Regular Bail : Bail After Arrest

INTRODUCTION

When the game of bail started in court? BAIL is the first thing that comes to the person’s mind as soon as the police arrest and apprehend them. So, before proceeding further, let us know what is Arrest. The word “arrest” derives from the French word, which means to stop or to stay. We can define “ARREST” as putting physical restraint on a person as a result of accusations that the person has committed an offence or a crime against any person or property. After committing a crime, he will be arrested or apprehended to be arrested, now it is time where the term Bail to come into the picture. If the person is arrested he need to apply Regular bail, bail after arrest.

There Are Some Factors While Considering a Bail Application

• When there is reasonable ground or prima facie to believe that the accused had committed the crime or offence;
• Nature and gravity of allegations;
• Severity of the Punishment;
• The position and status of the accused with the victim and witnesses;
• The possibility of the accused absconding, tampering with evidence, obstructing the course of justice likelihood of the offence being repeated if released on bail.

Before the arrest, a person can go for anticipatory bail but if a person has already been arrested then he has to file regular bail after filing of chargesheet. Regular bail, after filing chargesheet, is granted when an accused has already been arrested or detained in police custody.

Once FIR is lodged, police will start their investigation as per the procedure prescribed under section 167 of the Criminal Procedural Code 1973. Article 22 (2) of the Constitution of India, “Once the accused is arrested, will be produced before the court of the magistrate within 24 hours of his arrest”. It is the right of the arrested person to be produced before the magistrate without unnecessary delay. Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint is genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified.[1]

The police will send the accused into police custody or judicial custody to interrogate him and the police have to complete their investigation and file a chargesheet against the arrested person/accused, the time for filing of the chargesheet is 90 days, where an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days, where the investigation relates to any other offence.

If the police do not file the chargesheet within the prescribed time, then the accused will be entitled to default bail. The Apex Court held that because the police had not submitted the charge sheet, the appellant had acquired an indefeasible right to be released on bail on the expiry of 90 days from the date of his arrest, and, hence, there was no reason to continue the appellant’s detention.[2] If the time of the investigation is expired, no court has the power to extend the period of investigation in terms of section 167 of the Criminal Procedural Code, 1973.[3]

When a superior court has declined to grant bail on merits then a sub-ordinate court can not entertain an application of bail unless it is for default bail.[4] Hence, subsequent bail applications should be put up before the same judge who disposed of the earlier bail application.[5]

Can factors like gravity and seriousness of offence be basis for refusing regular bail?

No, these factors can not be the basis for refusing bail, the courts will exercise their discretion power in granting bail.[6]

The Supreme Court issued guidelines for granting regular bail after the filing of a chargesheet for the first time. Furthermore, it held that trial courts are not precluded from granting interim relief considering the conduct of the accused during the probe.[7]

The requisite conditions are :-

• The accused is not arrested during the investigation.
• The accused cooperated throughout the investigation including appearing before Investigating Officer whenever called.
• The offences are divided into four categories A, B, C & D.

CATEGORY A: Offences Punishable With Imprisonment Of 7 Years Or Less

After filing of chargesheet/complaint taking cognizance;

• Ordinary summons at the 1st instance/including permitting appearance thorough Lawyer.
• If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
• NBW on failure to failure to appear despite issuance of Bailable Warrant.
• If the accused moves such an application on their behalf before the execution of the NBW, undertaking to appear physically on the next date/s of hearing, the court may cancel or convert the NBW into a Bailable Warrant/Summons without insisting on the physical appearance of the accused.
• The court may decide bail applications of such accused on appearance without taking the accused into physical custody or by granting interim bail until the bail application is decided.

CATEGORY B & D: Offences Punishable With Death, Imprisonment For Life, Or Imprisonment For More Than 7 Years.

On the appearance of the accused in Court under process issued bail application to be decided on merits.

CATEGORY C: Offences Punishable Under Special Acts Containing Stringent Provisions For Bail Like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), Etc. D) Economic Offences Not Covered By Special Acts

Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc. ”Needless to say that category A deals with both police cases and complaint cases.

Grounds of bail after the chargesheet is filed:

• If the court keeps the accused in custody throughout the trial and later finds that the accused did not commit the offense, it would cause injustice to the accused.
• The accused participated in investigation and was not arrested.
• The investigation is completed and custody is no longer required of the accused.
• The accused appear before the investigation officer as and when called for.
• The police collected all the evidence during the investigation, and there is no possibility for the accused to destroy the evidence. Therefore, the court should grant bail after the charge sheet is filed.

Whether regular bail can be cancelled?

Yes, the Code of Criminal Procedure makes clear provisions for cancellation of bail and taking the accused back in custody. Section 437(5) states that any court, which has released a person on bail under sub-section (1) or (2) of section 437, may, if it considers it necessary to do so, direct to arrest such person and commit him to custody. Similarly, s. 439 confers on the High Court and the Court of Session’s power to cancel the bail. The concerned court imposes some conditions on the accused before granting bail, and if the accused violates these conditions, the court can cancel his bail.

Whether excessive conditions be imposed while granting Bail or Suspension of the sentence?

Courts can not impose excessive conditions when granting bail or suspending a sentence. The apex court held that jail is the exception, the grant of bail is the rule, and the conditions imposed on bail must not be unreasonable.[8]

CONCLUSION

In conclusion, the concept of bail has a long-standing history in the legal system, originating from the need to safeguard an individual’s right to liberty while facing accusations of committing a crime. After arresting a person, the process of regular bail comes into play, and it plays a vital role in ensuring that justice is meted out fairly. The factors considered while granting regular bail after filing of chargesheet, such as the nature of the allegations, severity of the punishment, and the likelihood of the accused fleeing or obstructing justice, are crucial in determining the appropriateness of granting bail.

[1] Joginder Kumar v State of UP, AIR 1994 SC 1349

[2] Ateef Nasir Mulla vs State Of Maharashtra (2005)7 SCC 29

[3] Achpal @ Ramswaroop & anr. V. State of Rajasthan [4] Jayaraj v. State of Kerala (2009) [5] Sharad Kumar v. CBI (2012) [6] Prabhakar Tiwari v. U.P (2020) [7] Satender Kumar Antil vs CBI 2022 [8] Guddan @ Roop Narayan Vs State Of Rajasthan, 2023