Report No. 268
Chapter - III
Definition of Bail
3.1 The term bail has not been defined in the Cr.P.C.64, nevertheless, the word 'Bail' has been used in the Cr.P.C. several times and remains one of the vital concepts of criminal justice system in consonance with the fundamental principles enshrined in Parts III and IV of the Constitution along with the protection of human rights as prescribed under International treaties/ covenants.
3.2 Wharton's Lexicon and Stroud's Judicial Dictionary defines bail as "the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time."
3.3 According to Halsbury's Laws of England:65
the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.
3.4 The literal meaning of the word "bail" is surety66.Bail, therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on release subject to monetary assurance-either one's own assurance (also called personal bond / recognizance) or through third party sureties. The Supreme Court has also reiterated this definition in the Moti Ram Case.67
3.5 'Bail' essentially means the judicial interim release of a person suspected of a crime held in custody, on entering into a recognisance, with or without sureties, that the suspect would appear to answer the charges at a later date; and includes grant of bail to a person accused of an offence by any competent authority under the law.
3.6 The system of bail poses a conflict in any criminal justice system because it attempts to reconcile the conflicting interests of the accused person who desires to remain free and the State that has an obligation to ensure that such accused appears promptly at the trial.68 The current scenario on bail is a paradox in the criminal justice system, as it was created to facilitate the release of accused person but is now operating to deny them the release. However, the provisions of the bail contained in the various sections of the Cr.P.C indicate that context in which it is used is to set a person free by taking security for his appearance.
3.7 According to the Supreme Court of India, bail is devised as a technique for effecting a synthesis of two basic concepts of human values, namely the right of the accused person to enjoy his personal freedom and the public interest; subject to which, the release is conditioned on the surety to produce the accused person in court to stand the trial.69
For instance, in Public Prosecutor v. George Williams alias Victor70, the Madras High Court explaining the concept of 'bail' has observed that bail or main prize, meant, bailment or delivery of the accused person to their sureties, to be in their custody as opposed to jail. The rationale is that, they being jailors of choice, would have dominion and control over such accused. If the sureties cannot control the accused person during the period of bail, naturally, the Court would intervene to shift the custody over to the State.