Webinar Date: 09/05/2020

This summary is written by Ankur Mukherjee, Brainware University.

Guest Speakers: Sanjiv Singh Rao is a Senior Criminal Lawyer. He joined the law profession in the year 1994 and has an experience of 35 years and continuing.

Abhayjeet Singh Rao is Partner at Justice Tap. He is a practicing lawyer at Haryana and Gurgaon Court. He does criminal trials and has been practicing since five years.

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The Host: Ramnauj Mukherji is an alumnus of the National University of Judicial Sciences, Kolkata. He is the CEO of LawSikho and co-founder of iPleaders. His previous work experience includes being part of the Private Equity and M&A Team at Trilegal, Mumbai.

What is a Bail?

The term bail is not defined under CrPC. Bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond. Bail is a mechanism used to ensure that the accused is present before the court. The two authorities that can grant bail are the police and the courts. The basic and fundamental object of bail is to ensure the attendance of accused at trial before the court. Section 436 to section 439 deals with the provisions of bail. 

There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal matter: Regular Bail – A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC. Interim Bail – Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail. Anticipatory Bail – A person who discerns that he may be arrested by the police for a non-bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.

 The process to apply for a bail depends upon the stage at which the criminal matter is. In case, the person is not yet arrested by the cour, but fears that an FIR may be filed against him with the police, the person can hire a criminal defence lawyer in India to file an anticipatory bail application. For instance, if the person has an apprehension that his wife may file a false 498A case against him, he can obtain an anticipatory bail before the police register a complaint against him. If the police have already arrested the person and taken him to the police station, the bail lawyer can file a bail as per the bail application format given in the CrPC. 

The bail application is to be filed and approved by the court and then presented to the police to get the arrested out of jail. The bail amount or the bail bond to be deposited depends upon the discretion of court. However, a standardised bail amount is set and deposited for bail in less serious criminal cases. 436 of the CrPC lays down that a person accused of any bailable offence under the IPC can be released on bail.  Bailable offences under the IPC include unlawful assembly (Section 144 of CrPC), payment of bribe during elections, fabrication of false evidence, sale of poisonous food or drink knowingly, participation in riots, being armed with deadly weapon, furnishing false information, threat of injury to public servant, selling adulterated drug, selling obscene book, causing death by negligence (Section 304A), stalking, criminal defamation, etc. In any of the above-mentioned offences, a person can hire a bail/anticipatory bail lawyer in India to apply for bail. However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offence: There are sufficient reasons to believe that the accused has not committed the offence. 

If, as per the court, there is sufficient reason to conduct further enquiry in the matter. The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years. An accused does not have the right to apply for bail in case of a non-bailable offence. The power to release a person on bail in a non-bailable offence lies with the court. Section 437 of the CrPC lays down the power of court to grant a bail to a person even in a non-bailable offence. Non-bailable offences under the IPC include sedition, waging or attempting to wage war against the government, counterfeit of Indian currency, adulteration of drug, murder (Section 302), culpable homicide not amounting to murder (Section 304), dowry death (Section 304B), abetment of suicide, abetment of suicide, abduction of child under 10, trafficking of person, rape (Section 376), cruelty by husband or his relatives (Section 498A), etc. A person can get legal advice from a good criminal law lawyer in India to apply for a bail in non-bailable offence. 

The conditions on which the court grants a bail in a non-bailable offence are as follows:  If the accused is a woman or child, bail can be granted in a non-bailable matter. If there is a lack of adequate evidence, the court can grant a bail in non-bailable offence on discretion. If there is a delay in registering the FIR by the complainant. If the person accused is physically or gravely sick. If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter. The court has the power to cancel a bail granted even at a later stage. The power of the court is laid down under Section 437(5) and 439(2) of the CrPC. The court can cancel the bail granted by it and give directions for the arrest of the person in police custody. However, the court does not have the power to cancel a bail granted by a police officer.

What is the philosophy of courts giving bail?

The purpose of bail is to ensure the appearance of accused before the court whenever required but in certain cases, granting bail is not required. The basic rules of grant or denial of bail may simply be summarized as: There are only two kinds of offences bailable and non-bailable. In case of bailable offences section 436 of CrPC reads that it is the right of accused to demand and be granted bail. The certain basic criteria while exercising his judicial discretion for grant or denial of bail in case of non-bailable offences has been laid down in Section 437 CrPc in the cases related to non-bailable offences. Some of these criteria include – the nature of offence, past criminal records and probability of guilt.

Why are dangerous prisoners released by bail?

If you are charged with a sexual or violent offence, have previously been convicted of such an offence, you must not be granted bail except by an order of a District Court judge or High Court judge. In order to be allowed bail, you must satisfy the judge that you will not, while on bail, commit any offence involving violence against, or endanger the safety of, any other person. Further restrictions are also placed on you when you are charged with an offence that has a penalty of three or more years imprisonment if you have previously served time in prison and you committed an offence while out on bail.

Questions by audience

What about  POSCO Act Cases of presumption on bail?

The preamble of the Act undoubtedly states that this Act was enacted to protect children from sexual assault, sexual harassment, pornography etc. These are the following sections of the POCSO Act, 2012 which defines the offences and punishments covered under it. The powers of police to grant bail under head are controlled by directions endorsed under Section 71 of the Code. It is under Section 81 of the Code however, which empowers the police officer to grant bail when the person arrested or produced before him has been accused of the commission of a bailable offence even when no direction to such effect has been given in the warrant.

In case of non- bailable offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant, however, should be by name. Section 42 of CrPC 1973 can be invoked when the offender refuses to give name and address or gives a name and address which the police officer considers to be false. If those particulars are within the knowledge of the police officer, neither the question of arrest nor the question of bail will arise. As soon as name and address has been ascertained the police officer cannot detain him, if he is willing to execute the necessary bonds After the arrest has been made the arrested person should be, without unnecessary delay handed over to a police officer, or in his absence, be brought to the nearest police station. The question of bail will depend upon what opinion the police officer forms about the person brought before him. If there is no sufficient ground to believe that the arrested person has committed any offence, he shall at once be released.

Can a female be given bail in any case under CrPC Section 437? Does the Magistrate has the power to grant bail?

A woman involved in a non-bailable offence when arrested by police and committed to prison pending trial of offence may easily fall prey to unscrupulous elements in the jail who misuse their position either to make money from her relatives or abuse her physically and sexually where she has no relatives to pursue her case or they are unable to meet the unlawful demands of jail staff. Various complaints have been made and write-ups published in newspapers, highlighting this problem and stressing the need to find ways and means of resolving it. This problem is very acute especially for women who are kept in jail for long duration during the proceedings of the case. Afterwards, even if they are proven innocent and acquitted, they carry the stigma of being in jail. Section 496 of the Code of Criminal Procedure, 1898 provides for bail in bailable offences and Section 497(1) under its proviso gives a special concession of bail for women in non-bailable offence.

What is non-bailable offence?

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right. The court may generally refuse the Bail, if:
“Bail Bond” has not been duly executed, or if the offence committed is one, which imposes punishment of death or Life imprisonment, such as “Murder ” or “Rape” or the accused has attempted to abscond, and his credentials are doubtful. The application for bail shall be filed before the Magistrate with the help of a criminal lawyer, who is conducting the trial. The application after being filed is usually listed on the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.

What about Atrocity Act cases in non-bailable offence?

For offences of atrocities specified under Section 3(1), the punishment is between six months to five years with fine. For offences under Section 3(2)(i), the punishment is death. For offences under Section 3(2)(ii), the punishment is not less than six months but may extend to seven years or upwards with fine. The law is absolutely clear – there is no provision for anticipatory bail.” While upholding the amendments made by the c in 2018, the Supreme Court had on February 10 made an exception and said courts could still grant pre-arrest bail in cases where there was no prima facie evidence warranting arrest

Why an accused is sent to jail rather than making him to social work?

Sending criminal to jail refers to a form of criminal justice where the major emphasis of court proceedings is on repairing the damages imposed by a criminal on the victim. This view of criminal justice is in direct contrast to the modern criminal justice system that is primarily focused on retribution against the criminal. Restorative justice closely involves the victim of a crime in the judicial process so that proper compensation is offered to him/her through the imposition of an appropriate penalty on the criminal. Under the restorative justice system, a crime is not viewed as an act against the law but simply as an issue between the criminal and the victim.

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