When bail may be claimed as a matter of right?

Question: When bail may be claimed as a matter of right?

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Answer

Bail confers the temporary release of the accused in a criminal case in which the court has a trial pending and is still left to declare the judgment. Section 436 of CrPC deals with provisions for bail in bailable offences. This provision is mandatory in nature, and the police or the court has no discretion over it. In this provision, bail may be claimed as a matter of right, and no discretion is left to the court to deny granting the same. This provision reflects the fundamental principle of our system of justice that a person should not be deprived of his liberty except for a distinct breach of law.

If there is no substantial risk of the accused fleeing the course of justice, there is no reason why he should be imprisoned during the period of his trial. The basic rule is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice.

Moreover, Section 167 of CrPC has made a provision to release the accused person on bail if the investigation is not completed within a period of 90 days in respect of an offence punishable with imprisonment of more than 10 years, and where the investigation is not completed within a period of 60 days in respect of an offence punishable with imprisonment equal to or less than 10 years. This is called default bail. The accused is entitled to an indefeasible right of default bail/compulsive bail/statutory bail if the accused is prepared to furnish bail in case the charge sheet has not been filed in court.

In Kamlapati Trivedi v. State of West Bengal, (1980) 2 SCC 91, the Hon’ble Supreme Court defined bail as

“a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial” and;

In State of Rajasthan v. Balchand, 1978 SCR (1) 535, the Supreme Court laid down that the basic rule is bail, not jail.

The essential distinction between a bailable and non-bailable offence is that in bailable offences, bail would be granted as a matter of right/course if the arrested person agrees to furnish the bail, whereas, in non-bailable offences, it is at the Court’s discretion whether to grant bail or not. Though grant or denial of bail would obviously depend on the facts.

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