Bail and Types of Bail
• The word "bail" comes from the old French word "Baillier," which means to deliver or hand over.
• Bail refers to the conditional released of an accused individual from custody, with requirements established by the court to guarantee their appearance at upcoming legal proceedings.
• Black's Law Dictionary describes it as a security like money or bond, often required by a court to release a prisoner who must appear later.
In Gurbaksh Singh v. State of Punjab 1980
The SC held that grant of bail means to set at liberty a person arrested or imprisoned on security being taken off his appearance in the court on a particular day. The word 'bail' covers release on one's own bond.
Definition of Bail under Bharatiya Nagarik Suraksha Sanhita
• The Criminal Procedure Code 1973 doesn't define the terms bail, bail bond, and bond, but the BNSS has introduced these terms.
• According to the definition clause under Section 2(1) of BNSS:
'(b) "bail" means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;'
'(d) "bail bond" means an undertaking for release with surety;'
'(e) "bond" means a personal bond or an undertaking for release without surety
Types of Bail
1. Regular Bail
The court orders the release of a person who is under arrest, from Police custody after paying the amount as bail money.
An accused can apply for regular bail under Section 437 and 439 of CrPC (Section 480 and Section 483 of BNSS)
Section 480:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is a child or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation or for police custody beyond the first fifteen days shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 492 and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond for his appearance as hereinafter provided
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,—
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter;
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and
(c) that such 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 or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond for his appearance to hear judgment delivered.
Section 483:- (1) A High Court or Court of Session may direct,—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
(3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody
2. Anticipatory Bail
A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 438 of CrPC (Section 482 of BNSS).
Section 482:- (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 480, 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 conformity with the direction of the Court under sub-section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
The Supreme Court, in the case of Sushila Agarwal and others v. State (NCT of Delhi) and others, clarified that anticipatory bail remains in effect until the end of the trial and is not limited to a fixed duration.
3. Interim Bail
Interim bail is a temporary form of release granted to individuals during the pendency of an application for anticipatory or regular bail, providing them a brief respite from custody. It allows the accused to remain free for a limited time while they prepare for bail hearings.
Case Laws
In Prahlad Singh Bhati v. NCT, Delhi, 2001 SC, the Court granted interim bail to prevent irreparable harm to the accused’s reputation in light of serious allegations.
In Sukhwant Singh & Ors v. State of Punjab, 2009 SC the Supreme Court held that interim bail is a measure designed to protect the reputation of the accused.
In Badresh Bipinbai Seth v. State of Gujarat, 2015 SC the Supreme Court ruled that Section 438 of the CrPC should be interpreted liberally, considering Article 21 of the Constitution of India, 1950, which ensures the right to life and personal liberty.
In Sushila Aggarwal v. State of NCT of Delhi, 2020 SC the Supreme Court determined that interim bail should not be subject to time limitations.
4. Bail After Conviction
(Section 430 of BNSS, 2023) Bail granted to a convicted person ending an appeal.
Section 430:- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond:
Provided that the Appellate Court shall, before releasing on his own bond or bail bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,—
(i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years; or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
5. Statutory Bail (Default Bail)
Statutory bail, also known as default bail, arises when the police fail to file a report within a specified time under Section 187(2) of the BNSS. It is an inherent right of the accused if chargesheet isn't filed in the specified time, applicable regardless of the offense's nature, and can be granted by Magistrates of the First or Second Class.
6. Medical Bail
(Governed by Judicial discretion, Article 21 of the Constitution)
Medical Bail are kinds of bail granted to individuals based solely on medical grounds. It is primarily considered in cases where the person’s health condition requires immediate medical attention or specialized treatment. When medical bail is granted, the Courts typically do not delve into the merits of the case or assess whether the usual criteria for bail are fulfilled.