Bail is the conditional release of a person accused of a crime and awaiting trial, for an amount, pledged for the appearance of the accused when the same is due in court. The person paying the money acts as the surety.
CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, with or without security.
Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant. In such cases, a magistrate would determine if the accused is fit to be released on bail.
Types of bail in India:
- Regular bail: It is bail, which is often granted to an individual who has already been arrested and kept in police custody.
- Interim bail: It is granted as a temporary means and granted for a short period of time, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court.
- Anticipatory bail: It is a type of bail which is given to someone who is in anticipation of getting arrested for a non-bailable offence by the police.
- Statutory / Default bail: As per law, once the maximum period, (i.e., 90 / 180 days from arrest), provided to the State for an investigation in a case is over and no charge sheet is filed, the accused becomes entitled to be released on bail, which is called the ‘default’ bail’. This default bail is also known as ‘Statutory bail’.
SC in Bikramjit Singh vs State of Punjab (2020) and Fakhrey Alam vs State of UP (2021) declared statutory bail under the first proviso to Section 167(2) of CrPC a ‘fundamental right’.
- According to the Supreme Court, ‘Statutory bail’ is a Fundamental right and is a part of the Right to personal liberty under Article 21 of the Indian Constitution.
- Rationale: The right of the accused to seek liberty takes precedence over the right of the state to carry on the investigation beyond a stipulated time limit.
