Akshay Gurnani, Amity University, Lucknow
INTRODUCTION
The concept of bail finds its roots in England and was later incorporated into India's criminal justice system during the British colonial era. Lord Canning introduced the Criminal Procedural Code in India, further refined by Lord Babington Macaulay in 1973. This Indian criminal procedural code was heavily influenced by the legal framework of the United Kingdom during the British Raj. Bail, fundamentally, involves releasing a prisoner upon the provision of security.
Etymologically, the term "bail" originates from the Latin term "baiulare," meaning "to bear a burden," and the French verb "bailer," signifying "to give" or "to deliver."
The Supreme Court has engaged in deliberations2 regarding the concept of bail, seeking to offer a precise definition. Bail encompasses both release on personal recognizance and with sureties3, yet remains undefined within the Criminal Procedure Code (CrPC). As per the CrPC, offenses are categorized as bailable if listed in the First Schedule, while non-bailable offenses encompass all others. A foundational principle upheld by the court is that "bail is the rule, jail is an exception," rooted in constitutional rights, particularly Article 21, safeguarding the right to life and personal liberty. However, understanding bail necessitates grasping its complexities within the CrPC framework. The grant of bail depends on the gravity of the offense. In bailable offenses, an arrested individual can assert bail as a legal entitlement. Conversely, in non- bailable offenses, bail is not automatically granted; its dispensation lies entirely within the court's discretion. The differentiation between bailable and non-bailable offenses is crucial, balancing the accused's personal liberty against societal safety concerns.
