“Bail” – Criminal Law – Quick Notes

By Y.SRINIVASA RAO, Principal Assistant Sessions Judge, Tirupati.

TABLE OF CONTENTS:

  1. Introduction – Meaning of the term ‘Bail’
  2. Bail – Bond
  3. Bail – Parole
  4. Bail – Bond – Furlough
  5. Conclusion

IntroductionMeaning of the term ‘Bail’ :— Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression “bail” denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb “bailer” which means to “give” or “to deliver”, although another view is that its derivation is from the Latin term “baiulare”, meaning “to bear a burden”. Bail is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: “… when a man is taken or arrested for felony, suspicion of felony, indicted of felony or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed — that is to say, set at liberty until the day appointed for his appearance.” Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have, A.K. Gopalan v. State of Madras, AIR 1950 SC 27. The law of bail, like any other branch of law, has its own philosophy and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt, Vaman Narain Ghiya v. State of Rajasthan, (2009) 1 SCC (Cri) 745. 

The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted, Dipak Shubhashchandra Mehta v. CBI, (2012) 4 SCC 134.

To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc., the legal power to deliver him. Bail is either in civil or criminal cases.

Bail-Bond:— An instrument prepared in the sheriff’s office after an arrest, executed by two sufficient sureties and the person arrested and conditioned for his causing special bail to be put in for him in the court out of which the arresting process issued.


Bail and Parole :— Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word “bail” is surety. “Parole”, however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. “Parole” is a form of “temporary release” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. In India, there are no statutory provisions dealing with the question of grant of parole, Sunil Fulchand Shah v. Union of India, 2000 SCC (Cri) 659.

Bail, Parole and Furlough :— The terms bail, furlough and parole have different connotations. Bail is well understood in criminal jurisprudence. Provisions of bail are contained in Chapter XXXIII of the Criminal Procedure Code, 1973. It is granted by the officer in charge of a police station or by the court when a person is arrested and is accused of an offence other than a non-bailable offence. The court grants bail when a person apprehends arrest in case of a non-bailable offence or is arrested for a non-bailable offence. When a person is convicted of an offence he can be released on bail by the appellate court till his appeal is decided. If he is acquitted his bail bonds are discharged and if appeal dismissed he is taken into custody. Bail can be granted subject to conditions. It does not appear to be quite material that during the pendency of appeal though his sentence is suspended he nevertheless remains a convict. “Furlough” and “parole” are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. When a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him, State of Haryana v. Mohinder Singh, 2000 SCC (Cri) 645.

Conclusion:

In the legislative history for the purposes of bail, the terms “bailable” and “non-bailable” are mostly used to formally distinguish one of the two classes of cases viz. “bailable” offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the court’s discretion. The discretion has, of course, to be a judicial one informed by tradition methodised by analogy, disciplined by a system and subordinated to the primordial necessity of order in social life, Vikas v. State of Rajasthan, (2014) 3 SCC 321. An offence which is either shown to be bailable in the First Schedule to CrPC or which is made bailable by any other law for the time being in force, Om Prakash v. Union of India,  (2012) 3 SCC (Cri) 1249. 2. An arresting process is said to be bailable when bail can be given and the person arrested may obtain his liberty in consequence. 

Criminal Law

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