The foundation of the Criminal Jurisprudence is “Actus Non Facit Reum Nisi Mens Sit Rea’ which explains that for any act to be illegal in nature it must be done with a guilty mind. In other words we can to say that “to establish the occurrence of a crime, it is necessary to prove the direct relation between Actus Reus and Mens Rea”. Bail and Anticipatory Bail are the two most important factors of the Criminal Procedure Code as the freedom of a person (who is being recognised as Accused of a crime) and/or a person who is being considered as suspect of a crime, is depending upon the provisions of the Bail and Anticipatory Bail as prescribed and implemented by the legislature. However the statement without a guilty mind there is no crime is subjected to certain exceptions such as strict liability. Under strict liability, it is not necessary to show that a defendant possessed the relevant men’s rea for the act committed.

We shall hereby discuss only in respect of the nature and scope of the provisions, rules and regulations under the light of observations made by the Hon’ble Supreme Court regarding the Bail and Anticipatory Bail.

Section 2(a) of the Criminal Procedure Code 1973 (The CrPC.) defines the Bail able and Non-Bail able Offences but the Term “Bail” is not defined therein. The CrPC says that ” bail able offence” means an offence which is shown as bail able in the First Schedule, or which is made bail able by any other law for the time being in force; and” non- bail able offence” means any other offence. After going through a plane reading of this definition any prudent can say that Bail shall be granted only in Bail able offences and there is no scope to secure the bail Order in Non-boilable offences. Bail can, however, be granted in both the cases. In non-bail able cases the grant of bail is by way of concession to the accused and the power to grant bail can be exercised by the court in the interest of justice. The system of release on bail is thus also operative in non-bail able cases. In Emperor v. Rautmal Kanumal Marwadi[1] it was held that a court trying a criminal case has an inherent power to see that a trial is properly conducted and that the ends of justice are not defeated by letting a person remain on bail.

Now we shall lit the fire on the point of Dictionary Definition of the Term Bail.

An amount of money that a person who has been accused of a crime pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial:[2]

To grant or obtain the liberty of (a person under arrest) on security given for his or her appearance when required, as in court for trial.[3]

Bail is a sum of money that an arrested person or someone else puts forward as a guarantee that the arrested person will attend their trial in a law court. If the arrested person does not attend it, the money will be lost.[4]

The temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing.[5]

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.[6]

The money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect’s first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine. This is generally called “bailing out” a prisoner.[7]

The aforesaid definitions are disclosing the nature of the bail and after perusing the same it can be easily understood by any prudent man that Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.

There are Two Kinds of Bail (1) Regular Bail and (2) Anticipatory Bail.

Let us discuss and deal with the Regular Bail with the support of relevant provisions, prescribed by the legislature under the sunshade of Criminal Procedure Code 1973.

In order to get the regular Bail, the person must be under the custody of Police or Judicial Custody. [8]The meaning of the “Term” Custody is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court. [9]An Accused can be stated to be in judicial custody when he surrenders before the court and submits to its direction.

IN What cases the Bail to be taken:-

Section 436 of the Criminal Procedure Code 1973:- (1) When any person other than a person accused of a non- bail able offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: 

Provided that such officer or Court, if he or it thinks fit, may,[10](may, and shall , if such person is indigent and is unable to furnish surety, instead of taking bail) from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

[11](Explanation – Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of this proviso)

Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 [12]or section 446A^.

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446. 

[13]The aforesaid Section is imperative and under its provisions the magistrate is bound to release the person on bail or recognizance.

[14]But bail means release of a person from legal custody; it presupposes that he is in custody. Person who is under no such restraint cannot be granted bail. The fundamental principal of our system of justice is that a person should not be deprived of his liberty except for a distinct breach of law. [15]The basic rule is to release on him bail unless there are circumstances suggesting the possibilities of his fleeing from justice or thwarting the course of Justice.

[16]When Bail is refused, it is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution and therefore such refusal must be rare.

BAILABLE OFFENCES: – [17]When the offences are bailable there is no reason why the bail application should not be disposed of the Special Judge same day and it is expected that the bail application filed by the Accused shall be disposed of the same day.

Maximum period for which an under-trail prisoner can be detained:-

Section 436A of the Criminal Procedure Code 1973 :- [18]Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.—in computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

The aforesaid new section 436A inserted in the Code by CrPC (Amendment) Act, 2005 (25 of 2005) provides the maximum period of the detention of an under-trail prisoner.

[19]Whereas Section 436 A held not applicable to the case where the Petitioner had not completed one half of the period of punishment that could be imposed on him under S. 26(3) of the Arms Act.

When bail may be taken in case of Non-bailable offences. 

Section 437. Of CrPC 1973

(1) [20]When any person accused of, or suspected of, the commission of any non- bail able offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of [21](a cognizable offence punishable with imprisonment for three years or more but not less than 7 years):

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

[22]Provided also that  no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the public prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bail able offence, but that there are sufficient grounds for further inquiry into his guilt [23](the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), [24](the Court shall impose the conditions,–

(a)  that such person shall attend in accordance with the conditions of the bond executed under this chapter,

(b) that such person shall not commit  an offence similar to the offence of which he is accused or suspected of the commission of which he is suspected, and

( c) that such person shall not directly or indirectly make any inducement , threat or promise to any person acquainted  with the facts of the case so as to dissuade him from disclosing such facts  to the court  or to any police officer or tamper with the evidence.

And may also impose, in the interests of justice, such other conditions as it consider necessary.

(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its ^[25] reasons or special seasons] for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bail able offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

[26]The Power of Magistrate under this section cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439. Grant of Bail is the rule and its refusal is an exception. But while granting it the court has to be satisfied that the Order to be passed is in the interest of Justice. [27]Having granted the bail under the said provision of law, it is not open to the trail court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of Bail in the said provision of law.   

[28]437A. BAIL TO REQUIRE ACCUSED TO APPEAR BEFORE NEXT APPELLATE COURT.

(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.

(2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.

[29]While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction; 

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses; 

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice; 

(iv) The antecedents of and circumstances which are peculiar to the accused; 

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and 

(vi) The significant interests of the public or the State and other similar considerations. 

Every court in our country would do well to remember Lord Denning‘s powerful invocation in the first Hamlyn Lecture, titled

‗[30]Freedom under the Law‘:

―Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, ‗My Lord, I have an application which concerns the liberty of the subject‘, and forthwith the judge will put all other matters aside and hear it. …‖ 

It is our earnest hope that our courts will exhibit acute awareness to the need to expand the footprint of liberty and use our approach as a decision-making yardstick for future cases involving the grant of bail.

Conclusion;- The freedom of a person should not be curtailed on the basis of mere allegations, observations and /or apprehensions.

In our next Article we shall discuss regarding Anticipatory Bail as well as grant of bail under section 439 of Cr.P.C.

---

[1] AIR 19408001.38.

[2] Cambridge Dictionary

[3] Dictionary.com

[4] Collins Dictionary

[5] Merriam Webster

[6] Oxford Dictionary

[7] Law.com/Law Dictionary

[8] State of Assam v. Mobarak Ali, 1982 CrLJ 1816 GAU-DB.

[9] State of Haryana V. Dinesh Kumar 2008 1 SCC (Cri) 722: AIR 2008 SC 1083.

[10] Subs. For the words “may instead of taking bail” by the CrPC (Amendment) Act, 2005 (25 of 2005), S-35. Enforced w.e.f. 23/6/2006 vide notification no. s. o. 923(E), dt. 21/6/2006.

[11] Expl. Inserted by the CrPC (Amendment) Act, 2005(25 of 2005), S-35. Enforced w.e.f. 23/6/2006 vide notification no. s. o. 923(E), dt. 21/6/2006.

[12] Inserted by Act No. 63 of 1980, S.4(w. e. f. 23/9/1980)

[13] Raghunandan Pershad v/s. Emperor, (1904)32 Cal 80, 83.

[14] Varkey Paily Madthikudiyil, AIR 1967 Ker 189. Bharmar v/s. state of Orrisa , 1981 CrLJ 1057.

[15] State of rajstahn v/s. Balchand 1978 Cr.LJ 195(SC) AIR 1977 SC 2447

[16] Babu singh v. State of UP 1978 CrLJ651 AIR 1978 SC 527

[17] Kedarnath Tiwari V. State of UP 1987 (1) Crimes 641(All)

[18] New Section 436A, Inserted by the CrPC (Amendment) Act, 2005(25 of 2005), S-36. Enforced w. e. f. 23/6/2006 vide notification no. s. o. 923(E), dt. 21/6/2006.

[19] Md. Shahabuddin v. State of Bihar , 2009 (3) Pat LJR 213 (215) Pat.

[20] Sub-section (1) substituted by Act No. 63 of 1980, S. 5(A) (w. e. f. 23/9/1980)

[21] Subs. For “a non-bail able and cognizable offence” by the CrPC (Amendment) Act, 2005(25 of 2005), S-37. Enforced w. e. f. 23/6/2006 vide notification no. s. o. 923(E), dt. 21/6/2006

[22] Inserted by the CrPC (Amendment) Act, 2005(25 of 2005), S-37. Enforced w. e. f. 23/6/2006 vide notification no. s. o. 923(E), dt. 21/6/2006

[23] Substituted by Act No. 63 of 1980, S 5(b), for “ the Accused shall, pending such inquiry, be released on bail” w.e.f. 23/9/1980

[24] Subs. By the CrPC(Amendment) Act, 2005(25 of 2005), S-37 for “ the court may impose any condition which the court considers necessary-

in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) Otherwise in the interests of justice.

[25] Substituted by Act No. 63 of 1980, S 5©, for “reasons” (w. e. f. 23/9/1980).

[26] Chandra Prakash V. Mohan Lal 1984 (2) Crimes 325 (All).

[27] Biman  Chatterjee v. sanchita Chatterjee AIR 2004 SC 1699.

[28] New S.437A ins. By the Code of Criminal Procedure (Amendment),Act 2008(5 of 2009), S 31, (w.e.f. 31/12/2009)

[29] Criminal Appeal No. 742 of 2020 (Arising out of SLP (Crl) No. 5598 of 2020) Arnav M. Goswami/ State of Maharashtra  

[30] Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at <https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Free dom_Under_the_Law_1.pdf>.