create a bond for the
release of Socrates. The modern system of bail evolved from England.

 In medieval England, the sheriffs originally possessed the sovereign authority to release
or hold suspected criminals. Some sheriffs would exploit the bail for their own gain.
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  The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the
bail. Although sheriffs still had the authority to fix the amount of bail required, the statute
stipulates which crimes are bailable and which are not.

 In the early 17th century, King Charles I ordered noblemen to issue him loans. Those
who refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing
that they should not be held indefinitely without trial or bail. In the Petition of Right
(1628), Parliament argued that the King had flouted Magna Carta by imprisoning people
without just cause.

Bail and Individual Liberty -In serving simultaneously the end of personal liberty and the ends of
justice, the institution of bail attempts to achieve a synthesis of two almost conflicting principles:

 Detention guarantees appearance, and

 Liberty is the right of one whose guilt has not yet been proven. Nevertheless, there are
some considerations which tend to give the thesis of personal liberty a dominant part in
the synthesis achieved. The presumption of innocence, for example, if applied rigorously,
would lead to bailing out almost every accused. The development of society is
accompanied by the development of judicial hierarchies and the appearance of stricter
and more refined rules of procedure and evidence. Duration of detention and of trial, and
consequently bail, acquire greater importance. Considerable time may elapse before the
accused is brought to trial or before a final judgment is delivered by the highest court
with jurisdiction. The delay occasioned, for example, by the infrequent visits of itinerant
justices was an important factor in establishing bail.

It is possible for a legal system to eliminate bail completely if it is prepared to try every accused
directly after his arrest, or to supply adequate accommodation for the many accused, regardless
of the gravity of the offence or the probability of their guilt. A less efficient and less ambitious
system would accept the necessity of bail, and may adopt one of three criteria to decide whether
to grant bail or not. Reference may be made to:

 The nature of the offence;

 The probability of guilt; or

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  The authority that ordered detention.

Bail or Jail-The much-used phrase that bail is the rule and jail an exception sounds very catchy
but the actual happenings on the ground in the existing criminal justice system are very different.
The right of personal liberty is sacrosanct and its deprivation takes place only through a law that
is just, fair and reasonable.

In the years after the emergency, the courts took a very liberal view with regard to human rights
issues including personal liberty with Justice Krishna Iyer and other judges in the Supreme
Court giving pro-liberty and pro-citizen decisions. This, however, changed in the early nineties
after the liberalisation era when the Court favoured the State more than they did the incarcerated
individual. It then started looking at liberty through the prosecutor’s eyes, and not the
constitutional mandate of liberty.

This approach thus led to arrested persons spending more time behind bars without getting bail.
In 1997, the court in DK Basu observed that the worst violations of human rights take place
during investigations. Yet, even while giving directions to safeguard individuals from the abuse
of authority, the court paradoxically held that the freedom of an individual must yield to the
needs of the State’s security.

Concept of bail
The bail is the temporary release from the police custody where the accused person on bail will
be available whenever he needs for the investigation of further proceedings of the court. The
term bail indicates that the accused with criminal charges sets free from jail by submitting a kind
of security by the accused.

The accused can move the application in the court or police station for bail at the time when the
police arrest the person or are going to arrest the person in a criminal case.

Section 479 talks about the length of custody of a person during the trial. According to the
section, if the accused has spent half of his sentence in jail due to the charges imposed on him,
the person can be released on bail.

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Eg:- Ram committed a crime whose punishment is four years. The case is still running, and he
spent two years in jail. Now, the Ram is eligible for bail. Though it will be a temporary release,
the person must appear for the proceedings.

Section 479 proviso 1 has brought crucial changes, such as the early release of first-time
offenders. The Code of Criminal Procedure did not contain any provision denying bail to the
under-trial prisoner where an investigation, inquiry or trial in more than one offence is pending
against a person. However, Sub-clause 2 of Section 479 has added a stricter provision by
denying bail to the under-trial prisoner if an investigation, inquiry or trial in more than one
offence or in multiple cases are pending against a person.

Section 480 deals with the bail in non-bailable offences. The accused has to submit the
application for bail to the magistrate. The bail is not a matter of right under the non-bailable
offences. The grant of bail totally depends upon the discretionary power of the magistrate.
Proviso 3 of section 480 says that the accused shall be entitled to a regular bail if the court finds
that the custody of the accused required for identifying the witnesses during the investigation is
more than the first fifteen days.

Purpose of Bail
The purposes of bail pending trial in criminal cases are to avoid inflicting punishment upon an
innocent person (who may be acquitted at trial) and to encourage the unhampered preparation of
his defence. The amount of bail is generally set in relation to the gravity of the offence charged
and the likelihood of flight, although some magistrates consider other factors, such as the
strength of the evidence, the character of the accused, and the ability of the accused to secure
bail. Failure to consider financial ability generated much controversy in the mid-20th century, for
bail requirements may discriminate against poor people and certain minority groups who are thus
deprived of an equal opportunity to secure their freedom pending trial. Some courts now give
special consideration to indigent accused persons who, because of their community standing and
past history, are considered likely to appear in court. The court may release the accused on an
unsecured promise—i.e., on their own recognizance. Some jurisdictions also permit the accused
to post a fraction of the bail, usually 10 percent, in cash with the clerk of the court. A few
jurisdictions make it a separate criminal offense to forfeit bail instead of appearing as required.

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In all jurisdictions an arrest warrant may issue for the accused who has failed to appear in
addition to forfeiture of bail.

In legal systems that have a bail procedure, its operation is highly discretionary. If an accused is
charged with an offense committed while free on bail, if the arrested person requires police
protection, or if evidence reasonably establishes that he committed murder or treason, bail may
be denied. Alternatively, bail may be set unusually high. The U.S. Supreme Court held in United
States v. Salerno (1987) that bail may also be denied in some limited cases where no conditions
of release can reasonably assure the safety of the community or of particular individuals.

The legal framework of bail can differ from country to country but tends to follow a similar
procedure. The main characteristics of bail are:

Instrumental- This is because there’s a link between the crime and the accused and it serves as a
preventive measure.

Provisional and changeable-This is because changes can occur and alternative measures can be
taken at any time during the process.

Jurisdictional- Only judges can make decisions about what precautionary measures to take.

Temporary nature- This is because bail changes or finishes when the actions that provoked it
change.

This last feature is especially important. This is because a judge must release the accused if they
are innocent, thus ending the precautionary measures.

Conditions for Rejection of Bail

 The punishment is 7 years or more than 7 years

 In the case of sedition

 The accused did crimes against the human body like rape and murder etc.

 Serous crime against the property

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  The accused is involved in the case of abatement or criminal conspiracy

Types of Bails
There are three types of bail in India. Such types of bail are used in the court according to the
situation and circumstances:

Regular Bail
Regular bail releases a person on bail by filling the security and bail bond. There should be two
sureties in the bail bond. The police have the right to arrest the person if he commits a cognisable
offence.

The accused who is arrested in the bailable and non-bailable offence can apply for regular bail.
The accused person may get bail from the police office in the case of bailable offences or by the
court of the magistrate. But in the case of a non-bailable offence, the accused person has to file
the application to the session court or high court.

Section 480 gives the right to the accused to be released from jail after the grant of bail.

Interim Bail
The interim bail means the bail under BNSS which is granted for a short period of time. The
interim bail is taken during the pendency of any application or at the time when the application
of anticipatory bail of regular bail is pending before the court.

Key points of Interim bail

 The interim bail can be extended by pay the amount required for continuing the bail.

 If the interim bail expires and the person is failed to pay the amount for continuing the
bail, the person can be taken into custody.

Anticipatory Bail
Section 482 of the Bharatiya Nagrik Suraksha Sanhita deals with anticipatory bail. If a person
thinks that he will be arrested in a criminal case or any person can file the FIR against him, the
person can submit the application in the court for anticipatory bail. After the grant of anticipatory
bail, the police cannot arrest the person. Though the person has to be present at the time of the
proceedings of the case.
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It should keep in mind that anticipatory bail is always applied before the arrest of the person.

Section 482(4) has enlarged the applicability of the provision by not allowing anticipatory bail to
individuals who are accused of committing gang rape on a woman under eighteen years of age,
which was sixteen years under the Code of Criminal Procedure.

Conditions for the grant of anticipatory bail- The court has to take care of some important points
at the time of grant of anticipatory bail, like:

 There should be reasonable apprehension of the arrest of the accused person in the case
for which the anticipatory bail is applied.

 The offence should be bailable

 Application for anticipatory bail must be done before arrest.

 The person should not be a habitual offender.

 The accused should not leave the country after the grant of anticipatory bail.

Conditions imposed on the grant of anticipatory bail- The court can impose some restrictions on
the person who is applying for anticipatory bail:

 The person has to be present at the time of investigation and proceedings

 The accused person cannot influence the witness of the case

 The accused cannot temper with the oral and documentary evidence

 Accused cannot leave the country

 And any other important condition that the court thinks is necessary for the case.

Refund Of Bail Security

In the case of failure to comply with the conditions of the bail, the court may issue a warrant
against the person to arrest that person and produce him in front of the court to give the answers

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to all the charges applied to him. The court can also impose additional charges due to the breach
of bail.

Cancellation of Bail
 The power to cancel all types of bail lies to the court, not the police officer.

 The court which granted the bail in the case has can alone cancel the bail.

 The court of the magistrate cannot cancel the bail granted by the police officer.

 High court and session court has the power to cancel the bail granted by a police officer.

Major case laws

Gurbaksh Singh Sibbia v State of Punjab: landmark case with respect to anticipatory bail. It
was said by the Supreme Court that bail means to set at liberty a person arrested or imprisoned
on security being taken on his appearance.

Mohd. Shahabuddin v. State of Bihar, it was held that under no circumstances should the
person be detained beyond the maximum period stated for the offence except when the delay is
caused by the accused person itself.

Meenu Dewan v. State, it was held that, if the offence is of such a nature that affects the vital
interest of the society and has adverse effects on social and family life of victims then, bail
would not be granted.

Naresh Kumar Yadav v. Ravindra Kumar, it has been held that a person is said to be in
custody, within the meaning of this section only when he is in duress either because he/she is
held by the investigation agency or other police or allied authority or is under the control of the
court having been remanded by Judicial order, or having presented himself/herself to the court's
jurisdiction and submitted to its orders by physical presence.

Sanjay Chandra v. CBI, the followed points were clarified by the Supreme Court,
An accused is detained in custody not because of his guilt, but because there are sufficient

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probable grounds for the charge against him as to make it proper that he should be tried and
because the detention is necessary to ensure his presence during trial.

State of U.P v. Amarmani Tripathi it was held that the following matters are to be considered
while granting bail:

 Whether there is any prima facie or reasonable ground to believe that the accused had
committed the offence.

 Nature and gravity of the charge

 Severity of the punishment if convicted.

 Danger of the accused absconding and fleeing if released on bail.

 Likelihood of the offence being repeated by the accused if released on bail and

 Reasonable apprehension of the witnesses being tampered with if the accused is granted
bail.

Manu Sharma v. State (NCT of Delhi), it was held that while applying its discretion to hear
such an appeal for bail, the court should inter alia consider the following things:

 Whether prima facie ground is disclosed for substantial doubt about the conviction and

 Whether there is any likelihood of unreasonable delay in the disposal of such an appeal

Khilari v State of U.P, it was held that irrespective whether the offence is bailable or non
bailable, the discretion of releasing the person on bail lies in the discretion of the appellate court
and this discretion is to be exercised judicially. Further, the appellate court is required to record
the reasons for bail.

Hari Singh v. Sukhbir Singh, the learned judge held, the court is to use this discretion in
respect to probation judicially, and having regard to the age, character and antecedents of the
offender and the circumstances in which the offence was committed.

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 Conclusion
The presumption of innocence is necessary. With this concept, the provisions of bail were added
to the criminal procedure code, now Bharatiya Nagrik Suraksha Sanhita. It is a remedy for the
person who is innocent in the case. The person can save him to spend time behind bars by taking
bail. there are different types of bail in India that can be used according to the circumstances.
The application of anticipatory bail becomes more important in the case where the person thinks
that he can be arrest in the bailable case.

The concept of bail is good for the accused as he can be released from jail by filing a security
bond and security. He must be presented at the time of investigation of the case and during the
proceedings of the case.

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