Part 4: India’s Bail Jurisprudence – Need for Urgent & Comprehensive Revamp

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Existing Bail Laws in India: Bail Jurisprudence in the Code of Criminal Procedure, 1973

14. Given the colonial influence on all Indian laws, including the Indian Penal Code and Code of Criminal Procedure, bail laws have inevitably been influenced by the English approach.

15. The Code of Criminal Procedure, 1973 (hereinafter “CrPC”) deals with and provides for laws relating to bail in India. It details the bail processes and explains the procedures to obtain bail. Ironically, the term ‘bail’ has nowhere been defined in CrPC, though the terms ‘Bail’, ‘Bailable’, and ‘Non-Bailable’ have collectively been used approximately 102 times in CrPC.

16. Section 2(a) CrPC defines ‘Bailable offence’ as “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’ as “any other offence” 15 . The Section 2(a) of CrPC refers to schedule that refers to the offences under the Indian Penal Code (IPC) and categorizes them on the basis of the nature of the crime. Almost all serious and lethal offences, like the ones penalized with a punishment of at least three years or above, have been brought under the umbrella of non-bailable offenses; whereas, all other crimes besides the non-bailable offences have been put under the category of bailable offenses.

17. The CrPC also deals with and provides for the processes and procedure of bail under Sections 436 to 450. The following is a quick snapshot of the major Sections dealing with bail:

Section 436: In what cases bail to be taken.

Section 437: When bail may be taken in case of non-bailable offence.

Section 438: Direction for grant of bail to person apprehending arrest.

Section 439: Special powers of High Court or Court of Session regarding bail.

Section 440: Amount of bond and reduction thereof.

Section 441: Bond of accused and sureties.

Section 442: Discharge from custody.

Section 443: Power to order sufficient bail when that first taken is insufficient.

Section 444: Discharge of sureties. Section 445: Deposit instead of recognizance.

Section 446: Procedures when bond has been forfeited.

Section 446 A: Cancellation of bond and bail-bond.

Section 447:  Procedure in case of insolvency or death of surety or when a bond is forfeited.

Section 448: Bond required from minor.

Section 449: Appeal from orders under section 446.

Section 450: Power to direct levy of amount due on certain recognizances.

DISCLAIMER : Views expressed above are the author’s own.

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