India’s System of Bail and Personal Liberty

India’s system of bail and personal liberty

India’s bail system is facing in urgent need of reforms. The refusal to grant of bail violates right to liberty of individuals undergoing criminal prosecution by confining them in jails without trial and conviction. While judicially enforceable right to bail existed at the time when our current Constitution was framed, the framers thought it wise to commit it to the legislature, so as to enable them bringing about reforms which, at that time, could not be foreseen.

What is bail? 

The bail is the security given by the defendant, it acts like a surety or guarantee for the defendant to show up in the court at a later date when summoned.

This legal requirement helps maintain the status quo of the criminal law which is that an accused person will remain free until found guilty by a Court of Law.

The surety may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company.

Concerns regarding granting of bail in India

Crimes have been taking place day in and day out and still our commitment towards protecting innocent and fostering the rule of law is far from satisfactory. Concerns regarding granting of bail in India being routinely rejected by subordinate courts for the simplest of an offense has become a matter of serious concern to our judiciary system which harbors a number of loopholes that need to be addressed without holding up any further.

The Courts should decide regular bail application within a maximum time period of 7 days from filing. Sadly, in practice, it is observed accused languish in jails for months waiting for disposal of his bail application. 

The pendency of bail applications has increased during the pandemic due to the shutting down of courts and the exacerbation of arrests for minor offences by the police. 

The bail amount in session courts, even for petty offences is a minimum of ₹10,000 and ₹30,000 in the case bail before the High Courts and the Supreme Court. 

The bail laws in India are complex and require deeper study to comprehend. Further, the administration of bail differs across various courts in India and at different stages of criminal cases– pre-arrest, post-arrest and conviction stages.

Types of Bail in India

There are a number of conditions that need to be fulfilled for the regular bail. These conditions can vary depending on the category and type of criminal matter. Depending upon the sage of the criminal matter, there are commonly three types of bail in India:

1. Regular bail: A regular bail is usually granted by the magistrate to an accused person who is in police custody. It is usually better to file a bail application for regular bail rather than for interim bail as it generally takes much less time to finalize. The police have almost two months from the date of arrest to file a charge sheet against the accused. However, this may vary depending on whether you are already out on bail, or if an application for regular bail can be filed before the next date of hearing. In case of a regular bail, one has to file an affidavit stating that he will not tamper with the prosecution's witnesses' evidence and will appear in all hearings of the case as per notice sent by the court. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
2. Interim bail: Interim bail is a type of bailout granted to a person who is arrested in order to get released until the time of trial. The court may grant interim bail to a person until the case is complete or for the period when he has been arrested. The person applying for interim bail must be present at the time of arrest and must be involved in the case.
3. Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence. The anticipatory bail certificate is a court order having legal validity if it is issued by a court.