Code of Criminal Procedure 1973 and Bhartiya Nagarik Suraksha Sanhita 2023 provide for bail of the accused persons. Hon’ble Supreme Court of India has many times reiterated that Bail should be the Rule and Jail should be an exception. A person is required to file Bail Application before the court when he has been accused of or has apprehension to be arrested for any non-bailable offence.

Bail can be distinguished into Regular Bail, Anticipatory Bail and Interim Bail.

Section 437 provides for application of bail before the Learned Judicial Magistrate. This can be termed as regular bail before the Learned Judicial Magistrate.

Section 438 provides for bail in cases where there is apprehension of arrest. Then an appropriate application for bail may be filed before the Hon’ble High Court or Learned Sessions Court. This is termed as anticipatory bail.

Interim Bail is a sub-category of anticipatory bail, where a person seeks bail from the court in a specific situation, like where the person is apprehending arrest by police authorities of a particular District or State, and he is residing in different District or State. In such case, that person can file an application for interim bail before the Court having territorial jurisdiction over the place where he is residing so that he can have some time to go and file an application for bail before such court having territorial jurisdiction over the place where the offence is alleged to have taken place or where the FIR or Complaint has been lodged.

Section 439 states that the Hon’ble High Court and Learned Sessions Court have special powers to grant bail to an accused person who has been in custody. This is Regular Bail before the Learned Sessions Court and Hon’ble High Court.

If a person is not granted bail by the Hon’ble High Court such person can also seek bail from the Hon’ble Supreme Court of India by filing a Special Leave Petition challenging the order of the Hon’ble High Court rejecting the bail.

It is necessary to understand that Bail is granted by Hon’ble Courts upon consideration of various factors and circumstances related to the case and prior antecedents of the person seeking the bail. It is based upon sole discretion of the Hon’ble Courts.

Certain factors which are bound to be considered while granting or rejecting the Bail are:

1. Nature of the offence, graver the offence lesser likelihood of bail
2. Prior antecedents of the person seeking the bail, the more civil the person has been the better the chances are for bail
3. Stage of the case, like it is at the stage of investigation or trial has begun
4. Flight Risk, i.e. chances of the person seeking bail to run away
5. Public Safety, i.e. threat to the public from the person seeking the bail

CHECKOUT OUR ARTICLE ON: MAINTAINABILITY OF AN APPLICATION FOR ANTICIPATORY BAIL BY A PERSON ALREADY IN CUSTODY

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