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The Constitution of India, under Article 21 provides “Right to Life and Liberty” to all the persons. The right to liberty allows individuals to demand bail in case they are arrested by the law enforcement agencies. 

So what is ‘Bail’? Bail is a term used in the legal system to describe the process by which a person can secure his release from jail when he has been accused of the charges of certain offence/s, which requires him to be in jail. The bail is granted on conditions that the person will remain in the jurisdiction of the court and would appear before the court for trial. The objective behind bail is to ensure liberty to the accused without compromising with the  justice of the victim and also thereby ensuring the right to fair trial.  

Categories of Bail:

Bailable Offences 

According to Section 2(a) of the CrPC, a bailable offence is one that is listed in the First Schedule of the Code as being eligible for bail or that is listed as such under any other legislation. In the case of a bailable offence, bail is a right available to the accused. It may be either granted by a police officer who is having the custody of the accused or by a court under whose jurisdiction the offence falls; or it may be executed by furnishing sureties. 

The accused can only leave the state without permission from the court or police officer. He must appear before the police officer whenever required to do so. The accused cannot tamper with evidence or fail to comply with conditions of bail. The court has the power to refuse bail even if a person is eligible for bail, based on his or her failure to comply with the conditions of bail.

An example of a bailable offence is participating in an unlawful assembly. Further,if you've participated in a riot or an armed confrontation with a deadly weapon, it is also considered to be a bailable offence. Another example is if a public servant disobeys a lawful order from his superior and causes injury to someone else or when someone wears or carries a token used by the officer with malicious intent.

Non-Bailable Offences

Any offence that is not a bailable offence is referred to as a non-bailable offence. A defendant charged with a crime for which bail is not permitted is not entitled to bail. The court may refuse bail in most cases, if the "bail bond" has not been duly executed or if the crime committed is of a grave nature and imposes death penalty or life imprisonment or if the accused has been convicted of a crime punishable by death, life imprisonment, or a sentence of seven years or more and if he or she has been convicted of two or more such crimes for which there is no possibility of bail.

Anticipatory Bail: 

In order to apply for anticipatory bail before the appropriate court, there must be two prerequisites. The first requirement is that the offence against which the bail is sought is a non-bailable offence. The second requirement is that if you want to apply for anticipatory bail before the appropriate court, you must also have a grave apprehension that the accused will be arrested by police authorities for his or her non-bailable offence.

Important Case Laws on Anticipatory Bail:

1. Re: Digendra Sarkar(1982 CriLJ 2197): A anticipatory bail application may be made under Section 438 of the Criminal Procedure Code (CrPC) even before the First Information Report is filed. Therefore, submitting a First Information Report is not a requirement before requesting anticipatory bail.

2. Suresh Vasudeva v. State (1978 CriLJ 677): Section 438(1) only applies to offences for which bail is not required.

3. Sushila Agarwal v. State Special Leave Petition (Criminal) Nos.7281-7282 of 2017: The Supreme Court ruled that anticipatory bail should not be granted for a set period of time, but that the court is free to set a time restriction if a unique circumstance calls for it.

Cancellation of Bail:

In certain circumstances, the judge that granted bail may revoke it under Section 437(5) of the CrPC. The Sessions Court, High Court, or Supreme Court may, suo moto, revoke the accused's release on bail and place him or her in custody in accordance with Section 439(2). A court of appeals has the authority to revoke an accused person's bail, order their arrest, and commit them to custody under Section 389(2).

Guidelines on Bail by Supreme Court :

1. The supreme court observed that the Code of Criminal Procedure (CrPC) still has several pre-independence-era rules, focusing on "unwarranted arrests" that restrict people's freedom.

2. To speed up the bail process, the Court encouraged the Center to draft legislation in the form of a "Bail Act," emphasising that proper procedure for arrests and a deadline for handling bail petitions are necessary.

3. The Court ruled that bail applications must be resolved within two weeks, unless specific circumstances require otherwise. It was stated about anticipatory bail that a plea had to be decided within six weeks.

4. The Court ruled that when considering a plea under Sections 88, 170, or 204, there need not be any insistence on a bail plea.

5. This will greatly improve the chances of an accused receiving bail because courts typically tend to remand accused individuals upon production by the police or upon their appearance before them in response to a summons or a warrant, and only consider bail upon the filing of an application by the accused.

6. A defendant may be granted bail at the court's discretion if he or she is present in court and must appear in the same or a different court later. For example, if a defendant must appear in court again on a separate charge, the judge may accept a bail (under Section 88) rather than remanding the defendant in custody.

7. Under Section 170, a magistrate may grant bail when police produce evidence of guilt and when the magistrate is satisfied that there are no reasonable grounds for arrest. The magistrate may also grant bail after issuing a summons to appear in response to a complaint or when the police file charges against an individual.

References:

1. https://www.mondaq.com/india/crime/982502/anticipatory-bail-and-its-laws

2. https://www.legalserviceindia.com/legal/article-5931-law-of-bail-in-india.html#:~:text=But%20they%20can%20approach%20the,grant%20bail%20to%20the%20accused.

3. https://www.india.com/explainer/explained-why-is-supreme-court-stressing-on-a-separate-bail-law-5520390/

4. https://indianexpress.com/article/explained/bail-law-and-sc-call-for-reform-8025618/