Chapter 33, Sections 436 to 450 deal with provisions of bail and bonds. Offences are categorized as bailable and non-bailable. However the term 'bail' has not been defined but 'bailable' and 'non-bailable' have been defined.
The Law Lexicon defines bail as security for the appearance of the accused person on giving which he is released pending trial or investigation.
According to the Black's Law Dictionary bail is to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.
Bail covers both release on one's own bond, with or without sureties. [Moti Ram v. State of MP]
Bail is the process whereby a person is set free from arrest or detention by making him provide security.
II. Bailable and Non-Bailable Offences
According to section 2(a), bailable offence means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force;
and non-bailable offence means any other offence;
The Schedule provides all offences under the Indian Penal Code and differentiates them into bailable and non-bailable offences.
III. When bail may be granted
A. Bail as of Right
i. Bailable offences : Bail can be claimed as of right in case of bailable offences. But the accused needs to comply with the conditions of bail bond.
ii. Investigation is not over within prescribed period :
When the investigation is not over within 90 days where the offence is punishable with death, life imprisonment or imprisonment for 10 years or more and 60 days in case of other offences, the accused can claim bail as of right.
iii. If it appears to the court that such offence is bailable, the person has to be released on bail.
iv. Maximum period of detention is over:
436A. Maximum period for which an undertrial prisoner can be detained—
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
v. Where trial is not over within prescribed period :
In a case triable by Magistrate, trial of a person accused of any non-bailable offence is not concluded within 60 days from the first date fixed for taking evidence in the case, such person shall if he is in custody be released on bail unless the Magistrate directs reason for not granting bail.
vi. When there are no reasonable grounds to believe accused is guilty: If the court is of the view that the accused is not guilty after concluding trial and before pronouncement of judgement,it may grant him bail.
B. Discretion to grant bail
i. Non-bailable offences S. 437 :
If a person accused of non-bailable offence is arrested by police without warrant and presented before the court other than HC or Sessions, he may be released on bail after recording reasons, if such offence is not punishable with death or imprisonment for life.
ii. Where accused is minor, woman, etc. :
A person may be released on bail if such person is minor, woman or sick person where the person accused without warrant for non-bailable offence.
iii. In cases of offences punishable with imprisonment for seven years or more, the court may impose conditions as required to grant a bail.
iv. Anticipatory Bail can be granted by HC and Sessions Court only.
C. Hearing of Public Prosecutor
A person can be released on bail only after hearing the public prosecutor if the offence is punishable with death, imprisonment for life or for more than 7 years.
D. Recording of reasons
The Court while granting bail should record reasons why bail was granted when a person accused of non bailable offence punishable with death or imprisonment for life is released on bail.
E. Special powers of HC and Sessions Court
High Court (HC) and Sessions Courts have power to release any person on bail and to modify or set aside conditions imposed while granting bail.
Conditions are imposed while granting bail to ensure that the accused shall attend the court after being released on bail and shall not commit the same offence while on bail.
Examples of Conditions :
i. not to leave the country
ii. not to enter specific area, village or town
iii. report at intervals to the Police Station
iv. not to tamper evidence, hamper investigation, etc.
G. Successive applications :
Successive applications can be made again on the basis of new facts after a bail application is rejected.
IV. Anticipatory Bail
When a person has an apprehension that he may be arrested for an offence, he may apply to the court for Anticipatory bail, i.e. before being arrested.
438. Direction for grant of bail to person apprehending arrest.—
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in confirmity with the direction of the Court under sub-section (1).
V. Cancellation of Bail
Rejection of bail when bail is applied is one thing and cancellation of bail already granted is different. Cancellation involves review of decision already made and it can be permitted only if there is harm to the trial from accused. [State (Delhi Administration) v. Sanjay Gandhi 1978]