The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined. The literal meaning of the word “bail” is surety. Therefore, the term refers to release from custody, either on personal bond or with sureties. i.e., to set an accused person free after depositing some money with the court before he is tried, often on condition that a sum of money would be forfeited if he does not attend the trial. a warrant for the defendant’s arrest is issued. The judge sets the amount, and the money is deposited with the clerk of the court. It is returned after the case is finished. Thus, it is the security given to the court to assure it that the accused person will return to the court on the day of trial. Bail may be posted as “cash,” or through a bond.

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.”

Bail is a form of detention by other means. Instead of being detained in prison, the accused is transferred to the custody of his bailor who are his jailers of his own choosing, and the Court still retains its inherent power to deal with him (See 8 Corpus Juris Secundum Bail S. 31). Similarly, the authors of Halsbury’s Laws of England, Third Edition Vol. 10, page 373 states that the effect of granting bail is not to set the accused free, but to release him from the custody of the law and to entrust him to the custody of his sureties, and the sureties may discharge themselves by handing him over to the custody of the law.

Earl Jowitt in Jowitt’s Dictionary of English Law (Second Edition) is of the same opinion (page 173) that the accused is said to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of persons known as his sureties.

In Krishna Singh v. State of Bihar, 1967 Cri LJ 1118 case, the Patna High Court observed that a person released on bail remains in the constructive custody of the Court through surety and his liberty is thus subject to restraint. S. 444 of the Code lays down that the sureties may apply to the Magistrate to discharge the bond, and, on such application being made the Magistrate shall cause the accused to be arrested and brought before him.

Object of Bail:

The object of “Bail” in civil cases is whether directly or indirectly to secure payment of a debt or performance of other civil duties, while in criminal cases object is to secure the appearance of the accused before the Court when his presence is needed. Bail may thus be regarded as a mechanism whereby the state devaluates upon the community the function of securing the presence of the prisoner, and at the same time involves the participation of the community in the administration of justice.

In Sanjay Chandra v CBI, (2012) 1 SCC 40 case, the Apex Court has defined the objective of bail as follows:

“In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

Provisions Relating to Grant of Bail:

The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under sections 436- 450 of the Code of Criminal Procedure, 1973 Offences have been classified into bailable and non bailable and “cognizable” and “non-cognizable”. Officer-in-charge of police station, Magistrate, Sessions Court and High Court are empowered under the Code of Criminal Procedure, 1973 to deal with bail, imposing conditions on bail, cancellation of bail or anticipatory bail.

Section No.	Provision For
436	In What Cases Bail to Be Taken
436A	Maximum Period for Which an Undertrial Prisoner Can Be Detained
437	When Bail May Taken in Case of Non-bailable Offence
437A	Bail to Require Accused to Appear Before the Next Appellate Court
438	Directions for Grant of Bail to Person Apprehending Arrest
439	Special Powers or High Court and Court of Session Regarding Bail
440	Amount Of Bond and Reduction Thereof
441	Bond of Accused and Sureties
441A	Declaration By Sureties
442	Discharge From Custody
443	Power to Order Sufficient Bail When That First Taken is Insufficient
444	Discharge of Sureties
445	Deposit Instead of Recognizance
446	Procedure When Bond has been Forfeited
446A	Cancellation of Bail and Bail Bond
447	Procedure in Case of Insolvency or Death of Surety or When a Bond is Forfeited
448	Bond Required from Minor
449	Appeal from orders under section 446
450	Power to Direct Levy of Amount Due on Certain Recognizance

Bail Bonds:

A bond is a legal contract that requires someone to pay money if a defendant fails to return to court. It is guaranteed by the assets of the person who posted it, such as real estate, savings, or valuable personal property.

A personal bond without sureties means that the person is released on his personal undertaking that he would regularly attend the court and in case of default would forfeit to the government a sum of money.

If a personal bond requires one or more sureties, then it would mean that a third person (surety) is made responsible for the obligations of the accused and he would be made to pay the bail amount on the breach of the bail conditions by the accused. Such a bond is called a surety bond. In such a situation the court in its discretion asks the person acting as surety to keep collaterals worth the amount of the bail bond as a security with the court.

Types of Bail Bonds:

Own Recognizance:

Own recognizance release is a no-cost bail where a defendant signs a form stating they promise to appear in court as required, instead of making a payment. This type of bail is usually available for minor offences.

Factors such as a suspect’s past record, ties to the community, support of family members, social status, and employment are taken into account by a judge when offering own recognizance release. Even though no money is paid with this type of bail, all other aspects of a defendant’s release remain the same.

Cash Bond:

Bail can be paid in cash. Payment by credit cards or cheque drawn from personal or business accounts are not accepted. The judge sets the amount, and the money is deposited with the clerk of the court. It is returned after the case is finished.

Property Bond:

A property bond is a bond that posts the value of tangible property, such as real estate, in order to obtain a pre-trial release from jail. Most jurisdictions require a warranty deed, a current tax statement showing the property’s fair market value and that all taxes are current, a current mortgage statement showing that all payments are current, and if there is more than one owner, an agreement signed by each owner indicating that the property may be used to finance a bond.

If the defendant fails to appear in court, the property can be put into the auction and after the auction proceeding, the court will collect the bail amount that is owed. If the sale of the property does not cover the amount of the bail, the court can seek to recover the difference from the accused.

Conclusion:

Bail may be regarded as a mechanism whereby the State devolves upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. The object of “Bail” in civil cases is whether directly or indirectly to secure payment of a debt or performance of other civil duties, while in criminal cases object is to secure the appearance of the accused before the Court when his presence is needed. The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under sections 436- 450 of the Code of Criminal Procedure, 1973.