Context: Delhi Chief Minister Arvind Kejriwal has been granted bail in the CBI case registered with respect to excise policy. Furthermore, the court also remarked that the accused has the right to remain silent and right against self-incrimination as enshrined in Article 20(3) of the Indian Constitution.
Concept of Bail: Bail refers to the temporary release of an accused person awaiting trial, on the condition that they appear in court when required. It is based on the principle of personal liberty and ensures that an accused individual does not have to remain in custody while the trial is ongoing unless necessary. The right to bail is governed by various provisions of the Constitution of India and Criminal Procedure Code (CrPC), 1973.
Constitutional and legal rationality behind the principle of Bail:
- Idea of bail is embedded in the bedrock of Article 21 of the Constitution which safeguards life and liberty by commanding that liberty can be deprived only through the procedure established by law, which must be “just, fair and reasonable”.
- Chapter XXXIII Section 436 to 439 of CrPC deal with the Concept of bail.
- Furthermore, Section 167 of the CrPC which is generally termed as “Default Bail” is also there in case the investigation is not completed within 90 days or sixty days depending on the severity of the offence.
Types of Bail:
- Regular Bail (Section 437 and 439 of CrPC):
- This is granted after arrest and custody.
- The accused can apply for bail in a court where the trial is being conducted or in a higher court.
- Anticipatory Bail (Section 438 of CrPC):
- Granted when an individual apprehends arrest for a non-bailable offense.
- It allows a person to seek bail even before being arrested, providing protection from detention.
- Default bail: A right to bail that accrues when the police fail to complete investigation within a specified period (60/90 days depending on the crime) in respect of a person in judicial custody.
Conditions for Granting Bail: Various conditions are kept in mind by the court while granting the bail, for example,
- The severity of the offense.
- The accused's criminal record.
- The risk of the accused fleeing or tampering with evidence.
- The well-being of the accused, such as health or age.
However, the applicant has to ensure that.
- The persons shall make himself available for the interrogation by police officer as and when required.
- That the person shall not directly or indirectly make any inducement, threats or promise to any witness.
- That a person shall not leave India without previous permission of the Court.
- Any other precondition requested by the prosecution and agreed upon by the court.
- Any other condition set upon by the court.
The idea of bail is noble idea in criminal jurisprudence, idea of bail conveys the meaning that the accused cannot be presumed to be guilty until his guilt is proved. Provision of bail also brings the noble idea of personal liberty into existence.