The term "Bail" is not defined anywhere in the code, but in the attempt of definition, it means setting a person at liberty after arrest on a charge. Such liberty is granted to the accused after fulfillment of paramount condition i.e. Security. In Bail, security is provided through the filling of bail bonds and through a person who acts as a security that accused person would not run away from the eyes of law after being released.[1]

Bail is balancing the liberty of the person accused and protecting society from any harm. Bail has not been defined statutorily but there are provisions in CrPC which deal with the concept of bail. If bail is the general rule, jail an exception, the accused should be granted bail unless the court thinks otherwise. Just because a person is accused does not mean he needs to be detained for an unreasonable period.

Section 437 and 439 of the Criminal Procedure Code 1973 deals with the provision regarding bail in non-bailable offences. As per section 437 & 439 bail in non-bailable offences is not a matter of right. Bail-in offences of grievous nature are at the discretion of the Court. The Court shall look into the facts and circumstances of the case before granting bail.

Research Question

• Whether the Court has the sufficient power to grant bail when offence falls within the category of Non-Bailable Offence?

The procedure for procuring bail in non-bailable cases is completely different than in the case of bailable offences. Although as per sub-section 4 of Section 437 of the Code,[1] the police officer, while writing sufficient reasons, has the power to grant bail even in non-bailable cases, but in real practical practice in the court, the police officer does not allow the accused to be free on bail. They present the accused in court and advise him to go for judicial bail[2].

Section 437 of the Criminal Procedure Code lays down the provision for granting bail for non-bailable offences. The following are the provisions for bail in a non-bailable offence:

The granting of bail for non-bailable offences is totally at the discretion of the court or the concerned police officer.[3] When a person who has been accused of committing a non-bailable offence appears before the judicial magistrate,[4] the judicial magistrate can exercise discretion in granting him bail.

However, the magistrate cannot exercise this power in any of the following circumstances:

1. There are reasonable grounds for believing that he is guilty of committing an offence that prescribes a punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous conviction for an offence punishable with death, life imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused for a cognizable offence that prescribes a punishment of imprisonment of 3 years to 7 years.

Though there are restrictions to this discretionary power as mentioned above, the judicial magistrate may grant bail to the accused if the accused is a woman, a person under the age of 16, or a person who is sick or infirm. In the situations mentioned in points the magistrate may still grant bail if there is any special reason for doing so.[5]

• While releasing a person on bail, the officer or the magistrate must record the reasons or any special reason for doing so in writing.
   
• The mere fact that an accused has to be identified by witnesses during the investigation process does not disqualify him from being granted bail if he is entitled to bail otherwise.
   
• If the offence that the accused is alleged to have committed is punishable with death, life imprisonment, or imprisonment for 7 years or more, then the public prosecutor must be given an opportunity of hearing in order to grant bail to the accused.
   
• If at any stage of the case, whether it is during the investigation, enquiry or trial, the police officer or the magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, then the accused shall be granted bail. On doing so, the reasons or special reasons must be written and recorded.
   
• The trial should conclude within 60 days from the first date which was fixed for taking evidence. If not, the accused person must be mandatorily released on bail if he was in custody. If he is not released, the officer or the magistrate must record the reasons for doing so.

The High Court and the Sessions Court have some special powers under Section 439 of the Criminal Procedure Code, 1973, if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may grant bail in appropriate cases.[6]

High Court or Court of Session may direct the release on bail of any person who is in custody and has been charged with an offence, and if the crime is of the kind listed in subsection (3) of Section 437, the court may impose any necessary conditions for the purposes mentioned in that subsection and can set aside or modify any condition imposed by a magistrate when releasing an accused on bail. The High Court or Court of Session shall give notice to the public prosecutor, unless it is of the opinion, for a reason to be recorded in writing, that such notice is not practicable.[7]

As per section 389 of CrPC,[8] If the lower court passed the order of conviction against such accused person & against such order of conviction if the accused prefer an appeal in an appellate court, then in such cases appellate court can suspend the sentence against which such appeal was made by the accused till the time appeal is disposed off or if the accused is in the custody.

Then in such cases appellate court can order such person to be released on bail or on his own bond and it is mandatory for the court to provide a chance to the public prosecutor so that he can present his views in writing against such release of accused on bail in the cases where the accused is convicted with life imprisonment, imprisonment more than ten years or with death before granting bail to the accused also its upon the discretion of the appellate court that whether it will provide a bail or not to the accused. If the public prosecutor is not satisfied with the orders of the appellate court, then in such cases the public prosecutor can file an application regarding the cancellation of the bail in that court only by which the accused person was granted bail.[9]

Section 437 (5) and 439 (2) of CrPC provides that if a bail granted to an accused can be subsequently cancelled and the accused shall be re-arrested on the satisfying of any of the following conditions (Cancellation of Bail)[10]:
Commission of the same offence by the accused, hampering of the investigation process by the accused, tampering of evidence by the accused, whether it is through intimidating prosecution witnesses or by eliminating the evidence of the commission of the crime, if he flees the country, goes underground, or goes beyond the control of his sureties; and if violation of any of the conditions imposed by the court while granting bail. [11]

Gurucharan Singh vs State (Delhi Adminstration)1978[12] The Supreme Court stated that "Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment."

Sanjay Kumar Gupta v. the State of U.P., (2021)[13] The Supreme Court observed that after being taken into custody, the accused person does not possess the right to file anticipatory bail, but he is at full liberty to go for regular bail under Sections 437 and 439, as the case may be.

Sudha Singh v. the State of U.P., (2021)[14] The Supreme Court, in this case, held that the effect on the victims and family members of the victim resulting from the accused's bail is to be calculated by the courts only. Where it is further held that the personal freedom of the accused is no doubt important but the effect of the accused's bail on the victims, which is yet to be examined, and the victim's family members is also to be taken care of with utmost precaution and justified reasoning.

Kanumuri Raghrama Krishnan Raju v. State of Andhra Pradesh, (2021)[15] In this case, the Supreme Court addressed the question of whether a high court can entertain a bail application under Section 439 of the Code if the accused directly approaches the court without resorting to the trial court. The Supreme Court answered in the affirmative and said that the provisions of Section 439 are concurrent and that just because the accused approached the high court without resorting to the trial court does not mean the high court cannot entertain his application.

In the case of Shanti Kumar vs. State of Himachal Pradesh 2017,[16] The Court held that mere fact that accused was a woman would not entitle her for bail under this proviso 1. If the offence was of such a nature which affects the vital interest of society and an adverse effect on society and family life of victim bail could not be granted.

Conclusion
"Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society".- Justice Dalveer Bhandariin S.S. Mhetre vs. State of Maharashtra (2010)

The very concept of bail is based on the presumption "innocent until proven guilty". The law of bail should be a balance between protection of personal liberty of the accused and benefit of the society at large. The courts must keep in mind "Bail is the general rule, jail an exception." As personal liberty is a fundamental right guaranteed under Article 21 of the Constitution, refusing bail to an individual shall be considered infringing his/her right to personal liberty.

Suggestion:
The opinion of the trial court differs from the High Court in the case of bail. As a result, the accused has to knock the doors of the High Court and the Supreme Court for bail. In the lights of bail provisions I would like state that the judiciary and parliament has to more concern about that, legislature should make a separate special act relating to bail and make a special court for it because in most of the cases we can see the violation of article 21 of the accused.

The Apex court said thousand times that the bail is general rule and jail is exception but in reality the picture is different. The rich and influential people get easily bail and poor and indigent persons are in the jail.

End-Notes:

1. Section 437 of the Code of Criminal Procedure 1973
2. Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis. p. 8, Visited on 4th November 2022
3. Janak Raj Jai, Bail Law and Procedures, Universal Law Publishing, 6 th edition, 2015 Visited on 4th November 2022.
4. https://www.legalserviceindia.com/articles/bail_poor.htm, Visited on 4th November 2022.
5. https://www.humanrights.com/course/lesson/articles-06-11/read-article-11.html , Visited on 4th November 2022.
6. Section 439 of the Criminal Procedure Code, 1973,
7. https://www.advocatekhoj.com/library/bareacts/criminallaw2018/23.php?Title=Criminal%20Law%20(Amendment)%20Act,%202018&STitle=Amendment%20of%20section%20439 , Visited on 7th November 2022
8. Section 389 of the Criminal Procedure Code, 1973,
9. Bail After Conviction Section 389 CrPc, available at https://www.legalserviceindia.com/legal/article-5785-explained-bail-after-conviction-section-389-crpc.html
10. Section 437 (5) of CrPC
11. https://www.livelaw.in/news-updates/section-437-crpc-karnataka-high-court-women-granted-bail-non-bailable-offence-200049 , Visited on 4th November 2022
12. Cr.L.J.129(S C.)
13. SLP(Crl.)No. 3496 of 2021
14. (Special Leave Petition (CRL.) NO. 3577 0F 2020)
15. SLP (Criminal) No.3785 of 2021
16. Cr. Revision No. 85 of 2009.
17. Bail: A General Rule, Jail: An Exception" An Analysis, Volume Iv Issue V | Issn: 2582-8878

Written By: Mr.Sujoy Paul - (BBA-LLB)
Email: [email protected], Ph No: 7029253050