What’s Bail? and Types of Bail Under Code of Criminal Procedure 1973 In India

INTRODUCTION: French word Bailera means To Give or Deliver. From this word, the word bail has been derived and this means the short-term release of an accused person awaiting trial. Bail is the judicial release of an accused charged with a certain offence by imposing some restrictions on him and compelling him to remain within the jurisdiction of the court.

We know the democratic governments in the UK i.e. England has incorporated the idea or judicial means of bail and later on India also introduced this concept. The concept of bail has come under the extent of human rights since the UN declaration of Human Rights of 1948. Law Commission of India in its 41st report recommended the concept and the parliament of India incorporated it in the criminal procedure code, 1973.

CATEGORIES OF OFFENCES:  There are two categories of offences. First is a Bailable offence (it is the type of offence in which the accused person is granted bail. Under section 2 (a) of the code this term has been defined) and second is, Non-Bailable offence (it is the type of offence in which accused is not entitled to get bail). So, the question that lies here is that 'cases in which bail may grant'? In the case of a bailable offence, it is mandatory for the court to grant bail to the accused person and in cases of non-bailable offence, it depends on the discretion of the court. If the court thinks fit, it may grant bail to the accused or not.

TYPES OF BAIL: There are commonly 3 types of bail in which the accused can seek his remedy. The provisions relating to the bail and bonds have been given under section 436 to 450 of the Criminal Procedure Code. These provisions foresee in the code gives the brief concerning the provisions of the bail.
Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
Regular bail- Regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
Interim bail- This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
Anticipatory bail- Anticipatory bail is granted under section 438 of CrPC either by the session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offence.
When accused released and How to collect the bail order and release warrant?
After bail application is allowed, the accused person if he is present before the court, is released on the spot after furnishing bail bonds and sureties. And if the accused person is in jail, then the order copies and release warrant shall be collected from court by hand as Hamdast and sent to the jail superintendent. Then after verification, the accused is released from jail.
Generally, the court doesn't send online court copies. The applicant through his advocate has to apply for copies he required. Later on, he has to pay fees as per application i.e. urgent or ordinary, then he will receive the copies after two three days. But if someone want, online copies, it is provided free of cost, on the e-court website. But these copies are not certified copies. They are used just for knowledge and reading judgments or orders. For court business purposes, one must acquire certified copies in the traditional way.
1. Section 436 (in what cases bail is to be taken) – This section makes provision for a bail of a person who is accused of any offence other than non-bailable offence. This section also empowers the court to grant the bail only on executive bond from the accused without furnishing any surety and also an indigent person may be discharged on executing the bond. The conditions of bail which is given under this section are:

1. He has been arrested or detained without a warrant by an officer in charge of a police station.
2. He suo muto appears or brought before a court.
3. He must be prepared at any time while in the custody of such officer or at any stage of the proceeding before the court to give bail.

The power of the magistrate to grant bail doesn't depend on his competence to try the case but on the punishment prescribed for the offence. As the Supreme Court has observed, ‘Bail and Not Jail’ in this section bail is the legal and fundamental right of the accused and court is also bound to grant bail to the accused only under bailable offence.

Section 436(A) of CrPC- Inserted in 2005 the section deals with the maximum period for which an undertrial prisoner can be detained. As per the section, if a person has go through detention for a period of nearly one half of the maximum period of imprisonment describe for the offence for which he is being tried, he shall be free by the Court on a personal bond with or without guarantee. This imprisonment must be during the investigation, inquiry or trial of the case and not during the serving of judgment after the conviction.

The Court can also order imprisonment for a longer period than one half of the said period or get a release on bail in lieu of the personal bond if it deems this fit with reasons after listening to the Public Prosecutor. A person can nevertheless not be detained even by court order after the maximum length of imprisonment provided for the offence during investigation, inquiry or trial even if release is not permitted. It does not apply to persons charged for the offences including the death sentence.

Section 437 (Bail in non-bailable offence)- This section is related to JMFC. When any person accused of or suspected of the commission of any non-bailable offence is arrested on detained/appears or is brought before a court (other than High court/ Court of Session), he may be released on bail, but such person shall not be released:

If there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. If such offence is a cognizable offence and he had been previously sentencing to an offence punishable with death, life imprisonment for 7 years or more, or he had been earlier convicted on two or more instance of a non-bailable and cognizable offence.

But a person who is: Under the age of 16 years, A woman, A sick or Infirm person may be released on bail even if the offence charged is punishable with death on the imprisonment for life or the accused is previously convicted.

This section also provides other mandatory provision (for example – according to 437(2), if there is no sufficient ground for believing that the accused is guilty of a non-bailable offence but there is sufficient ground for further inquiry, he can be released on bail) and guidelines while granting bail (nature and seriousness of the offence, reasonable apprehension of witness being tempered etc.).

Section 438 (Anticipatory Bail)- Generally the bail is provided after the arrest but anticipatory bail is granted before arrest. It’s a pre-arrest bail that is taken prior to arrest. When the courts feel that the accused is falsely involved in the case and arrest would harm his honour and dignity then with imposing certain conditions court grant anticipatory or pre-arrest bail to the accused person.

Grounds of Anticipatory Bail- There should be reasonable apprehension of the arrest. The pre arrest bail is granted by the court only when the person satisfies the court that he is falsely involved in the case. Pre arrest bail is only granted in matters of non-bailable offences and application must be given before the arrest of the accused

Powers- Both the session court and the high court has the power to permit anticipatory bail but according to the rules first application of anticipatory bail must be filed in session court and if it rejects it. then the accused can challenge it in the high court.

Section 439 (special power regarding bail)- The High Court or Court of Session can issue a direction that any accused person in custody should be released on bail. If the offence is of the nature defined in 437(3). It can direct any condition imposed by a magistrate when releasing any person on bail be set aside or modified.

HOW THE BAIL CAN BE CANCELLED? If the accused person to whom, the concerned court has granted bail, breaches conditions mentioned in the bail order, the bail can be cancelled. The power to cancel the bail has been given to the court and not to the police officer. Secondly, the court which accepted the bail can alone cancel it under section 437 (5) and 439 (2) as the case may be. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of the bail in such a situation, the power of the high court or session court has to be involved. In this case, the court can cancel the bail granted by it and give directions to the police officer to arrest the person and keep him in police custody.

CONCLUSION- Thus the basic law relating to bail is laid down in sections 436, 437, 438 and 439 of the code. Generally, the registration number to the bail application is given on the same day as it's an urgent matter. 

The Editor

भारतीय संविधान आणि भारतीय कायद्यांबाबत, तसेच कायदीय चालू घडामोडी, न्यायालयांचे निकाल, निर्णय, आदेशा याबाबत मराठी आणि इंग्रजी अशा दोन्ही भाषेतून वाचकांना ज्ञान मिळावे यासाठी हा ब्लॉग सुरू करण्यात आला आहे. कायद्याचे अभ्यासक, वकील, विद्यार्थी हे सुद्धा या ब्लॉगवर आपले लेख प्रसिद्ध करू शकतात. संपर्क:- अ‍ॅड. रावण धाबे, raavan@yahoo.com

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