ALL ABOUT BAILS.

 Kinds of Bail

Broadly speaking there are three categories of bail and they arei]

bail in bailable offences,

ii] bail in non bailable offences,

iii] anticipatory bail,

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. This section further makes it clear that whenever any

person, accused of bailable offence is arrested and applies for bail, then the

police official or the Court, as the case may be, has no other alternative except

to allow such application. This section further makes it clear that if the person

applying for bail, is booked for commission of bailable offence, then neither

the Court nor the police official can refuse to release such person merely

because of non availability of surety. Similarly, it is also the duty of Court as

well as police official to release the accused of bailable offence on his

Personal Bond if such person, inspite of order of surety, fails to furnish surety

within 7 days from such order. While casting such duty on police official as

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well as on Magistrate, law raises presumption in favour of the accused to the

effect that the accused is so indigent and poor that he cannot arrange for a

surety and therefore, after that period he has to be released on his personal

recognizance.

If person failed to comply with the conditions of the bail-bond as

regards the time and place of attendance, the Court may refuse to release him

on bail, when on a subsequent occasion in the same case he appears before

the Court or is brought in custody. Any such refusal shall be without prejudice

to the powers of the Court to call upon any person bound by such bond to pay

the penalty thereof under section 446.

The Hon'ble Bombay High Court held in Stefan Mueller -Vs-

State of Maharashtra in Writ Petition No.2939 of 2009 dated 23/06/2010

in para no.10 that it is well settled position of law that if the offence is

bailable, the accused is entitled to be released on bail and even where he does

not make an application for bail, it is the responsibility of the concerned

police officer, if he has arrested or detained the accused for a bailable offence,

to inform him about his right to be released on bail. Similarly, it is also settled

position of law that where a person accused of bailable offence appears or is

produced before a Magistrate, it is responsibility of such Magistrate to inform

him of his right to be released on bail.

A new section 436-A of Cr.P.C. is introduced in the year 2005, to

solve the problems of under trial. As per the directions of Hon'ble Apex

Court in Cri.Writ Petition No.310/2005 (Hon'ble Justice Kurien Joseph

and Rohinton Nariman JJ) and as per section 436-A of Cr.P.C. a person

who has undergone detention for a period extending half the maximum

detention for a period of imprisonment imposed for a particular offence shall

be released on his/her personal bond with or without sureties.

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,

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

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e] Accused person may be required for being identified by witnesses

during investigation is not a sufficient ground for refusing bail if he gives an

undertaking that he shall comply with such directions as may be given by the

Court.

f] If it appears to such officer or Court at any stage of the

investigation, inquiry or trial that there are no reasonable grounds for

believing that the accused has committed a non-bailable offence, but there

are sufficient grounds for further inquiry into his guilt, subject to the

provisions of section 446A and pending such inquiry, he be released on bail,

or, at the discretion of such officer or Court on the execution by him of a bond

without sureties.

g] When a person accused or suspected of the commission of an

offence punishable with imprisonment which may extend to seven years or

more or abatement of, or conspiracy or attempt to commit, any such offence,

is released on bail under sub-section (1) the Court may impose following

condition which the Court considers necessary in order to ensure that (i)

such person shall attend in accordance with the conditions of the bond (ii)

shall not commit an offence similar to the offence of which he is accused or

of the commission of which he is suspected, or(iii) otherwise in the interests

of justice.

h] An officer or a Court releasing any person on bail under subsection

(1), or sub-section (2), shall record in writing his or its reasons or

special reasons for so doing.

i] Any Court which has released a person on bail under sub-section

(1), or sub-section (2), may, if it considers it necessary so to do, direct that

such person be arrested and commit him to custody.

j] If, in any case triable by a Magistrate, the trial of any nonbailable

offence is not concluded within a period of sixty days from the first

date fixed for taking evidence in the case, such person shall, if he is in

custody during the whole of the said period, be released on bail to the

satisfaction of the Magistrate, unless for reasons to be recorded in writing, the

Magistrate otherwise directs.

k] If, at any time after the conclusion of the trial of a person accused

of a non-bailable offence and before judgment is delivered the Court is of

opinion that there are reasonable grounds for believing that the accused is not

guilty of any such offence, it shall release the accused, if he is in custody, on

the execution by him of a bond without sureties for his appearance to hear

judgment delivered.

At the stage of consideration of bail what the Court is normally required

to consider are;

(1) The nature and seriousness of the accusation

(2) Severity of the offences

(3) Nature of the evidence collected and the character and behavior

of the accused

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(4) Chances of the accused absconding and not being available

during the trial

(5) Possibility of repetition of such crime

(6) Chances of the accused of tampering with the evidence and

witnesses, and

(7) Last but not the least, larger interest of the people and the State.

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 non-bailable 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 nonbailable.

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. When the respective court has not passed any interim order

or has rejected the application then the officer-in-charge of police station has

right to arrest the accused without warrant. The interim order alongwith the

seven days notice must be served to the Public Prosecutor and Superintendent

of Police with a view to give them an opportunity for hearing on the

application. The presence of applicant seeking anticipatory bail shall be

obligatory at the time of final hearing of application and passing final order

by the Court. But the Public Prosecutor must have to apply for the same.

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 :

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.