[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-I

Ans. The word "bail" is used both as a verb and as a noun. As a verb, the word "to bail" means -

"to deliver an arrested person to his sureties upon their giving security for his appearance at the time and place designated, to submit to the jurisdiction and judgment of the Court".

As a "noun" the word "bail" means – "the sureties into whose custody the arrested person is delivered and who are considered as having control of the arrested person".

As a "noun" the word "bail" also means – "the privilege of being released on bail".

Q.2 What are bailable and non-bailable offences ?

Ans. The question as to whether the given offence is bailable or non-bailable, has to be decided with reference to the tabular chart given in the First Schedule to the Code of Criminal Procedure, 1973 (the "Cr.P.C." for short). Part I of the said chart enumerates the offences under the Indian Penal Code, 1860 ("IPC" for short). Part II of the said chart deals with offences under other laws. Column 5 of Part I of the chart in the First Schedule of Cr.P.C. indicates whether the offences under the IPC are bailable or non-bailable. The description of the offence read with Column 5 of Part II of the said tabular chart in the First Schedule states that if the offence under other laws is punishable with imprisonment for 3 years or more, then it is non-bailable and if the offence is punishable with imprisonment for less than 3 years, the offence is bailable.

Q.3 What is the distinction between bailable and non-bailable offences in the context of the right to bail ?

Ans. Bailable offence is an offence for which the offender is entitled to bail as of right under Section 436 Cr.P.C. and there is no discretion on the part of the officer-in-charge of a police station ("SHO" for short), or the Magistrate or the Court concerned to refuse bail in the case of a bailable offence. Under clause (2) of Section 50 Cr.P.C., a police officer arresting without a warrant a person other than a person accused of a non-bailable offence, has the duty to inform the person arrested that he is entitled to be released on bail and he may arrange sureties for the said purpose.

Right to bail in a bailable offence is an absolute and indefeasible right. (Vide para 10 of Rasiklal v. Kishore (2009) 4 SCC 446 – R. V. Raveendran, J. M. Panchal - JJ). The SHO or the Magistrate or the Court, as the case may be, is bound to grant bail to an accused who is alleged to have committed a bailable offence. (Vide Para 17 of Vikas v. State of Rajasthan (2014) 3 SCC 321 – H. L. Dattu, M. Y. Eqbal - JJ). But, in the case of a non-bailable offence, it is not as if bail cannot be granted to an accused person who is alleged to have committed a non-bailable offence. Grant of bail to an accused person who is alleged to have committed a non-bailable offence, is subject to the discretion of the SHO or the Magistrate or the Court, as the case may be. This is because non-bailable offences are, by and large, graver offences and the SHO or the Magistrate or the Court will have to take into account –

• the existence of any prima facie or reasonable ground to believe that the accused committed the offence.
• nature and gravity of the alleged offence.
• severity of punishment in the event of conviction.
• danger of the accused absconding or fleeing from justice, if released on bail.
• character, behavior, means, position and standing of the accused, in the context of his potential or proclivity to influence or hamper the smooth investigation of the case.
• likelihood of the offence being repeated.
• reasonable apprehension of witnesses being influenced or intimidated.
• the relative position of the victim.
• danger of justice being thwarted by the grant of bail.

(Vide paras 17 to 19 of Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129 = AIR 2017 SC 5398 – Kurian Joseph, R. Bhanumathi - JJ).

Thus, while in the case of a bailable offence the Court has no discretion to refuse bail, in the case of a non-bailable offence the Court does have the discretion to refuse bail after taking into account the aforementioned factors. The power of the Magistrate and the SHO for granting the discretionary order of bail in respect of non-bailable offences, is to be located in Section 437 Cr.P.C. The High Court or the Court of Session are also invested with the power to grant bail to a person accused of an offence and in custody, by virtue of Section 439 (1) (a) Cr.P.C.

Q.4 How can bail be classified ?

Ans. "Bail" can be classified in two different modes.

First classification

One way of classification is to categorise the bail into –

1. "pre-trial bail",
2. "para trial bail",
3. "post-trial bail" and
4. "post-sentence bail".

Out of the above, the first three are pre-sentence bail. Sections 436, 436 A, 437 (1), 437 (2), 437 (6), 438, 439 (1) (a) cover cases of pre-sentence bail. Of these, Section 436 deals with bailable offences and Sections 437 and 438 deal with non-bailable offences and Section 439 (1) (a) deals with both bailable and non-bailable offences. Under the category "post-trial bail" comes Section 437 (7) Cr.P.C. applicable after conclusion of trial but before pronouncing judgment. Section 389 (3) Cr.P.C. deals with the power of the convicting Court to grant bail in certain cases where the convict satisfies the convicting Court that he intends to file an appeal. Section 438 Cr.P.C. dealing with anticipatory order for bail was for the first time introduced in the Code of Criminal Procedure, 1973. Its precursor Codes of 1882 and 1898 did not contain such a provision. As per Section 438 Cr.P.C. a person who is apprehending arrest on an accusation of having committed a non-bailable offence, is given the right to move the Sessions Court or the High Court for an order directing the arresting person to grant bail to the person in the event of his arrest.

Second classification

2. Yet another mode of classification of "bail" is to categorise it as "mandatory bail", "discretionary bail" and "default or compulsive bail". Section 436 Cr.P.C. comes under the head "mandatory bail". The said Section not only deals with persons who are accused of bailable offences, but also persons who are arrested under situations where there is only a suspicion and arrest is virtually made by way of preventive measure such as Sections 41 (1) (b) to (i) and 151 Cr.P.C. Under the head "discretionary bail" comes Sections 81 (1) second proviso, 187 (1), 395 (3), 437 (1), 437 (2), 437 (6), 438 and 439 (1) (a) Cr.P.C. The third category under this classification is default bail of which Section 167 (2) proviso Cr.P.C. deals with "default bail" due to the failure of the investigating agency in filing the "final report" within the time stipulated by law and Sections 436 A and 437 (6) Cr.P.C. deal with "default bail" due to the failure of the prosecution in completing the trial within the time limited by law.

Ans. The purpose of applying for anticipatory bail under Section 438 Cr.P.C. is for the apprehended arrest. The purpose for filing a regular bail application, wither under Section 437 or under Section 439 (1) (a) Cr.P.C. is for getting a release from the arrest already effected.