Dec 8, 2023

Strengthening the Right to Bail

Recently, while hearing a case under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Supreme Court observed that in cases where an accused is eligible to get bail, it is illegal for courts to grant only interim bail or bail for short durations. This can lead to prolonged incarceration. 

The Code of Criminal Procedure (CrPC), 1973 lays down our rights as well as the different procedures related to bail. The law around our right to bail has also been developed further by several landmark judgements of Indian courts. In this Weekly, we’ll explore what is bail, who can apply for bail and how and what the law instructs courts about granting bail. 

What is bail?

While bail is not defined by the law, it may be broadly described as an order for release of an accused from police custody or jail on the condition that they will cooperate with the investigation process and not commit any further crimes. Bail is often granted against a deposit of a certain sum of money or a person guaranteeing that the accused will duly comply with the conditions. 

What are the different types of guarantee for bail?

Bail can be granted to an accused against the following types of guarantees:

  •  Bail Bond : Bail Bonds are sums of money that the court orders an accused to deposit against the grant of bail. This is a monetary incentive to obligate the accused to comply with all conditions of the bail. If the court is satisfied that the accused is not in a financial condition to pay the bail bond amount, it may waive such an amount off. 
  • Personal Bond : In certain cases, the Court may exercise its discretion to release an accused on bail without any deposit but upon a personal promise to abide by the conditions set by the Court for the grant of bail. 
  • Surety: In certain cases, an accused is released when someone else stands as a guarantee that the accused will not abscond and abide by the bail conditions. If the accused fails to comply, then the surety will have to pay the bail amount, failure to do so can result in civil proceedings against them. 

When can bail be granted by the courts?

Sections 436 to 439 and Section 167(2) of the CrPC lay down the various provisions related to bail applications and the circumstances under which bail can be granted. Before we delve into these provisions, let’s understand when one can apply for bail. 

Bailable Offences : In these offences, an arrest is made without a warrant and the accused have the right to be released on bail upon production before the court. These are generally offences which have imprisonment less than three years and a fine. 

Non-Bailable Offences:  These are offences which are more serious in nature with punishment extending to imprisonment more than seven years, life imprisonment or death. Bail is not a right in these cases. The Court can grant an order of bail after assessing the: 

  • Severity of the offence
  • Chances of the accused absconding and not cooperating during the trial
  • Nature of the evidences collected by the police investigation
  • Recidivism or potential to repeat the crime

The Court is more likely to grant bail if the accused is below the age of sixteen and is satisfied that is “just and fair” grounds to grant them bail. 

Default Bail : An accused must be produced before a magistrate within 24 hours of arrest by the police. If the police fails to complete its investigation within this time and is unable to produce a chargesheet, then the accused has the right to apply for ‘Default Bail’.  In 2022, the Supreme Court of India in the Satendra Kumar Antil vs CBI case held that the right to Default Bail is a fundamental right stemming from the right to personal liberty guaranteed by the Indian Constitution under Article 21.  

The magistrate can, however, allow the accused to be detained further even if the investigation could not be concluded within a day, if there are adequate grounds for the delay. In this case, the detention cannot b for more than 15 days. Beyond this period, if the magistrate is satisfied that further detention is necessary, then they may order detention for another 90 days in case of offences punishable with life imprisonment, death or more than seven years of jail term. In case of other offences, the extension of detention cannot exceed 60 days. 

An accused can also apply for default  bail if the trial is still going on and they have already been in detention for a time period equal to half of the maximum jail time they could get for the crime they are accused of. 

Why is this particular order of importance?

Often courts order release of an accused for a short period of time or an interim period while the actual hearing on the bail application continues. The Supreme Court observed that if the accused is eligible for bail, merely awarding release on bail for a short period of time is illegal since it violates their right to personal liberty. Moreover, the courts cannot dispose of bail applications by simply granting interim bail. In cases where interim bail has to be ordered,  the proceedings for the actual bail application must be kept open. 

For more details on what our rights to bail are and how we can claim them, read our explainer here.