Introduction:

In India, generally, the process that takes place before and after the occurrence of a crime or offence which is criminal in nature would mostly be covered under the Criminal Procedure Code, 1973. In specific, what is the offence committed, and what are the penal sanctions are covered under the Indian penal Code, 1860. One such concept that is extensively given under CrPC is Bail. What is this concept of bail and its types under CrPC? Why should it be provided to any person? It has interconnection with article 21 of the Indian Constitution that is because it deals with the liberty of individuals. This article will look into the concept of bail and its relevant provisions provided under CrPC, 1973.

Concept of Bail:

The term Bail basically indicates the process that involves procuring the release of the offender of the crime under IPC, 1860. Its main objective is to make sure that the offender is brought before the court of law for trial and reminding him to be present within the jurisdiction of the court. It is important to note that the Criminal Procedure code, 1973 does not define the term ‘Bail’. Instead, it defines what bailable and non-bailable offences are under Law are. Section 2(a) of CrPC states that bailable offence would mean any offence which is shown as bailable under First schedule or anything that is made bailable by any other law for the time being in force. On the other hand, a non-bailable offence would include all other offences that are non-bailable.

Bail under CrPC:

Chapter XXXIII of the Criminal Procedure Code, 1973 extensively deals with the provisions relating to Bail and Bonds. Broadly speaking, CrPC categorises bail into two. Firstly, Bailable cases, where the grant of bail is a matter of course and the same may be given either by the police who holds control over the police station or by the courts of law. Section 436 to 439 deals with Bail and its relevant concepts. It is to be noted that apart from sections 436 to 439 of CrPC, section 167 of CrPC deals with Default Bail.

Section 436 deals with the cases in which the bail can be taken. It states that, in cases of bailable offences where the person remains in jail for his inability to get the bail, section 436(1) therefore makes mandatory for such person who is accused of bailable offences and who does not furnish the bail in case of a surety, then, in that case, the court shall have the power to release him on the execution of bonds without the sureties.

Section 437 deals with the cases where the bail can be taken in case of non-bailable offences. This section basically gives the court or the police officer, in charge of the police station, the power to release the accused person on the bail in a non-bailable case unless and until it appears to them that the offence committed by that person is of that nature which shall be punishable with death or with the life imprisonment for that matter. The section also provides the exception that, even if the offence was of such nature which shall be punishable with death or life imprisonment, few persons can be released or should be given bail. They are,

• any person under the age of 16 years,
• a woman and
• An infirm person or a sick person.

Section 437A of the code deals with bail, which requires the accused person to appear or present himself before the court of appeal or the higher court. This section was inserted through an amendment in the year 2008 which basically, makes it obligatory for any court law or the appellate court to implement the bail bonds with the sureties in order to appear before the higher court and in cases when such court issues notice against the judgment of that court. Sub-section (2) of section 437A states that in case of any failure on part of the accused person to present himself before the court of appeal or the higher court as the case may be, then his bond shall remain forfeited and then section 446 of Criminal Procedure Code shall be implemented.

Section 438 provides the direction for the grant of bail to any person who apprehends that he will be arrested. Unlike in the older code before the amendment in 2008, there was no provision for anticipatory bail. But, through the recommendation of the 41st Report of Law Commission, the concept was codified under CrPC. This provision takes the applicant’s apprehension into account, that he may be arrested for the commission of a nonbailable offence. Such provision aims to reduce the unwanted harassment or disgrace and the same shall be granted by the court of law if they find that there is no misuse of liberty, neither he absconds nor attempts to abscond from the procedure of law.

It was in one of the famous cases of Bhadresh Bipinbhai Sheth v. the State of Gujarat, the court dealt with the aspect of anticipatory bail and laid down the principles to be followed for the grant of bail under section 438.
Lastly, section 439 vests few special powers on the high court or the Court of Session relating to the matter of bail. While exercising the power under this section, the power of the court would not be restricted as per section 437 of CrPC. It does not require anything to be done under that section while dealing with section 439.

Conclusion:

There have been amendments that were made to provisions relating to the concept of bail under CrPC. All these amendments added a few more necessary provisions as per the recommendations made by the law commission of India in its 41st Report. Thus, this provision should be used not only to restrict the person from being held responsible or restrained but also to protect the interest of such person that has been provided under article 21 of the Indian Constitution.