All About Bail in India

Bail is a derivative of the French word bailer, which means “to give” or “to deliver.” In order to ensure that a person will appear at the trial and be there to receive the punishment if found guilty, the individual is arrested and detained in jail. Until one is proven guilty, they are assumed innocent. In this article you will learn all about bail in India. how to get bail in India and its type and process.

Bail is a legal concept that allows individuals who have been arrested and charged with a crime to be released from custody while awaiting trial. It involves paying a certain amount of money, known as a bail bond, as a guarantee that the defendant will appear in court for their trial.

Bail is directly related to the concept of Article 21 of the Constitution. The idea of Article 21 of the Constitution is intimately tied to bail. Since denying bail violates the fundamental right to personal liberty, Article 21 of our constitution states that the curial responsibility to deny bail “is a tremendous trust exercised, not casually but judicially, with a keen concern for the cost to the person and the society.[1]

BAIL

Temporary release of the accused from the custody of police as well as judicial release is done after furnishing the bail bond.

WHAT IS BAIL?

Bail means the temporary release, of an accused person from jail or prevents the person from arrest under any criminal offence, by furnishing surety bonds or personal bonds as directed by the court.

OBJECTIVES OF BAIL

• Principal object of bail is to secure the attendance of the accused at the trial and

• To ensure that the accused does not flee from justice.

THERE ARE TWO TYPES OF OFFENCES:-

1. BAILABLE OFFENCE

According to Section 2 of The Code of Criminal Procedure from 1973, the bailable offence is defined.(a) An offence that is listed as being bailable in the First Schedule or that is made bailable by any other legislation now in effect is referred to as a “bailable offence.”

In other words, when a person committed a crime of a bailable offence, the accused has the right to release from custody on bail upon providing the necessary surety bond or personal bond.[2]

2. NON-BAILABLE OFFENCE

Non-bailable offences are those that are not subject to a bail requirement. The accused in non-bailable charges do not have the right to obtain bail. Bail is a discretionary authority of the court that is based on the facts, circumstances, and seriousness of the conduct.

 

DIFFERENCE BETWEEN BAILABLE AND NON-BAILABLE OFFENCE

 

BAILABLE OFFENCE	NON BAILABLE OFFENCE
1.            BAILABLE OFFENCES means an offence which is shown as bailable in the first schedule or which is made bailable by any other law for the time being in force. [section 2(a), Cr. P.C.]	1.            Non-bailable offence means any offence which is not bailable. [section 2(a), Cr.P.C.]
2.            These offences are generally regarded as less grave.	2.            These offences are grave.
3.            The court has the power to grant bail.	3.            The court is not bound to grant bail.

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BAIL IN BAILABLE OFFENCES:-

If an accusation is for a crime that qualifies for bail, the accused may request bail. Bail is a right, not a favour, in cases when it is permissible. By posting surety bonds, the court or the police officer can release someone on bail. When it appears that the accused person is willing to give bail, the police officer or court before whom he offers bail is bound to release him on such bail terms as appear reasonable to the officer or court.

It would even be open to the officer or the court to discharge such a person on his executing a bond as provided in the Section instead of taking bail from him.[3]

However, where the offences alleged are both Bailable and Non-Bailable, the offence would be tried as Non Bailable offence, and the benefit of securing Bail on the premise of a bailable offence the offender would not be eligible for a bailable crime.

BAIL IN NON-BAILABLE OFFENCES:-

The accused has no right to bail. Bail can be granted by the court and officer-in-charge of the police station who arrested or detained without warrant a person or suspected of the commission of a non-bailable offence but the court has the discretion to give it or not give it.

The decision to grant bail is typically made by a judge or magistrate based on several factors, which can vary depending on the jurisdiction and the specific circumstances of the case. Here are some of the factors that are commonly considered:

 

• The severity of the alleged crime: Judges may consider the nature and seriousness of the alleged crime when determining whether to grant bail. More serious offenses may make it less likely that bail will be granted.

• The defendant’s criminal record: A defendant’s criminal history can be taken into account when considering bail. If the defendant has a prior history of criminal behaviour, it may make it less likely that they will be granted bail.

• The risk of flight: One of the primary concerns in granting bail is whether the defendant is likely to flee the jurisdiction and not show up for their court appearances. Judges may consider the defendant’s ties to the community, such as employment, family, and other factors that could indicate whether they are likely to flee.

• The danger to the community: Judges may also consider the risk that the defendant poses to the community if they are released on bail. If the defendant is considered a danger to others, it may make it less likely that bail will be granted.

• The strength of the prosecution’s case: Judges may consider the strength of the case against the defendant when deciding whether to grant bail. If the evidence against the defendant is strong, it may make it less likely that they will be granted bail.

• The defendant’s character and behaviour: The defendant’s character and behaviour, both in and out of court, may be taken into account when considering bail. A defendant who is respectful and cooperative may be more likely to be granted bail than one who is belligerent or uncooperative.

• The availability of support: The defendant’s access to support, such as family or friends who can vouch for them, may also be considered when determining whether to grant bail.

Overall, the decision to grant bail is a complex one that takes into account a variety of factors. The goal is to balance the defendant’s right to be free pending trial with the need to ensure that they will show up for court and that the community is not put at risk.

Whether a person accused of a non-bailable offence can apply for bail?

Yes, a person accused of a non-bailable offence can apply for anticipatory bail, regular bail, default bail and interim bail.

THERE ARE FOUR TYPES OF BAIL:-

• Anticipatory Bail:- Anticipatory bail is a bail that is granted to a person, even before an arrest. Any individual may petition for anticipatory bail u/s 438 in the court of the session or high court if they have cause to think they will be arrested on suspicion of committing a crime for which there is no possibility of bail. There is no need for FIR to be lodged against a person to apply for anticipatory bail. Even after filing an FIR, a person can request anticipatory bail, but only before being taken into custody.

• Regular Bail:- Regular bail is a bail that is granted when an accused has already been arrested or detained in police custody. Once regular bail is granted it will be valid until the trial ends. An individual can apply for regular u/s 437 of Cr.P.C.

• Default Bail:- The relief of default bail is different from anticipatory bail, regular bail and interim bail. Default bail is given u/s 167(2) Cr.P.C., when the police or investigating official fails to submit their report or complaint within a predetermined amount of time.

• Interim Bail:- Interim bail is a temporary bail, which is granted by the court during the pendency of any application and for a limited period. It will only be issued if certain requirements are satisfied. Interim bail can be extended until Anticipatory Bail or Regular Bail application is pending before the Court.

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CONCLUSION:

Bail is an important aspect of the criminal justice system, as it balances the rights of the accused with the need to ensure that justice is served. Bail decision are made by judges, who consider a range of factors, such as the severity of the crime, the accused’s criminal record and the risk of flight or danger to the community. Ultimately, the decision to grant or deny bail is based on the unique circumstances of each case.

CASE LAWS:
[1] Gudikanti Narasimhulu Vs Public Prosecutor, High Court of Andhra Pradesh
[2] Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)
[3] Sushil Suri vs State And Anr. on 3 May, 2006