Criminal Defense & Obtaining Bail: Lawyers Advice
Bail under the criminal law means the release of an accused or a convicted person contingent on personal bond or assurance to adhere to the conditions imposed by the Court. As per the provisions of Section 436 of Cr. P.C., if the supposed crime is a bailable offense, then the accused person shall be entitled to bail as a matter of his right before the police station itself or presuming it is referred to the Magistrates Court, then it shall be granted before the Magistrates Court. Bail is in point of fact an individual’s right and not his privilege. The code does not cast any discretion upon the Court in the light of granting bail in Bailable offences. As soon as it appears that the person accused or convicted for the commission of the bailable offence is prepared to offer bail, the police officer or Court before which he agrees to offer bail is under an obligation to release him on conditions. As an alternative to taking bail from him, it would also be open to the aforesaid authority to discharge the convict on his execution of a personal bond as provided in the Section (Sultan Kamruddin Dharani vs The Union Of India Criminal Writ Petition. No.865 of 2007).
It is beyond the shadow of a doubt that the accused can claim bail in a bailable offense as a matter of right to the police officer or the Magistrate, whatever the case may be. But, the accused is bound to be released on bail only if he is assenting to comply with the reasonable conditions which may be imposed on him ( Rasiklal vs Kishore, Criminal, Special Leave Petition No. 4008 of 2008). The Court might modulate and impose bail conditions in the light of the bail amount or the number of sureties. But, the Court is not bound to impose any condition that is irrational or incoherent to the terms of bail (Sona Goyal D/O Shri Manjeet Kumar Vs. Vipul Nagpal S/O Shri Darshan Lal, S.B. Criminal Miscellaneous Petition No. 7718/2018).
In the case of bailable offenses, the accused or the convicted person can file a Bail Application before the Magistrate’s Court by executing Form 45, which can be found in the Schedule II Cr. P.C. According to the terms of the Bail Bond as per Form 45, the Applicant must attend and appear on an everyday basis before the Court or whenever it desires, for investigation. And if the person defaults on the conditions of the bail, then the sum of the amount specified in the bail bond would be forfeited to the government by the Court. The Applicant is required to give his security for attendance before the concerned officer or Court (A.V. Mohammed Rafeek vs The Union Of India, Criminal Miscellaneous Petition No. 1734 of 2011). The surety must also declare himself to the Court that the accused shall appear before the Court on any concerned date when the accused is required to appear before the Court in the concerned case on any particular day whenever the Court holds any trial on the charge. The advocates who represent the accused must produce the bail bond along with an affidavit signed by the surety, true copies of authentic ID documents such as PAN and Aadhaar card, address proof, and most important documents with details of property belonging to the surety. The Court cannot reject a Bail Application, in case, the surety’s estate is situated in a different district. This is held discriminatory to Article 14 of the Constitution. (Motiram Vs. The State of MP, Criminal Petition No. 1703 of 1978 ).
The objective behind taking a surety is to ensure the accused’s availability in the Court by the person undertaking it, whenever the dates for the trial are fixed. Sometimes the Courts do not accept the surety from a poor person due to their inability to produce any documents about their property. The Court is under no duty to demand the production of any kind of property document from the accused or surety since it is violative of Article 21 of the Constitution. The Madras High Court in a criminal case held that even a poor citizen, including a beggar, is allowed to stand as surety in a bail matter, provided he has some acceptable residential proof such as ration cards, voter id, and Kisaan photo passbook (Moti Ram & Ors vs State Of M.P, 1978 AIR 1594, 1979 SCR (1) 335). However, it is important to note that Bail cannot be rejected based on the non-availability of surety. The Court shall release the accused on a personal bond if the accused fails to furnish the surety within seven days Deva Sagayam Vs. State, Criminal Miscellaneous Petition No.3888 of 2017).
The accused shall be released on bail if he has been detained for a period extending half of the maximum period of punishment that has been specified in the offense by the virtue of Section 436 A of the Cr. P.C. The Court in such instances may order for continued detention for longer than one-half after listening to the public prosecutor and recording reasons.
The criminal law with respect to the bail and the reasonable restrictions imposed by the Courts where the bail is granted including the criminal defenses and the grounds taken while presenting the bail application is somewhat not that straight to decipher. The criminal defenses vary from case to case and to a given extent is dependent upon the contents of the criminal complaint including the accusations levelled and the evidences in support thereof. The statement of the Investigating Officer, the Action Taken Report submitted before the Court and the stage of the criminal trial is of equal importance.
Authored By: Adv. Anant Sharma & Lopamudra Mahapatra