bail in India
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This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses the concept of bail and provisions relating to it. 

Introduction

In general, the term bail means the temporary release of an accused person on a temporary basis. As the term bail has been derived from the French word bailer which means to deliver or to give. The term bail has been used for a long time.  As defined in the oxford dictionary bail is the absolution of an accused person temporarily awaiting the trial or a sum of money is lodged by the accused person as a guarantee for his appearance in the court.

The provisions regarding the bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code. These provisions envisaged in the code gives the brief regarding the provisions of the bail.

The concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from the police custody. The process of bail is a legitimate process.

Basic Rule

India is a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. It is the basic right of an individual which is protected by the state. Thus the concept of bail and personal liberty goes hand in hand and therefore every individual including the accused person has the right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the Indian Constitution that the life and personal liberty of a person can’t be deprived except by the procedures laid down by the law.

Object

The basic goal behind arresting and detaining a person behind the jail is that when the accused is required by the court during the trial he must appear in court for the trial. The process of bail is a complex mechanism, it is considered to be very delicate and conflicting at the same time. The reason it is very delicate is that an accused seeks for bail when the trial is pending in the court and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not granted to the accused person it may curtail the liberty of the innocent accused or while granting bail may result in giving extra-liberty and freedom to the actual culprit.

It is a comprehensive statement used in general that an accused person may escape his crimes but an innocent shall not pay the price of some other person’s deed. Based on this ideology the code of criminal procedure has bifurcated the offences into two categories.

Types of offences

  • Bailable offence
  • Non-bailable offence

Bailable offence

The bailable offence is the type of offence in which an accused person is granted bail. This type of offences is generally punishable by the court with less than three years of imprisonment. In the case of bailable offence the chances of getting bail are much higher.

Under section 2(a) of the code, the term bailable offence has been described as the offence which has been specified in the first schedule of the code or if the offence is considered to be bailable by the law in force during the time.

Non-bailable offence

The non-bailable offence is the type of offence for which an accused person is not entitled to get bail. These are the offences which are non-bailable nature and are not shown as bailable under the first schedule of the code. These offences are grievous in nature when compared to bailable offences. In the case of non-bailable offences the punishment is three years or more.

Cases in which bail may be granted (whether release on bail is mandatory?)

In the case of bailable offence it is mandatory to grant bail to the arrested person and in case of non-bailable offence it depends upon the discretion of the court. Section 436 of the code talks about the cases in which bail can be taken and section 437 of the code talks about the cases in which the bail may be taken in case of  non-bailable cases.

Cases in which bail to be taken (section 436 of CR.PC)

In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a warrant by the police authority and is prepared to give bail, then it is the duty of the police authorities to release him. The person arrested may be released on the bond without submitting any sureties.

Appealability of the order (section 439 of the code)

Section 439 of the code states that any orders passed under section 436 of the code shall be appealable.

  1.   The order made by the magistrate to the session’s judge is appealable.
  2.   In case when the court of sessions passes an order to the court where an appeal lies from an order made by such court.

Investigation incomplete (section 167 of the code)

Under section 57 of the code states that a person arrested or taken into custody has to be released after 24 hours. Within those 24 hours, he has to be presented before the magistrate with a notice. The period of 24 hours can be extended if the investigation regarding the offence or crime committed has not been completed. Section 167 states that in order to extend the period of 24 hours for the purpose of investigation prior order has to be obtained from the magistrate. If the investigation is not completed the person arrested or detained shall be released. The period of detention shall not exceed 90 days (in case where the offence is punishable with the death penalty or life imprisonment) and 60 days (in case where the offence is punishable for a term less than ten years).

The maximum period for which an under-trial prisoner can be detained (section 436-A of the code)

Under section 436 A of the code states that the detention period for an undertrial prisoner other than the one who is accused of the criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one half of the maximum sentence provided for the offence committed by him.

When may bail be taken in case of non-bailable offences (section 437 of the code)?

It depends upon the discretion of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and is not guilty of any criminal liabilities which is punishable with life imprisonment or the death penalty.

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Bail to require accused to appear before the next appellate court (section 437 A of the code)

Under section 437A of the code, it has been stated that in order to appear in the higher court as and when the higher court issues the notice against the judgment of the court it becomes mandatory for the trial court or the appellate court which requires the accused to execute the bail bond with sureties.

What do you mean by the Anticipatory Bail?

Under section 438 of the code, it has been stated that the term anticipatory bail can be understood through the expression anticipatory. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person is arrested in the near future then such person shall be released on this anticipatory bail. No questions can be raised on the release unless the person executing this bail is arrested and therefore it totally depends upon the arrest that the order granting such bail becomes operative.

The following provision of section 438 of the code was recommended by the law commission. On its 48th report, they expressed their observations regarding the provision of anticipatory bail and stated that such provision is a useful addition to the code but it should be used in extraordinary or exceptional cases only.

Section 438 of the code runs as follows:

When any person having the reasonable apprehension that he may be accused of committing the offence of non-bailable nature then such person can apply for anticipatory bail in the high court or the sessions court. The role of the court having competent jurisdiction shall give him direction under section 438 of the code that during the time when he gets arrested he shall be released on bail after taking into consideration the following conditions shall accept or reject the application filed for anticipatory bail by the person getting arrested.

Following are the factors:

  • The accusation made shall be grave and serious
  • Likelihood of the applicant to flee or abscond from justice
  • When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code involve the following things.

  • The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
  • The arrest of such person shall be in respect of the accusation of him committing non-bailable offence or cognizable offence and the courts having competent jurisdiction shall direct that in the event of the arrest the person shall be released.

Following conditions are imposed on the person seeking the anticipatory bail by the courts having competent jurisdiction

  • It is the duty of the person to appear or make himself available whenever required by the police officials for the investigation.
  • He must not induce or threat for dissuading him from disclosing facts of the case.
  • The applicant shall not go outside the territory of India without taking the prior permission of the court.
  • Or if the following conditions stated in point one and two are fulfilled and such person is ready to give bail, he should be released from custody subject.

Amiya kumar v. state of west Bengal 1978 Cri.LJ 288

In the instant case, it was held that section 438 of the code empowers both the high court and the session’s court to grant the anticipatory bail. Both the high court and the Sessions court have the competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then he can’t file the petition for the same in the high court.

D.R. Naik v. the State of Maharashtra, 1989 Cri.LJ 252

In the instant case, it was held that if a person files an application for anticipatory bail and it is rejected by the sessions court, this will not put the bar over the person filing the petition to approach High court. But if the person first approaches the high court and the petition filed by him gets rejected, then he can’t approach the session’s court for filing the petition on the same ground.

Malimath Committee Report

The Malimath committee gave its observation regarding the provision of anticipatory bail. They stated that the provision of section 438 is often misused by the people. Such misuse of the provision is illegal. The committee after the following observation suggested two conditions or requirements for the purpose of retaining the provision.

The following conditions are as follows:

  • Before granting the anticipatory bail the court shall hear the public or the government prosecutor
  • When a person files a petition of anticipatory bail it must be heard by a court having competent jurisdiction.

Distinction between Bail and the anticipatory bail

Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody,  however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.

Conclusion

It can be concluded that the concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from police custody. These provisions envisaged in the code gives the brief regarding the provisions of the bail. The process of bail is a legitimate process.

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