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Bail in Indian criminal law: An in-depth exploration
INTRODUCTION:
Bail stands as a fundamental and integral component within the criminal justice system, enabling individuals accused of a crime to secure release from custody while awaiting trial. It serves to uphold the accused's right to a fair trial.
Black’s Law Dictionary defines Bail as “To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court. To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called “bail,” because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, (that is, become bail for his due appearance when required,) in order that he may be safely protected from prison”.
This piece offers a comprehensive examination of bail, encompassing procedural details, essential factors to consider, typical grounds for bail application rejection, legal regulations, and situations where bail may not be granted.
TYPES OF BAIL:
1.Regular Bail: Section 437 and 439 of the Code of Criminal Procedure(Cr.P.C.) deals with the term regular bail that allows the release of the accused. This type of bail is granted to the individual or accused who are already in the custody/jail.
- Section 437 is applicable to the bail applications/petitions before the magistrate’s court, whereas,
- Section 439 is applicable to the bail applications before the Court of Sessions or High Court.
2. Anticipatory Bail: Section 438 of the Cr.P.C. talks about the term “anticipatory bail”. By the name itself we can find out that an application for a bail in anticipation because of many grounds like fear of getting arrested in future or has a reasonable belief or because of any false allegations in future that could lead to arrest. In such type of matters, this category of bail is applied.
- Before the Sessions Court at district level, and
- Before the High Court at the state level.
3. Interim Bail: Well it is a temporary bail granted by the court while any particular application is ongoing before or an anticipatory bail or a regular bail is heard by the court. And once the bail term is expired the accused can be arrested without warrant if he/she fails to produce himself before the court.
CLASSIFICATION OF OFFENCES BEFORE THE BAIL PROCEEDURE:
The offences committed are categorized as “Bailable or Non–Bailable Offences "on the basis of the severity or seriousness they possess and also to get a clear view to decide whether to grant or dismiss the bail.
Bailable Offences: There are certain offences that are considered not so heinous or serious in nature, but are punishable according to law, with an imprisonment of not more than three years or with a fine only. Section 2(a) of the Cr.P.C. clearly defines the term bailable offence.
- Cases of theft, defamation, simple assault, causing hurt are the few examples that comes under the ambit of bailable offence.
- Section 436 of the Cr.P.C. states about the provisions for bail in case of a bailable offence.
Non-Bailable Offences: Unlike the bailable offences where bail is a matter of right, bail in the matter of a non-bailable offence subject to court’s discretion, as the seriousness of the offence is considered to be higher as compared to that of the bailable offence. In such cases the accused has to appear before the respective court and provide appropriate reasons for the bail. Satisfied by which the court may grant the bail.
- Rape, Murder, Kidnapping/Abduction, Attempt to Murder, Dacoity etc. are some of the prime examples of the non-bailable offence.
- Section 437 of the Cr.P.C. provides the appropriate procedures for the bail in such types of matters.
BAIL PROCEDURE IN INDIA:
In case there is an allegation made against you or any person from your family, following are the steps that are followed in the criminal justice system that you will witness:
- Arrest: The accused will be arrested by the local police authorities for the offence he/she has committed or he is alleged to have committed any such offence.
- In case of bailable offence, the police may grant the bail but if there is an event of a serious crime, the court is there to take the matter in its own hands.
- Bail Application: The application for bail will be filed by the advocate or family member of the person arrested. Under the said provisions of the Code of Criminal procedure(Cr.P.C.) as stated above in this article. The bail application will include
- Details of the charges imposed.
- Background of the accused.
- Proposal for bail conditions.
- Hearing: After filing of the bail application, the process of hearing in the competent court will be held.
- Grant or rejection of the bail: After hearing, the court in its own discretion may approve or dismiss the application. It may grant the bail if it finds that there are sufficient reasons and reject if not satisfied.
- Conditions: Now after all the process, the court may impose certain conditions that the accused will have to follow and consider.
FACTS RELEVANT FOR CONSIDERATION OF BAIL APPLICATIONS:
- Seriousness of the offence: In bail proceedings within a court of law, the initial focus is on the charges laid against the accused. Whether it pertains to anticipatory or regular bail, the court evaluates the gravity of the offence before proceeding to make a decision.
- Criminal history of the accused: A proclaimed offender’s tag or prior criminal record can influence the court's decision. Many a times even if the court is inclined towards granting the bail, accused’s past or notorious background makes the court reluctant to pass the decision in his favor.
- Possibility of tampering the evidence and intimidating the witness: Should the court identify any potential for the accused to tamper with evidence or intimidate witnesses through violent or coercive means, there's a likelihood that the application will be unfavorably assessed.
- Trying to escape from the proceedings: Should the court determine that there's a risk of the accused fleeing the proceedings or a strong likelihood of escape, the bail application is likely to be denied.
- Repetition of same circumstances: Typically, in these instances, most applications face rejection because the court avoids reconsidering similar applications based on previously dismissed reasons. However, a fresh application could be submitted if there are notable changes in circumstances.
- Threat to public safety: In situations where there's a potential threat to public safety due to the release of a specific individual, the application tends to be dismissed.
If your bail application is denied and you believe there are legitimate reasons supporting your case, you have the option to appeal to a higher court.
SOME LANDMARK JUDGEMENTS REGARDING BAIL:
The case of “D.K Basu vs State of West Bengal”
The Supreme Court of India issued guidelines to safeguard individuals from custodial torture and other forms of police brutality. The court emphasized the importance of protecting the fundamental rights of individuals in custody and laid down specific procedures to be followed during arrest and detention. The judgment aimed to prevent the abuse of power by law enforcement authorities and ensure the dignity and well-being of individuals taken into custody.
Here are the 11 guidelines issued by the Hon’ble Supreme Court of India:
1.Identification: Police officers must wear visible identification.
2.Memo of Arrest: Prepare a memo with time, date, and attestation by a witness.
3.Information of Arrest: The arrested person can inform a friend or relative.
4.Information to Person Outside District: Notify those living outside the district via telegram.
5.Informing the Accused: Notify the arrested person of grounds for arrest and their rights.
6.Diary Entry: Make an entry at the place of detention with details.
7.Inspection Memo: Allow the arrestee a physical examination; record injuries.
8.Medical Examination: Conduct a medical examination every 48 hours by an approved doctor.
9.Copies to Illaqa Magistrate: Send arrest-related documents to the Illaqa Magistrate.
10.Right to get Legal Support: The person arrested can consult an advocate during interrogation.
11.Police Control Room: Inform the control room about the arrest details within 12 hours.
These guidelines ensure Transparency, accountability, and protection of individual rights during the legal process. Emphasis on timely information to contacts, medical examinations, and the right to legal representation contributes to a fair legal system.
The case of “Arnesh Kumar Vs. State of Bihar”
The Supreme Court of India set guidelines to curb the automatic arrest of individuals under Section 498A of the Indian Penal Code. The court stressed the importance of a thorough investigation before making an arrest to prevent the misuse of the law, aiming to safeguard individuals from arbitrary arrests based solely on allegations without proper verification.
The case of “Siddharth Vs. State of Uttar Pradesh”
The Supreme Court’s ruling highlights the discretionary nature of arrests during charge-sheet filing. Emphasizing that arrests should be guided by the seriousness of the offense or the potential for the accused to abscond, the Court warns against making it a routine practice. The judgment underscores the need to balance lawful authority with the preservation of an individual’s self-esteem, reputation, and personal liberty.
The apex Court held that:
1. It is not mandatory to arrest each and every accused person during filing of the charge-sheet.
2. If the investigating officer does not believe that accused will disobey the courts orders or summons, then he/she should not be required to be produced in custody,
3. The word “custody” as according to section 170 of the Cr.P.C. does not signify police or judicial custody, essentially. But to make the accused appear before the respective Court.
4. If there is a heinous crime or there is any possibility that the accused might escape then the arrest can be made, necessarily.
The case of “Satender Kumar Antil Vs. Central Bureau of Investigation &Anr.”
The Hon’ble Supreme Court issued the following directions, which may be subject to State amendments:
a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.
b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.
e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).
g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.
h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions.
After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.
i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.
j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.
k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.
CONCLUSION:
Bail stands as a pivotal component within the criminal justice system, enabling accused individuals to retain their liberty during the trial period. The procedures, factors, and legal frameworks governing bail are subject to differences influenced by jurisdictional nuances and evolving legal norms.
Recent court rulings illustrate shifting perspectives and the continuous pursuit of a fair and equitable trial system. Recognizing the scenarios where bail might be denied is crucial, particularly in cases involving grave offenses or substantial societal risks. Ultimately, decisions on bail aim to harmonize the protection of individual liberties with the imperatives of justice and public safety.
Recent developments in judicial guidelines underscore the importance of transparency, safeguarding individual rights, and adopting a nuanced approach to arrests. These changes reflect a steadfast dedication to fostering a fair and equitable legal system in India.