BAIL IN THE INDIAN JUDICIARY

Introduction

Bail is a widely used term in both criminal and civil courts. To put it simply bail means “to deliver” or “release”. Bail is a legal word for the procedure of gaining an individual’s parole while pending trial or an appeal by paying a bond to ensure the proper surrender to lawful authority. Bail is defined by Black’s dictionary[1] as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgement of the court.” The fundamental goal of an arrest is to safeguard that the defendant in a criminal case arrives in court to receive justice. However, violating a person’s liberty would be discriminating and undeserved if the accused’s existence for the trial could be secured with no incarceration. As a result, the accused may be given bail as a conditional release.

Types of Bail in Judiciary

  • Regular Bail

Regular bail may be given to someone who has previously been detained and kept in police detention. A person may petition for ordinary bail under sections 437 and 439 of the CrPC.

  • Anticipatory Bail

Anticipatory bail is awarded under section 438 of the CrPC to a person who believes an arrest and can be requested even if no FIR has been filed against the person seeking release.

  • Interim Bail

Interim bail is a type of bail that is only issued for a limited duration. Before a hearing for normal bail or anticipatory bail, an accused is given interim bail.

  • Default Bail

The accused’s right to default bail is absolute and indisputable under section 167(2) of CrPC. It states that if the investigative agency was not able to file a charge sheet by the end of a set period, the accused has the right to request bail immediately.

In India, How Can You Get a Bail?

The procedure for requesting bail is dependent on the stage of the criminal case. If a person isn’t yet detained by the court but is concerned that a police report will be used against him, he or she might hire a criminal advocate to submit an anticipatory bail plea. The bail advocate can issue a bail plea using the CrPC bail plea format if the individual was already detained and taken into police custody. In order for the detained person to be released from custody, a bail application must be submitted, approved first by a court, and thereafter delivered to the policemen. The court has the last say on the amount of bail or bail bonds that must be posted. On the other hand, in less serious criminal cases a uniform bail sum is fixed and given for bail.

Bail Conditions for Bailable Offences

An individual accused of any bailable crime according to IPC could be freed on bail, according to section 436 of the CrPC. Bail can be issued either by an official who performed the detention or through the court to which the defendant has been brought. As for in the case of Rasiklal v. Kishore Khanchand[2] it was seen that “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him.” If the arrested person can furnish a guarantee, bail is normally approved in this case. If the responding officer or the court feels the defendant is indignant and is unable to offer a guarantee, he might be freed on bail upon writing a bond with no guarantees for his attendance.

When an individual is released on bail, the bail granting body should be confident that:

  • Reasonable grounds exist to think the suspect did not conduct that crime
  • If the courts find that there are adequate facts to investigate the case more
  • The person has not been charged with any offence punishable by death, life in prison, or a ten years prison sentence.
Bail Conditions for Non-Bailable Offences

According to section 437 of CrPC, bail could also be awarded for non-bailable crimes. However, the court has an option in this case, and the accused does not have a right to it. An individual who is held without a court order and summoned in front of a court under this clause may be granted bail by anybody other than the trial court or the High Court. The court may, however, refuse to approve bail if it has sufficient evidence to prove the defendant is guilty of a felony subject to the death penalty or life sentence has reasonable grounds to suspect the person is guilty of a crime punishable by death or life imprisonment, the court may refuse to approve the bail. If the crime is cognizable and the individual has earlier been found guilty and carries the death penalty or prison term of seven years or above, the state may deny bail if you have been convicted of a felony that carries a term of three years or above on two and more occasions.

The following are the conditions on which the court will allow bail: –

  • The defendant is a woman or a minor
  • Insufficient proof in court
  • The defendant suffers from both mentally and physically illnesses
  • Attendance as per the bail bond
  • Commitment to not conduct similar crime
  • The promise of not to threaten who is aware of the facts of the case

Section 438 of CrPC covers the procedure for seeking bail in advance of detention for a non-bailable crime.

Bail is Cancelled!

A bail application might be revoked by the court at any moment. The court’s power is established by sections 437(5) and 439(2) of the CrPC. The court has the power to cancel the bail approved and order that the accused in state custody be detained. The court, on the other hand, has no authority to revoke a police officer’s bail.

Ankit Sharma v. State of N.C.T of Delhi

In this case, the Delhi High Court has made a distinction between two types of bail i.e., bail rejection and bail cancellation. The court has determined that the grounds for both of them are distinct. The focus of the court’s attention during the hearing of a bail application is on the violations of bail restrictions. When dealing with cancellation, on the other hand, the court considers whether or not a genuine violation has occurred.[3]

Suresh Chand v. Province of Rajasthan

Here the court ruled that the second bail application isn’t viable after the Delhi High Court sacked the first one under section 438 CrPC. Article 21 of the Constitution does not change the right to give anticipatory bail. The court also noted that the law commission wanted to prevent expectant bail agreements from being mistreated by dishonest counsel. This miraculous remedy must only be used in exceptional circumstances.[4]

Conclusion

The importance of bail in a criminal case can be seen from the previous explanation, as it is the accused’s final goal. Every party has a right to bail. Bail is an important test as well as evaluation that assures nobody is penalized until they are convicted in court. The nation’s legal system, on the other hand, usually fails to recognize it. Bail is awarded or rejected based on circumstances that have little to do with the case’s implications. Bail reform is critical, and it must be done in order for the judicial system to mature into a fair and transparent justice system in which no one is penalized for their actions. In each case, the amount of bail is crucial. As a result, the judge must give it with caution and care.

Author(s) Name: Shivansh Gupta (Vivekananda Institute of Professional Studies, New Delhi)

References:

[1] Henry Campbell Black, M.A., Black’s Law Dictionary, (West Publishing Company, 2nd edition, 1910).

[2] Rasiklal v. Kishore Khanchand, AIR 2009 SC 1341.

[3] Ankit sharma v. State of N.C.T of Delhi and anr. (2014) , Crl.M.C. No.1766/2014

[4] Suresh Chand v. Province of Rajasthan (2001), (2) RLR 757

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