How to get Bail?
What is bail?
Generally, bail refers to the temporary release of a suspect in any criminal offence after paying the bail bond, while he is awaiting court trial. It is applicable after arrest and comes into effect from the moment of the arrest. Any act or omission made punishable by law for the time being in force is an offence. After the arrest of a suspect, his statement is taken on record and personal information such as his name, date of birth, place of birth, present residential address, address of the family, profession, mobile number, charges filed against him are noted. The past criminal record, if any, may also be reviewed by the police officer in the police station and he may ask for the suspect’s fingerprints to file a case against the accused.
A bail is of 2
Regular bail- It is applied under Sections- 437 and 439 of Code of Criminal Procedure.
Regular bail is granted to a person already in the police custody for an offence or he is facing allegations of committing the same.
2. Anticipatory bail- It is applied under Section- 438 of Code of Criminal Procedure.
Anticipatory bail is applicable in a situation when the person fears arrest by the police.
How and when to apply for Bail
When a person is arrested he is taken to the police station to get the case filed.
The suspect is taken to the police station which exercises jurisdiction over the area of residence of the suspect.
The suspect has to submit Form- 45 given in the Second schedule to the Court to get a bail in a bailable offence. The Court is the one hearing his case. Without the court’s approval, bail cannot be granted by the police.
In case, the suspect is accused of committing a non-bailable offence, the same form has to be submitted by him before the Court which is hearing his case, but it is the Court’s discretion to grant bail.
The bail amount to be deposited by the accused is also on the decision and discretion of the court.
However, in criminal cases with lower gravity, a standard amount has been set by practice and convention which is to be deposited for awarding the bail.
Types of offences and scope of Bail in them Bailable Offence
The grant of bail is a right available to the accused in case the offence is a bailable offence. It may be given either by the court under whose jurisdiction the offence falls or a police officer having the custody of the accused. The accused may be released on bail, on executing a “bail bond”, with or without furnishing sureties. The “Bail Bond” might have certain terms and conditions, For instance:
The accused is not allowed to leave the territorial jurisdiction of the state without seeking permission of the court or the police officer. The accused shall be present before police officer every time he is asked to do so. The accused cannot tamper with the evidence whatsoever, which the police have considered in the investigation. Moreover, in case the accused person granted bail doesn’t adhere to the conditions of the bail bond, the court also has the power to refuse bail even if the offence is bailable.
Examples of Bailable Offence
• Participation in an unlawful Assembly.
• Participation in riots and being armed with a deadly weapon.
• Disobedience of a direction of the law by a public servant with an intention to cause injury to another person.
• In case a person, with a fraudulent intention, wears a garb or carries a token used by some public servant.
If a person is caught giving a bribe during election campaigns.
• If a person’s statement in connection with elections is found to be false
• Refusal of a public servant to take oath when he is duly required to take one
• Obstruction of a public servant in discharge of his public functions.
• Giving or fabricating a false evidence in any kind of judicial proceedings.
• If a vendor/ seller sells any food or drink as food and drink despite knowing it is poisonous.
• Creating disturbance/ nuisance in a peaceful assembly engaged in religious worship.
Non Bailable Offence
A non bailable offence refers to committing a crime in which the accused doesn’t have the right to get bail granted. The accused has to seek the court’s permission, and bail is granted based on the facts upon the discretion of the court.
However, the court may choose to refuse the Bail, if, the “Bail Bond” is not duly executed, or if the offence committed is of grave nature, which imposes life imprisonment or death punishment, such as murder, rape etc. or in cases where the accused has attempted to abscond, evade his arrest by hiding and also, if his credentials are doubtful.
The bail application shall be filed before the Magistrate conducting the trial. After being filed, the application is usually listed on the next day. On such day, the application is heard and the police present the accused in court. The Magistrate may pass such orders, as he thinks fit.
Examples of Non- Bailable Offence
• When a person commits or even attempts to commit a murder under Section- 302 and 307 of the Indian Penal Code.
• Committing or even attempting to commit rape defined under Section- 376 of the Indian Penal Code.
• Cases of dowry death under Section- 304 (B) of the Indian Penal Code.
• If a person voluntarily causes grievous hurt defined under Section- 326 of the Indian Penal Code.
• When a person or persons kidnap another individual defined under Section- 363 of the Indian Penal Code.
When can bail be denied/ granted
1. Bail cannot be denied unless the offence of the highest magnitude is charged and by law the punishment of committing it is of extreme gravity.
2. Bail can be denied if there is a chance of the applicant obstructing the witnesses for prosecution or otherwise interfering in the process of justice.
3. Bail can be denied on grounds of objectionable past record of the accused who is applying for bail particularly since that suggests that he is likely to commit another serious offence while on bail.
4. Bail can be denied if it is suspected that the course of justice would be prevented by the person seeking bail for the time being.
5. Bail can be denied to an accused if he has been in the past convicted of an offence punishable with at least 7 years imprisonment, life imprisonment and the death penalty and/ or has been earlier convicted in cognizable offences on 2 or more occasions.