What is the Procedure to get bail in India?

The term ‘bail’ refers to the procedure of obtaining the release of an accused charged with specific offences by securing his future appearance in court for trial and forcing him to remain within the court’s jurisdiction.

The basic purpose of arrest is to ensure that the accused appears in court for the judicial process during a criminal proceeding. However, if the person’s attendance is frequently assured for the court trial without incarceration, it may be unfair and unjust to violate a person’s liberty. As a result, bail is frequently given as conditional liberty to the accused.

TYPES OF BAIL

In India, depending on the stage of the criminal case, an individual can request for one of three types of bail:

• Regular Bail: A daily bail is frequently issued to someone who has already been arrested and is being held in police custody. The accused has the right to be freed from such confinement under Sections 437,439 of the Cr. P.C. As a result, a daily bail is simply the release of an accused from detention in order to ensure his appearance at the trial. The court has to issuea direct order.
• Interim Bail: Interim bond is a bail that is issued for a short period of time. Interim bail is granted to an accused prior to the hearing for regular or anticipatory bail. The court has to issue a direct order.
• Anticipatory Bail: If a person suspects that he may be arrested by the police for a non-bailable offence, he may ask for anticipatory bail. In recent years, this has become an increasingly important subject since corporate competitors and other prominent persons sometimes seek to frame their opponents in bogus charges. It’s similar to obtaining advance bail under Section 438 of the Cr. P.C. A bail issued under Section 438 may be bail before arrest, and an individual may not be arrested by police if anticipatory bail has been granted by the court. This is a direct order issued by the Sessions or High Court. The Supreme Court has given a lengthy and extensive list of grounds while considering anticipatory bail under Section 438(1) of the CrPC. These are their names:

1. Before an arrest, the gravity of the crime and the involvement of the accused must be known.
2. The accused’s prior record, as well as any imprisonment on conviction for a non-bailable offence, should be investigated.
3. There is a chance that the applicant may escape from justice.
4. Possibility of repeating similar or other offences.
5. The intention behind the accusation is to harm or humiliate the applicant by detaining him or her.
6. Consider the accused’s actual involvement.
7. Reasonable fear of tampering with evidence, intimidating witnesses, and threatening the complaint.

THE PROCESS OF FILING A BAIL APPLICATION

Bail is frequently filed during a criminal procedure at several Bail is frequently filed during a criminal procedure at several stages:
firstly, it is frequently given after the arrest; second, it is frequently granted after the arrest; and third, it is frequently granted after the arrest.

Secondly, it is frequently given to an individual who has been imprisoned without bail for committing a non-bailable offence and;

Thirdly, a bail application might be made by someone who has been convicted by the court and has filed an appeal against the conviction.

BAIL BOND FEE

The charge for the recognizance is frequently established by the court’s judges; it is going to be just 10% -20% is to be paid at the time of bail or the complete bond payment is also asked by the court. Bail is determined by observing the nature of the offence in terms of harm to others, the suspect’s criminal record, the threat that the suspect’s unharness might provide to the community, the suspect’s ties to the community, family, and work.

CONDITIONS FOR BAIL IN BAILABLE OFFENCES

According to Section 2(a) of the Cr. P.C, a bailable offence is one that is listed as such in the First Schedule of the Code or that is classified as such under any other legislation. If an accused is charged with a bailable offence, he has the right to seek bail. If the accused is willing to provide bail, the police officer or any other authority has no jurisdiction to deny it. A person accused of a bailable offence has the right to be freed on bail under Section 436 of the Cr. P.C 1973 at any time while under arrest without a warrant and at any stage of the proceedings.

To get bail under a bailable offence, the accused must fulfil the following criteria: 

• The accused has a reasonable doubt about the commission of the crime (he/she seems to be innocent).
• An investigation of the offence is necessary to determine whether he/she was involved in the crime.
• The offence is small and has nothing to do with a ten-year jail sentence, captivity, or death.

CONDITIONS FOR BAIL IN NON- BAILABLE OFFENCES

A non-bailable offence is any offence that is not a bailable offence. A person charged of a non-bailable offence does not have the right to bail. A person accused of a non-bailable offence may be granted bail if the accused meets the following conditions:

• There are reasonable reasons to assume he committed an offence punishable by death or life in prison.
• That the accused committed a cognizable offence and had previously been convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more, or if the accused had been convicted on two or more occasions of a cognizable and non-bailable offence. Examples of such offences are waging or attempting to wage war against the government, forgery of Indian currency, adulteration of a drug, murder (Section 302), culpable homicide not amounting to murder (Section 304), dowry death (Section 304B), abetment of suicide, abetment of suicide, abduction of a child under the age of ten, trafficking of a person, rape (Section 376), cruelty by husband or his relatives (Section 498A), etc.

Once the suspect is in custody, there is no need to pay a court fee. There are several exceptions where the law offers special regard to circumstances when the accused is a youngster, a woman, or a sick person, for example [Section 437(1) Cr. P.C].

The following criteria must be met in order for the accused to be released:

• Appearance in court as specified in the bail.
• Making a promise not to commit a similar offence again.
• Making a promise not to become engaged with anyone involved in the case, directly or indirectly.

CANCELLATION OF BAIL

Under Section 437(5) of the Cr. P.C, the court that granted bail has the authority to terminate it if it is deemed necessary under specific conditions. According to Section 439(2), the Sessions Court, High Court, or Supreme Court can terminate the accused’s bail and transport him or her to detention on its own. According to Section 389(2), an appellate court may also terminate the accused’s bail and order the accused to be arrested and detained.

The provisions of S 437 permit two authorities, namely a court and an officer-in-charge of the station, to issue bail to someone who is suspected of committing a non-bailable offence. Because the capacity to give bail is permissive/discretionary and optional, it should be used sparingly. Bail in non-bailable offences has been divided into two categories: (1) offences punishable by death or life imprisonment/accused who have already been found guilty and those who do not appear to be penalised in this manner.

At the stage of bail consideration, the court is normally required to consider the nature and seriousness of the charge, the gravity of the offences, the likelihood of the suspect fleeing the trial and tampering with evidence and witnesses, and the danger of repeating the crime. Section 437 (3) of the Cr. P.C. sets the scenario for the application for cancellation of bail most well-liked by the IO/Complainant/Any other person who is threatened by the suspect’s freedom to the degree that it interferes with the administration of justice, method of honest inquiry.

A tribunal or Court of Session may order that someone in detention who is suspected of a non-bailable offence be released on bail under Section 439(1) of the Cr. P.C. It also allows a tribunal or Court of Session to amend or waive any condition imposed by a functionary while granted bail. Currently, the tribunal or Court of Session must provide notice of application to the litigator in instances involving child-related offences or sexual offences against women. Section 438 of the Cr. P.C. deals with entirely unconditional preventive bail with the Court of Session and tribunal. The provisions for cancelling bail and returning the accused to jail are explicit in the Code of Criminal Procedure. Section 437(5) specifies that any court that has released an individual on bail according to sub-section (1) of sub-section (2) of section 437. Similarly, section 439 gives the highest court, and hence the Court of Session, the authority to cancel bail. Section 439(2) of the Code of Criminal Procedure makes it clear that bail can be revoked and the accused returned to jail.

The power of bail cancellation is frequently used in the following two situations:

• On the elements of a case, primarily on the basis of the order granting bail being perverse, or given without appropriate application of mind, or in violation of any substantive or procedural legislation.
• At the root of an abuse of liberty following the grant of bail or other supervening conditions.

RELEVANT CASE-LAWS

1. SUSHILA AGARWAL VS. STATE – The Supreme Court ruled that anticipatory bail should not be granted for a set amount of time, but that the court may restrict the duration of anticipatory bail if a unique circumstance requires it.
2. STATE OF BIHAR v. NITYANAND RAI- According to the Bihar Supreme Court, the circumstances that must be met in order to rescind bail are those that occur after bail is granted. The entire procedure takes place about the accused’s behaviour once he is released from jail on bail.
3. UNKNOWN VS. DIGENDRA SARKAR – The application for anticipatory bail may be made under Section 438 of the Cr. P.C. even before the First Information Report is registered. As a result, filing a First Information Report cannot be a prerequisite for seeking anticipatory bail.
4. GURBAKSHA SINGH SIBBIA AND OTHERS VS.THE STATE OF PUNJAB- According to the Supreme Court, there are no provisions in the Cr. P.C. governing the time limit for granting pre-arrest anticipatory bail. The court has the option to establish conditions for the grant of anticipatory bail, such as a restricted duration of protection, etc., subject to any exceptional circumstances.
5. ANIL MAHAJAN v. CUSTOMS COMMISSIONER & ANR- The petitioner had been in judicial custody since August 1999 and had applied for bail earlier in September 1999, which was denied by the court because he was found to be involved in a serious economic offence that he committed deliberately for his own profit, oblivious to the consequences to the state. The court noted that because the legislature has not made any particular rules for dealing with economic offences, standard criteria for granting bail that apply to all offenders must be used in instances involving economic offences as well.

CONCLUSION

The purpose of adopting Section 438 is to protect a person’s liberty. The necessity for anticipatory bail arises primarily when a person has grounds to suspect that he may be arrested on the basis of a non-bailable offence. Anticipatory bail is concerned with a person’s liberty and presumes innocence. A five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled in the matter of Gurbaksh Singh Sibbia vs. the State of Punjab that Section 438 (1) must be construed in light of Article 21 of the Constitution. While courts have often emphasised the importance of protecting individuals’ liberty and protecting them from arbitrary detention, it is important to note that anticipatory bails, unlike other forms of bail, are not a matter of right.