Bail is a legal concept and process where a person who is accused of committing a crime is released conditionally from legal custody while their case is pending. The accused is released on various conditions and stipulations, with the promise that the accused will appear in court when summoned. The bail is granted by the court once a bail application is made before it by the accused.
The concept of bail traces its origins to medieval England, where it was established as a means to strike a balance between detaining accused individuals and respecting their right to liberty. In India, provisions pertaining to bail were introduced in 1973 within the Criminal Procedural Code of 1973. Sections 436 to 450 of this code specifically deal with bail and bonds, defining the framework for its application.
After a person is arrested and charged, they are brought before a judge where the judge determines the severity of the crime committed and based on it determines if it is bailable or not, and the amount of bail is set with conditions.
Bail is governed under the Code of Criminal Procedure, 1973, also “Bail” itself is not defined in Indian criminal law, but “Bailable offense” and “Nonbailable offense” are defined under section 2(a).
Bail Procedure in India
When a person is arrested in India, the said person is brought to the police station for documentation, verification and questioning. The accused is supposed to be brought to the Magistrate within 24 hours of arrest(Travelling time not included) for hearing of charges being filed, and also as bail hearing. The accused then can file application for bail, and then conditions and setting up whether bail can be given is determined by the judge.
Types of Bail
Regular bail
Defined under Section 437 of CrPC, a Common bail is given to the accused when they are in the custody of the police.
They could be requested at any time in the case, whether the accused is charged or not. The court considers various factors, including the nature and severity of the offence, the accused’s past criminal history, and the interests of justice when deciding on regular bail applications. However, in non bailable offences, the court only grants bail under very special conditions and circumstances.
Interim Bail
Defined under section 437 and 439 of CrPC, it is a temporary short term bail before the final disposal of their bail application.
Basically, it is typically granted when the accused’s continued stay in the custody might result in damage to the well being or if the court needs more time to consider a Regular bail application. The accused must return to custody once the regular bail application is decided.
Anticipatory Bail
Defined under section section 438 of CrPC, if a person is aware that they may get arrested soon in the future for connection with an offence that is non-bailable. The purpose of anticipatory bail is to prevent unnecessary harassment and detention of an accused before they are formally arrested by police officers.
The applicant must provide the court with proof that their arrest is imminent and that they have sufficient grounds for seeking the application. The court may set up few conditions to the applicant before granting it. The police or police officers then be unable to arrest the person who was granted anticipatory bail.
Special Bails
Women, children, and individuals charged with narcotics offenses have distinct bail procedures. Women and minors, especially first-time offenders, are more likely to be granted bail. In the case of narcotics offenses, the process for obtaining bail is often more stringent.
Process to get Bail
The accused has the right to file a legal application for bail from police custody. Applicants may require the assistance of a lawyer and it is a legal requirement for people from Delhi to require a criminal lawyer for them to be able to file an application for bail. The accused needs to file the application in the form of “Form 45” which is found in the Second Schedule. The court decides whether it’s appropriate to give bail or not after taking into account all the reasons, evidence, facts, etc. After this, the court sets up how much money is required for the bail and sets up conditions for it, all depending on the severity of the charges.
Documents and procedure for bail
1)Name and specifications of court under which the accused is filing the bail.
2)Section from CrPC and type of bail which is being sought.
3)Name of parties involved in the case
4)FIR Number
5)Signature of applicant
6)Name of the police station in which the accused was being held in custody
7)Date and day on which application is being filed and grounds on which bail is to be given.
Grounds for Bail
Bail is designed to ensure a fair and just legal process for the accused, common grounds include:-
1)Presumption of innocence
At the heart of Indian criminal law lies the principle that an individual is considered innocent until proven guilty beyond a reasonable doubt. Granting bail is a manifestation of this principle, ensuring that accused individuals are not subject to unnecessary detention before their guilt is determined in a court of law. This bedrock principle of criminal justice safeguards the rights and dignity of the accused.
2)Right to Personal Liberty
The Indian Constitution, under Article 21, guarantees the right to personal liberty. This encompasses the right to be released on bail, except in cases where restriction is placed by the court for necessary measures. The right to personal liberty is a cornerstone of democratic societies and underscores the significance of bail as a mechanism to safeguard this right.
3)Delay in trial or investigation
Courts may grant bail when there is a perceivable delay in proceedings, preventing unjust and prolonged detainment. This ensures that the wheels of justice continue to turn efficiently.
4)Age and gender
Bail considerations in India take into account the age and gender of the accused. Courts are more inclined to grant bail to individuals who are women or minors, particularly those without any previous criminal records. This approach acknowledges the special circumstances and vulnerabilities of these groups, emphasizing rehabilitation and reintegration into society for first-time offenders.
5)Medical condition
If an accused person is suffering from a serious medical condition and there is a risk to their health while in custody, courts may grant bail on medical grounds. Medical certificates though are required ]by the court of law as substantiated evidence to support such claims.
6) No previous criminal record
Having no prior criminal record or a clean criminal history can work in favor of an accused person wanting bail. This reflects the legal principle that an individual should not be unduly punished for past actions if they are presumed innocent in the current case.
7)Cooperation with investigators
If the accused is cooperating with the investigators and does not interfere with evidence then the court is more likely to consider bail. Courts are more inclined to consider bail for individuals who demonstrate cooperation and respect for the investigative process. This cooperation ensures the integrity of the legal proceedings.
Legal Aspects of bail application
- Considerations under the constitution: Section 21 of the Indian constitution talks about Personal liberty. This right also includes the right to bail, unless in some very special cases and circumstances.
- Legal detention of a person can prove to be expensive with time as you need to feed, house and overall take care of the person in custody. And also it can also cause financial loss to the person in custody as the accused’s family may be relying on them for basic necessities.
- Bail also helps the accused to find a proper defense for the case and it also helps in gaining evidence.
- Bail plays a crucial role in facilitating a robust defense for the accused. It enables individuals to work closely with their legal counsel, gather evidence, and build a comprehensive defense strategy. Being out on bail allows accused individuals to actively participate in their legal proceedings, ensuring a fair trial.
- The accused who is innocent may spend months in custody which should not be happening.
- In cases where an accused person is innocent, the lengthy period spent in custody before trial contradicts this principle. Bail is designed to prevent such injustices, ensuring that individuals presumed innocent are not unjustly incarcerated for extended periods.
Factors which may lead to bail not being granted
1) Risk to community
The accused may have committed some major crime like murder, etc. so the court will not likely accept application for bail or set bail which the accused cannot afford. The primary concern here is the safety of the public, and the court may require stringent conditions or refuse bail altogether.
2)Flight risk
The court assesses whether the accused poses a flight risk, especially if they have the means and opportunity to flee, potentially to a jurisdiction where extradition is difficult. In such cases, bail may be denied to prevent
Bail Revocation
The court may revoke the granted bail if:-
The accused commit more crimes
The accused has risk of fleeing somewhere
Violates conditions set for bail
Interferes and obstructs the investigation effort
Threatens or intimates the witnesses
Is proved to be dangerous to the general public
Potential reforms in bail
In the 2022 case of Satender Kumar Antil v. Central Bureau of Investigation the Supreme Court of India urged the central government to introduce a legislation in the nature of a Bail Act to streamline the granting of bail. The bill is similar to the British Bail Act,1976.
Conclusion
The concept of bail serves as a crucial pillar of the criminal justice system, which ensures the fair treatment of the accused while safeguarding the interests of justice and public safety. It provides a balance between the presumption of innocence, enshrined in the section 21 Indian Constitution, and the need to ensure that accused individuals appear in court and do not pose a threat to society.
Bail is not a mere procedural formality; it stands as a symbol of hope for those accused of crimes. It epitomizes the safeguarding of their fundamental rights and freedoms. In a nation where personal liberty is enshrined as a constitutional right, bail becomes a tangible representation of this precious liberty.
The bail in India is a fundamental aspect of the criminal justice system that upholds the principles of justice, liberty, and the presumption of innocence. It serves as a vital mechanism for protecting the rights and liberties of accused individuals, ensuring their participation in the legal process, and maintaining public safety. A well-regulated and just bail system is essential for upholding the rule of law and ensuring the integrity of India’s criminal justice system.
The bail procedure in India is well structured though may require more efficiency and reforms.
This blog is written by Aditya Sahijpal.
