Bail - All You Need To Know

Published on 18 Dec 2017 by Tushar

What is Bail

The ground level process of obtaining a bail can vary with every state. However, the basic procedure remains the same.

  1. Bail is the legal remedy of an accused to be released from custody.
  2. Bail is granted during the pendency of the trial or an appeal.
  3. Surety- Before bail is granted to the accused, a surety gives a guarantee to the Court that the accused will appear in the Court as and when required.
  4. Bail Amount- a sum of money is to be deposited to ensure his appearance before the Court, which otherwise stands forfeit.

Bailable and Non Bailable Offences- Nature of Offence crucial in chances of securing bail

Bailable Offence

These are the Offences or crimes as prescribed in the Indian Penal Code, where an accused can get bail as a matter of procedural right. The process usually includes depositing a certain amount along with a witness (surety) who shall testify for your release. 

ALSO READ: Meaning, Concept And Types Of Bail In India

Non-Bailable Offence

For offences prescribed as Non-Bailable under the Indian Penal Code, the accused can only obtain a bail from the court and not as a matter of right.

  1. The accused has to file for an application to be released on bail.
  2. This application must have particulars as to why the bail must be granted.
  3. The Court considers the grounds and certain other important factors as mentioned below to decide whether bail can be given.

Procedure for obtaining bail

  1. When a person is arrested they are first taken to the police station to book the case.
  2. This police station is usually the police station which exercises jurisdiction over the area where the accused resides.
  3. Information is recorded by the Police Officer regarding the name, residence address, birthplace, charges filed against the accused etc.
  4. The police officer will check the criminal background of the accused, fingerprints and files a case against the accused.
  5. The accused has to submit Form 45 given in the second schedule to the court in which his case is being heard.
  6. In case, the accused has committed a non-bailable offence, he can submit a similar form before the Court in which his case is being heard, but it has been left to the discretion of the Court to decide the same.

For Bailable Offences - the accused will be allowed to apply for bail immediately. Instant Bail shall be on Furnishing the bail amount.

For Non-Bailable offences - the accused may have to wait for 48 hours to claim his or her right in the court.

Hearing in the Court

  1. A bail hearing is not a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused.
  2. The granting of bail is usually considered to be an inherent right. However, there are certain circumstances where bail may be refused – these are related to Non-Bailable Offences.
  3. In non-bailable offences accused may be granted bail if competent authority deems it fit. The relevant circumstances should be presented to show to the Court that bail would not harm the further process of trial and justice.
  4. The amount the accused may have to deposit with the court will be at the discretion and decision of the judge.
  5. For certain smaller crime cases, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.

For more complex cases the Magistrate considers these factors before deciding upon the Bail Amount

  1. Background of the accused,
  2. Past criminal record of the accused.
  3. Whether the accused may pose danger to others.
  4. Whether the investigating officers believe that there prevails no more need of detention of accused.
  5. The severity of crime- for example, a person accused of crimes which have the prescribed imprisonment for life or more than 10 years or 7 years then it is significantly harder to obtain bail.

What Are The Usual Bail Conditions?

Usually, the bail may be awarded to any accused on certain Bail conditions which are specified by the Court.

  • If the accused breaches any of those conditions the Bail will be cancelled immediately.
  • If the accused is able to win the case the bail amount will berefunded back to the accused.

These are certain common conditions imposed in cases of Bail-

  1. The accused have to live in a particular residential area.
  2. The person who got the bail cannot leave the area as specified in the bail.
  3. The person has to appear before the police and maintain his signatures/ attendance regularly in the record of the police station.
  4. The accused cannot contact the victim. 
  5. The accused cannot try and tamper or change the evidence.

Do not abuse the Process by filing multiple applications

Any subsequent application for the grant of the bail by an accused person without any substantial change of the facts and circumstances of the case from a previously filed application for Bail is not maintainable. This is considered as an abuse of process of law as once the bail is given or rejected, in either case is final.

When bail applications are made in higher courts after being rejected by a lower court, the higher court always keeps in mind as to why lower court rejected the bail. Due weight is given to those reasons for rejection before entertaining application and granting bail.

Similarly, Court cannot cancel bail, once granted and that its cancellation is subject to provisions under section 437(5) of the Code of Criminal Procedure, 1973 and that these powers are to be exercised in extraordinary circumstances only.

Therefore granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused.

Procuring Bail is a sensitive matter which requires eloquence and tact by the lawyer pleading in front of the Court. 

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