1. Introduction

The Article 21 of Indian Constitution gives every individual the right to life and liberty, with no violation until a fair and legal method is established. It maintains the core concept of the Universal Declaration of Human Rights, presuming innocence until proven guilty and guaranteeing no one is detained. [1]

2. Bail

Bail is one of the most important concept in the complicated realm of court procedures. In order to protect individual liberty and enable an inquiry and fair trial, it serves as a vital link between the demands of justice and the assumption of innocent.

• The assumption of innocence until proven guilty is a key concept of many legal systems. Allowing someone to be freed on bail guarantees that they are not sentenced before a court confirms their guilt.
• Individuals accused of crimes would be detained in jail until their trail if bail was not available. This might result in lengthy periods of incarceration, even for the people who are ultimately found innocent. Bail helps to reduce this by allowing people to wait for their trails outside the jail.
• Bail restrictions are generally imposed by courts to guarantee that the accused arrives for the trail and does not endanger public safety. Conditions might include monetary bail, travel limitations, electronic monitoring, or frequent check-ins with law the authorities.

2.1 Bailable and Non-bailable offences

The Code of Criminal Procedure (CrPC) does mention a definition of bailable and non-bailable offences under Section 2(a). It states that: 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 offences means other offences [2].

In simple terms, bailable offences can be termed as offences where bail is a matter of right because they are of no grave nature in respect to the seriousness and that is why generally they are punishable for three years or below or with a fine. It can be taken from the police officer in whose custody the accused is or through the court of law [3]. If the offense is categorized as bailable, the accused can seek bail as a matter of right, unless there are specific reasons for the court to deny it. Common examples of bailable offenses may include certain types of theft, fraud, simple assault, and other non-violent crimes.

Non bailable offences on the other side means criminal acts for which bail is not automatically granted, implying that the accused cannot be released on bail as a matter of routine. In such circumstances, the accused must ask for bail and persuade the court that they are entitled to be released until trial. The court has the option to grant or refuse bail in non-bailable offenses. Examples of non-bailable offenses often include heinous crimes such as murder, terrorism, certain drug trafficking offenses, and certain economic offenses.

2.2 Cancellation of Bail

The withdrawal or annulment of bail given to an arrested individual awaiting trial is referred to as bail cancellation. Bail can be revoked in a variety of circumstances, and the particular grounds for cancellation may differ depending on the country and legal system. Here are some frequent reasons for bail cancelation:

• If the individual fails to appear in court as scheduled, the judge may revoke their bail. Appearing in court is a critical requirement for someone on bail.
• As part of the bail arrangement, courts frequently set particular conditions such as travel limits, curfews, or orders to keep away from specified persons. Any breach of these restrictions may result in bail being revoked.
• If an individual is accused or found guilty of another offense while on bail, the bail may be revoked. This signifies a possible threat to public safety or a violation of the law.

3. Anticipatory Bail (Section 438 of CrPC)

Anticipatory bail is a legal concept that allows a person to seek pre-arrest bail from a court in order to avoid being arrested in the event that they are wrongfully accused of a crime. If a person has a reasonable apprehension of being arrested for a non-bailable offense, they can approach the court seeking anticipatory bail. The purpose of anticipatory bail is to protect individuals from arbitrary arrest and harassment.

According to the section 438 of The Code of Criminal Procedure (CrPC), the Court of Session and the High Court are authorized to entertain the Anticipatory bail applications [4]. There are various parameters listed in the provision that the court uses to determine whether anticipatory bail should be granted or not.

The reason behind putting such provision in the code is to prevent the innocent persons from being implicated in false cases by powerful peoples or any other, and so anticipatory bail has to be granted only in exceptional cases where it appears to the court that the person seeking anticipatory bail is being framed in the charge.[5]

4. Bail After Conviction (Section 389 of CrPC)

Bail after conviction The Criminal Procedure Code (CrPC) has Section 389 that addresses the appellate court's authority to remand, suspend, or grant bail to a convicted individual. It is applicable in situations when an individual has been found guilty by a trial court and has appealed the decision [6]. This kind of bail recognizes the assumption of innocence until the point at which all available legal channels for appeal are closed.

Section 389 of CrPC was created to prevent unnecessary long jail sentences for those who have been convicted by a lower court and have appealed the conviction, pending the outcome of the appellate court's decision. The aim of this section is to achieve a balance between the rights of the convicted individual and the objectives of justice.

• The Section does not confer the right to bail on the convicted person, but he may be eligible to be released on bail if there is no objection by the public prosecutor and the court is satisfied that there will be no threat if he is released.[7]
• The Section doesn't provide a maximum amount at which the subject of bail may be freed. However, it just stipulates that he must remain free until a higher court orders otherwise.
• This section's goal is to give guilty parties the option to appeal to a higher court if they are dissatisfied with the trial court's ruling.

5. Mandatory Bail (Section 167(2) of CrPC)

Under some conditions, mandatory bail is given as a matter of right, and the court lacks discretion in denying it. This kind of bail is typically given when the accused fulfils specific requirements, such serving a certain amount of time in custody without being charged or being unable to finish the investigation within a given amount of time. In specific situations, the law mandates the granting of bail irrespective of the offense's severity. These categories include women accused of certain offenses, children, and individuals suffering from serious illness. This provision safeguards vulnerable individuals from prolonged pre-trial incarceration.

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him.[8]

6. Conclusion

In summary, bail is a complicated legal idea that has significant effects on both personal freedom and the effectiveness of the criminal justice system. To ensure fair and reasonable outcomes in criminal proceedings, it is essential to understand its many forms and the factors taken into account when granting it.

7. Citations

[1] The Constitution of India, art. 21.

[2] The Code of Criminal Procedure, 1973, s. 2(a).

[3] Anubhav Pandey and Gautam Chaudhary, Bailable and Non-Bailable Offences. available at https://blog.ipleaders.in/bailable-non-bailable-offence/ (last visited on January 16, 2024)

[4] The Code of Criminal Procedure, 1973, s. 438

[5] Sorin Amit, "Anticipatory Bail Law in India" (September 22, 2009). Available at https://ssrn.com/abstract=1476730 (last visited on January 16, 2024)

[6] The Code of Criminal Procedure, 1973, s. 389

[7] Monesh Mehndiratta, "Section 389 CrPC,1973"available at https://blog.ipleaders.in/section-389-crpc-1973/ (last visited on January 16, 2024)

[8] The Code of Criminal Procedure, 1973, s. 167(2).