Provision Of Bail Under The Code (436-450)

This Article is written by Vicky Kumar & this article discuss the Provision of bail under the code (436-450).

Provision of the bail under the code ( sec 436 to 450 )

Contents

The provisions of bail under the Code of Criminal Procedure (CrPC), specifically sections 436 to 450:

General Principles of Bail:

Right to Bail: Bail is a fundamental right guaranteed under Article 21 of the Indian Constitution.
Purpose of Bail: To ensure the accused’s appearance in court while preserving their liberty until proven guilty.
Bail as Discretion: Granting bail is generally a matter of the court’s discretion, considering various factors.

Definition: Bail is the conditional release of an accused person awaiting trial or appeal, ensuring their appearance in court while preserving their liberty.
Purpose: To balance individual freedom with the need for fair judicial proceedings.
Types:
- Regular Bail (Sections 436-439)
- Anticipatory Bail (Section 438)

Bailable Offences: In bailable offenses, bail is granted as a matter of right.
Procedure: The accused can be released on bail by a police officer or court on furnishing a bond with or without sureties.

Special Powers of High Court and Court of Session: These courts have the power to grant bail in any offense, including those punishable with death or life imprisonment.

Anticipatory Bail: Allows a person to seek bail before arrest, anticipating apprehension for a non-bailable offense.
Conditions: The court can impose conditions to ensure the accused’s appearance in court and cooperation with the investigation.

Procedure for Bail: Outline the procedure for applying for bail, granting bail, and conditions for bail bonds.

Cancellation of Bail: The court can cancel bail if the accused violates bail conditions or if new circumstances warrant detention.
Forfeiture of Bond: If bail is forfeited, the sureties become liable for the amount of the bond.

Key Points to Remember:

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Bail is not an acquittal; it’s a temporary release pending trial or investigation.
The accused must abide by bail conditions, such as attending court hearings and not tampering with evidence.
The prosecution can oppose bail applications, and courts can deny bail if deemed necessary.
Bail provisions are subject to judicial interpretation and may evolve through case laws.
It’s always advisable to consult with a legal professional for specific guidance on bail matters.

Conditions of Bail: Courts may impose conditions to ensure the accused’s attendance in court and prevent interference with witnesses or evidence.
Cancellation of Bail: Courts can cancel bail if conditions are violated or new evidence emerges.
Appeals: Decisions on bail can be appealed to higher courts.

Gurbaksh Singh Sibbia vs. State of Punjab (1980): Established guidelines for granting anticipatory bail, emphasizing the need to balance individual liberty with societal interests.

State of Rajasthan vs. Balchand (1977) is a landmark judgment by the Supreme Court of India that laid down important guidelines for granting bail in non-bailable offenses under Section 437 of the Code of Criminal Procedure (CrPC).

Key Points of the Judgment:

Presumption of Bail: The court emphasized the underlying principle of bail, stating that an accused person enjoys the presumption of innocence until proven guilty. Therefore, bail should be the rule, not the exception, even in non-bailable offenses.
Balancing Rights and Interests: The court stressed the need to balance the individual’s right to liberty with the societal interest in ensuring fair trial and preventing absconding.
Considerations for Granting Bail: The court provided a set of factors for courts to consider while deciding bail applications in non-bailable offenses. These include:
- Nature and seriousness of the offense
- Strength of the prosecution’s case
- Likelihood of accused absconding or tampering with evidence
- Possibility of influencing witnesses
- Any previous criminal record
- Any danger to the community if released on bail
Granting Bail with Conditions: The court acknowledged that in certain cases, bail can be granted with appropriate conditions to address concerns about absconding, tampering with evidence, or threatening witnesses. These conditions may include:
- Regular appearances in court
- Surrender of passport
- Restrictions on movement
- Prohibiting contact with witnesses
Limited Grounds for Refusal: The court clarified that bail in non-bailable offenses should not be denied lightly. Refusal requires strong grounds and specific reasons justifying the denial of an individual’s liberty.

Judgment:

State of Rajasthan vs. Balchand established a framework for a more humane and balanced approach to bail applications in non-bailable offenses.
It promoted the right to liberty of individuals under trial and provided valuable guidance for lower courts while considering bail requests.
The judgment continues to be a reference point for legal practitioners and courts dealing with bail matters in India.
Sanjay Chandra vs. CBI (2012): Emphasised that bail is not a punishment but a means to ensure appearance for trial.
Nandini Satpathy vs. P.L. Dani (1978): Clarified that anticipatory bail is not a substitute for regular bail and should be granted judiciously.

https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021
Ranchhoddas, R. et al. (2021) Ratanlal & Dhirajlal’s The code of criminal procedure. Gurgaon, Haryana, India: LexisNexis.
Gurbaksh Singh Sibbia vs. State of Punjab, 1980 AIR 1632
State of Rajasthan vs. Balchand ,1977 AIR 2447