Broadly Speaking: Types of Bail in India

Introduction

Bail considerably refers to the release of a person from legal custody on deposit of security and undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the Court. Law Lexicon defines “Bail” as security for the appearance of the accused person on giving which he is released pending trial or investigation. The basis of bail lies in the principle that there is a presumption of innocence of a person till he is found guilty. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions of bail and bond.

In Black’s Law Dictionary, bail has been defined as “security such as cash or bond especially security required by a court for the release of a prisoner who must appear at a future date.”

Types of bail

Temporary Bail

Temporary bail means the accused is released from the jail for definite/particular time and after time gets over the accused has to return to jail. Every court which has jurisdiction to try bail matter has the authority to grant a temporary bail or parole to an accused. Parole is an alternative form of temporary bail.

Interim Bail

It is another provision, where the accused can take advantage and may apply for bail on some genuine reason, mostly it is conceded to the offences which require to travel, also to women, children and the persons who have attained the age of 70 years and also to the students who are appearing for any examination in such cases interim bail may be granted. It has been given under article 26 of the Constitution of India, 1950. Interim bail can be granted only on a merit basis. The only condition where interim bail may not be granted is in offences which has death punishment, but this condition has been relaxed to women, children and aged persons. Where an order of interim bail has been passed in favour of accused the ordering authority cannot impose any condition while granting bail.

Anticipatory Bail

Section 438 of CrPc does not mention the term ‘anticipatory bail’, but the subject is clear with which the section deals. In fact, ‘anticipatory bail’ is a misused term. When the Court grant ‘anticipatory bail’, what it does is to request that in case of arrest, a person shall be released on bail. There is no doubt of release on bail unless a person is arrested.

Anticipatory bail is granted in anticipation of arrest the anticipatory bail ensures freedom till the regular bail application decided by the Court.Anticipatory bail is granted by the High Court or a Court of Session, to a person who apprehends arrest for having committed a non-bailable offence but has not yet been arrested and the person is seeking bail in advance before his arrest. The option of Anticipatory bail is available for all accused who are suspected to commit the non-bailable offence. Court has not mandatory but discretionary right to grant Anticipatory right to the suspected person. The court must be satisfied at any point for granting Anticipatory Bail. Anticipatory means presumption or anticipation of something, a possibility that may happen or certain act may occur on a future day and to prevent that act from happening necessary precautions need to be taken. Where the court allows anticipatory bail it means that in the event of arresting a person shall be released on bail, the anticipatory bail comes in function only on the occasion of the arrest. In Arnesh Kumar v. State of Bihar & Another Petitioner, apprehending arrest in a case under S. 498A, IPC (Husband or relative of husband of a woman subjecting her to cruelty) and S.4, Dowry Prohibition Act, 1961 (Penalty for demanding dowry) moved the Patna HC for anticipatory bail (because 498A is a cognizable and bailable offence) which was rejected at the Patna HC. Petitioner approached the SC for seeking anticipatory bail. Further, bail was granted by the Supreme Court of India.

Default Bail

Concept of Default Bail is evolved by lawyers and judges. There is no particular provision which talks about default bail. Accused get default bail in case of failure or delay of an investigation by the investigation officer. An investigation must be complete within the time limit prescribed by the law. Default Bail is also known as ‘compulsory bail’ because this type of bail is granted if charge-sheet is not filed within the prescribed time by the law. The motive of this concept is, a person cannot be kept in jail or custody for an indefinite period on the basis of an incomplete investigation.

In Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi, it was held by the Supreme Court that it is mentioned under proviso (a) to section 167(2) of the CrPc granting bail to the person is absolute if charge-sheet is not filed within stipulated time. Thus, it is legislative command and not court’s discretion. In Union of India v. Thamisharas]it was reiterated by the Supreme Court that, if application of default bail is filed then merits of the matter are not to be gone into.

grounds for cancelling bail

The Criminal Law does not specifically enlist the circumstances or grounds on which a bail order can be cancelled. The High Court or Court of Session to cancel a bail has discretionary power to cancel a bail. However, precedents indicate circumstances under which bail can be cancelled.

In the case of Public Prosecutor v. George William, the Court listed 5 grounds under which bail could be cancelled. They were:

• Where the accused during the period of bail commits the same offence for which he is being tried;
• Hampers investigation;
• Tampers evidence, like intimidating prosecution witness;
• Runs away or goes beyond the control of sureties;
• Commits acts of violence against police or informant

Other grounds as inferred from judicial dicta are as under:

• Misrepresentation of facts
• Improper exercise of discretion by Judges
• Bail granted based on irrelevant material

conclusion

In conclusion, this article is picture of Indian bail system. In India granting bail is matter of court’s discretion. Thus this system needs to be exercise judiciously and not arbitrarily. India needs wide concept for laws on bail. Our bail system suffers from several erroneous assumption which results into high risk for the society.

The author is Dhruvi Anajwala, 3rd Year Gujarat National Law University

References

[1]Criminal Procedure Code, 1973 S. 436 to 450.

[2] Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015 at p. 4.

[3] Siddhram Satlingappa Sibbia v. State of Maharashtra AIR 2011 SC 312.

[4] P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016 at p. 246.

[5] Supra note 2.

[6] (Crl.) No. 9127 Of 2013.

[7] Criminal Procedure Code, 1973 S.167.

[8] Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau AIR 1990 SC 71 (paras 12, 13).

[9] Union of India v. Thamisharasi (1995) 4 SCC 190 (para 10).

[10]Public Prosecutor v. George William AIR 1951 Mad 1042.

[11] Brijeshwar Dayal Verma v. State of U.P. [1992 Cri LJ 411 (All HC)].

[12] State of Maharashtra v. Anand Chintaman Dighe (1991)3 SCC 209.

[13]Rohit Bansal v. State & Anr. CRL.M.C. 844/2017 & CRL.M.A. No. 3554/17.