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Obtaining Bail in a Criminal Case: Lawyers Advice

 > Anticipatory Bail & Regular Bail  > Obtaining Bail in a Criminal Case: Lawyers Advice

Obtaining Bail in a Criminal Case: Lawyers Advice

Unlike a Bailable offence, Bail is not a right of the accused in a Non-Bailable offence in light of the seriousness of the crime committed. Section 437 of Cr. P.C. authorizes the discretion to the Court to release any person who is accused of the commission of any Non- Bailable offence when he is arrested or detained without a warrant by an officer in charge of a police station. The Court has to entirely use its discretion considering the circumstances of the case, bearing in mind the liberty of accused and principles of law. The prime objective behind arresting the accused is to ensure that he suffers the severe rigors of the legal system, when proved guilty in the future or that the accused does not influence the investigations by tampering with the prosecution evidence. On the other hand, if the Court has adequate grounds to suspect that the concerned case might require furthermore criminal investigation to show the guilt of the person leaving no room for doubt, then such a person should be enlarged on bail (Shahzad Hasan Khan v. Ishtiaq Hasan Khan, 1987 AIR 1613).

Under Section 437 of the Cr. P.C, any Court barring the High Court or the Court of Sessions¬ might not release the accused after his arrest or detention, when presented before a Court on bail, provided the Court has an adequate rational ground to be of the opinion that he is guilty of a crime that is punishable with life imprisonment or death. Additionally, the Court shall not release the accused, if the offence committed is cognizable or in case he was formally convicted for an offense punishable with imprisonment for seven years or lifetime or death. If, the accused had been previously convicted for at least two times of an offence that is Non-Bailable and cognizable, then in such cases too the Court shall not release the accused. In situations where the accused is re-arrested after he has either absconded or wherein a summons has been issued due to non-appearance in the Court, then such individuals should not be released on bail unless the Court records certain special reasons to grant bail. (Aarun Basha Vs. The State, Criminal Original Petition No.28952 of 2018).

The investigating officers might grant bail to the accused if they are of the opinion that the detention of the accused is not needed for the purpose of investigation or if there is a requirement for further investigation. In such instances, he may be released on Bail Bond without sureties, however, there should be sufficient reasons to be of that opinion so. Even though criminal proceedings are not guided by principles of Res Judicata and other principles analogous to aforesaid, still, the Courts in India are bounded by the principle of judicial discipline, in light of the hierarchical system prevailing in the country (Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, AIR 2005 SC 921). In circumstances where the trial of an accused person in a case triable before the magistrate is not concluded within sixty days from the day one of investigation, in such cases, the accused shall be released from custody on bail to the magistrate’s satisfaction, unless he has recorded any special reason for not doing so (Section 437, Cr. P.C.).

Having said so, the Court shall release the accused person, arrested or detained in a Non-bailable offense if he/she is below sixteen years or is a woman or is sick. The discretion is entirely upon the Court ad that it may release the accused for any special reason that it may deem fit in the light of the circumstances. Recently. the Delhi High Court had granted bail to a woman accused in a Dowry death case registered on 5th December 2020 since the Court observed that prolonged detention of a two-year-old aged child in jail, even in the custody of his mother would have a forceable implication on his overall physical and mental development (In Bail Matter No. 1132/21 dated 31.03.2021 before Additional Sessions Judge 04(SW), Dwaraka Courts).

The advocate on behalf of the accused can file the Bail Application before the Court under Form 45 present in the Second Schedule for his release in custody. Additionally, the advocate has to submit a certificate issued by the jailer, verifying the duration of the jail detention. The Code casts a duty upon the accused to furnish a Bail bond along with sureties before the respective Court, after which he is released on bail. The accused is required to submit copies of at least two documents along with the bail application such as passport, Ration Card, Bank Passbook, Voter Id, Electricity bill, etc. Additionally, he has to submit a list of at least three blood relatives along with the detailed residential address accompanied by documentary proof evidencing the correctness of details. The accused and every individual acting as a surety has to update the police station and the Court granting bail with their residential address immediately, in case of any change.

If the Court, at any subsequent stage betwixt the conclusion of the trial and the final delivery of the judgment, hold the opinion that there lack sufficient reasonable grounds to prove the guilt of accused in Non Bailable offense, then it shall release him from its custody. The release shall be contingent on the signing of a bail bond without sureties, to make certain his appearance before Magistrate for the final Court hearing. (Section 437, Cr.P.C.)

The discretion to grant or refuse bail in Non- Bailable matters has to be determined judiciously and cannot be frivolously commenced notwithstanding the standing relevant circumstances into proper consideration. (Ajay Kumar Sharma v. State of Uttar Pradesh, Criminal Appeal No. 1099- 1100 of 2005 Miscellaneous Bail Application No. 65 of 2003). As a matter of fact, in facultative situations such as a discretionary matter, it is unfeasible for the Court to evolve a straitjacket formula or lay down certain unvarying rules. Courts should exercise their discretion bearing in mind the concerning circumstances and factual matrix of the case. (Surinder Singh @ Shingara Singh v. the State of Punjab, AIR 2005 SC 3669).
Authored By: Adv. Anant Sharma & Lopamudra Mahapatra

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