Whenever a person is arrested, the next step is to get a bail. One might have come across several news reports or articles on bail getting rejected or granted. Bail is a concept which was first introduced in England. Afterwards the Universal Declaration of Human Rights also recognized the need and importance of a bail as a human right. Many a times we have also seen that a person might be arrested under false charges under the political or any kind of influence. Bail acts as a tool to protect the human rights of an arrested person whether the person is actually an offender or not. Then, the Parliament added the provision of bail under criminal procedure code, 1973 after the 41st Law Commission’s report.
As per crpc, an offence can be bailable and non- bailable. Section 2(a) defines it as follows; “bailable offence is an offence which is bailable under schedule 1 column 5 and non- bailable are offences other than bailable.” 1
Now, bail is a term which means release of a person arrested by furnishing a security and with certain conditions such as not leaving the jurisdiction. The term bail derives its origin from the French Verb, ‘bailer’ which means to convey or to give.2 In civil cases, bail is generally the right of the accused however in criminal law cases it’s quite complex.
There are commonly three types of bail such as anticipatory bail, interim bail and regular bail. Let’s begin with anticipatory bail. It is the bail which is taken even before arrest when there is an apprehension of such arrest. Most of the times frivolous cases are filed against persons and anticipatory bail can be taken as a recourse. Section 438 of crpc deals with anticipatory bail in detail.
Now, regular bail is discussed under section 436, 437 and 439 of crpc. Under 436 the granting of bail is mandatory whereas under section 439 it is only discretionary. If the offence for which the person is arrested is bailable and is ready to give Surety then bail must be granted. As per section 437, the bail is generally not granted in cases of non- bailable offences if the punishment for the offence is life imprisonment or death or when he is accused of a cognizable offence for which he has been convicted previously for death/ life imprisonment or imprisonment exceeding 7 years or when the person was previously convicted for two or more cognizable offences for which the punishment is more than 3 years but less than 7 years. However, the bail is granted in the above said circumstances if the person is below 16 years or a woman, or sick or infirm. If the bail under section 437 is denied, then one can approach High Court or sessions court under section 439 of crpc.
Interim bail is granted during the pendency of an application or pending the regular bail application for a temporary period of time. If the accused fails to pay the surety then he will be arrested if he was not successful in getting regular or anticipatory bail.
The contents of the bail application are as follows:-
- The name of the court where it is being filed.
- The section of crpc invoked.
- The name of parties.
- The FIR number.
- The name of the police station where the accused is arrested.
- The date on which the accused was arrested.
- The grounds for granting bail.
- The surety of the accused.
- Signature of the applicant.
Finally, the bail application must be sent as per form- 45 of schedule 2. Thus, bail is a necessity to ensure that no one is unjustly arrested as in police custody the chances of third degree torture is possible. Also, when the person is not likely to abscond the country and obliges to all the conditions put forth for attending the court as and when required bail is granted.
- Section 2(a), Criminal Procedure Code, 1973, Act of Parliament, 1973, (India).
- Mayank Shekhar, Bail Application: Step by step guide and sample, LEGAL BITES, (Oct 28, 2021, 4: 01 pm), https://www.legalbites.in/bail-application/.