How, When & Where to apply for Bail in India? | Lawyer Advices
‘Bail’ has been defined in law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. Bail is to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.
The Code of Criminal Procedure, 1973 has classified all offences into two categories :
- Bailable Offences
- Non-Bailable Offences
When any person accused for a bailable offence as mentioned in the first schedule of the code, is arrested or detained without warrant by an officer in charge of a police station or appears or brought before a court. He is entitled to claim bail as a matter of right at any stage of proceeding while in the custody of the said officer. In the case of bailable offence the bail is granted by the court or such officer in charge of police station as they deem fit.
Anticipatory Bail in Non-Bailable Offences
Section 438 deals with Anticipatory Bail of the Code. It enables the superior courts to grant anticipatory bail. It is the direction to release a person on bail issued even before the arrest of the person. The law commission considered the need for such a provision and observed that influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purpose getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or misuse his liberty.
Application for grant of anticipatory bail is made to the High Court or Court of Session. Normally, it is to presume that Court of Session be the first approach for grant of anticipatory bail unless an adequate case is made out for straightaway approaching the High Court directly. It is implicit that the court making such an order of granting anticipatory bail is entitled upon appropriate consideration to cancel or recall the same.
Regular Bail in Non-Bailable Offences
If a person accused of non-bailable offence is arrested or detained without warrant, that does not mean that the person accused of such offence shall not be released on bail; but herein such a case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Circumstances in which release on bail is imperative
1. Cases other than those of non-bailable offences
Where a person is unable to give a bail within a week of the date of his arrest, it shall be sufficient ground for the officer or the court to presume that he is an indigent for the purpose of the proviso of section 436 (I).
Section 50 (2) makes it obligatory for a police officer arresting such a person without a warrant to inform him of his right to be released on bail.
2. Right to be released on bail if investigations are not completed within the prescribed number of days
Whenever an accused is arrested and detained in custody by the police during an investigation cannot be completed within 24 hours as fixed by section 57, the accused person must be forwarded to a Judicial Magistrate. It has been ruled that request for remand can be opposed by an application for bail moved earlier is pending and posted for a future date. If the further detention of the accused person becomes necessary for the completion of the investigation, the Magistrate may authorize the detention of the accused otherwise than in the custody of the police. But the total period of detention in such a case shall not exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of 10 years or more; and such period of detention shall not exceed 60 days where the investigation relates to any other offence. This provision is applicable irrespective of the fact that the offence of which the detained person is accused of non-bailable offence.
3. No reasonable grounds for believing the accused guilty of a non-bailable offence but sufficient grounds for further inquiry
When there are no reasonable grounds to believe that the accused was involved in the commission of a non-bailable offence, the accused shall be released on bail under section 436 of the Code of Criminal Procedure, 1973.
4. Trial was not concluded within 60 days
The trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless the reason to be recorded in writing the Magistrate otherwise directs.
It may be noted that the cases triable by a Court of Session are not within the purview of this provision. If the offence is exclusively triable by Session Judge the Magistrate should direct the accused to approach the Session Court.
5. Release on bail after the conclusion of the trial but before the judgment is delivered
At any time after the conclusion of the trial of a person accused of a non-bailable offence and before the judgement is delivered, the court on believing on facts and grounds that proving accused is not guilty of the offence than it shall release the accused.
Guidelines while granting bail in Non-bailable offences
- The enormity of the charge
- Nature of the accusation
- The severity of the punishment which the conviction will entail
- Nature of evidence
- The danger of the accused person absconding if released on bail
- Welfare of society
- Health, age and sex of the accused
- The danger of tampering the evidence and witnesses
The court may grant bail on the basis of the principle of Parity. It has been held that bail application after having rejected by an Additional Session Judge, would be maintainable in the Sessions Court. The court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of the non-bailable offence be released on bail. A person who is habitual offender or person previously charged with convictions of serious offences shall not be released on bail. Although the High Court has concurrent jurisdiction with the Sessions Court to grant bail under section 439. Any expression of opinion by the superior court is likely to prejudice the trial in lower court. Therefore, only in special circumstances, an accused person may directly move an application to the High Court,
Grant of Bail with Conditions
Under section 437 of the code, the court may impose some conditions according to which the accused comply. It has been observed that power to impose conditions has been given to court, not to the police. The power to impose conditions can only be exercised where the offences are punishable with imprisonment which may extend to seven years or more or where the offence is under Offences against the state or offences against human body or offences against IPC.
Cancellation of Bail
The power to cancel the bail can only be exercised by a court, not by police. Bail can be cancelled by the same court which grants it. The bail granted can be cancelled by High Court or Session Court powers granted under section 439 of the code. A Court of Session cannot cancel a bail granted by the High Court.
Kapil Chandna Advocate
Practicing at Supreme Court of India