Introduction:
Bail indicates the momentary release of a blamed in a criminal issue in which the court is yet to report a judgment. In other words, Bail implies emancipation of an individual from jail awaiting for trial or appeal by depositing security in time. The security is known as a bail bond. Security which is deposited doesn’t have to necessarily be money it can be papers of property or obligation of the private individual of means or expert bondsman or holding organization. The disappointment of the individual on bail to give up himself will prompt relinquishment of his security.
Criminal Procedure Code, 1973 doesn’t define bail but it defines the bailable offence and the non-bailable offence under section 2(a) Cr.P.C. ” Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence”. Bailable or non-bailable depends mainly upon the gravity of the offence and chances of the accused absconding or tampering with the evidence. Section 436 to 450 of Cr.P.C have provisions regarding the procedure of bail.
The reason behind arrest and prison is that whenever the trial starts the accused can be produced immediately before the court.
The procedure of getting bail is complex in the sense that when the accused files for bail the case is pending in court which means the trial hasn’t started yet so it becomes difficult to decide whether to grant or not grant bail. At times if bail isn’t granted it might impede with Article 21 of the Constitution which guarantee the protection of life and personal liberty.
In Sanjay Chandra vs CBI [1] the court held that:
The grant or refusal to grant bail lies within the discretion of the Court. Grant or repudiation of bail depends upon circumstance and evidence of the case. Bail is not to be denied merely because it can hurt the beliefs or emotions of a community or society. The main roles of bail in a criminal case are to ease the blamed for detainment, to lessen the burden upon State and to keep the blamed helpfully in the authority for the Court, regardless of whether previously or after conviction, to guarantee that he will submit to the locale of the Court and be in participation consequently at whatever point his essence is required.
History of Bail
The idea and use of bail can be gone back to 339 BC. The arrangement of bail was presented with the act of an idea known as circuit courts in Britain during medieval eras. In India, the arrangement of bail is represented by the Code of Criminal Procedure, 1973, explicitly, Sections 436 to 450.
It determines the offences for which bail can and can’t be allowed which relies upon the force and seriousness of the offence. It is the tact of the court to choose the bail sum based on the offence and the financial status of the individual. There are mostly three sorts of bail in India; Regular, Interim and Anticipatory Bail.
Types of Offences
- Bailable offence – are those offences which are bailable and have imprisonment of fewer than 3 years. If the offence is bailable then it is right of the accused to get bail. In such a case, no question of discretion arises. Statutory duty is imposed upon police officer and court to provide bail if the accused has prepared. Only if the accused is unable to produce bail he should be kept in detention.
In Rasiklal V/s Kishore Khanchand Wadhwani [2] it was held by the Supreme Court that if a person has offered bail to either police officer or court then they are bound to release the person. - Non-bailable offence – are those offences which are more grievous or serious in nature the punishment is more than 3 years. If the offence is non-bailable then granting of bail is the discretion of the court.
Types of Bail
- Regular bail – a regular bail can be conceded to an individual who has just been captured and kept in police guardianship. An individual can record a bail application for normal bail under Section 437 and 439 of the CrPC.
- Interim bail – interim bail is a bail conceded for a brief timeframe or for a short period of time. Interim bail is conceded to a charged before the hearing of regular or anticipatory bail.
- Anticipatory bail – anticipatory bail is that type of bail in which individual perceives that he might be captured by the police for a non-bailable offence can file an application for anticipatory bail. It resembles a development bail acquired under Section 438 of the CrPC. A bail under Section 438 is a bail before capture and an individual can’t be captured by the police if the anticipatory bail has been conceded by the court. Individual who pursues anticipatory bail has to pass the triple test and those are –
- That he won’t try to abscond and will be present for trail
- Won’t alter with the evidence
- Won’t try to influence the witness
If the court is satisfied then the bail will granted.
In Sushila Aggarwal v. State and Ors[3] Supreme Court held that under Section 438 of Cr.P.C time of bail shouldn’t be to a fixed period but the court according to the case and evidence can impose specific tenure. The court further stated that anticipatory bail of an individual doesn’t come to an end when the individual is summoned or charges are framed tenure of bail can extend till the end of the trial.
Bail for Non-Bailable Offence
If a person commits a crime under both bailable and non-bailable offence then that person will be tried under the non-bailable offence and the benefit of bail under bailable offence won’t be available.
Section 437 of C.P.C deals with when bail may be taken in the non-bailable offence –
(i) when any person is suspected of committing a non-bailable offence and is arrested or detained without a warrant and is brought before a court other than a high court or court of session the person can be released but – such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions [4]
If the official in charge agrees to grant bail to an accused who is suspected of an offence whose punishment is imprisonment with death or has committed cognizable offence it is compulsory for him to record the reasons or on the other hand exceptional reasons for the situation journal and save the bail securities until they are released either by the presence of the denounced in court or by the request for an able court.
Section 437 enables the court or police official to impose constraints while granting bail but they shouldn’t be unfair. The court has to make sure that the condition doesn’t clash with the law.
Consideration at the Time of Granting Bail
At the period of selecting the application looking for bail, the Court should take a look at the by all appearances material accessible and ought 2001 not to go into the benefits of the case by valuation for proof. While deciding for the non-bailable offence it is important for the court to look into the gravity of the offence.
Supreme Court whole deciding the State of Maharashtra vs. Sitaram Popat Vital[5] started a few factors which need to be kept in mind while deciding to grant bail –
1.The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Supreme Court in Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[6] held that the situation of not delivering the individual on bail accused of an offence culpable with death or detainment forever will not be material if such individual is younger than 16 years or is a lady or is wiped out or sick, subject to such conditions as might be forced.
Cancellation of Bail
Court has the power to cancel bail at any given time.
Section 437(5) – any officer or court releasing any person on bail under (1)(2) can order that person to be arrested and commit him to custody.
Section 439(2) – high court or court of the session may direct any person to be arrested who is released on bail.
The court doesn’t have the power to cancel bail which is granted by police.
Conclusion
The main objective of bail is not to arrest or detain a person instead it should be to produce the person for trial on time. Reason for seeking bail by an individual so that they can be free from the custody of the police. Under bailable offence, it turns out to be right of a person to be allowed to have bail however under non-bailable offence it at the tact of the court. Once bail granted doesn’t mean it can’t be cancelled because the court has been given the power to cancel bail at but given time but it can’t cancel bail given by police. The release on bail upon suitable contemplations and burden of sensible conditions is critical not exclusively to the charged, and his relatives who may be needy upon him yet in addition the general public enormous, consequently the Court is compelled by a solemn obligation to mull over current realities and conditions winning in the issue and find some kind of harmony among contemplations and inconvenience of the sensible conditions and afterwards pass the fitting request.
References:
[1] Sanjay Chandra v. CBI 2011 (13) SCALE 107, (2012) 1 SCC 40 https://indiankanoon.org/doc/1563495/
[2] Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341) https://indiankanoon.org/doc/1675752/
[3] Sushila Aggrawal v State and Ors AIR 2020 SC https://indiankanoon.org/doc/123660783/
[4] Section 437 of CrPC https://indiankanoon.org/doc/848468/
[5] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258 https://www.lawyerservices.in/State-of-Maharashtra-versus-Sitaram-Popat-Vetal-and-another-2004-08-23
[6] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR SC 1444 https://indiankanoon.org/doc/1067439/
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