Bail, it's kinds and Grounds

1. Introduction

The concept of bail is not new. Basic Philosophy behind the concept of bail is that accused should be

released from the custody of law enforcing agency into the custody of sureties. This is an interim order

which can be withdrawn by the court at any stage according to circumstances.

2. Relevant Provisions

Section 496, 497 and 498 of Cr.P.C is a relevant provision

3. Meaning of Bail

Bail means the security, which court requires for release, of some accused. It is, in fact, transfer of accused

from judicial custody to sureties with this condition that sureties will remain bound for future appearance of

accused in court whenever accused appearance will be required.

4. Kinds of Bail
Bail is of the following three kinds.

i. Bail After Arrest / Post Arrest Bail

It is a bail which is granted to the accused person, after his arrest, both in bailable and non-bailable offence.
When the accused has been arrested by the law enforcing agency, bail may be generated to him under
section 497 of Cr.P.C.

ii. Bail before Arrest / Pre-Arrest bail

Bail before arrest is a bail which is granted in a case where court feels perhaps accused has falsely
involved in case and he is likely to suffer irreparable injury to his dignity, honor, or reputation by his arrest.
Note: In bail before arrest, registration of case is necessary.

i. Protective bail
The protective bail is granted to accused enable him to approach the concerned court of other provinces for
the purpose of obtaining pre-arrest bail without touching its merits.

ii. Direct approach to High court

Superior courts can entertain application for pre-arrest bail and can grant relief to accused in appropriate
cases where accused could inter alia, established that he was prevented from approaching lower court
concern.

iii. Bail after Conviction

It is granted when after conviction of accused, the appeal has been accepted for hearing and the court
observes that there are grounds for the release of the accused, therefore, it accepts the bail petition and
allows bail also under section 426.
5. Kinds of Bail by Nature
By nature, bail may be divided into following two kinds.

i. Interim Bail
It is a bail which is granted by the court without hearing the prosecution for a specified period of time.

ii. Permanent or Confirmed bail

It is a bail which is granted by the court after hearing both the parties, i.e., petitioner and prosecution.
6. Pre-conditions or Essential ingredients of Confirmation of Pre-
arrest / before arrest Bail
Following confirmation of pre-arrest / before arrest bail, following are pre-conditions or essential ingredients.

i. Ulterior Movies
Arrest of petitioner should be for some ulterior motives. In fact, there should be doubt that motive for
involvement of accused in some criminal case in not pure. If ulterior motive is proved, pre-arrest bail can be
confirmed. If it is also proved that apprehension of imminent arrest, humiliation and unjustified harassment of
accused due to some ulterior motive or mala fide on part of authorities or other influential persons.

ii. Heinousness of offence

Heinousness of offence is of no importance as far as granting of pre-arrest bail is concerned. In fact, pre-
arrest bail cannot be refused due to heinousness of offence.

iii. Commission of offence

Pre-arrest bail can be confirmed when investigation is completed and it shows that accused has not
committed offence.

iv. Physical Surrender

Petitioner / accused should physically surrender himself before court. It means that no pre-arrest bail can be
granted to absconder.

v. Fit case
Case of petitioner should be fit case so that court can exercise its discretion of confirmation of bail. If case of
petitioner is fit case for court to exercise its discretion, pre-arrest bail can be granted.

vi. Bail Bond

Pre-arrest bail can be confirmed when accused is ready to submit bail bond is prescribed manner under
Criminal Procedure Code.
7. Pre-conditions or Essential Ingredients of confirmation Post-
arrest / After-arrest bail
For confirmation of post-arrest (after arrest) bail, following are pre-conditions or essential ingredients.

i. Prohibitory Clause
According to Section No. 497 of Criminal Procedure Code, post-arrest bail cannot be granted when there
exists reasonable grounds for believing that petitioner has been guilty of that offence, which is punishable
with death or imprisonment for life or imprisonment for ten years. It reveals that pre-condition or essential
ingredient for confirmation of post-arrest bail is that alleged offence should not fall within prohibitory clause
of Section No. 497 of Criminal Procedure code.

ii. No Reasonable Ground for commission of Non-bailable offence

Another pre-condition or essential ingredient for confirmation of post-arrest bail is that there should be no
reasonable grounds for believing that accused has committed non-bailable offence.

iii. Sufficient grounds for further Inquiry

For confirmation of post-arrest bail, there should also be sufficient grounds for further inquiry into guilt of
accused.

iv. Bail Bond

Post-arrest bail can be confirmed when accused is ready to submit bail bond in prescribed manner under
Criminal Procedure Code.

8. Ground for granting of bail in Non-bailable offence

Following are grounds upon which bail can be taken or granted in non-bailable offence

i. Personal enmity
When it is proved that there exists personal enmity between accused and complainant, bail can be taken in
non-bailable offence.

ii. Rule of Consistency

If co-accused of some non-bailable offence has already been granted bail, bail of petitioner / other co-
accused can be taken. It reveals that rules of consistency can be ground for granting bail.

iii. Child or Woman

when accused / petitioner is child or woman, bail can be taken in non-bailable offence.

iv. Sick or Infirm Person

When accused / petitioner is sick or infirm person, bail can be granted in non-bailable offence.

v. Insufficient evidence
If insufficient evidence is available against commission of alleged non-bailable offence, bail can be taken.

vi. Doubt or Recovery

When facts and circumstances of criminal case of non-bailable offence are like those that such case
become doubtful or nothing is recovered from accused, bail taken in non-bailable offence.

vii. Delay in Registration of FIR or Trial

When there is delay in registration of FIR and no sufficient ground is present for such delay and delay in
trail, bail can be granted in bailable offence.

Conclusion

To conclude, it can be started that bail in case of bailable offence is matter of right and it should be granted
in cases of bailable offence. However, bail in case of non-bailable offence is not a matter of right. Rather it is
a statutory concession, which court can grant in exceptional circumstances where pre-conditions or
essential ingredients for granting of bail exist.