It is an established principle of criminal jurisprudence that in the absence of specific countervailing factors, there is a general presumption in favour of bail. This rule is a natural extension of the very foundation of the modern legal system, which proceeds on the assumption that all persons are innocent until proven guilty. As far as the term ‘bail’ is concerned, it is a term derived from the old French word verb ‘baillier’, which means to give or deliver. The word is also related to the Latin word “bajualare” which means to bear a burden. Used as a noun, the word ‘bail’ means one who procures the release of an accused person by becoming security for his appearance in court. As a verb it means to set a person free by giving a security for him: to release on the security of another.  Simply stated to grant bail means to deliver an arrested person to his sureties upon their giving security for his appearance at the time and the place designated to the jurisdiction and the judgement of the court.

     The term anticipatory bail implies a direction to release a person on bail issued even before a person is arrested. In other words, it is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. When the courts grant “anticipatory bail”, what it does is to make an order that in the event of arrest, a person shall be released on bail. Therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.[1]

Where there are no reasonable grounds to believe that the accused was involved in the commission of a non-bailable offence, the accused shall be released on bail u/s 436(1)[2]. As soon as it appears that the accused person (who is arrested/detained without warrant by an officer-in-charge of a PS) is prepared to give bail, the PO or the court is bound to release him. It would even be open to the officer or the court to discharge such person on executing his bond without sureties instead of taking bail from him. {First proviso, sec.436 (1)} (Nothing in this sec. shall be deemed to affect the provision of sec. 116(3) or sec. 446 A[3] {2^nd proviso to sec. 436(1)1}

Sec. 436[4] is an imperative or mandatory provision. Under it, the Magistrate is bound to release the person on bail or recognizance. But bail means release of a person from legal custody. A person who is under no restraint cannot be granted bail. The power to grant bail vests in the court before whom an accused person appears or is brought. The expression “court” means the court which has the power to take cognizance of the case. The power of the Magistrate to grant bail does not depend upon his competence to try the case but on the punishment prescribed for the offence. [5]

The Law Commission of India in its 48^th report expressed the view that the power to grant Anticipatory Bail should be exercised in very exceptional cases. Further, the court while granting Anticipatory Bail should record reasons for doing so. Still further, the directions can be issued only if the court is satisfied that such a direction is necessary in the interests of justice.

                       Where the petitioner was a smuggler of hides and skins of wild animals and there was sufficient material on record, and he had tried to run away leaving the skins on the spot, the Delhi High Court refused to grant bail[6]. AB was granted in a murder case, as the person involved was a govt. school teacher, there was no chance of his fleeing away or tampering with evidence.[7]

The Court cannot impose any condition in a bail order u/s 436. The only exception to this rule is stated in sub-sec. (2). It provides that a person who absconds or has broken the condition of his bail bond (e.g. failed to appear before the court on the date fixed) when he was released on bail in a bailable case on a previous occasion, shall not, as of right, be entitled to bail when bought before the court on any subsequent date even though the offence may be bailable. Further, the court can also call upon any person bound by such bond to pay the penalty thereof u/s 446[8].

    Other Mandatory Bail Provisions:

1. a) Right to be released on bail if investigations are not completed within the prescribed number of days {sec. 167(2)}
2. b) No reasonable grounds for believing the accused guilty of a non-bailable offence but sufficient for further inquiry {sec. 437(2)}
3. c) Trial not concluded within 60 days {sec. 437 (6)}
4. d) Release on bail after the conclusion of trial but before the Judgment is delivered {sec. 437(7)

It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegally/improperly by a wrong and arbitrary exercise of judicial discretion if there is absence of supervening circumstances. If there is no material that the accused abused his freedom then the court may not cancel his bail.

[1] Section 438, Code of Criminal Procedure, 1973

[2] Code of Criminal Procedure,1973

[3] Code of Criminal Procedure,1973

[4] Code of Criminal Procedure,1973

[5] Aftab Ahmad v State, 1990 CrLJ 1636 (All)

[6] Farman Ali, 1995 CrLJ 3288

[7] Ram Kumar Tyagi, 1995 CrLJ 1887 (Del)

[8] Code of Criminal Procedure,1973

Written by: Charvi Arora, Research Assistant