The Right to Seek Bail

In its recent judgment titled Sebil Elanjimpally v. The State of Orissa (Crl. Appeal No. 1578 of 2023), a bench of the Hon’ble Supreme Court comprising of Hon’ble Justices K. M. Joseph and Arvind Kumar once again shed some light on the topic of bail under Indian law. The Hon’ble Court was considering a bail application filed by an accused under custody for allegedly committing offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). The judgment clarified that an accused cannot be denied bail simply on account of the fact that the co-accused in the same case has not surrendered. Instead, the Hon’ble Court held that the bail application should be decided in view of the fact that the trial is pending, charges have been framed, and 19 prosecution witnesses are proposed to be examined by the State. 

The right to seek bail and the relevant grounds on which bail can be granted have been discussed in various matters before the Hon’ble Supreme Court and other High Courts recently. Let us understand what the law says about bail in India. 

What is Bail?

Bail is the temporary release of an accused person who is in custody by a court. The Court allows the accused to be outside the jail generally on conditions such as that they would appear before the Court whenever required, will not commit any crimes or tamper with any evidence while out on bail, etc. In most cases where a bail is granted, a sum of money or property has to be deposited to the Court as a guarantee that the person will make an appearance back in Court whenever they are required.  

Types of Offenses:

The conditions for granting bail vary depending on the kind of offense alleged against the accused. The Code of Criminal Procedure, 1973 (“CrPC”) recognises 2 types of offenses – bailable and non-bailable offences. These offences are classified in the First Schedule to the CrPC.

Bailable offenses: According to Section 436 of the CrPC, a person accused of a bailable offense under the Indian Penal Code, 1860 (“IPC”) has the right to be granted bail upon furnishing of surety as affixed by the Court. Further, the Court may exempt the accused from furnishing surety in case it is proved that he is an indigent person.

Non-Bailable Offence: Non-bailable offences are generally considered to be more stringent in nature, and according to Section 437 of the CrPC 1973, a person does not have the right to default bail for committing an offense categorized as a non-bailable offense. However, the Court (or in certain cases, the police officer in charge) has the discretion to grant bail in such cases, subject to certain conditions as imposed by the Court. 

Bail may not be granted in cases where a person is accused of an offence punishable with life imprisonment or death penalty, or where a person has been previously convicted of such an offence. At the same time, the Court has the power to grant bail even in such cases, if the accused is a woman, or under the age of sixteen years, or is sick or infirm. 

It is pertinent to note that offences under the NDPS Act are non-bailable in nature, and are governed by Section 37 of the NDPS Act. To know more about grant of bail in relation to drug-related offenses, you can refer to our article here. 

Types of Bail

Regular Bail: This type of bail can be applied for once a person has been arrested and is being held in police or judicial custody. The application for regular bail is typically filed under Sections 437 and 439 of the CrPC. 

Interim Bail: This type of bail is a temporary measure granted to an accused until the Court decides on whether a regular bail can be granted to the accused. It is typically granted for a short period of time.

Anticipatory Bail: This type of bail is applied for when an accused apprehends arrest by the police, before such an arrest is made.  The application for anticipatory bail is filed under Section 438 of the CrPC.

Bail on Default: Section 167(2) of the CrPC empowers a judicial magistrate to authorize police custody of an accused person in cases wherein the investigation cannot be completed within twenty-four hours. The section further provides for a maximum period of custody that the judicial magistrate can authorize. If the investigation is not completed within the stipulated maximum period, the accused must be released upon furnishing bail, regardless of the nature of the accusation against them. 

What is the Procedure to Apply for Bail?

Step 1 –  Application of Bail: The person accused or their lawyer must file a bail application before the relevant court. The application should contain the grounds on which bail is sought and any relevant information, such as in relation to the accused person’s background, character, and ties to the community.

Step 2 – Decision of the court: The court will then consider the bail application and decide whether to grant bail or not. In making this decision, the court will consider factors such as the nature and severity of the offense, the likelihood of the accused person fleeing or tampering with evidence, and the strength of the prosecution’s case.

Step 3 – Bail bond: If bail is granted, the accused person will be released from custody upon the payment of a sum of money known as a “bail bond.” This bond is intended to serve as a guarantee that the accused person will appear in court as required. If the accused person fails to appear in court, the bond may be forfeited and the accused person may be re-arrested and brought back into custody.

Can Bail be Cancelled?

As per Sections 437(5) and 439(2) of CrPC, any court which has released a person on bail can cancel the bail order and direct the person to be arrested and committed to custody. In Dolat Ram v. State of Haryana, the Supreme Court has held that once bail has been granted, it can only be cancelled based on “cogent and overwhelming circumstances.” 

Bail granted to an accused can be cancelled only if the accused:

• misuses his liberty by indulging in similar criminal activity, 
• interferes with the course of investigation, 
• attempts to tamper with evidence of witnesses, 
• threatens witnesses or indulges in similar activities which would hamper smooth investigation, 
• attempts to flee to another country, 
• attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, 
• attempts to place himself beyond the reach of his surety, etc.