Bail and Bail Application is a legal instrument where a person accused of committing a crime is released conditionally from legal custody while the case is pending. After which the accused is released on different conditions. This is done on the promise that the accused will appear in the court whenever summoned.
The concept of bail traces its origin to medieval England, it was founded as a means to strike balance between the detained accused individuals and respecting the individual’s right to liberty. In India, the provisions pertaining to bail were introduced in 1973 with the Criminal Procedure Code, 1973. Section 436 to 450 of the code provides dealing with the bail and bonds which defines the framework for the application.
When a person is arrested and charged, they are brought before a judge where the judge determines the severity of crime occurred and based on that it identifies if it’s bailable or not and the amount of the bail is given with the conditions. Bail is governed by the Code of Criminal Procedure, 1973 also ‘Bail’ itself is not defined under the indian law but ‘Bailable Offence’ and ‘Non bailable Offence” are under section 2(a).
Bail Procedure in India
When a person is arrested, that person is held up in the police station for documentation, verification and questioning. The accused is bought to the Magistrate within 24 hours of arrest for hearing charges which are being filed and also as the bail hearing. The accused can file application for a bail in which condition for the bail and setting up that the bail could be allowed is on the discretion of the judge.
Types of Bail
Regular bail
Given under the section 437 of Cr.P.C. , Common Bail is provided when they are in the custody of Police. It could be requested at any time whether the accused is charged or not. The court relies on various factors which include nature and seriousness of the offence, past history of criminal and the interests of justice while deciding on the regular bail applications. Although, in non bailable offences the court grants bail only under special conditions and circumstances.
Interim Bail
Given in Section 437 and 439 of CR.P.C. it is temporary short term bail before final disposition of the bail application. Generally it is provided when the accused continues to stay in the custody can result in damage of the well being or if court needs more time consider a Regular Bail Application. The Accused can return to the custody once this regular bail application is decided.
Anticipatory Bail
Provided in the section 438 of Cr.P.C. if any person who is aware that they could get arrested soon in the future for the connection of the offence which is non-bailable. Purpose of this anticipatory bail is preventing unnecessary harassment and detention of the accused before they are arrested by the police officers.
The applicant shall be provided the court with the proof that the arrest is going to happen and they have proper grounds to seek an application. The court could set up some conditions to the applicant before granting the bail. The Police will be unable to arrest the person who was provided anticipatory bail.
Special Bail
Women, Children and individuals charged with narcotic offences have different bail procedures. Women and Minors especially for the first time offenders are much likely to get bail. In case of Narcotics offences the due process of acquiring bail is generally much strict.
Process to get Bail
The Accused have the Right for filing a application for bail from the Police Custody. Applicants are required the assistance of a lawyer and its a legal requirement for them. The Accused needs to file an application in ‘Form 45’ which is given in the Second Schedule. The court decides whether its right to provide bail or not after seeing all the reasons, evidence, facts, etc. After which the court sets how much amount is required for bail and sets up conditions for this, all of which depends on the severance 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 Application
The Concept of ensuring a fair and proper legal process for accused the common grounds include:-
1) Presumption of innocence
In the core of the Criminal Law is the principle that individual are considered innocent till proven guilty beyond any reasonable doubt. Granting such Bail is a manifestation which ensures that accused individuals are not subjected to unnecessary detention before guilt is determined by court of law. This Principle of Criminal Justice protects the rights and dignity of accused.
2) Right to Personal Liberty:
The constitution under the Article 21 guarantees the right to personal liberty. This includes the right to get released on bail, apart from the cases where such restriction is placed by court for necessary measures. Right to Personal Liberty is a foundation of a democratic society and underscores the significance of bail as a mechanism for protecting Rights.
3) Delay in trial or investigation
The courts can grant bail when there is a delay in the proceeding, which prevents unjust and prolonged detainment. It ensures that wheels of justice are efficiently running.
4) Age and gender
Considering Bails in India took into account the age and gender of accused. Courts are much more inclined for granting bails to the individuals who are women and minors. Particularly those without any criminal records. This approach acknowledges specific circumstances and vulnerabilities if these age groups, emphasizing on rehabilitation and reintegration into society for the first time offenders.
5) Medical condition
Any accused person who is suffering from any serious medical condition and there is risk of health while in the custody, the courts can grant bail on the medical grounds. Medical certificates are required by the court of law as substantiated evidence for supporting such sort of claims.
6) No previous criminal record
Any individual who have no prior criminal record can work in favour of the accused person demanding bail. It reflects the legal principle that an individual shall not be punished for the past actions if they presume innocent for current case.
7) Cooperation with investigators
If the Accused is cooperating with investigators and does not interfere with the evidence then the court is much likely to consider bail. The Court are much inclined for consodering bail for individuals who show cooperation and respect for investigative process. This ensures the integrity of legal proceedings.
Legal Aspects of Bail Application
1) Considerations under Constitution
Article 21 of the Constitution provides protection of Personal liberty. This includes right to bail, unless in some special cases and circumstances.
2) Bail also helps the accused to find a proper defense for the case and it also helps in gaining evidence
Bail acts as an Important tool in providing a defense for the accused. It helps in enabling individuals to work closely with the legal counsel, gathering evidence and build a comprehensive defense strategy. Being on bail allows the accused to participate in the legal proceedings which ensure a fair trial.
3) The Accused who is innocent may spend months in custody which should not be happening
Where an accused person is innocent this lengthy period spent in the custody before trial contrast this principle. The bail is designed for preventing such injustice which ensures the individuals are presumed innocent and not unjustly incarcerated for the extended periods.
Revocation of Bail
The court may revoke the granted bail if:-
:- Committing more crimes
:- Risk of fleeing from country
:- Violating the condition set for bail
:- Obstructs and interferes in the Investigation Effort
:- Threatening or Intimidating the Witnesses
:- Proved to be dangerous for the General Public
Conclusion
While concluding the concept of bail acts as a vital tool in criminal justice system. It makes sure the fair treatment of accused while protecting the interests of Public Safety and Justice. It gives a balance between the presumption of innocence which is given in Article 21 of the Indian Constitution and the need of ensuring that the accused individual appear in the court and are not a threat to the society.
Bail in India is Fundamental Aspect of the Criminal Justice System which upholds the principal of Justice, Liberty and the presumption of innocence. It acts as a vital mechanism to protect the rights and liberties of the accused individuals, making sure their participation in legal process and maintaining public safety. A well regulated and Justified bail system is necessary for upholding this rule of law and ensures the integrity of Criminal Justice System of India.
