What is bail

Bail, in English Common law, is the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance on a certain day and at a place named The surety is termed bail, because the person arrested or imprisoned is placed in the custody of those who bind themselves or become bail for his due appearance when required. So, he may be re-seized by them (if they suspect that he is about to escape) and surrendered to the Court when they are discharged from further liability. [NARASIMHAN AND ANOTHER Vs. STATE BY S.I. OF POLICE MADURAVOYAL – Madras High Court -(1983) LW(Cri) 152 ]

Bail is an agreement to attend court to answer a summons, warrantor Charge. It can be granted at any stage of criminal proceedings. Often, when bail is granted, a number of conditions are applied to the bail undertaking. These can include surrendering a passport or agreeing to report to police on a regular basis. A well known condition is requiring the deposit of a sum of money with the court and agreeing to forfeit that money if bail is breached.

Supreme Court has laid down the principles which have to be borne in mind to grant a bail and that is in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, . The decisions relating to anticipatory bail, of the Supreme Court have been comprehensively incorporated in State of Rajasthan, Jaipur Vs. Balchand alias Baliay, State of Gujarat Vs. Musamigan Imam Haider Bux Razvi and Another, and Shri Curbaksh Singh Sibbia v. The State of Punjab 1980 L.W.Crl. 136. The last of the above decisions is the latest decision on the subject pronounced by the Supreme Court.

Supreme Court in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, wherein His Lordship Justice V.R. Krishna Iyer has observed as follows:

“Bail or jail ?” at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the lickering candlelight. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, made a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. The last four words of Art. 21 are the life of that human right.

Bail is obligatory in all summary cases. It is also obligatory in all misdemeanors, except such as have been placed on the level of felonies, viz., obtaining or attempting to obtain property on false pretences, receiving property so obtained or stolen, perjury or subordination of perjury, concealment of birth, wilful or indecent exposure of the person, riot, assault in pursuance of a conspiracy to raise duty or upon any one assisting him, neglect or breach of duty as a peace officer, any prosecution of which the costs are payable out of the country or borough rate or fund. The above are the principles that govern English law which in similar circumstances have been adopted so far as Indian law is concerned by the Crl. P.C., when it came on the statute book as early as 1872. The provisions of this Code have been substantially and to a very large extent modified to suit the present conditions of Bharat by the coming into existence of the amending Act of 1975, wherein a radical departure has been made even with respect to imposing death sentence, i.e., when a Sessions Judge imposes death sentence on an accused-person, as has to give specific reasons as so to why he has come to such a conclusion so far as that person is concerned. So a radical departure which of course can certainly be called as refreshing in as much as the society requires such kind of amendments being come into existence and they more or less shape the procedural law of the land so far as the Code of Crl. P.C., is concerned in that manner, because law is not static, but it is dynamic, it has to change itself to the surrounding circumstances and also should be in consonance with the development of the society. Therefore, of course, this power of making law is vested with a Court also to certain extent, but it, viz., the Court cannot take on itself such power, which is exclusively that of the Legislature for making laws, because the Legislature is the competent authority to legislate for the States, because it is the representative of the States which constitute both the Houses, viz., the Upper House and the Lower House of the Legislature. Therefore, when an enactment by way of Crl. P. C., has come into force at the instance of the Central Legislature, which prescribes certain norms and conditions under the heading “Direction for grant of bail to persons apprehending arrest” under S. 438, certainly the principles imbedded in that section have to be given effect to.

In England, the Bail Act, 1898, gives a Magistrate power, where a person is charged with felony or certain misdemeanours, or where he is committed for trial for any indictable offence, to dispense with sureties, if in his opinion the so dispensing will not tend to defeat the ends of justice.

Further, the principles that have been followed in the English law so far as the granting of bail is concerned, it may be stated that a surety may be examined on oath as to his means, while the Court may also require notice to be given to the plaintiff, prosecutor or police. A person who has been taken into custody for an offence, not apparently of a serious nature, without a warrant, and cannot be brought before a Court of summary jurisdiction within 24 hours, may be admitted to bail by a police officer of superior rank or the officer in charge of the police-station and this can be done while inquiries are being made (Criminal Justice Acts, 1914 and 1925).

An appeal against a refusal to grant bail lies to the King’s Bench division, and the Court of trial has power to grant bail when necessary.

The position in United States so far as bail is concerned is more or less similar to that of English procedure. I am just incorporating all these not for following any of the principles imbedded there, because we are governed by the provisions of the Code of Criminal Procedure and as directed by the Supreme Court to be followed, so far as the application of the provisions imbedded in the procedural law of the land. But, yet, in order to appreciate the coming into existence of the decisions as well as the rules and sections incorporated in the procedural law of the land that this discussion is embarked upon.

In United States, in civil cases, the right of the person arrested on mesne process to be admitted to bail is absolute. The amount of the bail, unless otherwise fixed by statute, generally depends upon the amount of the civil liability claimed to be enforced, although the Court has some discretion to reduce or increase it. The bond, undertaking or recognizance runs to the arresting officer, generally the sheriff, or to the plaintiff creditor, as required by the statute of the particular jurisdiction. Sureties, if individuals, may generally be either householders or fresholders, or may be a surety company.

 In U.S.A., so far as criminal cases are concerned, the right to bail, and to that in an amount not to be excessive, is guaranteed by constitutional provisions except in capital cases. In capital cases, bail may be allowed in the discretion of the Court, dependent on the circumstances of the case and nature and degree of proof of the offence available. The Court having jurisdiction over the trial of the offence has jurisdiction to admit to bail. The form of the bail bond or recognizance is generally fixed by statute. The amount, except that it must not be excessive, is in the sound discretion of the Court. The sureties must generally be free-holders or a surety company. The sureties may surrender the prisoner if they deem their risk doubtful If the prisoner fails to appear upon the date set by the Court, bail is forfeited and the State may enforce the collection of the amount of the bail against the property of the sureties.

A surety is a person who guarantees that the accused/defendant will attend the court hearing. The surety is sometimes required to deposit the security as a commitment that the defendant will appear. This security is returned when the hearing has finished. If the defendant does not turn up to court, the surety loses the security and the court may keep it.

Supreme court cases :

  1. Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 at p. 86 : AIR 1979 SC 1360 : 1979 Cri LJ 1036
  2. Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66 : 2000 Cri LJ 807 : AIR 2000 SC 714
  3. Moti Ram v. State of M.P., AIR 1978 SC 1594 : 1978 Cri LJ 1703 : (1978) 4 SCC 47
  4. Sagayam v. State, 2017 SCC OnLine Mad 1653 : (2017) 3 CTC 291 : (2017) 176 AIC 631