Conditions for Bail in India

Bail is a rule and Jail is an exception

ARTICLE 21 of the INDIAN CONSTITUTON, enshrines that ‘Every citizen of India has a fundamental right to freedom guaranteed under Article 21 of the Indian Constitution’, which specifically states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

 

Meaning of Bail

Definitions:

Cambridge Dictionary subtly defines bail as, an amount of money that a person who has been accused of a crime pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial.

Bail is the temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing, as per the Merriam Webster (dictionary)

Basically Bail is a sum of money that an arrested person or someone else puts forward as a guarantee that the arrested person will attend their trial in a law court. If the arrested person does not attend it, the money will be lost.

 

INTRODUCTION

 Any individual, who violates the law of the land, is bound to face consequences as per the law and in such a case, his freedom may be restricted depending upon the gravity of offence as such committed. Every accused that has been frivolously charged with the allegations of a non-bailable offence is not only entitled to a good defense but also to be released on bail, by the Court. The court contemplates various factors before deciding the case fit for bail such as nature or seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other factors.

It is the solemn duty of the Court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. And these prevailing facts and circumstances becomes the condition for bail.

 

Ponder Points At Time Of Bail

At the time of deciding the application seeking bail, the Court ostensibly looks at the prima facie material available and does not go into the merits of the case by appreciation of evidence. At the time of grant or denial of bail in respect of a non-bailable offence, the primary consideration is the nature and gravity of the offence. While adjudicating bail applications, the Courts only go into the question of prima facie case established for granting bail. The Court normally refrains going into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

 

Bail as per Indian law:

Section 437 of the Code of Criminal Procedure of 1973 empowers the Court to impose certain conditions deeming fit at the time of granting bail.

The Criminal Procedure Code elucidates the bail process and how it is obtained. However, it does not define bail. To get a glimpse of the law, one needs to go deeper to section 2(a) of Criminal Procedure Code wherein it says that bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense.

Thus, section 2(a) of Criminal Procedure Code 1973 talks about schedule which refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories which have been determined according to the nature of the crime. For instance, all serious offenses like offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses, all other offenses have been kept bailable offenses.

The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vita has stated few factors to be taken into consideration, before granting bail, namely:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3.  iii) Prima facie satisfaction of the Court in support of the charge.

 

Types Of Bail In India

There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal matter:

1. Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the Code of Criminal Procedure of 1973.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
3. Anticipatory Bail: A person, who discerns that he may be arrested by the police for a non-bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the Code of Criminal Procedure of 1973. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.

 

Bail and it’s condition

The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors, has held that, “the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.” Other relevant grounds which play a vital role in deciding the bail application are – the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It is essential that the Courts should provide investigating authorities with reasonable time to carry out their investigations. It is equally necessary that the Courts strike a correct balance between this requirement and the equally compelling consideration that a citizen’s liberty cannot be curtailed unless the facts and circumstances completely justify it. Upon the literal interpretation of the Section 437 of Code of Criminal Procedure 1973, it is observed that the legislature has used the words “reasonable grounds for believing” instead of “evidence”. Thus, the Court has merely to satisfy as to whether the case against the accused is genuine and whether there is prima facie evidence to support the charge.

Conditions In Bailable Offences

Section 436 of the Section 437 of Code of Criminal Procedure 1973 lays down that a person accused of any bailable offence under the Indian Penal Code 1860, can be released on bail.  Bailable offences falling under the Indian Penal Code 1860.

In any of the above-mentioned offences, a person can apply for bail. However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offence:

1. There are sufficient reasons to believe that the accused has not committed the offence.
2. If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
3. The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years.

 

Conditions For Bail In Non-Bailable Offenses

An accused does not have the right to apply for bail in case of a non-bailable offence. The power to release a person on bail in a non-bailable offence lies with the court. Section 437 of Code of Criminal Procedure 1973 lays down the power of court to grant a bail to a person even in a non-bailable offence.

A person can apply for a bail in non-bailable offence. The conditions on which the court grants a bail in a non-bailable offence are as follows:

1. That all the allegations leveled against the applicant are false, frivolous in nature and is a complaint which has been filed with a motive to harass the accused/ applicant.
2. That the applicant is a citizen of India having no criminal record and clean antecedents.
3. That there is no iota of evidence which can point at the commission of the alleged offence by the accused/ applicant.
4. That the accused/ applicant is the sole bread earner of his family and subjecting him to incarceration in a false complaint would not only ruin his life but will simultaneously have adverse impact on the lives of his wife and children.
5. That the accused is not an imminent danger to the public tranquility and safety.
6. That the accused/ applicant undertakes to fully co operate with investigating agencies and ensure his presence before the Ld. Court as and when required to do so.
7. That the accused/applicant would not engage in destruction and tampering of evidence if he is released on bail.
8. That the accused/ applicant would not be detrimental to the prosecutrix in any manner and would not threaten the prosecutrix or any other family member of the prosecutrix.
9. That no purpose would be solved if the accused is incarcerated.
10. That the applicant will not attempt to escape the clutches of law, if released on bail.
11. That the applicant further undertakes to abide by all the conditions as the Hon’ble Court may deem fit in grant of bail to the accused/applicant.
12. That no such application is pending before any other Court in the territory of India including the Apex Court.

 

Conclusion

It is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. The Court, at the time of adjudicating bail applications, after taking such factors into account, is at liberty to impose reasonable conditions to be abided by the applicant.

It is essential that the Courts should provide investigating authorities with reasonable time to carry out their investigations. It is equally necessary that the Courts strike a correct balance between this requirement and the equally compelling consideration that a citizen’s liberty cannot be curtailed unless the facts and circumstances completely justify it. Upon the literal interpretation of the Section 437 of Code of Criminal Procedure 1973, it is observed that the legislature has used the words “reasonable grounds for believing” instead of “evidence”. Thus, the Court has merely to satisfy as to whether the case against the accused is genuine and whether there is prima facie evidence to support the charge.

The primary objective of the provisions providing for the bail should not be to detain and arrest an accused person but to ensure his appearance at the time of trial and to make sure if the accused is held guilty, he is available to suffer the consequence of the offence as such committed, in terms of punishment in accordance with the law. It would be unjust and unfair to deprive the alleged accused of his liberty during the pendency of the criminal proceeding against him. The release on bail upon appropriate considerations and imposition of reasonable conditions is significant not only to the accused, and his family members who might be dependent upon him but also the society large, hence the Court is duty bound to contemplate the facts and circumstances prevailing in the matter and strike a balance between considerations and imposition of the reasonable conditions and then pass the appropriate order.

However, it must not be taken for granted that a bail once granted is a perpetual immunity of end of trial as even a bail can be cancelled.

The court has the power to cancel a bail granted even at a later stage. The power of the court is laid down under Section 437(5) and 439(2) of Code of Criminal Procedure 1973. The court can cancel the bail granted by it and give directions for the arrest of the person in police custody.

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