1. Bails
Bail is a set of pre-trial restrictions that are imposed on a suspectto ensure that they will not hamper the judicial process. Bail is the conditional release of a defandentwith the promise to appear in court when required.In some countries, especially the United States, bail usually implies abail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trail detention. If the suspect does not return to court, the bail is forfeited and the suspect may be charged with the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.
In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.
For minor crimes, a defendant may be summoned to court without the need for bail, or may be released on recognizance(promising to appear in court, with no bail required) following arraignment. For serious crimes, or for suspects who are deemed likely to fail to turn up in court, they may be remanded(detained) while awaiting trial. A suspect is given bail in cases where remand is not justified but there is a need to provide an incentive for the suspect to appear in court. Bail amounts may vary depending on the type and severity of crime the suspect is accused of; practices for determining bail amounts vary.
2. Difference between Bailable and Non-Bailable Offence
Non-bailable
If the offence committed is non-bailable, the police officer cannot himself grant bail to the accused. Only the magistrate can authorize the bail in a non-bailable offence. An offence is said to be non bailable and when the punishment for it is more than 3 years. It is to be noted that just because the offence is non-bailable does not mean that the person accused will not be granted bail at all. In such cases it is up to the discretion of the court as to whether grant bail or not.
Bailable
In a bailable offence, the police officer in charge has the power to grant bail to the person accused. An offence is said to be bailable when the punishment for that offence is lesser than 3 years. It is the right of the accused to be released on bail in a bailable offence. This right is subject to certain conditions which will be discussed later in this paper.
3. Purpose Of Bail
1. Ensuring Appearance in Court: One of the primary purposes of bail is to ensure that the accused person appears in court for their trial. By allowing individuals to be released from custody, the justice system aims to balance the interests of personal freedom with the need for the accused to face the charges against them.
2. Preventing Flight Risk: Bail may include conditions designed to prevent the accused from fleeing or evading the legal process. This may involve surrendering a passport, regular check-ins with law enforcement, or the payment of a financial bond.
4. Types Of Bail
1. Cash Bail: In some jurisdictions, individuals may be required to pay a sum of money to the court as a condition of their release. This amount is refundable if the accused complies with all court appearances and conditions.
2. Surety Bail: This involves involving a third party, typically a bail bondsman, who pays the bail amount on behalf of the accused. The accused pays a percentage of the total bail amount to the bondsman, who then assumes responsibility for ensuring the individual's court appearances.
3. Release on Recognizance: In certain cases, a judge may release the accused on their recognizance, meaning they are released without having to pay bail. This is often granted to individuals with strong ties to the community and a low risk of flight.
5. Anticipatory Bails
The Code of Criminal Procedure (1898) did not contain any specific provision of anticipatory bail. The Law Commission of India, in its 41st Report dated September 24th 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant Anticipatory bail.
The necessity of granting anticipatory bail arises mainly because of two reasons:
a. Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing or for other mala fide intentions by getting them detained in jail for some days.
b. Where the likelihood of the person absconding or misusing the liberty is very insignificant.
The Indian Penal Code and Code of Criminal Procedure operates on the premise of innocent until guilty. Hence, unless there is a very strong reason to detain the person in jail before the actual conviction such a person is not detained.
Section 438 lays down the procedure for anticipatory bail. When an order of Anticipatory bail is passed by the court, what happens is that in the event of arrest at a future date, the person will be granted bail. In other words, it is a bail in the anticipation of an arrest in the near future. This section can be invoked only before the person is arrested. For invoking this section, there should be a strong belief that the said person is going to be arrested.
The belief of such a person should be on tangible grounds. This section can be invoked not only when the arrest is apprehended at the hands of the police but also when the arrest is apprehended at the instance of the magistrate. Anticipatory bail can be issued only by passing an interim order. It is mandatory for the person applying for anticipatory bail to be present in court during the final hearing of the application.
According to the Law Commission Report (41st Law Commission Report, page 321), it was stated that the need for this provision is that sometimes it is possible that influential persons with their power would try to fraudulently implicate any person in false causes to disgrace them or for malice by getting them detained in jail. This section works as a shield for such persons who are likely to be detained.
Sub-clause (2) of this section uses the wordsas it may think fitimplying that the judges have a wide discretion with respect to granting anticipatory bail. According to the 48th Law Commission Report (page 10), it has been stated that the directions can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary for the interest of justice.
Initially, in the general course, an application for anticipatory bail had to be first filed In the court of Sessions and then the High Court. However, inChendrasekhar Rao v. Y.V Kamala kumari. it was clarified that an application under Section 438 could be pleaded directly in the High Court, without taking recourse to the Court of Sessions.
Section 438 has a very wide scope. If the offence is non-bailable it is immaterial whether the offence is cognizable or non-cognizable. Further, inB. Kuppa Naidu v. State an anticipatory bail was granted to a person who was accused of committing an offence under the Custom Laws. This shows the wide scope of this Section that it can be invoked not only for offences under the IPC but other codes too. Anticipatory bail can even be granted to a person who is accused of committing a crime who's punishment is that of life imprisonment or death.
InMasroor v. State of U.P, it was held that even though the judges have a wide discretion to grant anticipatory bail, if they do grant, they should mandatorily record the reasons for doing so. The conditions mentioned in sub-section (2) are not exhaustive and the courts may impose other conditions too.
The duration of the effectiveness of the anticipatory bail is not mentioned in this section. As soon as the person is enlarged on bail on the directions of the Anticipatory bail order, it would be deemed by implication that the bail was granted under Section 437.
However, inC.H Siva Prasad v. State of A.P ,it was held that the bail shall be effective until the conclusion of the trial, unless it is cancelled by the court taking action undersection 437(5) or under Section 439(2) of the code on the grounds known to law and filing of Challan in the court is by itself no ground to cancel the bail.
