Introduction

Bail, being one of the statutory safeguards available to a person to ensure unjust
and unfair treatment in a criminal case, has to be made available to each and
every deserving person. While it can be contended that an underserving person
may get bail and may interfere with due course of justice, we must keep in mind
that our criminal justice system rides on the principle of ‘innocent until proven
guilty’ as enumerated in the Universal Declaration of Human Rights, and that
no innocent must be sent to jail, and suffer for no fault of his.
In India, the provisions on bail are primarily contained in the Code of Criminal
Procedure (Chapter 33), while certain special laws like the Unlawful Activities
Prevention Act, POCSO Act and the SC ST Atrocities (Prevention) Act have
special provisions regarding bail.

Bail under Code of Criminal Procedure

While the term “bail” has not been defined in the Code of Criminal Procedure
or any other statute, under the Code, offences have been classified as “bailable”
and “non-bailable”. In case of a bailable offence, bail can be granted by both the
Magistrate as well as the police officer, while in cases of non-bailable offences,
bail is not available to the accused person as a matter of right and it is upon the
judiciary to exercise its discretion and either grant or refuse bail, either of which
should be accompanied with adequate reasons.
While bail is generally denied to persons accused of grave and serious offences,
women, ailing persons and juveniles in conflict with law can be granted bail in
such cases.
Bail is a constitutional safeguard as well in light of Article 21 of the
Constitution of India, which permits deprivation of a person’s life and liberty
only in accordance with the procedure established by law.
Chapter 33 of the Code of Criminal Procedure contains provisions on bails and
bonds.
Section 436 defines as to in what case bail can be taken. In any bailable offence,
person accused of such offence may be released on bail under this section.
While the concerned court can impose conditions for grant of bail, such
conditions must be reasonable and must not be such as to cause a great deal of
trouble and hardship to the accused and indirectly refuse bail to the accused, as
stated in the case of Sandeep Jain vs NCT of Delhi (AIR 2000 SC 714).
In Re: Inhuman Conditions is 1382 Prisons [(2016)3 SCC 700]- The
Supreme Court suggested measures to reduce overcrowding of prisons
including release of under-trial prisoners under the Probation of Offenders Act,
1958 and release of prisoners on bail for those who had completed more than
half of the maximum sentence prescribed for the offence they were accused of.
Prior to this, Section 436-A was inserted into the Code of Criminal Procedure
in 2005 to enable such prisoners to be released.

In Hazarilal vs Rameshwar Prasad (AIR 1972 SC 484), it was stated that

while granting bail, the concerned court is empowered to direct the accused to
surrender his passport for preventing him from travelling abroad.

In Waman N Ghiye vs. State of Rajasthan [2009 CriLJ 1311 (SC)], it was
categorically stated that in bailable offences, there is no scope for exercise of
discretion by the court and bail is available to the accused person as a
fundamental right, and failure to grant bail in such cases would amount to unjust
deprivation of his personal liberty.

Further, it was held in Rasiklal vs Kishore Khanchand Wadhwani (AIR 2009

SC 1341 that in bailable offences, it is not mandatory to hear the complainant or
issue notice to the complainant. If bail granted to the accused person in bailable
cases is cancelled on ground that the complainant was not adequately heard
before granting bail, such cancellation was liable to be set aside and bail granted
to the accused be allowed to continue.

In Jayendra Saraswathi Swamigal vs. State of Tamil Nadu (AIR 2005 SC

716)1, the SC laid down seven factors to be considered while granting bail.
Those factors are as follows:
1. The nature and gravity of the alleged offence
2. Nature of evidence available
3. Circumstances which are peculiar and unusual in context of the accused
4. Possibility of the presence of accused in Court on the required dates
5. Possibility of the accused tampering with the evidence
6. National security and interest of society
7. Other facts and circumstances relevant to the concerned case
Cancellation of Bail
In case of Subodh Kumar Yadav vs. State of Bihar (AIR 2010 SC 802), the
SC noted that if bail was granted to accused in arbitrary and improper exercise
of discretion by the lower court under oblique motives, the High Court can be
justified in cancelling the bail granted to accused in such case.

Anticipatory Bail
Section 438 of the Code provides for anticipatory bail. Any person who has
reasonable apprehension of being arrested on accusation of having committed a
non-bailable offence can apply for anticipatory bail to the Sessions Court or
High Court.
The Law Commission of India, in its 41st Report stated as follows:
“The necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the purpose for
disgracing them or for other purposes by getting them detained in jail. Apart
from false cases, where there are reasonable grounds for holding that person
accused of a crime is not likely to abscond, or otherwise misuse the liberty
while on bail, there seems to be little justification to require him first to submit
to custody, remain in prison for some days and then apply for bail.”
While anticipatory bail is a statutory defence against false cases, it must be
rarely granted to ensure that it is not put to use for immoral and unfair motives,
as said in the case of Balchand Jain vs. State of Madhya Pradesh (AIR 1977
SC 366).
In the case of State of Madhya Pradesh vs. Pradeep Sharma (AIR 2014 SC
626), it was categorically stated that a person declared as a proclaimed offender
under Section 82 of CrPC loses his entitlement to anticipatory bail and becomes
ineligible for granting of the same.
In State of Punjab vs. Raninder Singh (AIR 2008 SC 609), it was laid down
that the person who is granted anticipatory bail can be handed a direction to co-
operate with the police for investigation.
A continuously bellowing debate as to whether anticipatory bail could be
limited for a specific time period, going on for more than 2 decades, was finally
settled by the Supreme Court in Sushila Agrawal vs. State (NCT OF Delhi)
2020 SCCOnline SC 98, wherein a Constitution Bench of 5 judges held that
anticipatory bail granted to an accused can continue till the trial of the case
comes to an end, except for cases where there are special circumstances for the
court to limit it to a specific period in exceptional circumstances.
In Parvinderjit Singh vs State (UT of Chandigarh) (AIR 2008 SC 161),
reiterated that anticipatory bail should be granted only for the offence concerned
and not as a general prohibition of arrest of the person concerned in any offence
whatsoever, as such an order may result in travesty of justice by enabling the
accused to evade trial and interfere in the due course of justice.
In Gurbaksh Singh vs. State of Punjab (AIR 1980 SC 1632), held that Court
must refrain from imposing conditions unnecessarily restricting the scope of
Section 438, specifically since the legislature itself did not intend to do so, and
the Court must see to it that objective behind such beneficial provisions should
not be obliterated by use of unnecessary and unjust conditions.

Difference between Anticipatory and Regular Bail

The Supreme Court pointed out in case of Gurbaksh Singh Sibbia vs. State of
Punjab [(1980) 2 SCC 565] that while anticipatory bail is granted before arrest
and becomes effective immediately after arrest, regular bail has to be obtained
after arrest.

Bail under PMLA

Under Prevention of Money Laundering Act, the Supreme Court, in case of
Gautam Kundu vs. Manoj Kumar, Asst. Director, Directorate of
Enforcement, Eastern Region (AIR 2016 SC 106), held that the PMLA
assumes significance over the Code of Criminal Procedure and conditions under
the PMLA have to be complied with while granting bail in money laundering
offences, and give opportunity to prosecution to oppose the bail plea, and state
reasonable grounds to believe that accused in a money laundering case will not
commit any further offence while out on bail.

Anticipatory Bail under SC ST (Atrocities) Act

Section 18 of the Act bars the grant of anticipatory bail to persons accused of
offences under the Act. The Supreme Court, in case of Prathvi Raj Chauhan
vs. Union of India [WP. (C) 1015/2018], reiterated that anticipatory bail is not
available to persons accused of offences under the Act and the judgment passed
in the case of State of MP vs. RK Balothia [(1995) 3 SCC 221], which
provides for lifting of the bar on anticipatory bail in cases where no prima facie
case is made out, will serve as an adequate safeguard. Holding thus, the
Supreme Court upheld the validity of the SC ST (Atrocities) Amendment Act
2018.

Conclusion
A contention that a provision of law may be misused is nor ground to strike it
down or render it inapplicable. On the contrary, safeguards must be laid down
either by way of legislative amendments or judicial pronouncements for
preventing misuse of the said provision. Seriousness of the alleged offence itself
cannot be a ground to deny a person benefits to which he is legitimately
entitled, and any benefits must be granted to accused persons bearing in mind
facts and circumstances of the case and the courts must necessarily apply their
mind in the exercise of such discretion.

1. Dr. NV Paranjpe, The Code of Criminal Procedure