The concept of bail is not new. Basic Philosophy behind the concept of bail is that accused should be released from the custody of law enforcing agency into the custody of sureties. This is an interim order which can be withdrawn by the court at any stage according to circumstances.
2. Relevant Provisions
Section 496, 497 and 498 of Cr.P.C is a relevant provision
3. Meaning of Bail
Bail means the security, which court requires for release, of some accused. It is, in fact, transfer of accused from judicial custody to sureties with this condition that sureties will remain bound for future appearance of accused in court whenever accused appearance will be required.
4. Kinds of Bail
Bail is of the following three kinds.
i. Bail After Arrest / Post Arrest Bail
It is a bail which is granted to the accused person, after his arrest, both in bailable and non-bailable offence. When the accused has been arrested by the law enforcing agency, bail may be generated to him under section 497 of Cr.P.C.
ii. Bail before Arrest / Pre-Arrest bail
Bail before arrest is a bail which is granted in a case where court feels perhaps accused has falsely involved in case and he is likely to suffer irreparable injury to his dignity, honor, or reputation by his arrest.
Note: In bail before arrest, registration of case is necessary.
i. Protective bail
The protective bail is granted to accused enable him to approach the concerned court of other provinces for the purpose of obtaining pre-arrest bail without touching its merits.
ii. Direct approach to High court
Superior courts can entertain application for pre-arrest bail and can grant relief to accused in appropriate cases where accused could inter alia, established that he was prevented from approaching lower court concern.
iii. Bail after Conviction
It is granted when after conviction of accused, the appeal has been accepted for hearing and the court observes that there are grounds for the release of the accused, therefore, it accepts the bail petition and allows bail also under section 426.
5. Kinds of Bail by Nature
By nature, bail may be divided into following two kinds.
i. Interim Bail
It is a bail which is granted by the court without hearing the prosecution for a specified period of time.
ii. Permanent or Confirmed bail
It is a bail which is granted by the court after hearing both the parties, i.e., petitioner and prosecution.
6. Pre-conditions or Essential ingredients of Confirmation of Pre-arrest / before arrest Bail
Following confirmation of pre-arrest / before arrest bail, following are pre-conditions or essential ingredients.
i. Ulterior Movies
Arrest of petitioner should be for some ulterior motives. In fact, there should be doubt that motive for involvement of accused in some criminal case in not pure. If ulterior motive is proved, pre-arrest bail can be confirmed. If it is also proved that apprehension of imminent arrest, humiliation and unjustified harassment of accused due to some ulterior motive or mala fide on part of authorities or other influential persons.
ii. Heinousness of offence
Heinousness of offence is of no importance as far as granting of pre-arrest bail is concerned. In fact, pre-arrest bail cannot be refused due to heinousness of offence.
iii. Commission of offence
Pre-arrest bail can be confirmed when investigation is completed and it shows that accused has not committed offence.
iv. Physical Surrender
Petitioner / accused should physically surrender himself before court. It means that no pre-arrest bail can be granted to absconder.
v. Fit case
Case of petitioner should be fit case so that court can exercise its discretion of confirmation of bail. If case of petitioner is fit case for court to exercise its discretion, pre-arrest bail can be granted.
vi. Bail Bond
Pre-arrest bail can be confirmed when accused is ready to submit bail bond is prescribed manner under Criminal Procedure Code.
7. Pre-conditions or Essential Ingredients of confirmation Post-arrest / After-arrest bail
For confirmation of post-arrest (after arrest) bail, following are pre-conditions or essential ingredients.
i. Prohibitory Clause
According to Section No. 497 of Criminal Procedure Code, post-arrest bail cannot be granted when there exists reasonable grounds for believing that petitioner has been guilty of that offence, which is punishable with death or imprisonment for life or imprisonment for ten years. It reveals that pre-condition or essential ingredient for confirmation of post-arrest bail is that alleged offence should not fall within prohibitory clause of Section No. 497 of Criminal Procedure code.
ii. No Reasonable Ground for commission of Non-bailable offence
Another pre-condition or essential ingredient for confirmation of post-arrest bail is that there should be no reasonable grounds for believing that accused has committed non-bailable offence.
iii. Sufficient grounds for further Inquiry
For confirmation of post-arrest bail, there should also be sufficient grounds for further inquiry into guilt of accused.
iv. Bail Bond
Post-arrest bail can be confirmed when accused is ready to submit bail bond in prescribed manner under Criminal Procedure Code.
8. Ground for granting of bail in Non-bailable offence
Following are grounds upon which bail can be taken or granted in non-bailable offence
i. Personal enmity
When it is proved that there exists personal enmity between accused and complainant, bail can be taken in non-bailable offence.
ii. Rule of Consistency
If co-accused of some non-bailable offence has already been granted bail, bail of petitioner / other co-accused can be taken. It reveals that rules of consistency can be ground for granting bail.
iii. Child or Woman
when accused / petitioner is child or woman, bail can be taken in non-bailable offence.
iv. Sick or Infirm Person
When accused / petitioner is sick or infirm person, bail can be granted in non-bailable offence.
v. Insufficient evidence
If insufficient evidence is available against commission of alleged non-bailable offence, bail can be taken.
vi. Doubt or Recovery
When facts and circumstances of criminal case of non-bailable offence are like those that such case become doubtful or nothing is recovered from accused, bail taken in non-bailable offence.
vii. Delay in Registration of FIR or Trial
When there is delay in registration of FIR and no sufficient ground is present for such delay and delay in trail, bail can be granted in bailable offence.
To conclude, it can be started that bail in case of bailable offence is matter of right and it should be granted in cases of bailable offence. However, bail in case of non-bailable offence is not a matter of right. Rather it is a statutory concession, which court can grant in exceptional circumstances where pre-conditions or essential ingredients for granting of bail exist.