OBJECT AND MEANING OF BAIL
• The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive the sentence.
• If his presence at the trial could be reasonably ensure otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him.
• The provisions regarding the issue of summons or those relating to the arrest of the accused person under a warrant or without a warrant or those relating to the release of the accused person on bail, are all aimed at ensuring the presence of the accused at his trial but without unreasonably and unjustifiably interfering with his liberty.
• If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life.
• The jailed accused loses his job and is prevented from contributing effectively to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.) [Moti Ram v: State of M.P., (1978) 4 SCC 47: 1978 SCC (Cri) 485, 490: 1978 Cri LJ 1703, 1706.]
• Where a person is accused of a serious crime and is likely to be convicted and punished severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trial and consequential sentence. If such person is under arrest, it would be rather unwise to grant him bail and restore his liberty.
• Further, where the arrested person, if released on bail, is likely to put obstructions in having a fair trial by destroying evidence or by tampering with the prosecution witnesses, or is likely to commit more offences during the period of his release on bail, it would be improper to release such a person on bail.
• On the other hand, where there are no such risks involved in the release of the arrested person, it would be cruel and unjust to deny him bail.
• The law of bails "has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime and on the other, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty." [Supdt. & Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhury,) ( (1974) 78 CalWN320,325.]
• In order to subserve the above-said objectives, the Legislature in its wisdom has given some precise directions for granting or not granting bail.
• Where the legislature allows discretion in the grant of bail, the discretion is to be exercised according to the guidelines provided by law; in addition the courts have evolved certain norms for the proper exercise of such discretion.
• The present chapter deals with these matters. It also deals with the circumstances in which the bail already granted can be cancelled.
• There is no definition of bail in the Code, although the terms "bailable offence" and "no-bailable offence" have been defined. [See S. 2(a)].
• Bail has been defined in the Law Lexicon as security for the appearance of the accused person on giving of which he is released pending trial or investigation.
• Bail contemplates to "procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.
• In case titled Moti Ram v. State of M.P., (1978) 4 SCC 47, The Supreme Court has held that bail covers both release on one's own bond, with or without sureties. The questions when sureties should be demanded and what sum should be insisted upon are dependent on circumstances of the case.
• For the purpose of consideration on question as to whether bail is granted or not, the Code has classified the offences into two categories.
• According to Section 2(a), "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.
• The Code has not given any test or criterion to determine whether any particular offence is bailable or non-bailable. It all depends upon whether it has been shown as bailable or non-bailable in the First Schedule of the Code.
• That schedule has categorised all the offences under the Indian Penal Code into bailable and non-bailable categories.
• In the case of offences under laws other than IPC, a general broad rule has been adopted in the schedule and the rule is that offences punishable with imprisonment for three years or more, have been considered as non-bailable offences. This was felt necessary as it is not expedient to list all the offences under the laws for the time being in force and to change the schedule every time a new penal law is passed.
• If a person accused of a bailable offence is arrested or detained without warrant he has a right to be released on bail.
• But if the offence is non-bailable that does not mean that the person accused of such offence shall not be released on bail; but here in such a case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
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