Nishant Verma
The Criminal Procedure Code, 1973, does not define bail, but the terms ‘bailable offence’ and ‘non-bailable offence’ are defined in Section 2(a) as: “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 enforce, and non-bailable offence means any other offence”.
Sections 436 to 450 set out provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the CrPC. Thus, it is the discretion of the court to put a monetary cap on the bond.
The Law Lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation. What is contemplated by bail is to “procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”
Bail for Bailable offences:
According to Section 436 of CrPC, if the alleged offence is bailable, then the accused is entitled to bail as a matter of right, maybe before the police station itself, or if forwarded to Magistrates Court, before Magistrates Court. In bailable offences, bail is a right and not a favour. In such offences, there is no question of any discretion in granting bail. Bail can be claimed as a right and it is a statutory duty imposed upon the police officer and the Court to release a person on bail if he is prepared to give bail. Such a person can also be released on his own bond in a fit case.
In RasikLal Vs Kishore Khanchand Wadhwani AIR 2009 SC 1341, Hon’ble Supreme Court has held- “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”.
Bail for non-Bailable offences:
Section 437 of CrPC deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to a person accused of, or suspected of the commission of any non-bailable offence. The provisions of this section empower two authorities to consider the question of bail, namely (1) a court and (2) an officer-in-charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court and a police officer in charge to grant bail in non-bailable offences, it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate.
Powers of the High Court or Court of Session in granting bail:
According to Section 439(1) of the CrPC, a High Court or Court of Session may direct,
- That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
- That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified. However, the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public prosecutor unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such notice.
Anticipatory Bail:
Section 438 states that “Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into consideration the following factors, namely
- The nature and gravity of the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence. The possibility of the applicant to flee from where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.”
- In Siddharam Satlingappa Mhetre Vs State of Maharastra (2011) 1 SCC 694, the Hon’ble Supreme Court held certain conditions imposed by High Court are not required and contrary to provisions of anticipatory bail. An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Default Bail:
Section 167(2) of CrPC empowers judicial magistrates to authorize custody of an accused person in cases wherein an investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of the accusation against him.
Parole & Furlough:
Parole and furlough are granted by the State Government as per the provisions of their respective rules or the Jail Manual made in compliance with Section 59 of the Prison Act 1894.
The principles laid down for parole and furlough are:
- Both envisage a short-term temporary release from
- While parole is granted for the prisoner to meet a specific requirement, furlough may be granted after the prisoner served a stipulated number of years without any
- The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with
- Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim
- The grant of furlough must be balanced against the public interest and can be refused to certain categories of
In State of Haryana vs Mohinder Singh (2000) 3 SCC 394, the Hon’ble Supreme Court held that “..When a prisoner is on parole his period of release does not count towards the total period of sentence, while when he is on furlough, he is eligible to have the period of release counted towards the total period of his sentence undergone by him….”
In Ashfaq vs State of Rajasthan (2017) 15 SCC 55, Hon’ble Supreme Court held that “A parole can be defined as conditional release of prisoners, i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, parole is granted for good behaviour on the condition that the parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporary on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for the time being, keeping the quantum of the sentence intact. Release on parole is designed to afford some relief to prisoners in certain specified exigencies. Furlough, on the other hand, is a brief release from prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.”
The major differences highlighted in the judgments are:
- Both parole and furlough are conditional
- Parole can be granted in case of short-term imprisonment, whereas furlough is granted in case of long-term.
- The duration of parole extends to one month, whereas furlough extends to 14 days.
- Parole is granted by the Divisional Commissioner, and furlough is granted by the Deputy Inspector General of
- For parole, specific reasons are required, whereas furlough is meant to break the monotony of
- The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in
- Parole can be granted multiple times, whereas there is a limitation in granting.
- Since furlough is not granted for any particular reason, it can be denied in the interest of society.