Bail

What is Bail?

Bail is derived from the old French verb “baillier” meaning to ‘give or deliver’. The word “bail” has been defined in the Black’s Law Dictionary as “Releasing a prisoner due to a deposit of a security. The person must still appear in court. A civil case allows release but criminal issues are based on the courts' discretion. Bail can also be denied." According to Halsbury’s Laws of England: "the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned."

Bail also refers to the security furnished by the accused for their release during the pendency of trial or investigation. The person receiving the bail has to ensure his/her availability at the required time before the legal authority. The law lexicon defines bail as the security for the accused person's appearance 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”.

Wharton’s Law Lexicon defines bail as “to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have if they fear his escape, etc., the legal power to deliver him."

Official Definition of Bail

Bail as defined in Legislation

Bharatiya Nagrik Suraksha Sanhita (BNSS)

Bail has been defined in the Bharatiya Nagrik Suraksha Sanhita (BNSS) in section 2(1)(b) as “release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond”.

The Bharatiya Nagrik Suraksha Sanhita (BNSS), further defined Bond as personal bond or an undertaking for release without payment of any surety’ and Bail Bond as ‘an undertaking for release with payment of surety'. A combined reading of these definitions makes apparent the two ways by which a person may be released on bail i.e. execution of a bond (without surety) or a bail bond (with payment of surety).

Code of Criminal Procedure (CrPC)

Bail is not specifically defined in CrPC, however, the conditions for availing the bail are available in Code for Criminal Procedure, 1973 (Cr.P.C.) including other provisions. The Code of Criminal Procedure (CrPC) use the term bail to include release either with or without surety.

Further, The CrPC (BNSS) classify offences 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.

Bail as defined in Official Government Reports

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.

Bail as defined in Case Laws

In Sunil Fulchand Shah v. Union of India, the court held that the literal meaning of the word “bail” is surety. Bail, therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on release subject to monetary assurance—either one’s own assurance (also called personal bond / recognizance) or through third party sureties. The Supreme Court has also reiterated this definition in the Moti Ram Case. Although, bail has been understood to include release with or without surety, there is currently some confusion regarding the textual usage of the terms bail and bond. This confusion arises as some provisions in CrPC use the term bail to include release either with or without surety, however, there are a few provisions that make a distinction between release on bail with surety, and on a personal bond without surety.

For instance, the proviso to s.436 CrPC assumes that bail requires surety, and where a person is unable to pay such surety, instead of bail, can be released on a personal bond. S.441 CrPC is another such provision which uses the language ‘released on bail or released on his own bond.’ Interestingly, s.441 (2) and (3) CrPC use the term bail generically to include release with or without surety. The Moti Ram Case discussed this ambiguity and held inter alia that bail ought to include both release with and without surety, and persons who are indigent or unable to pay surety ought to be released on their own recognizance.

Kamalapati Trivedi v. State of West Bengal

According to the Supreme Court of India, bail is devised as a technique for effecting a synthesis of two basic concepts of human values, namely the right of the accused person to enjoy his personal freedom and the public interest; subject to which, the release is conditioned on the surety to produce the accused person in court to stand the trial.

Public Prosecutor v. George Williams alias Victor

The Madras High Court explaining the concept of ‘bail’, observed that bail or main prize, meant, bailment or delivery of the accused person to their sureties, to be in their custody as opposed to jail. The rationale is that, they being jailors of choice, would have dominion and control over such accused. If the sureties cannot control the accused person during the period of bail, naturally, the Court would intervene to shift the custody over to the State.

Satender Kumar Antil v. Central Bureau Of Investigation

A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word “bail” has been defined in the Black’s Law Dictionary, 9th Edn., pg. 160 as: - “A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time."

It was also held in this case that the principle that bail is the rule and jail is the exception has been well recognized through the repetitive pronouncements of the Supreme Court and that it is again on the touchstone of Article 21 of the Constitution of India. The following directions were also given for grant of bail: 1) Not arrested during investigation. 2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

It was held in the case of Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India that some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.

As per the case of State v. Captain Jagjit Singh, whenever an application for Bail is made to a court, it has first to decide whether the offence is bailable or non-bailable. If the offence is bailable, there is no problem. If the offence is non-bailable, considerations such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, a reasonable possibility of the presence of the accused not being secured, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other considerations should be taken into account before granting bail.

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.

Regular Bail

According to section 478 of BNSS (436 of CrPC), If the offence alleged is bailable, then, the Accused is entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to Magistrates Court, before Magistrates court. The court imposes a statutory duty on the police officer to grant bail upon request. In bailable offences bail is a right and not a favor. In such offences there is no question of any discretion in granting bail.

Additionally, the maximum period of detention for an undertrial prisoner is defined, stating that if the accused has been detained for a duration equivalent to 50% of the maximum imprisonment term for the offence during the investigation, they shall be released by the court upon executing a bond, with or without sureties.

The provisions of section 480 of BNSS (437 of Cr.P.C) empower two authorities to consider the question of bail, namely (1) a court and (2) an officer-in-charge of the police station who has arrested or detained without warrant, a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court as well as a police officer in charge of police station to grant bail in non- bailable offences it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate. Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to person accused of, or suspected of the commission of any non-bailable offence. The grant of bail is discretionary for a person detained on suspicion of committing a non-bailable offense and it can be availed only if a strong case is presented. Bail for non-bailable offences can be granted based on specific grounds, including:

• If the accused is below or at 16 years of age.
• If the accused is a woman.
• If the accused is ill or infirm.
• For habitual offenders, bail is granted only under special circumstances.

Under the corresponding Section 480 of BNSS, the age is increased from sixteen to eighteen. This amendment makes the provision consistent with the Juvenile Justice (Care and Protection of Children) Act, 2015.[2]

Anticipatory Bail

As per Section 482 of BNSS (438 of Cr.P.C.), 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. Section 482 of the BNSS has excluded certain aspects that were specified in Section 438 of Cr.P.C. They are -

• Giving the Public Prosecutor a reasonable opportunity to be heard" during the application hearing
• Ensuring the presence of the applicant seeking anticipatory bail,

The BNSS does not provide any express criteria for determining the grounds for granting anticipatory bail, which results in giving the court absolute discretion without any specified guidelines to be followed.

Know more: Anticipatory Bail

Default Bail

As per Section BNSS 187 of BNSS (167 of Cr.P.C.), 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.

While Cr.P.C. did not provide for the option to request custody in parts, Section 187 of the BNSS has added that the maximum duration for seeking police custody is 15 days, and can be undertaken in whole or in parts. Further, It grants police the authority to request custody either in a single stretch or in parts throughout the initial 40 or 60 days of the total detention period of 60 or 90 days respectively, as may be applicable.

Additionally, to safeguard the accused’s right to bail, Section 480 of the BNSS provides that the mere fact that an accused person may be required to be identified by witnesses during the investigation or for police custody beyond the first fifteen days shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail.

Interim Bail

Interim bail is granted temporarily for a short term during the pendency of regular or anticipatory bail. There is no express legal provision for ad-interim or interim bail but the court has the discretion to grant it. Section 439 Cr.P.C. (Section 483 of BNSS) is on the High Court’s & Supreme Court’s power to release the accused on bail in custody.

Bail after conviction

Section 389 (1) and (2) of Cr.P.C. (Section 430 of BNSS) 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.

Grant of Bail: Factors to be taken into Consideration

• 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.

• In 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.

Summary of Guidelines

Nature of Offence	Conditions	Course to be adopted by courts
Offences punishable with 7 years or less	1) Accused not arrested during interrogation. 2) Cooperated throughout the investigation including appearance before Investigating Officer whenever called.	1) Summon (Appearance through lawyer permissible) 2) Bailable warrant Appearance of accused not necessary for cancellation of warrant. Bail application of accused arrested with Non Bailable Warrant to be decided without taking him into physical custody.
Offences punishable with death, imprisonment for life, 7 years or more		On appearence of accused in court pursuant to process issued; bail application to be decided on merits
Special Acts containing stringent provision for bail

• 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.

Cancellation of Bail

There is no specific provision pertaining to cancellation of bail but Section 480(5) of BNSS (437(5) of Cr.P.C.) 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 483(3) of BNSS (439(2) of the Cr.P.C.).

The Cr.P.C. 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.

Conditional Bail

Granting bail involves a delicate balance for a court. The accused is presumed innocent until proven guilty; thus, their liberty cannot be indefinitely curtailed. At the same time, the victim awaits justice and is entitled to a thorough investigation and fair trial, which requires the accused's participation. Therefore, courts often supervise bail releases by imposing certain conditions to maintain this balance.

This type of bail is granted 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 480(3) of BNSS (437(3) of Cr.P.C.) and 482(3) of BNSS (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, protect witnesses from tampering or intimidation and to prevent the commission of similar offence. It was held in the case of Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC 74 that there is no dispute that Clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. And that the court is aware that such wordings are capable of accepting broader meaning. And that such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision.

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. Section 2(1)(d) of BNSS has defined "bail bond" as an undertaking for release with surety

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.

Restrictive Bail Provisions in Special Laws

Many special laws in India reverse the burden of proof making bail as an exception instead of the rule. Some of these laws have imposed further twin conditions to grant bail essentially turning the common law principle of “presumption of innocence” upside down.

Section 37 of the NDPS Act holds that a court can grant bail to an accused only if it is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail.

However, SC has said “Grant of bail on the ground of undue delay in the trial cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which applies to offences under the NDPS Act too,”

Section 45 of the PMLA, the twin conditions are that first a public prosecutor must be allowed to contest the bail application, following which the one seeking bail must prove they are not likely to commit a crime while on bail; and must provide reasonable grounds they are not guilty of the crime they have been accused of.

The twin conditions under PMLA were declared unconstitutional in Nikesh Tarachand Shah v. Union of India, but the Supreme Court overturned it in the ruling Vijay Madanlal Choudhary v Union of India.

Section 212(6) of the Companies Act also imposes twin conditions the same as under PMLA. Further, in Ashish Mittal Vs Serious Fraud Investigation Office it was held that the twin conditions contained in section 212(6) of the Companies Act 2013 Act do not imply that as soon as section 212(6) is triggered, bail must reflexively, immediately or automatically be rejected. It raises the threshold of satisfaction required of the court while considering the grant or denial of bail. In addition to the usual and ordinary conditions under section 439 Cr.P.C., the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that the accused is not likely to commit any offence while on bail. At the threshold therefore, it must be seen if there are any allegations against the accused under the relevant section section 447 of the 2013 Act, since otherwise section 212(6) will not come into play at all.

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.

E-Courts Website

Bail as a case type also features in E-Courts-District Court website as a search filter as ‘Bail Matters-Bail Case Type.

At the District Court level, there is a practice of uploading final order sheets without reflecting the outcome against it. However, some courts like Lucknow District Court upload final order sheets reflecting their outcomes.

High Courts

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.

DAKSH Database

• 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 image is retrieved from https://database.dakshindia.org/bail-dashboard/?utm_source=substack&utm_medium=email

Research that engages with Bail

Confused Purposes and Inconsistent Adjudication: An Assessment of Bail Decisions in Delhi's Courts

This paper explores the inconsistencies in bail decisions in Delhi Courts. It highlights how varying interpretations of legal principles and the subjective nature of judicial discretion lead to unpredictable outcomes. The paper argues that these inconsistencies undermine the rule of law and the right to liberty, calling for clearer guidelines and reforms to ensure more uniform and just bail adjudication.

Re-imagining Bail Decision Making

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. The report shows that a staggering 2/3rd proportion of the prison population are undertrial prisoners and points towards better Bail Decision Making process to curb this issue. The study also covers effects of monetary bail system on detainees from marginalized socio-economic backgrounds. It is a comprehensive report on the staggering number of undertrial prisoners, policy reforms and suggestions.

A Study on Bail and Extent of its Abuse Including Recidivism

This empirical study has been carried out to explore the use and potential abuse of bail in the criminal justice system and its impact on recidivism. It also discusses the interface between recidivism and the bail system is stressing the importance of bail in the restorative justice process. A comparative study of recidivism in different countries is also included which provides framework to understand the criminal justice system and the law and order in India. It analyses sociological and legal aspects of the bail system as it operates on the ground level and also breaks some popular assumptions.

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

This study covers the situation faced by women undertrial prisoners in India and the various policy reforms which can bring a change. It points out that overcrowding in prisons has reached a chronic stage and as the prison system is collapsing, the greatest hardship is being faced by women. Due to their gender women often face discrimination due to lack of prison infrastructure or discrimination due to resultant social stigma caused by imprisonment, and they also find it difficult to secure bail or even get a surety when bail is granted to them. As a result, their right of getting a fair trial is hindered and they often suffer imprisonment without following the due process of law.

How the Supreme Court speaks in contradictory voices on bail

The article discusses the Supreme Court of India's inconsistent approach to granting bail, highlighting contradictory rulings and the resulting unpredictability in bail decisions. It points out that different benches of the court have issued conflicting orders regarding similar bail conditions, leading to a "judicial lottery" where outcomes heavily depend on the individual judges' discretion. The inconsistency extends to cases under the Unlawful Activities (Prevention) Act and notable examples of selective liberty, affecting both political figures and activists. The article calls for standardized guidelines to ensure fair and uniform bail decisions.

Inconsistent and Unclear: The Supreme Court of India on Bail

This paper critically analyses the Law of Bail in India and revisits the inconsistencies in the decisions of the court regarding grant of bail and its implications. It also discusses principles and precedence which give more clarity on the heated debate on this topic.

Handbook on Principles of Bail Conditions

This Handbook released by Law and Equity Foundation is comprehensive reference guide for lawyers practising at the criminal trial and appellate levels, equipping them with an overview of the evolving jurisprudence surrounding bail conditions, The Handbook is currently organised in seven broad categories of case law i.e. general principles of bail conditions, extremely onerous bail bonds, onerous conditions on type and number of sureties, restrictions on travel/movement (including location sharing), payment of compensation, and restrictions on speech and behaviour of accused.

International Experiences

United States of America

In American law, Bail is the money a defendant pays as a guarantee to be present in court when called upon. A failure to present in court triggers the bond obligation allowing the court to keep the money given as security. According to the American Bar Association, the judge or magistrate decides the amount of bail by weighing many factors, including the risk of the defendant fleeing, the type of crime alleged, the "dangerousness" of defendants, and the safety of the community among others.

Different states have different bail practices, but most follow the common method of determining whether to jail the person without the possibility of release until the case is over. A person may be detained pretrial only if there is a high risk that the person will not appear in court or will be a danger to the community. The Eighth Amendment to the U.S. Constitution prohibits “excessive bail,” but it does not require courts to allow bail.

The Federal Pretrial Risk Assessment (PTRA) is a scientifically based instrument created by the Administrative Office of the U.S. Courts (AO) and used by the probation and pretrial services officers to assist in determining a defendant’s risk of failure to appear, new criminal arrests, or technical violations that may lead to revocation while in the pretrial services system.

Pretrial risk assessment tools include characteristics of the defendant, their social environments, or their circumstances. These typically include the defendant's age, substance use, criminal history, pending/current charge(s), employment stability, education, housing/residential stability, family/peer relationships, and community ties.

Risk factors are characteristics that increase the likelihood of failure to appear and/or rearrest, while protective factors are characteristics that decrease the likelihood of failure to appear and/or rearrest. State laws authorize, require, encourage, or regulate court use of pretrial risk assessment tools.

Several states utilize pretrial risk assessment tools in varying ways and with different mandate. For instance, New Jersey has a statewide pretrial services program that administers pretrial risk assessments and offers recommendations to courts. Utah has no law addressing pretrial risk assessment, but the state courts have implemented a tool in many cases. Colorado requires that courts should consider the results of the tool whenever possible. While Vermont allows judges to request a risk assessment in particular cases, the defendant's participation is voluntary. Idaho and New York do not require or encourage the use of a risk assessment tool but instead offer guidelines and requirements that all jurisdictions must follow if they choose to use one. Nevertheless, judges still have their discretion along with using risk assessment tools, and no state requires courts to adhere to the results.

United Kingdom

The United Kingdom enacted a special Bail Act in 1976, which follows a “simple procedure” and provides for bail to all those to whom it is applicable, except as provided in Schedule 1 of the Act. Schedule 1 provides for different contingencies and factors, including the nature and continuity of the offence. Bail can be either unconditional or conditional. Conditional bail means that restrictions and conditions are imposed on defendants. This may mean the defendant can’t contact a complainant or go to a certain location. While unconditional bail means that there are no restrictions and conditions imposed on defendants. It is usually granted when there is no flight risk and it is unlikely that the defendant will reoffend or interfere with victims and witnesses. In the UK, bail is based on cash deposits and specified restrictions on individual liberty.

The bail can be of three types -

1. Pre-charge bail or police bail - The police can impose this bail when they have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI), or with “no further action”. Pre-charge bail may be imposed by the police for several reasons. This includes instances where there is insufficient evidence to charge the suspect, and they are released pending further investigation. Additionally, pre-charge bail may be imposed when the police believe there is enough evidence to charge, but the matter needs to be referred to the CPS for a charging decision. Finally, pre-charge bail may be imposed when it is no longer necessary to detain the suspect for questioning, but the police are unable to charge the suspect. However, It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed.
2. Post-charge bail - This kind of bail is imposed by the police where there is sufficient evidence against an individual who has been charged. It is at the discretion of the police to keep them in detention or release them on bail to appear at court on a future date and may also impose conditions on that bail.
3. Court bail - This kind of bail is imposed by the courts when an individual has been charged.

Australia

The Australian state of New South Wales in 2013 enacted a comprehensive Bail Act to replace a 1978 law. The new legislation introduced the concept of “unacceptable risk” in bail, which considers whether the accused would pose a threat by failing to show up in court, committing a serious crime, or endangering the victim, society, or evidence while granting bail.

On the federal level, Australia has similar specific legislation, which allows for the grant of bail except in certain cases, such as specific offences or while serving a jail sentence. The law also outlines conditions and undertakings for the one who is given bail.

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.

BNSS has defined bail, bail bond and bond in section 2(1) from which distinction can be drawn between their meanings. Bail is granted to an accused person or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond. A bail Bond means an undertaking for release with surety while a Bond means a personal bond or an undertaking for release without surety.