The bail process in India is a crucial aspect of the criminal justice system, designed to ensure that individuals are not unjustly detained while awaiting trial. The primary legislation governing the bail process in India is the Code of Criminal Procedure, 1973 (CrPC). This article delves into the various aspects of bail, the relevant sections of the CrPC, the procedures involved, the concept of sureties, and significant landmark judgments that have shaped the bail jurisprudence in India.

I. Definition and Types of Bail

Bail is the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court. There are three primary types of bail in India:

1. Regular Bail: Granted under Sections 437 and 439 of the CrPC, regular bail is applicable when an individual is arrested for a cognizable offense.
2. Interim Bail: This is temporary bail granted before the final decision for the grant of regular or anticipatory bail.
3. Anticipatory Bail: Under Section 438 of the CrPC, anticipatory bail is granted to a person who apprehends arrest on accusation of having committed a non-bailable offense.

II. Relevant Sections of CrPC/BNSS

The CrPC contains several sections that detail the procedures and conditions under which bail can be granted:

• Section 436/478: Deals with bail in bailable offenses.
• Section 437/480: Pertains to bail in non-bailable offenses.
• Section 438/482: Provides for anticipatory bail.
• Section 439/483: Empowers the High Court and Sessions Court to grant bail.
• Section 440/484: Discusses the amount of bond and reduction thereof.
• Section 441/485: Describes the bonds for bail.
• Section 442/487: Deals with discharge of sureties.
• Section 443/488: Allows for deposit instead of recognizance.
• Section 444/489: Addresses the discharge of sureties.
• Section 445/490: Provides for deposit instead of bail bond.

III. Bail in Bailable and Non-Bailable Offenses

Bailable Offenses (Section 436): In cases of bailable offenses, bail is a matter of right. If an individual is accused of a bailable offense, the police or the court is obligated to release the individual on bail upon furnishing a bail bond. The bail bond includes the amount of money guaranteed and sureties, if any.

Non-Bailable Offenses (Section 437): In non-bailable offenses, bail is not a matter of right. The court has the discretion to grant or refuse bail based on various factors, including the nature and gravity of the offense, the criminal history of the accused, and the possibility of the accused tampering with evidence or intimidating witnesses. Bail may also be granted under the following conditions:

• The accused is under the age of sixteen years.
• The accused is a woman.
• The accused is sick or infirm.

Anticipatory Bail (Section 438): Anticipatory bail is granted to an individual who apprehends arrest for a non-bailable offense. The individual can apply for anticipatory bail directly to the High Court or the Court of Session. The court may impose certain conditions to ensure that the individual does not abscond, tamper with evidence, or commit a similar offense while on anticipatory bail.

IV. Conditions and Sureties

Section 440: The amount of every bond executed must be reasonable and not excessive. The court has the discretion to reduce the amount of bail.

Section 441: A person released on bail must provide a bond, with or without sureties, as ordered by the court. Sureties are individuals who undertake the responsibility to ensure that the accused will appear in court as required. The surety guarantees the appearance of the accused on all court dates and compliance with any conditions set by the court.

Section 442: Sureties can be discharged from their obligations if they apply to the court and the court finds sufficient grounds for the discharge.

Section 445: Instead of providing sureties, the accused can deposit a sum of money as ordered by the court. This provision allows for flexibility in situations where obtaining sureties is difficult.

Concept of Sureties: Sureties are essentially guarantors for the accused, ensuring their appearance in court and compliance with the bail conditions. The surety must possess the means to pay the bail amount if the accused fails to appear in court. The court evaluates the suitability of sureties, considering their financial status and their relationship to the accused. Sureties are essential in the Indian bail system as they provide an additional layer of assurance that the accused will not abscond.

V. Landmark Judgments

1. State of Rajasthan, Jaipur v. Balchand @ Baliay (1977 AIR 2447): This case established the principle that "bail is the rule and jail is the exception." The Supreme Court emphasized the importance of personal liberty and ruled that bail should be granted in cases where the accused is not likely to abscond or tamper with evidence.
2. Gurbaksh Singh Sibbia v. State of Punjab (1980 AIR 1632): This landmark judgment laid down comprehensive guidelines for the granting of anticipatory bail under Section 438 of the CrPC. The Supreme Court held that anticipatory bail can be granted even after an FIR is filed and emphasized that the power to grant anticipatory bail must be exercised with care and circumspection.
3. Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40: In this case, the Supreme Court granted bail to the accused in the 2G spectrum case, emphasizing that the primary purpose of bail is to ensure the accused's presence at trial. The court noted that prolonged pre-trial detention undermines the presumption of innocence.
4. Arnab Manoranjan Goswami v. State of Maharashtra (2020 SCC OnLine SC 964): The Supreme Court granted interim bail to journalist Arnab Goswami, highlighting that deprivation of personal liberty for even a single day is too much. The court stressed that the judiciary must protect the fundamental right to personal liberty.
5. Satender Kumar Antil v. CBI (2022 SCC OnLine SC 825): The Supreme Court laid down guidelines to ensure that bail procedures are streamlined and followed uniformly across the country. The judgment directed lower courts to adhere strictly to the principles governing bail to prevent arbitrary detention.

VI. Cancellation of Bail

Bail can be cancelled if the conditions of the bail bond are violated, or if new evidence emerges that changes the circumstances of the case. The prosecution can apply for cancellation of bail under Sections 437(5) and 439(2) of the CrPC.

VII. Default Bail

Default bail, also known as statutory bail, is a significant right available to an accused person under Indian law. It arises from the failure of law enforcement agencies to complete their investigation (i.e., filing of chargesheet) within a prescribed time limit. This right is enshrined under Section 167(2) of the Code of Criminal Procedure (CrPC), 1973. Default bail serves as a crucial safeguard against arbitrary and prolonged detention of accused individuals. It ensures that law enforcement agencies conduct investigations within a reasonable timeframe and uphold the rights of individuals to liberty and fair trial. By providing an automatic trigger for bail when the investigation is delayed, Section 167(2) of the CrPC acts as a check on investigative agencies and promotes accountability.

The Provision: Section 167 of the CrPC

Section 167 of the CrPC deals with the procedure when investigation cannot be completed within twenty-four hours. Sub-section (2) specifically addresses the situation where the investigation is not completed within a stipulated period:

• 1. For offenses punishable with imprisonment for a term less than ten years, the investigation must be completed within 60 days.


• 2. For offenses punishable with death, life imprisonment, or imprisonment for a term of not less than ten years, the period is 90 days.

If the investigation is not completed within these periods, the accused is entitled to be released on bail, provided they furnish bail. This is known as "default bail".

Landmark Judgments on Default Bail

1. Uday Mohanlal Acharya vs State of Maharashtra (2001) 5 SCC 453: In this landmark case, the Supreme Court of India clarified the concept of default bail. It held that the right to default bail becomes absolute if the charge sheet is not filed within the prescribed period, and the accused applies for bail and is prepared to furnish bail. The court emphasized that this right cannot be defeated by subsequent filing of the charge sheet before the actual release of the accused.
2. Rakesh Kumar Paul vs State of Assam (2017) 15 SCC 67: This case further reinforced the principles laid down in Uday Mohanlal Acharya. The Supreme Court, in a detailed judgment, held that an accused becomes entitled to default bail if the charge sheet is not filed within the stipulated period, irrespective of the severity of the crime. The court reiterated that the right to default bail is an indefeasible right, ensuring that an accused is not unjustly detained.
3. Hussainara Khatoon vs State of Bihar (1979) 3 SCC 532: Although not directly related to Section 167(2), this series of judgments by the Supreme Court played a crucial role in shaping the right to speedy trial and access to justice for undertrial prisoners. The court highlighted the need for timely completion of investigations and trials, indirectly underscoring the importance of default bail in preventing prolonged detention.
4. Sanjay Dutt vs State through C.B.I. Bombay (II) (1994) 5 SCC 410: In this case, the Supreme Court clarified that the period for filing the charge sheet is calculated from the date of the remand of the accused. If the prosecution fails to file the charge sheet within the 60 or 90 days, as applicable, the accused is entitled to be released on default bail. The judgment also discussed various procedural aspects related to default bail.

Bail Provisions under CrPC and the Bharatiya Nagarik Suraksha Sanhita

Topic	Old	New
Bail – definition of	-	2(1)(b) [New]
Bail Bond – definition of	-	2(1)(d) [New]
Maximum period for which undertrial prisoner can be detained – Undertrial prisoner	436A	479
When bail can be taken in case of non-bailable offence – In case of a child/woman/sick or infirm – Refusal for bail	437	480
Anticipatory bail (direction for grant of bail to person apprehending arrest) – Anticipatory bail	438	482
Default Bail*	167	187

*Default Bail – A few changes have been made in the section enforcing Default Bail, but the changes are mainly in relation to the rules regarding Remand and custody during investigation.

Conclusion

The bail process in India aims to balance the rights of the accused with the interests of justice. It ensures that individuals are not unnecessarily deprived of their liberty while awaiting trial, while also safeguarding the judicial process. The CrPC provides a comprehensive framework for the granting of bail, with specific provisions for different types of offenses and conditions, reflecting the nuanced nature of criminal proceedings. The concept of sureties plays a vital role in this process, providing additional assurance of compliance with bail conditions. Landmark judgments have further refined and clarified the principles governing bail, underscoring the judiciary's role in protecting personal liberty and ensuring fair treatment of the accused.