Author: Garima Pahwa
Greater Noida
Purpose and Concept of Bail

Bail has not been defined under the Code of Criminal Procedure. 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 if from the Latin term, “bainlare”, meaning “to bear a burden”. Bail is a conditional liberty. Stroud’s Judicial Dictionary states that “when a man is taken or arrested for felony suspicion of felony, indicated 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, body for body that he shall appear before the justice of goal delivery at the next sessions, etc. Then upon the bonds of those sureties, as in aforesaid, he is bailed—that is to say, set at liberty until the day appointed for his appearance.”

Bail has been defined in the Law Lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. What is contemplated by bail is to “procure the release of a person from the legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.” Bail blends two conflicting claims—the freedom of individual and the interests of justice. The provisions of bail restore the liberty of the arrested person without jeopardizing the objectives of arrest. Therefore the general rule is “bail not jail”.

The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at trial could be reasonably ensured otherwise that by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. It is, therefore, proposed to consider releasing an accused on bail. The release on bail is crucial to the accused as the consequences of pre trial detention are given. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jail accused loses his job and is preventing from contributing effectively to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

When a person is accused of serious crime and is likely to be convicted and punished severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trial and consequential sentence. If such person is under arrest, it would be rather unwise to grant him bail and restore his liberty. Further, when the arrested person, if released on bail, is likely to put obstructions in having a fair trial by destroying evidence or by tampering with the prosecution witnesses or is likely to commit more offences during the period of his release on bail, it would be improper to release that person on bail. The law of bails “has to dovetail two conflicting demands, namely, on 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.”

In order to sub-serve the above said objectives, the legislature in its wisdom has given some precise directions for granting or not granting bail. Where the legislature allows discretion in the grant of bail, the discretion is to be exercised according to the guidelines provided by law; in addition the courts have evolved certain norms for the proper exercise of such discretion. Section 436, Cr. P.C. reads in what cases bail to be taken and Section 437, Cr. P.C reads grant of bail in non- bailable cases.

Principles regarding bail:

  1. Bail is matter of right, if the offence is bailable.

  2. Bail is matter of discretion, if the offence is non- bailable.

  3. Bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life (except in case of woman or minor under age of 16 years or sick or infirm person).

  4. The High Court or Sessions Court have a wider discretion.