Recently, during the hearing of a case, the Supreme Court observed that Judges are duty-bound to give reasons for granting or denying bail, especially in cases involving serious offences and hardened criminals.

 

Background

The case concerned the grant of bail by the Rajasthan High Court to a man accused of raping his minor niece for years.

 

What did the Supreme Court observe?

  • The Court observed that there is a recent trend of passing such orders granting or refusing to grant bail, where the courts make a general observation that ‘the facts and the circumstances’ have been considered. However, no specific reasons are indicated which precipitated the passing of the order by the court.
  • Setting aside the bail order, the Chief Justice of India N V Ramana observed that “judges are duty-bound to explain the basis on which they have arrived at a conclusion”.
  • He added that every order must be reasoned is one of the fundamental tenets of our system. An unreasoned order suffers the vice of arbitrariness.

 

What is ‘Bail’?

  • The term ‘bail’ is originated from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’.
  • Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required.
  • It signifies a security/collateral deposited before the Court for release.

 

Types of Bail in India

There are commonly four types of bail in India –

    • Default Bail –
      • This is a right to bail that accrues when the police fail to complete investigation within a specified period in respect of a person in judicial/ police custody. It is also known as statutory bail.
      • At the end of this specified period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”.
      • This is enshrined in Section 167(2) of the Code of Criminal Procedure (CrPC).
    • Regular Bail -A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
    • Interim Bail – This type of bail is granted for a short period of time by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.
    • Anticipatory Bail – Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offence.