The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. In the Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be imprisoned without being judged by his peers on the law of the land. In 1275, in United Kingdom, the Statute of Westminister was enacted which divided crimes as bailable and non-bailable. It also determined which judges and officials could make decisions on bail. In 1628, an English constitution document titled as `Petition of Rights’ was passed by the Crown, for setting out specific individual protection against the state. In 1679, the Habeas Corpus Act was added to the Right of Petition of 1628, which gave the rights to the accused to know about the charges against him, whether the charges against him are bailable or not. The Habeas Corpus Act, 1679 states, “A magistrate shall discharge prisoners from their imprisonment taking their recognizance, with one or more surety, in any sum according to the magistrate’s discretion, unless it shall appear that the party is committed for such matter offences for which by law the prisoner is not bailable.”

Bail is an instrument to guarantee the appearance of the accused person at trial or to make sure the reliability of the procedure by preventing from manipulation of the evidence or with the witness. Webster’s Law Dictionary defines Bail as, “a temporary release of a person in exchange for security given for the prisoner’s appearance at a later hearing”.

The Criminal Procedure Code, 1973, does not define bail. Although, the terms `bailable offences’ and `non-bailable offences’ have been defined in section 2(a) of Cr.P.C., which are as follows: “Bailable offences means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence.”

Further, Section 436 to 450 of Criminal Procedure Code set out the provisions for the grant of bail and bail bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society.

According to the 78th report of the law commission as on april1, 1977, of a total prison population of 1, 84,169, as many as 1, 01,083 (roughly 55%) were under-trials.

First time in India, in the year 1977, Justice Krishna Iyer raised his voice against the unfair system of bail administration. Hon’ble Justice said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose. (State of Rajasthan v. Balchand, AIR 1977 S.C. 2447)

In the words of Justice V.R. Krishna “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”

In Moti Ram and Ors. v. State of M.P., AIR 1978 S.C. 1594); Justice Krishna Iyer opined that the judges should be more inclined towards bail and not jail.

The term “Bailable Offence” is defined under section 2(a) of code of criminal procedure, as an offence which is shown as bailable in the 1st schedule of Cr.P.C. or which is made bailable by any other law for the time being in force, in the light of second part of the 1st schedule of Cr.P.C.

Any person who has been arrested for any offence which is constituted as a bailable, should be released on bail as it is mandatory in nature. The police have the power to grant bail in these types of cases. Bailable offences are those offences or crimes that are not very serious in nature and in such cases bail is to be granted to the person as a matter of right after depositing the bail bond with the police. (Rasiklal v. Kishore, AIR 2009 SC 1341)

The Sections 50, 56 and 57 of Cr.P.C. should be read cordially in order to understand the concept of bailable offences. When read tighter, there raises a question of constitutional validity of Article 22 of the constitution, where it is assured that the accused person would be informed of the grounds and the nature for the arrest so made. According to these sections, an officer incharge of the Police Station or the court is vested with the authority to release the accused from the custody either on executing personal bonds or with sureties.

The term “Non-Bailable Offence” is also defined under section 2(a) of Cr.P.C., as an offence other than bailable. Non-bailable offences are considered more serious or heinous in nature. The quantum of punishment is higher in non-bailable offences as compared to bailable offences and may extend to Life Imprisonment.

In Non- Bailable offences, bail cannot be claimed as a matter of right and court or the police officer has discretion to grant bail after considering the facts and circumstances of each case. Provisions for bail in non-bailable offence is provided under section 437 of Cr.P.C. Bail in cases where the offence is a non-bailable one, is a matter of prudence. When the discretions are made, it is to be applied by the court of justice and channeled and supervised by the law. The bail granted in non-bailable cases under the provisions of Cr.P.C. should not be indistinguishable and absurd. Instead, it should be made with great caution without any arbitrariness and should always be lawful.

Since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of society at large. (Mansab Ali v. Irsan, AIR 2003 S.C. 707)

Certain rules and regulation have been formed by the court and these are to be considered while granting bail to an accused:

1. The vastness of allegation;

2. The description of the indictment;

3. The type of evidence to support the same allegation;

4. The social status of the victim as compared to the accused;

5. The kind and severity of the situation in with the alleged crime is committed;

6. The fear of tampering of the witnesses/evidence;

7. The person who is already facing guilt, the likelihood of committing the offence more crimes;

8. The chance of the person to arrange his defence and to approach counsel of his own;

9. The age and sex of the person and the health of the same.

In Anil Kumar Yadav v. State (NCT) of Delhi and Anr, AIR 2017 S.C. 5398 it was held that “For ensuring fair trial, witnesses must be in a position to freely depose without fear and a fair trial can be ensured only if accused are not enlarged on bail.”

The proviso to Section 437 Cr.P.C. states that the Court may direct that a person be released on bail if such person is under the age of sixteen years or is a woman or sick or infirm. In Pawanbala v. State of H.P. 2015(3) Cri.C.C. 687. It was opined that it is expedient in the ends of justice to release the petitioner on anticipatory bail as per special provision of bail relating to women.

In Prabhakar Tewari v. State of U.P. & Anr., 2020(1) R.C.R. (Cri.) 831 court opined that “Even though several criminal cases were pending against accused, this factor by itself cannot be basis for refusal of prayer for bail.”

In Mohammad Shakil v. State of Haryana CRM-M 5923 of 2011, the opinion of the court in this, once an accused was enlarged on bail for certain offence and if during the investigation new Section is added for which minimum punishment is not life imprisonment or death penalty then Magistrate will be within its jurisdiction to ask the petitioner to furnish fresh bonds for the newly added Section. The accused is not required to seek fresh bail.

As per Section 41(1)(b), Cr.P.C., if accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, can be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid.

In Arnesh Kumar v. State of Bihar: (2014) 8 SCC 273 it was held that the petitioner should be arrested only when the Investigating Officer has reason to believe on the basis of information and material collected, that he has committed an offence.

In Union of India v. K.A. Najeeb, 2021 (3) SCC 713 it was decided that “Long period of incarceration and the number of witnesses mentioned in the challan should be considered for decision the bail application.”

In Sanjay Chandra v. CBI 2011 (4) Criminal Court Cases 892; it was held that The bail application would not survive after the filing of charge sheet. There is no good reason to detain the accused in custody where there was no serious contention that the accused, if released on bail, would interfere with the trial or tamper with evidence

State Of Punjab v. Manvinder Singh And Others 2012(1) RCR (Cri.) 302. Held that For deciding the bail application under section 167(2) Cr.P.C., the day of first remand order will be included while computation of 60/90 days of custody.

In Sanjay Dutt v. State, 1994(3) RCR (Criminal) 684, the constitution bench in this decided that the right under Section 167(2) of Criminal Procedure Code to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits.

The bail application under section 167(2) Cr.P.C. should be decided on the same day. State v. Zahid Hassan & Ors 2014 (3) Criminal Court Cases 308,

In Pragyna Singh Thakur v. State of Maharashtra 2012(1) RCR (Cri.) 302; Right of accused to be released on bail is not an absolute or indefeasible – Even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. At the time of deciding the application under section 167 (2) Cr.P.C. merits of the case cannot be looked into. The computation of the period of 60/90 days will start from the first order of remand and not date of arrest. –

In Subhash Chander v. State of Haryana 2020 (3) RCR (Cri.) 136 The period of interim bail will not be included in computation while deciding the bail application under section 167(2) Cr.P.C..

In Saravanan v. State represented by the Inspector of Police, 2020 (9) SCC 101 apex court held that “While considering application for default bail i.e. under section 167 (2) Cr.P.C., only requirement is that accused is in jail for more than 60 or 90 days, as case may be and no other condition can be imposed. Hon’ble Supreme Court quashed certain unnecessary conditions that were imposed while granting bail to the accused, like the accused was directed to deposit Rs. 8,00,000/- and to report before the concerned police station at 10:00 a.m. daily.”

While deciding bail petition it is the duty of the Court to take into consideration certain factors, like (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonably apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge.

In Neeru Yadav v. State of U.P. and Anr., 2015 (4) Cri.C.C. 293 it was held that when any person has a reason to believe that there is a chance to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 Cr.P.C. for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court is meaningless. Rukmani Mahato v. State of Jharkhand, 2018 (1) SCC (Cri.) 828

The accused can surrender directly before High Court and pray for bail. There are no restrictions on High Court to entertain an application for bail provided the accused is in custody. Sundeep Kumar Bafna v. State of Maharashtra and another, 2014(3) Cri.C.C. 140

In Balan v. State of Kerala, 2003 (4) RCR (Cri.) 733. The accused seeking bail is not bound to approach the Court of Sessions before he can move the High Court.

Under Section 439 of Cr.P.C., High Court and Court of Sessions have special powers to issue directions that any accused of an offence who is in custody should be released on bail, if the offence is of nature defined under Section 437(3). It can direct any condition imposed by a magistrate when releasing any person on bail be set aside or modified.

The expression used in Second category of part II of Schedule I of the Criminal Procedure Code viz., that the term of imprisonment for three years or upwards, but not more than seven years, cannot be equated with the expression used in Section 63 of the Act viz., the imprisonment which may extend to three years. Rajeev Chaudhary v. State (NCT) of Delhi, AIR 2001 SC 2369 & Amarnath Vyas v. State of A.P., 2007 (3) R.C.R. (Cri.) 642.

There is no codified law to deal with the concept of bail. Though there are catena of judgments having the guidelines to grant or refusal of bail. But nuanced and precise guidelines would ultimately have to be laid down by the parliament to reduce the penumbra of ambiguity surrounding the provisions of bail. The criteria for granting bail and imposing conditions while granting bail should be based upon sociological, psychological, criminological, socio-economical and judicial factors. The classification of Bailable and Non-bailable offences as well as their relative seriousness and consequent imprisonment is frequently inconsistent. There should be consistency between the term of imprisonment for offences and their classification as Bailable or Non-Bailable. Section 41 should make it mandatory for the Investigation Officer to record the reasons in the Case Diary and Daily Diary Register, prior to making the arrest, after obtaining written approval by the Station House Officer. This will help in stopping the arbitrary arrests. The magistrate should also consider a two-way approach in order to ensure that the accused is not taken on remand through improper means as well as in determining whether the accused should be released or remanded. In every case the magistrate should pass a speaking and reasoned order to explain why the accused is required to send in judicial custody, after the police remand is over and after the presentation of charge sheet. It should consider the compelling need for the accused to remain in custody as well as the duration of under trial detention undergone by him/ her. In case an accused is in custody and the trial is getting postponed/ adjourned, the Court should release him/her on bail or remand the accused to further custody, for reasons to be recorded in writing. The crime against property and the crime against human body should also have separate guidelines to deal with the bail petitions, as now a days, criminal complaints are used as a means to harass a party or to seek quick relief in civil disputes. In the light of aforesaid discussion, the bail reforms lies on the idea of balancing the human rights of the accused and ensuring the conviction of the offender through a free and fair trial. Hence, the parliament and the Hon’ble Supreme Court needs to give special care to the fields of bail.

“Liberty of a person is foremost important & paramount; Personal Liberty is the paramount essential to human dignity and human happiness the Constitution of India protects the Life and Liberty of an individual. The personal Liberty of a person not merely the right to the continuance of a person’s animal existence.

• It is the duty of the courts to uphold the dignity of personal liberty.

• It is the duty of the court to see whether individual crosses the Lakshman Rekha i.e., carved out by law is dealt with appropriate as cited by the Hon’ble Supreme court of India in Dharmendra Kirthlal v. State of U.P. in AIR 2013 SC 2369 ii) Vikas v. State of Rajasthan (2014) 3 SCC 321.

• At this juncture it is stated that Hon’ble Supreme Court has categorically stated that Article 21 and Article 19 i.e. personal life & liberty and rights of Freedom of a citizen are the heart and soul of the constitution.

• “Article 50” glaringly states about separation of judiciary from executive. Hence Dr.B.R.Ambedkar describes the same as Conscience of the Constitution.

• The Hon’ble Supreme Court by going a further mile considered the vital & pivotal importance of Separation of Judiciary from Executive and Legislature also cited in Madras Bar Association v. Union of India & another in (2015) 8 SCC 583.

• That When a person is arrested and detained by the police immediately within 24 hours as per Article 22(2) of Constitution of India and also U/sec 56 & 57 Cr.PC is suppose to be produced before the nearest Magistrate. On being produced the learned magistrate U/Sec 167 Cr.PC has to remand in judicial custody either for 7 days (Executive Magistrate) for 15 days before the Judicial Magistrate at this juncture it is to be noted that in Arnesh Kumar v. State of Bihar reported in the 2014(8) SCC 273 wherein an Accused may be released under 41A Cr.PC if the alleged offence is upto 7 years or below 7 years.

• That the domain of the bail now came into the picture. The Cr.PC deals with Sec. 436, 437, 438, 439.

Wherein 436 deals with bail for Bailable offences by a Magistrate.

Wherein 437 deals with bail for Non-Bailable offences by the Magistrate of I Class.

Wherein 438 deals with Anticipatory bail for cognizable offence by Sessions Court and High Court.

Wherein 439 deals with bail by Hon’ble High Court and Sessions Court respectively.

• That it is Painfully stated that now a days in practice it is came into lime light that the accused are sent to Jail under 167 Cr.PC for 15 days by the learned Magistrate in a routine manner whereas it is specifically directed in Arnesh Kumar v. State of Bihar by the Hon’ble Supreme Court of India that it is the duty of the learned magistrate that when an accused is produced before the learned Magistrate then he has to be satisfied that condition precedent for arrest U/Sec 41 A Cr.PC. has been complied thereafter only, the learned Magistrate has to authorize detention of the accused; even before the same the learned magistrate has to satisfy himself whether penal section and the given facts could lead the detention of the accused or not

• That in P. Chidambaram v. Directorate of enforcement Reported in 2020(1) LRC 368 (SC) Hon’ble Supreme Court has categorically said that triple test is to be taken into consideration in granting the Regular Bail.

Whether there is an apprehension of fleeing from Justice.

Whether there is any threat to prosecution witness.

Whether there is any threat of tamper & hamper with the prosecution evidences.

• That similarly the Hon’ble Supreme Court lead by Hon’ble Three Judges Bench headed by Hon’ble CJI has categorically stated in case of Siddaram Satlingappa Mhetre v. State of Maharastra and others reported in 2011(1) SCC 694 while dealing with the Anticipatory bail. The Hon’ble Supreme Court has observed the following guidelines.

The Anticipatory Bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

• That our holy constitution glaringly states that under any circumstances a Citizen’s person liberty is not be suppressed that’s why Article 21 plays a vital and pivotal role in the detention of the accused even there are certain conditions to be followed under PD Act, NDPS Act and other specialization Acts therefore a pre trail long detention must be always not suggestible to secure the complete justice. The circumstances of each an individual case pertains to Arrest and detention satisfies the triple test in regular bail and Anticipatory Bail; that under the guise of Investigation keeping the accused in Jail for 60 days or 90 days or 180 days is to be reconsidered and redefined in light of the Judgement delivered by the Hon’ble Supreme Court of India in Chandran Ratnaswamy v. K.C. Palavisani in AIR 2013 SC 1952.

• That after the conviction however the accused is to be Jailed to serve the sentence as a prisoner; before the same during the trail or pre trial as a under trail person a long term detention is neither required nor needed. Thus it could be reiterated that Article 21 shall be given the top priority in protecting the person’s life and liberty; as the Hon’ble Supreme Court has categorically stated that if a person is detained in Judicial Custody then his, his family’s reputation name, fame impact on children, in society will play a major role, therefore the courts do have a heavy responsibility to pass appropriate orders either under 167 Cr.PC. or in bailment in the backdrop of Article 21.