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Bail, Anticipatory Bail, Mandatory Bail

BAIL, ANTICIPATORY BAIL, MANDATORY BAIL

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Ramesh Babu Tatapudi
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245 views6 pages

Bail, Anticipatory Bail, Mandatory Bail

BAIL, ANTICIPATORY BAIL, MANDATORY BAIL

Uploaded by

Ramesh Babu Tatapudi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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BAIL, ANTICIPATORY BAIL, MANDATORY BAIL

Whenever any person is arrested in India, the first question for which they
run to their lawyers is the bail procedure. In India, Bail is devised as a
technique for affecting a synthesis of two basic concepts of human rights of
the accused person - to enjoy his freedom and public interest and to produce
the accused person in Court to stand trial.

Bail is a judicial release of an accused person from custody, on the condition


that the accused person will appear in court at a later date. In India, criminal
offenses are broadly defined as Bailable and Non-Bailable crimes. It is
regulated by the Code of Criminal Procedure (CrPC). Under the CrPC, bail can
be granted to an accused person either by a police officer or by a judicial
magistrate. Bail is granted to an accused person to secure their presence at
trial, and to protect their liberty while they are awaiting trial. It is generally
granted when the accused can furnish sufficient sureties (guarantees) that
they will appear in court as required. If the accused is unable to furnish
sufficient sureties, they may be required to remain in custody until their trial.

The most significant case of Bail in India, Hussainaira Khatoon Vs. State of
Bihar, raised the question of delayed Bail and the ambit under Article 21 of
the constitution.

The Criminal Procedure Code, 1973, does not define bail, although the terms
bailable offence and non-bailable offence have been defined in section 2(a)
Cr.P.C. " Bailable offence means an offence 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 offence means any other offence". Further, Sec. 436
to 450 set out the provisions for the grant of bail and bonds in criminal cases.
The amount of security that is to be paid by the accused to secure his release
has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court
to put a monetary cap on the bond.
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“The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to
a socially sensitized judicial process”.
– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

In 2011, The Hon'ble apex court in Sanjay Chandra Vs CBI 2012 AIR (SC)
830 opined that:

“The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances
of each particular case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the accused. The
primary purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused constructively in the custody of
the Court, whether before or after conviction, to assure that he will submit to
the jurisdiction of the Court and be in attendance thereon whenever his
presence is required”.

Broadly speaking there are three categories of bail and they are:- I] Bail in
Bailable offences, II] Bail in non Bailable offences, III] anticipatory bail.

I. BAIL IN BAILABLE OFFENCES - Section 436 of the Code of Criminal


Procedure deals with provisions of bail in bailable offences. Under this section,
bail is the right of person, who has been accused for commission of offence,
which is bailable in nature. This provision casts a mandatory duty on police
official as well as on the Court to release the accused on bail if the offence
alleged against such person is bailable in nature.

II. BAIL IN NON BAILABLE OFFENCE - Under section 437 When a person is
accused of, or suspected of, the commission of any non-bailable offence, is
arrested or detained without warrant or appears or is brought before a Court
other than the High Court or Court of Session, he may be released on bail,
but such person shall not be so released,
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a) If there appear reasonable grounds for believing that he has been guilty
of an offence punishable with death or imprisonment for life;

b) if such offence is a cognizable offence and he had been previously


convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously
convicted on two or more occasions of a non-bailable and cognizable
offence

c] He may be released if under the age of sixteen years or is a woman or is


sick or infirm

d) He may be released if it is satisfied that it is just and proper so to do for


any other special reason.

ANTICIPATORY BAIL - Section 438 of Cr.P.C. deals with anticipatory bail.


The anticipatory bail is nothing but a bail in the event of arrest, when any
person has an apprehension or reason to believe that he may be arrested of
an accusation of having committed a nonbailable offence then he may apply
to High Court or Court of Sessions for direction that in the event of arrest he
shall be released on bail. Therefore, the said powers are exclusively vested
with the Court of Sessions and High Courts. For considering the application
for anticipatory bail the prerequisite condition is that the offence must be non-
bailable. There must be a sufficient reason to believe that the applicant may
be arrested in said accusation. The Sessions Court or the Hon'ble High Court
considering the nature and gravity of accusation, the antecedent of applicant,
the possibility to flee from justice and whether the accusation has been made
with object of injury or humiliating the applicant by having him arrested may
either reject the application or issue an interim order for the grant of
anticipatory bail.

Section 438(2) of Cr.P.C. provides that, the High Court or the Sessions Court
may also impose some conditions while granting the application. The
conditions may be as follows:
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a) That the persons shall make himself available for the interrogation by
police officer as and when required;

b) That the person shall not directly or indirectly make any inducement,
threats or promise to any witness;

c) That a person shall not leave India without previous permission of the
Court.

AT THE STAGE OF CONSIDERATION OF BAIL WHAT THE COURT IS


NORMALLY REQUIRED TO CONSIDER ARE:

• The nature and seriousness of the accusation

• Severity of the offences

• Nature of the evidence collected and the character and behavior of the
accused.

• Chances of the accused absconding and not being available during the
trial

• Possibility of repetition of such crime

• Chances of the accused of tampering with the evidence and witnesses,


and

• Last but not the least, larger interest of the people and the State.

POWER OF SESSIONS COURT AND HIGH COURT REGARDING THE BAIL:


Section 439 gives Special powers to High Court or Court of Session regarding
bail. It may direct that any person accused of an offence and in custody be
released on bail. It may impose any condition which it considers necessary for
the purposes mentioned in that sub-section.

DEFAULT BAIL UNDER SECTION 167 Cr.P.C COMPUTATION OF PERIOD


The period of 90 days or 60 days has to be computed from the date of
detention as per orders of the magistrate and not from the date of arrest by
the police [Central Bureau of Investigation, Special Investigation Cell-I, New
Delhi v. Anupam J. Kulkarni (1992) 3 SCC 141 ]. Consequently, the first
period of 15 days mentioned in section 167(2) has to be computed from the
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date of such detention and after the expiry of first 15 days it should be only
judicial custody.

DOCUMENTS REQUIRED TO GET BAIL


The following documents are required for getting bail in India, these are some
of the general documents that are required to get bail, they may vary from
court to court.

1. Bail application: The bail application includes the name of the


magistrate court, the name of the parties involved, an FIR copy, the
name of the police station where the accused is in custody, date of
custody.

2. ID proof of the surety-giving guarantee for the person: The person


who is giving surety must provide ID proof like a passport, Aadhaar
card, driving license, PAN card, or voter ID card.

3. Address Proof: The surety person provides a document that proves


their residential address. It can be a utility bill, rent agreement, etc.

4. Affidavit: The surety person has to provide an affidavit stating that they
have sufficient means to pay the bail amount if the accused fails to
appear in court. The affidavit also ensures that the surety person will
produce the accused in court on the date of the trial.

5. Income proof: The surety person have to provide documents to show


their financial stability to pay for the bail. They can share financial proof
in the form of salary slips, income tax returns, or bank statements.

6. Demand draft or cheque for the sum to be paid for the bond.

7. Declaration by the surety or sureties.

CANCELLATION OF BAIL
"It remains trite that normally, very cogent and overwhelming circumstances
or grounds are required to cancel the bail already granted. A comparison of
Section 439(2) and 437(5) of CrPC clearly shows the wide power of the High
Court and Session court to cancel the granted bail. Superior courts use this
power mainly when the order granting bail being perverse, or passed without
due application of mind or in violation of any substantive or procedural law.
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Section 437(5) CrPC provides for the cancellation of bail by the Magistrate
Court on the ground of misuse of liberty after the grant of bail or other
supervening circumstances.

CONCLUSION
The idea of bail is noble idea in criminal jurisprudence. Bail can be granted
to the accused in case of non bailable offences subject to some limitation and
conditions. The idea of bail conveys the meaning that the accused cannot be
presumed to be guilty until his guilt is proved. Provision of bail also brings
the noble idea of personal liberty into existence. The provisions are
incorporated with a view to give effect to the personal liberty mentioned in
Indian Constitution.

XXX

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