Legal Scenario of Bail in India
Bail, or the amount of security required to furnish such release from Bail has not been defined in Criminal Procedure Code, 1973 of India. So, Such discretion on the amount is a matter of the court. In India, It is generally seen that amount which is demanded by the court are unreasonable, Honourable Court doesn't weigh the financial status of the accused. Whether Poor or Rich Bail amount doesn't classify.
- Section 436 of the Code provides for release on bail in cases of bailable offences.Section 436 provides that when a person not accused of a non-bailable offence is arrested or detained he can be detained as the right to claim to be released on bail.
- Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases.
- The right to be released on bail under S. 436(1) c annot be nullified indirectly by fixing a too high amount of bond or bail-bond to be furnished by the person seeking bail.
- Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
- Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.
- Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offence may be bailable.
In India as per survey, nearly 55 percent of the jail population is under trial, the reason behind such a high percentage is the most of the accused in these jails are poor, doesn't have enough financial source to pursue further with the Bail. This Survey was indicated in the 78th report of the Law Commission. Talk to the best criminal defence lawyers in India to file an application for bail.
In Maneka Gandhi v. Union of India  2 SCR 621
The amount of the bond should be determined to have regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.
It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action.
Further in Hussainara Khatoon and others v. Home Sec, State of Bihar , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released. Top criminal defence lawyers in India can help you in getting a bail.
Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence.In the Indian Constitution, there is no specifically enumerated constitutional right to legal aid for an accused person.
Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227 . in this provision does not carry with it the right to be provided with the services of legal practitioners at state cost.
"Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislation or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities – this, however, remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance". The best criminal defence advocates in India can help you file a bail in the court.
However, the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi’s case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548 and Hussainara Khatoon’s case that a "procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore, go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is an essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him".
Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is “a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.”
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