What is bail?
The law lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation. What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court”.
Official Definition of Bail
Bail is not specifically defined under any statute, however, the conditions for availing the bail are available in Code for Criminal Procedure, 1973 (Cr.P.C.) including other provisions. The Cr.P.C. does not define the term 'bail' although the offences therein are classified as bailable and non-bailable.
- For bailable offences, bail is a matter of right granted as soon as the accused is willing to furnish bail under S. 436 of Cr.P.C. and the offences herein are less serious.
- Non-bailable offences are more serious in nature and while the bail can be granted here too, it is not a matter of right in this case.
Further, the corrigendum to the 268th Report of Law Commission of India on Amendments to Criminal Procedure Code, 1973 which includes The Code of Criminal Procedure (Amendment) Bill, 2017 recommends a definition for ‘bail’:
“bail” primarily means the judicial interim release of a person suspected of a crime or any person accused of an offence held in custody, upon a guarantee that the suspect or the accused, as the case may be, will appear to answer the charges at some later date; and includes grant of bail to a person suspected of a crime or any accused person by a court/police officer/ officer authorised by law for the time being in force; and the guarantee may include release without any condition, release on condition of furnishing security in the nature of a bond, with or without sureties, or release on condition of furnishing other forms of security, or release based on any other condition, as deemed sufficient by the court/police officer/ officer authorised by law for the time being in force.
The report also discusses various dictionary and judicial definitions.
Types of Bail
There is no statutory classification of bail.
However, bail may be categorised into four types based on the conditions of the grant of bail. It includes regular bail, interim bail, anticipatory bail, and default bail.
Sections 437 and 439 of CrPC pertain to the release of the accused already arrested/detained on the condition as the relevant court may deem fit as per the nature of the alleged offence.
As per Section 438 of CrPC, the person anticipating arrest for a non-bailable offence (where bail cannot be sought as a matter of right) may apply to the High Court or Sessions Court for a grant of bail against such arrest.
As per Section 167 of CrPC, the magistrate may stipulate a maximum period for the detention of the accused in cases where it appears that the investigation cannot be completed within 24 hours and the accused is entitled to default bail on the completion of the maximum period.
Interim bail is granted temporarily for a short term during the pendency of regular or anticipatory bail.
Bail after conviction
Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person can get a Bail from appellate court after filing the criminal appeal. Section 389 (3) deals with a situation where the trial court itself can grant a bail to convicted accused enabling him to prefer an appeal.
Cancellation of Bail
There is no specific provision pertaining to cancellation of bail but Section 437(5) of CrPC empowers the court of Magistrate to cancel the bail and order the arrest of such person for the non-bailable offence. The bail can also be cancelled by the Session Court or the High Court under Section 439(2) of the CrPC.
The CrPC does not enumerate the conditions for the cancellation of bail but various judgements declare grounds for the cancellation of Bail. In the case of Dolat Ram v. State of Haryana ((1995) 1 SCC 349), the SC held that very cogent and overwhelming circumstances are necessary for cancelling a bail that has already been granted. The SC summarised the principles to be kept in mind while deciding the cancellation of bail in the case of Deepak Yadav v. State of U.P. ((2022) 8 SCC 559). As per the judgement, the grounds for cancellation of bail are:
(i) interference or attempt to interfere with the due course of administration of justice;
(ii) evasion or attempt to evade the due course of justice;
(iii) abuse of the concession granted to the accused in any manner;
(iv) possibility of the accused absconding;
(v) likelihood of/ actual misuse of the bail; and
(vi) likelihood of the accused tampering with the evidence or threatening witnesses.
Grant of Bail: Factors to be taken into Consideration
The Supreme Court of India, in various judicial pronouncements, has clarified the conditions for the grant of bail. In the case of the State of Maharashtra v. Sitaram Popat Vital (2004 Supp(3) SCR 696), the court gave factors to be taken into consideration to decide on the grant of bail. They include:
1. The nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Further clarity on the law of bail was given in the 2021 judgment in the case of Satender Kumar Antil v. CBI & Anr. (2021) 10 SCC 773, where the Supreme Court categorised the offences into four categories and gave specific guidelines for each along with general conditions to co-exist for the applicability of said guidelines.
The Supreme Court in Re Policy Strategy for Grant of Bail v. Mr Gaurav Agrawal (SMWP (Criminal) No. 4/2021) gave 7 directions with respect to the execution of bail orders that include relaxations in the condition of producing surety, adequate notice of grant of bail to the prisoner, engagement of District Legal Services Authority in case of non-execution of orders of bail, etc.
It refers to the bai where its grant is contingent on certain conditions listed by the Court. It may include not leaving the particular jurisdiction without permission of the concerned authority, submission of passport, surety amount etc. The failure of these conditions may lead to the cancellation of bail. As per section 437(3) and 438(2 )of the Cr.P.C., the court is given the power to impose such conditions as it may deem necessary in the interest of justice apart from the reasons to ensure the attendance of the accused when required and to prevent the commission of similar offence. The Supreme Court has time and again cautioned the lower courts that such conditions cannot be arbitrary. In the case of Munish Bhasin v. The State ((2009) 4 SCC 45), the SC has held that the Court while granting bail should give due regard to the facts and circumstances of the case and can impose necessary, just and efficacious conditions. Absurd condition like rakhi tying by the Madhya Pradesh HC was set aside by the SC in Aparna Bhat v. State of M.P. (2021 SCC OnLine SC 230) holding that the bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. The bail conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision, the SC held in Kunal Kumar Tiwari v. State of Bihar ((2018) 16 SCC 74).
Bail Bond and Surety Bond
The Cr.P.C. uses the term bail bond multiple times in sections 437A (Bail to require the accused to appear before the next appellate Court) and 446A (Cancellation of Bond and Bail Bond) but it does not define the same. Provisions have been made under Cr.P.C. regarding the form of a bond, amount of bond, conditions and execution of bond, sufficiency of sureties and discharge of sureties, procedures in case of insolvency or death of surety, etc.
Bail Bond is understood as a form of security to be deposited during the grant of bail to ensure the presence of the accused when required by the court which is refundable. However, if the accused disregards the conditions of bail, the right to refund is forfeited.
Surety Bond: The grant of bail herein involves a relative or a friend of the accused who acts as surety to ensure the presence of the accused when called upon by the court. In case the accused does not fulfil the conditions of bail, the surety is liable to pay instead of the accused. It forms a part of the bail bond where another person furnishes the bail amount instead of the accused himself.
In Re Policy Strategy for Grant of Bail SMW (Crl.) No. 4/2021, the SC noted the issue of non-release of undertrials even if they are granted bail because they are unable to furnish bail bonds. In lieu of the said problem, Court issued various directions. One of the notable directions is that if the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.
Appearance in the Official Databases
Law Commission Reports
The 78th Report of the Law Commission of India on Congestion of Under-trial Prisoners in Jails suggests enlarging the list of bailable offences, and conditions for release on bond without sureties while discussing the law of bail with a focus on undertrials.
The 268th Report of the Law Commission of India on Amendments to Criminal Procedure Code, 1973 extensively discusses the concept of bail and suggests recommendations to that effect.
The Law Commission of India’s 203rd Report on Section 438 of the Code of Criminal Procedure Code, 1973, seeks the Law Commission’s opinion on the amended version of Section 438 of CrPC dealing with anticipatory bail.
Prison Statistics India
The National Crime Records Bureau’s Prison Statistics India 2021, present data on prison inmates in India and also provides data on number of inmates released on Bail.
National Judicial Data Grid (NJDG)
The National Judicial Data Grid (NJDG) (High Courts of India) mentions data for pending bail applications: High Court wise, bench wise and year wise classified into matter-type, age-wise and institution v. disposal.
Similarly, the data is available in the Disposed Dashboard of NJDG (High Courts) for the bail applications classified as Matter type, age-wise, nature-wise and time to disposition.
The National Judicial Data Grid (District and Taluka Courts of India) showcase the data for pending and disposed off bail applications district-wise and year-wise under different categories. The information on pending bail applications are categorised as matter-type, age-wise, stage-wise and Institution v. Disposal.
The data is also available for disposed off bail applications district wise and year wise classified as matter type disposal, age-wise disposal, nature-wise disposal and time to disposition.
Bail as a case type also features in eCourts-District Court website as a search filter as ‘Bail Matters-Bail Case Type.
As Case Type
- High Courts like that of Delhi, Jammu and Kashmir, Kerala, Meghalaya and Sikkim mention “bail application” in their case types.
- High Courts of Bombay, Gauhati, Manipur, Orissa, Tripura and Jharkhand mention two heads as case type for bail matters- Bail and Anticipatory Bail.
- Allahabad High Court has three case types finding mention of bail: Criminal Miscellaneous Anticipatory Bail Application under Section 438 Cr.P.C, Criminal Miscellaneous Bail Application and Criminal Miscellaneous Bail Cancellation Application.
- Rajasthan High Court mentions three case types relating to bail matters: Criminal Bail Cancellation Application, Criminal Miscellaneous Bail Application and Criminal Revision Bail (regular bail).
- Calcutta High Court has an elaborate scheme for bail matters as case types: Anticipatory Bail Applications under Section 438 Cr.P.C., Criminal Miscellaneous Case (Bail Application), Bail applications where sentence may exceed imprisonment for seven years, All bail applications pertaining to FEMA, All bail applications pertaining to FERA, All bail applications pertaining to NDPS Act, All bail applications where sentence does not exceed imprisonment for seven years, and All bail applications pertaining to TADA Act.
- Uttarakhand HC has an even more elaborate scheme for bail matters as case type. It mentions bail as case type under the heads of Anticipatory bail application, Anticipatory bail cancellation application, Bail cancellation First bail application, Second bail application….. upto Tenth bail application, etc.
- Punjab and Haryana HC, Madras HC, Andhra Pradesh, Chhattisgarh HC, Madhya Pradesh HC, Karnataka HC, Patna HC, Telangana HC, Gujarat HC and Himachal Pradesh HC do not have a separate case type pertaining to bail matters,
As Case Category
- Delhi HC lists bail matters under the head of Criminal Revisions, Criminal Miscellaneous Cases and Bail Applications;
- Jammu and Kashmir HC as Criminal Appeal and Bail Application;
- Allahabad HC identifies the bail matters under the category of Application;
- Bombay HC elaborately categorises bail matters as Writ Petition-Fresh Bail Application Pending Investigation of Trial, Writ Petition- Bail, including Anticipatory Bail, Revision-Fresh Bail Application Pending Investigation of Trial, Revision- Bail, including Anticipatory Bail, Revision- Bail, including Anticipatory Bail, Appeal- By Persons Convicted (Against Conviction) on Bail, Application- Fresh Bail Application Pending Investigation of Trial, Application-Anticipatory Bail, For Bail, For Temporary Bail, Jail Application for Bail, Cancellation of Bail, Appeal- By Persons Convicted (Against Conviction) on Bail (By Appointed Advocate), ABA- Cancellation of Anticipatory Bail.
- Madhya Pradesh HC categorises bail matters as Bail Matters:- i. Bail applications u/s 438 Cr.P.C. ii. Bail applications u/s 439 Cr.P.C. iii. Suspension of Sentence u/s 397 Cr.P.C., iv. Suspension of Sentence u/s 389 Cr.P.C., v. u/s 53 Juvenile Justice Act, 2000 / Sec. 102 Juvenile Justice Act,2015 vi. U/s 14A SC/ST Act, 1989 as amended by Amendment Act, 2015;
- Gauhati HC, Manipur HC, Meghalaya HC mention bail matters under the category of Criminal Revisions and Other Cases: (i) Cancellation of Bail (ii) Bail Application under Section 439 Cr.P.C (iii) Anticipatory Bail application under Section 438 Cr. P.C.
Research that engages with Bail
- The High Court Bail Dashboard by DAKSH analyses data from bail cases in high courts sheds light on the vexing issue of undertrial detention and its burden on the criminal justice system. It analyses the data from bail cases in High Courts and provides insights on types of bail cases, subject matter of bail cases, duration of bail cases, and outcomes of bail cases.
- The collaboration of the Azim Premji Philanthropic Initiative and the Centre for Law and Policy Research in their report “Re-imagining Bail Decision Making” analyses bail practice in Karnataka and makes recommendations for reform.
- An empirical study was carried out by the Tata Institute of Social Sciences titled “A Study on Bail and Extent of its Abuse Including Recidivism”. The study has been carried out to explore the use and potential abuse of bail in the criminal justice system and its impact on recidivism.
- Research project on BAIL REFORMS IN THE CONTEXT OF UNDERTRIAL WOMEN PRISONERS: AN ACTION-ORIENTED RESEARCH WITH SPECIAL REFERENCE TO SABARMATI CENTRAL JAIL IN THE STATE OF GUJARAT carried out by Gujarat National Law University (GNLU).
Other informative material on the Law of Bail
- eCourts Project’s Paper on Bail
- Critical Analysis of Law of Bail titled “INCONSISTENT AND UNCLEAR: THE SUPREME COURT OF INDIA ON BAIL”
- Cyril Amarchand Mangaldas’ Blog on the General Principles of Bail titled “Bail or Jail – The Supreme Court clarifies the law and lays down the guidelines”
Also Known As
The distinction between the “bail” and “bond” is unclear in light of the reading of Sections 436 and 436A which use these terms interchangeably. Section 436 deals with release of the accused on bail by furnishing a bond for bailable offences and Section 436A poses a condition for release of an undertrial on personal bond. It seems that since bail is always accompanied by some kind of bond whether personal or monetary with or without surety, the legislation dilutes the difference between the two in legalese.