Context: Recently SC held that undue delay in the trial can be a ground for granting bail to an accused even under the stringent Narcotic Drugs and Psychotropic Substances (NDPS) Act.
What is bail?
- The CrPC does not define the word bail but only categorizes offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
- But in general, Bail is defined as the conditional release of a person accused of a crime, for an amount, pledged for the appearance of the accused when the same is due in court.
- The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, with or without security.
- Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant. In such cases, a magistrate would determine if the accused is fit to be released on bail.
Types of Bail in India
There are three types of bail in India-
Regular bail:
- Regular bail is the release of an accused from custody to ensure his presence at the trial in a non-bailable offence.
Interim bail:
- This bail is granted as a temporary means and granted for a short period, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court.
- It is always conditional and can be extended
Anticipatory bail:
- Anticipatory bail is self-defining.
- It is a type of bail that is given to someone who is in anticipation of getting arrested for a non-bailable offence by the police.
- A person who has been granted anticipatory bail cannot be arrested by the police.
Conditions governing bail in a bailable offence:
- Section 436(1) of Cr.P.C. lays down the conditions under which bail can be granted for bailable offences committed under the Indian Penal Code (1862).
- Whenever a person is arrested or detained by police for any non-bailable offence is produced before the court and is prepared to give bail, he may be released on bail.
Conditions governing bail in a non-bailable offence:
- Section 437 of the Code of Criminal Procedure,1973 states that bail can also be granted for committing non-bailable offences.
- However, here the discretion is that of the Court and the accused cannot claim it as a matter of right.
Conditions governing bail in anticipation of arrest:
- Section 438 of the CrPC lays down the procedures for getting bail in anticipation of arrest for a non-bailable offence.
- The provision was incorporated as per the recommendation of the report of the 41st Law Commission.
- There should be an element of apprehension, i.e. the person seeking bail feels that he will be framed or arrested in a false case or someone having enmity with him will try to get him arrested on the pretext on a fabricated charge.
- Anticipatory bail can be granted only by a High Court or a Court of Sessions.
Other conditions affecting the grant of anticipatory bail:
- The person concerned will have to make himself available for interrogation by the police.
- He shall not make any direct or indirect inducement, threat or promise to any person acquainted with the facts of the case.
- He will not leave the country without the prior permission of the court.
Bail Reforms Required in India
- Grant of bail should not depend on the sections in which a person is charged, i.e., on the nature and gravity of the offence (which is yet to be proved), but it should be evidence-based and the careful understanding of the judge as to the probability of the accused committing the offence.
- Revamping the system of arrest. The system should be made more rational, fair and transparent. For this, Section 41 of Cr.P.C. should be amended.
- All statutes and laws should emphasize the principle of ‘innocence unless proven guilty’ and should be amended to the extent required.
- Requirement of bond or security can be rationalised to avail bail to poor
- Section 436A of the Cr.P.C. needs further reforms to deal with under-trials.
- This is a gross crime against humanity that can never be rectified.
- Ensure speedy justice.
- A separate law for bail as recommended by SC.
- Bail can be granted without a Bail application.
