BAIL
DEFINITION
Bail refers to the provisional release of an accused in which the court
hasn’t announced judgement yet , derived from the French word
“bailer” which means “to give” or to “to deliver” , but the term Bail is
not defined in The Code of Criminal Procedure , rather , the terms
bailable and non-bailable offences is been described.
In a bail , there needs to be a security deposit which ensures that the
accused is present before the court whenever required , this is called
bail bond . These bonds , contain various conditions which need to be
fulfilled.
When this bail bond is presented by the accused in the court , the
accused is provided bail for a fixed period of time as requested or
decided by the court .
BAILABLE vs NON-BAILABLE OFFENCE
Getting bail in a Bailable Offence , is a matter of right , in this bail can be
provided by the police or by the court . but in case of a non bailable
offence , it is upto the discretionof the court whether or whether not to
provide the bail , and this can only be done by a court .
WHAT IS A BAILABLE OFFENCE ?
These are offences which are not serious in nature , yet not so trivial . In
this getting bail is easy , as it can be provided by the police officer ,by
executing bail bond fulfilling various conditions as , not tampering with
evidence , not leaving state jurisdiction , presenting themselves in court
or to police whenever needed. If not fulfilled , the court has power to
cancel the bail .
If a person gets arrested for a bailable offence , it is the duty of the
police to inform the said person about his entitlement to be released
on bail after giving surety , and this comes under Section 436 of The
Code Of Criminal Procedure .
In the case of Rasik Lal v Kishore (2009) 4 SCC 446, Supreme Court held
that, in case a person has been arrested for any such offence, the
person has absolute and indefeasible right to claim bail and if the
person accused is prepared, the court or the police , as it deems
necessary , will be bound to release the person on bail.
The procedure for applying is that the person needs to fill a form of bail
i.e. Form No. 45 , which is given in the first schedule.
Example : Bribing , public nuisance , being a member of an unlawful
assembly , obstructing public servant in discharge of his duties , etc .
WHAT IS A NON-BAILABLE OFFENCE ?
These are the serious ones , and only Court has the power to grant bail
on its discretion . Getting bail here is not a right and rather is privilege.
The application of the bail is filed with the help of a Criminal Lawyer
conducting the trial.
In these offences also, the conditions for the bail bonds must be met.
The court has the power to cancel the bail on various grounds , which
are subject to certain conditions given in Section 437 of The Code of
Criminal Procedure , like , if the punishment for the offence committed
is life imprisonment or death (bail is granted in this condition if the
person is Below the age of sixteen years) , such as murder or rape , or
the accused decamps or attempts to decamps or the credentials of the
accused are doubtful , doesn’t commits any offence similar to the
offence of which he is accused or suspected.
But we need to keep in mind that if the trial of the accused is not
concluded within the period of 60 days , the accused will be released on
bail. Also if the person is in custody during whole period , he is entitled
for a bail .
If the bail is not granted to the accused, the reason will be recorded in
writing by the Magistrate and same if the person is granted bail , the
reason will be recorded.
Example : Murder , attempt to murder , dowry death , rape , kidnapping
, etc.
WHAT IS ANTICIPATORY BAIL ?
As per Section 438 of The Code of Criminal Procedure , if a person has
apprehensions or believes that he will be arrested on accusation of a
Non-Bailable offence, he can apply to High Court or Court of Session for
bail.
But , the person needs to fulfill certain conditions and the bail is on the
discretion of the court , such ;
1. Being available for interrogation when required.
2. Not making any inducement, threat or promise , to anyone , so
as to deter him from disclosing any material facts to the Court or
any police officer.
3. Not leaving India without prior permission of the Court.
Due to misuse of the provision of section 438 a committee was formed,
named Malimath Committee , which suggested 2 conditions :
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.
The procedure to apply for a Bail under Section 438 , the accused is
required to fill the Form No. 45 given in the First Schedule and apply for
bail.
HOW IS THE AMOUNT OF BAIL BOND DECIDED ?
There are various things kept under discussion while deciding the bail
bond or amount ,
1) Gravity of the offence.
2) Employement status and financial condition.
3) Family ties and relationships.
4) Reputation
5) Prior criminal records, including any record or prior release on
recognizance or on bail.
6) Any other factors indicating the ties of the accused to the
community or barring on the risk of willful failure to appear.
OBJECTIVE
It is comples to understand the basic reason for bail , but we can keep
in mind the statement that , a culprit may escape from his offences but
an innocent must never pay for the wrongs of others.
Keeping in mind , the basic objective of providing a bail can be
describes as :
1) The attendance of the accused in the court , so that the accused
may not flee away from justice , in case the accused is the actual
culprit.
2) The accused must not be deprived of his personal liberty and
freedom enshrined by the Constitution , while held in trial , in
case the accused is innocent.
CONSTITUTONAL PERSPECTIVE OF BAIL
Bail is considered a right , and it is mostly linked to the knowledge and
the awareness of the rights of the people , which in case is related to
the Article 22(1) of the Constitution , one of the Fundamental Rights ,
which provides that no person who is arrested shall be denied the right
to consult and to be defended by legal practitioner of his/her choice.
But then again this comes in conflict, whether the expense of this right
should be incurred by the state under Article 39A directing state to
provide free legal aid , and then finally to the mix of Article 20 , 21 and
22 of the Constitution .
