‘A person is innocent until proven guilty’[1]The concept of bail is built upon the notion that a suspect is innocent until the contrary has been proven. This is to avoid the building of presumption at the part of the suspect which might hinder the justice delivery system. If one has to recall the origin of bail, it dates back to the day when Plato produced a bond in favour of the release of Socrates somewhere in 399 B.C in England.
No specific meaning has been ascribed to bail in the Criminal Procedure, however, differentiation between offences as “bailable” and “non-“bailable has been laid down in section 2(a). Therefore, it can be said that bail is form of order obtained for temporary release of the offender based on the gravity of seriousness of the offences committed by the accused. It can be broadly divided into 3 types Regular bail, Interim Bail and Anticipatory Bail, however, this paper focuses on how to obtain a Regular Bail. But for the better understanding of the concept it is important o be able to differentiate between the three.
TYPES OF BAIL
- Regular bail: it is granted to the accused that is already in the custody of police for committing a crime or has been arrested for the charge of crimes.
- Interim Bail: The procedure to grant regular bail is generally time-taking as the documents essential to grant bail has to be transferred by the lower court, to rectify such delay Interim bail is put into process for release for a short period of time.
- Anticipatory Bail: application of anticipatory bail can be moved in circumstances where fear of being arrested in near future arises. One of the striking feature of it is that it can be granted by the court of session or High Court under section 239 of CrPC.[2]
Important Provision of CrPC
Section 436 “In what cases bail to be taken”
436 allude that bail is to be granted to a person who is firstly not accused of a non-bailable offence and secondly, has been arrested by an officer without furnishing any warrant for such arrest or is being prepared to be produced before the court by such officer to give bail.[3]
The court however, can refuse to grant bail to a person in case of failure to follow the bail and bond. In such cases the court can summon the presence of the person n the court and make him subject to penalty under section 446 of CrPC.[4]
Section 437 “When bail may be taken in case of non-bailable offence”
As the title of the section suggests, it enumerates the instances where bail is to be grated to a person accused of committing a non-bailable offence provided that he had been arrested without warrant or there lies reason to believe that such a person is not liable for non-bailable offence or any reason as the court may deem fit to release. The section further adds that such person must not have been arrested for committing a cognizable offence or has been previously convicted for an offence which may be cognizance or punishable with death sentence or life imprisonment for 7 or more years.
In addition to this the section directs that such provision has to be followed where he appears to a court other than High Court or Court of Session. However, if there lies any reasonable ground to believe that such person is guilty of any offence punishable of death or life imprisonment, the court cannot grant bail to such a person.[5]
Section 439
The High Court and the Court of Sessions derive special power through this section in the matter of bail. The court through this section has the power to grant bail for the offences enumerated under section 437(3) and impose any such condition which may be necessary according to the court.
The section further adds that it is upon the discretion of the High Court to give bail and can set aside conditions imposed by the Magistrate.[6]
The process to obtain a regular bail
When an FIR is lodged in a police station, the officer in charge of the station, which lies in the jurisdiction, arrest the accused and is taken in the custody to the police station to file the case. The next step is to prepare for an investigation followed by the filing of the charge sheet and the officer takes down his personal details such as name, address, previous criminal records etc.[7]
Bail Application
The Supreme Court has time and again enunciated that bail is a ‘right and liberty’ of a person until proven guilty. A far as we have read there are two kind of offences on the nature of which the bail depends. Bail is a matter of right in bailable offences and the court has to grant bail but in cases of non-bailable offences it depends on the discretion of the court.
The accused in case of both bailable and non-bailable offence has to report to the court where the proceeding of the case is to be observed and file Form- 45 provided in the second schedule of the CrPC.[8]
Bail Hearing
The court after filing the bail application has to grant bail where the nature of the offence is bailable, however, otherwise the court takes in account a number of factors to either accept or reject the bail application. Such as calculating the risk of the accused to abscond from the country, previous criminal history (if any), the nature of offence committed or if release of the accused may pose any threat to the community at large or not.
During this stage the work lies on the attorney. The attorney on behalf of the suspect has to convince the court that not granting bail in the said case will infringe the right of the suspect viz-a-viz suspect is innocent. At this stage, all the evidences have to be furnished to convince the judge.
Bail Amount
The court after due consideration to all the factors and risk may release the suspect after depositing a payable sum called the bail amount to the court. It is a kind of security to obtain the presence of the suspect in the subsequent hearings of the court. It is to be noted that the court may release the suspect with or without surety on enforcing bail and bond (in bailable offence).[9]Also, the court may reject or cancel the application due to lack of evidence or if the nature of the offence is so grave that the release may affect or cause failure of justice mechanism e.g in case of murder, dowry death, repeat (non-bailable offences).
Cancellation of Bail
The court under section 437(5) and 439(2) of the CrPC has the power to cancel bail at any stage after bail has been granted. However, there exists a limitation that such cancellation cannot be made arbitrarily after bail had been executed by the officer in charge of the police station. The words used in the subsection “where the court thinks is necessary” leaves the scope of interpretation open. But from what has been seen in practicesuch cancelation has to be made where the court has reason to believe that he suspect may tamper with evidences or the gravity of seriousness of offences is such that obtaining the presence of accused is important and prevent any risk of absconding of the accused.[10]
Bail is an age old concept to secure the rights of the under-trial prisoners and the suspect as our law is based on higher moral and ethics such as “It is better that ten guilty persons escape than that one innocent suffer.”[11] Imprisonment until proven guilty does not only hamper the said principle of law but infringes the right to life guaranteed under article 21 of the Constitution of India. Such detention may cause injustice to the suspect which maybe innocent and the families.
[1]Universal Declaration of Human Rights, article 11§1.
[2]http://www.legalserviceindia.com/legal/article-1804-types-of-bail-in-india-and-conditions-for-grant-for-bail.html.
[3] The Code of Criminal Procedure of 1973, §436, India Code(1973).
[4] The Code of Criminal Procedure of 1973, §436, India Code(1973).
[5]The Code of Criminal Procedure of 1973, §437, India Code(1973).
[6] The Code of Criminal Procedure of 1973, §439, India Code(1973).
[7]https://blog.ipleaders.in/bail-procedure/.
[8]https://lawrato.com/indian-kanoon/criminal-law/how-to-get-bail-in-india-1792.
[9]https://lawrato.com/indian-kanoon/criminal-law/how-to-get-bail-in-india-1792.
[10]http://www.legalserviceindia.com/legal/article-1804-types-of-bail-in-india-and-conditions-for-grant-for-bail.html
[11]William Blackstone, Commentaries on the Laws of England, 21st ed.
This Article Written by Aastha Singh, Student of Chanakya National Law University.
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