Principles Governing Grant of Regular Bail and Cancellation

                                                                To no one we will sell, or deny, or delay, right or justice.

What is Bail?

Bail is the security given for the discharge of a person in custody of the law, furnished by him or a bondsman. It is the temporary and judicial release of an accused with some compelling restrictions to remain within the jurisdiction of the court. The word ‘bail’ is derived from a French term which means ‘to give’ or ‘to deliver’ however it is not defined under the Criminal Procedure Code.

REGULAR BAIL: Regular bail is granted to a person who is already arrested or is in police custody. Principles and conditions for grant of bail differ for bailable and non-bailable offences.

Conditions of Bailable Offences for grant of Bail

Section 436 of the Code of Criminal Procedure read with form 45 of schedule II recognizes two kinds of security (a) security with sureties (b) principal himself with the following conditions:

1. Arrested or detained without warrant or brought before the court.
2. Executed bail-bonds on time.

Under 436 in the case of bailable offences, it is the right of accused to get bail or it’s a command of legislative, not court discretion.

Conditions of Non-Bailable Offences for grant of Bail

Section 437 of the Criminal Procedure Code recognizes the conditions for the Bail of non-bailable offences when:

1.  Accused is arrested or detained without warrant or brought before the court.
2. Accused is under 16 or women or is sick or infirm.
3.  Court finds reasonable ground for believing that accused committed bailable offence rather than non-bailable.
4. Court satisfies that accused would be in the jurisdiction of the court in writing.
5. A trial is not concluded within 60 days from the first date fixed for taking evidence.

Under 437 it is not the right of accused rather it is on the discretion of the court. There are factors which the court considers for the grant of Bail in non-bailable offence:

1. Nature and the Gravity of the offence committed.
2. The position and the status of accused with reference to the victim and the witnesses.
3. Likelihood of the accused feeling from justice.
4. Probability of repeating the offence.
5. Probability of tampering with a witness.
6. Jeopardizing own life.
7. The severity of the punishment in the event of conviction

Bail in case of non-bailable offence is on the decision of the court; there is no straight-jacket formula but the basic principles that the court follows

1. Bail is the rule and the arrest is an exception held in State of Rajasthan vs. Balchand alias Bailey Judgement. Let hundred guilty be acquitted, but one innocent shouldn’t be convicted.
2. Presumption of Innocence is the golden principle governing, the burden of proof is on prosecution and that only actual evidence and testimony that is legally admissible and makes the accused guilty beyond the reasonable doubt held in Moh. Akhtar @ Kari & Ors. Vs State of Bihar 2007 
3. Principle of parity that sentence should to sentences imposed on similar offenders for similar offences committed in similar circumstance held in Syed Parvez vs. State of Karnataka 2018

Bail as a Constitutional Right

The question of bail or jail needs to be answered at the stages of arrest, investigation and trial. The laws on bail aims to maintain the balance between the two conflicting demands, on the one hand, the requirement of society to protect from crime and on the other fundamental principles of preemption innocence of accused, till he found guilty. The supreme law of the land, The Constitution provides Article 21-Right to life and liberty, Article 22 Preventive Detention and Protection against Arrest. According to our law Bail is the Rule and Jail is exception respecting the fundamental rights and sections of Criminal Code of Justice section 32 grounds of arrest and section 162(2). Provisions of bail in India is blending of freedom of the individual Hussainara Khatoon vs. State of Bihar 1979 and interest of justice. India is a signatory of the UN Declaration for the Protection Human Rights respects its provision under article 51 of the Indian Constitution.

Special Powers of Session Court and High Court

Concurrent jurisdiction in the case of grant of bail under 439 of Criminal Procedure Code, powers of High Court and Session Court are special and wide. Accused as a general principle need to approach lower court first but in any special circumstances accused can approach high directly. Especially when the matter of bail application comes, it is only the Magistrate or Session Court or High Court in which power is imposed to grant final order. Supreme Court does not ordinarily in the exercise of discretion under 136 entertain petitions for Special Leave to appeal against granting or refusing or cancelling bail but in case of rejection on considering no ground may approach Supreme Court whose decision is final and binding on all court State of Maharastra vs. Anil Baloda Dambe, 1983 Supreme Court can review its own decision.

Cancellation of Bail

Section of 437(5) of the Criminal Procedure Code gives power to the court to cancel the bail of released person  Rejection of bail when it is applied for is one thing, cancellation of bail which is already granted is quite another. It is necessary for the prosecutor to present some act or conduct which gives some reasonable ground that witness has gone back on this statement as a result of intervention caused by or on behalf of the respondent held in the case of State vs. Sanjay Gandhi, AIR 1978 SC 961. The purpose of cancellation the bail is the smooth course of the investigation which is hindered by the misuse of freedom or accused has done something sufficient to cancel the bail.

PROCEDURE FOR CANCELLATION OF BAIL

It is the duty of the court to cancel the bail in case of any violation. For the cancellation of bail, no application or hearing any party is essential both in the private case as well case brought by police complaint held in the Bhore Singh vs. State, AIR 1956. The High Court can act suo moto under its revisional powers when it comes to the notice that the lower court acted beyond its jurisdiction. However, bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by accused but if an application for the for cancellation of bail has been dismissed other application without fresh ground is not maintainable held in State of Maharastra vs. Anil Baloda Dambe,1983.

GROUNDS OF CANCELLATION OF BAIL

There is no straight-jacket formula for this as it is on the discretion of the court. However following grounds that court considers for cancellation of bail following its principles. That the accused:

1. Continues or repeats the offence
2. Tampers with the evidence or witness
3. Granted bail on the wrong exercise of discretion
4. Probability of fleeing away
5. Fails to appear before the court
6. Bond is executed
7. Where numerous  material has arranged at time of bail under 162(2) and considering those materials court may cancel the bail held in Kallam Chinnaiah vs. State of Andra Pradesh 1979
8. Has interrupted the smooth course of investigation.

Bail or Jail question needs to be answered at every stage of the arrest.

Procedure for Cancellation of Bail

There are some grounds on which cancellation of bail cannot be ordered

1. Where there is nothing to show on record that the accused has violated the rules
2. When accused is required for the purpose of securing recovery under section 27 of the Evidence Act.
3. When charge-sheet has been filed against the accused without more
4. The fact that prosecution witnesses have turned hostile  without showing any act or conduct for reasonable interference
5. Previous involvement character will not be considered
6. Where the person is released under section 42,43,56 and 58,169 of Criminal Procedure Code
7. Where bail is granted to lunatic
8. Where accused is released under 162(2) and Session Court and High is not is a power

Conclusion

If one person commits a crime he must be brought before the court he has to undergo trials but he is innocent until his crime is proved beyond a reasonable doubt. The person may suffer unnecessary imprisonment up to the end of the trial, in order to avoid this concept of bail is brought up which aims to protect the rights of the individual and to secure the interest of society. The concept of bail and personal liberty goes hand in hand in order to maintain the “democracy” the basic feature of our constitution.