Laws on Bail in India: Lawyers Advice
Bail is defined under the criminal law as the legal release of an individual from the police custody who is awaiting a Court trial and is charged with certain offences. In simple words ‘Bail’ means a kind of security or bond which is given to release a person from prison. India witnesses tons of crime on a daily basis but the police are successful in tracing the criminals who they believe committed the crime. However, many at times the accused might not be guilty but they are required to be behind the bars and the only way out of this is to get bail. In order t obtain nail the criminal defense has to be very strong.
How can a Person obtain Bail in India?
The term ‘bail’ is not defined anywhere in the Code of Criminal Procedure (Cr. P.C.) of 1973 but the terms ‘bailable offence’ and ‘non-bailable offence’ are defined in Section 2(a) of the Code of Criminal Procedure (Cr. P.C.) of 1973 In India, the provisions regarding bail are incorporated in the Code of Criminal Procedure (Cr. P.C.) of 1973. The Sections 436 to 450 deals with granting bails and bonds in cases of criminal nature.
Section 436 of the Code of Criminal Procedure (Cr. P.C.) of 1973
Section 436 of the Code of Criminal Procedure (Cr. P.C.) of 1973 facilitates bail for an individual that is arrested and it also makes it obligatory for the police officer on duty and also the Court to grant bail to the accused for committing a criminal offense that is bailable in nature. The accused shall be released on bail through a bond without any kind of sureties but if the person has failed to follow the bail-bond then that person can be refused bail.
While applying for bail, an individual must know the three kinds of bail –
Regular Bail: The Section 437 and Section 439 of the Criminal Procedure Code states that if a person gets arrested and is kept in custody then that person can be released on a regular bail.
Section 437 of the Code of Criminal Procedure (Cr. P.C.) of 1973
Under Section 437, if a person is detained for undertaking a non-bailable offence, without a warrant by a police officer or if there are a number of reasons to believe that there are not sufficient grounds to prove that the accused has committed any non-bailable offence, then he can be released. If he appears in any other Court apart from the Court of Sessions or the High Court this has to be followed. This particular person cannot be granted bail if there are reasons to believe that he is guilty of any offence punishable with a death sentence or life imprisonment or if he has been convicted earlier for an offence which has punished with punishments of the same nature. However, under this Section the Courts can again direct the arrest of that person.
Interim Bail: This bail under the criminal law is given for a temporary period of time before the procedure for granting a regular bail or anticipatory bail. This is because the granting of bail by the High Court or the Court of Session requires documents to be sent by the lower Courts which takes time. So during this period of time, the provision of interim bail is provided. Thus, the Interim Bail can be extended but if that period expires then the person to whom it is granted has to be put behind the bars again. In the criminal case of Govind Narain Johari vs. State & Anr. On 17th May, 2013 (CRL. M.C. 820/2013 & Crl. M.A. No. 2671/2013,) the petitioner, Govind Narain Johari has preferred petition under Section 482 of Criminal Procedure Code for setting aside the other dated 15/02/2013 of Learned Addl. Sessions Judge whereby bail granted to him was cancelled. Learned Senior counsel for the petitioner urged that the impugned order cannot be sustained as there was no material to cancel the bail granted by the learned ACMM vides order dated 27/06/2012. The complainant lodged false complaints to harass him after an inordinate delay of four years. She never lodged any complainant with him regarding quality of the articles supplied to her. He was arrested in FIR No. 218/2011 and was granted interim bail at first instance. Subsequently, the bail was confirmed.
Anticipatory Bail: Section 438 of the Criminal Procedure Code provides the direction for a person apprehending arrest for any reason to believe. Any person who anticipates that he/she can be arrested in pursuance of any accusation of committing a non-bailable crime can apply for the grant of anticipatory bail. The application has to be made to the High Court or the Court of Sessions.
According to this Section if a person is released then there are some conditions that needs to be followed i.e. the person has to be present during the investigation whenever required, that person cannot induce any person to disable him to enclose the facts against him during the proceedings, that person shall not leave India without the prior permission of the Court.
It is worthwhile first to briefly consider the criminal case of Sandeep Bhatra vs. State of Rajasthan & Another on 20th January, 2012 (S.B. Cr. Misc. Cancellation Application. No. 2975/2009) a short but an important question comes up for consideration in this case, as to when the order of granting of anticipatory bail becomes operative. The grievance of the informant petitioner is that the accused has violated the condition imposed by the High Court while granting anticipatory bail on 27/03/2009, which has compelled him to file this application for cancellation of bail under Section 439(2) of the Criminal Procedure Code with the prayer that the aforesaid order of anticipatory bail be cancelled.
Hence, Bail has proven as a remedy to let the innocent man be saved from spending his time in jail and also allows him to reinforce his case preparation while allowing the lawyer to make a strong criminal defense.
Authored By: Adv. Anant Sharma & Anugraha Sundas