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One of the most important topics under Criminal Law is the bail provisions in CrPC. And because CrPC is one of the most essential and common law in every state’s judiciary exam, aspirants can’t skip it at any cost.
Two to three questions are always asked in the Preliminary Examination related to bail provisions in the CrPC. That is why we have dedicated an entire article to bail provisions.
Meaning of Bail
There is no definition of Bail in the Code of Criminal Procedure. But Law Lexicon defines bail as “security for the appearance of the accused, on giving which he is released pending trial or investigation.”
There are two aspects of bail- freedom of the individual and the interest of justice. So, the provision of bail restores individual liberty without hampering the objectives of the arrest.
Chapter XXXIII of CrPC from Sections 436-450 talks about provisions as to bail and bonds.
Objective and Bail Provisions in CrPC
The reason for the arrest or detention of an accused person is to ensure that if he is found guilty of the charges, he is available to receive his sentence. But what if the accused person promises to appear for the trial from time to time? Then there is no reason to deprive the person of his liberty.
That is where the provision of bail comes into the picture. The main objective of granting bail to an accused in jail is to ensure that while the trial continues, if the accused is not a threat to society or going to tamper with the evidence and coerce the witnesses, he should not be deprived of his freedom.
Bailable and Non-Bailable Offences
“Bail is the rule, and jail is an exception” is the general rule in Criminal Law. However, that doesn’t mean each individual will get bail. To understand the complexity of bail provisions in CrPC, we need to see the type of offences.
Under CrPC, there are two types of offences-Bailable and Non-Bailable. Bailable offences mean where bail is a matter of right. Whereas, in non-bailable offences, the accused person can’t claim bail as a matter of right. Rather, it is upon the discretion of the court to grant or not to grant.
Section 2(a) defines Bailable and Non Bailable offences as “Bailable offence” which means an offence which is shown as bailable in the first schedule, or which is made bailable by any other law for time being in force; and “non-bailable offence” means any other offence.
There are no tests provided in the Code to determine whether any particular offence is bailable or not. It all depends upon whether it has been shown as bailable or non-bailable in its first schedule.
Bail Provisions in CrPC in case of Bailable Offences
Section 436 clearly states that a person can claim bail as a right in case a person accused is detained or arrested for a bailable offence.
S.50(2) makes it obligatory for a police officer arresting a person accused of bailable offences without a warrant to inform him of his right to bail.
Bail Provisions in CrPC in case of Non-Bailable Offences
Section 437 discusses bail provisions in case of non-bailable offences. Under this section, the accused can’t seek bail as a matter of right. It is the discretion of the court.
The court will consider the following points before granting bail:
- The nature and seriousness of the offence
- Character of evidence
- Reasonable apprehension of tampering of the witness
- The larger interest of the public
Anticipatory Bail Meaning
Anticipatory Bail is a pre-arrest process. It means that if a person in whose favour it is issued, thereafter gets arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 438 of CrPC talks about anticipatory bail. To grant anticipatory bail, the court will take into account the following conditions:
- Nature and gravity of the accusation
- Antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence
- The possibility of the applicant fleeing from justice
- Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested either reject the application forthwith or issue an interim order for the grant of anticipatory bail
Cancellation of Bail
Section 437(5) CrPC talks about the cancellation of bail. Before the cancellation of bail, following conditions must meet:
- If the person runs away to a foreign country or goes underground or beyond the control of sureties;
- Where the person on bail commits the vary same crime for which he is being tried or has been convicted;
- When on bail, he forcibly prevents the search of places under his control for the detection of the corpus or other incriminating things;
- If he tampers with the evidence by intimidating a prosecuting witness; interfering with the scene of an offence to remove traces or proof of the crime, etc;
- If he commits acts of violence, in revenge, against the police and the prosecuting witnesses of those who have booked him or are trying to book him.
Difference between Anticipatory and Regular Bail
The major difference between anticipatory bail (section 438) and ordinary order of bail is that anticipatory bail is given before the arrest because the person anticipates arrest. On the other hand, in ordinary bail a person approaches the court or police officer after the arrest.
Summary of Important Bail Provisions in CrPC
|1||436||In what cases bail to be taken|
|2||436A||Maximum period for the detention of undertrial prisoners|
|3||437||Bail in case of a non-bailable offense|
|4||438||Direction for grant of bail to person apprehending arrest (Anticipatory bail)|
|5||439||Special powers of High Court or Court of Session regarding bail|
|6||446-A||Cancellation of bond and bail bond|
- The Code of Criminal Procedure, 1973 (Bare Act)
- Universal’s Guide to Judicial Services Examination
- R.V. Kelkar’s Criminal Procedure- K.N. Chandrasekharan Pillai
- Universal Guide to LL.M. Examination