Overview of Bail Application
In India, whenever a person gets arrested by a competent authority, the first thing they do is to find a good lawyer for initiating the bail process. Bail is a legal instrument which is provided to the accused as a human right for the enjoyment of his right. It makes an accused responsible to be present before the court whenever called.
Bail involves a process where the person is judicially released from custody only on the condition that such an accused will be present before the court at a later date decided by the court. The procedure for bail is governed and regulated by the Code of Criminal Procedure. As per the Act, the offences are divided into bailable and non-bailable offences. As per the provisions of the Act, bail is granted by a police officer or a competent judicial magistrate. It is given for the protection of the liberty of an accused person while they are under trial. A bail is only granted after the accused has furnished sufficient sureties that can guarantee that the accused will appear before the court whenever called. If the accused fails to furnish sufficient sureties, the authority does not grant bail and the accused has to remain in the custody until the trial finishes.
Such an application is filed before the court as per the set rules and regulations. It is filed by the accused’s advocate on his behalf. After filing the application, the accused is under an obligation to furnish details of sureties.
Usage of Bail Application
Such an application is filed by the accused’s advocate for getting a provisional release of the accused from custody. A person is arrested in criminal matters for making sure the presence of the accused before the court at some later date during the trial process. The provisions of the bail have been stated in the Act to protect the liberty and freedom of an accused if he/she agrees to be present before the court without going into custody. If bail is granted to the accused, he/she is under a legal obligation to follow the rules and regulations specified for him/her to be strictly followed. If the accused violates any of the rules mentioned in the bail application, the police have the right to arrest such accused again.
Necessary contents of the bail application
The below-mentioned details must be stated in the bail application necessarily:
- The name of the court where the bail application is being filed.
- The section related to bail is defined under CrPC through which the application is being moved.
- The name and other personal details of the parties must be stated.
- The FIR number should be stated.
- The details such as the name of the police station where the accused has been kept in custody and the date on which he/she was taken into custody.
- The application should also state the ground on which the person should be granted bail.
- The guarantee that the accused will not abscond if the bail has been granted.
- The accused is required to be present before the court whenever called.
- A statement that the accused is not allowed to leave the country without the court’s permission must also be mentioned.
- The prayer section of the application should contain statements requesting the court to grant bail as per the above-stated grounds.
- The applicant has to mandatorily sign the said application.
- The applicant should sign the bail application.
Procedure for filing a bail application
The law defines a specific procedure to be followed by the people during filing an application for bail in India. There are three types of bail:
- Bail in bailable offences
- Bail in non-bailable offences
- Anticipatory bail
Bail in bailable offences
As per Section 436 of the Code of Criminal Procedure, bail can be granted to a person who has been accused of committing a bailable offence. Under this section, an accused has the right to apply for bail. The section also lays a duty on the police officer or a magistrate court to grant bail to the person who has been accused of an offence of a bailable nature.
The section also states that when a person has been accused and arrested for committing an offence of bailable nature, can file an application before a magistrate court or to the police officer. Such a police officer or the court should grant and accept the bail application. The police officer shall release the person on bail on his personal bond if he/she fails to produce a surety within 7 days. If the police officer grants bail on personal bond, such an officer has a certain presumption that such an accused is indigent and poor that he is unable to arrange a surety. Therefore, such an accused can be released on personal bond.
In the year 2005, a new section 436A was inserted for the protection of under trial prisoners. The provision under this section states that if a person accused has undergone half of the sentence punishable for the alleged offence, such an accused can be granted bail on personal bond with or without the surety.
Bail in non-bailable offences
A bail under section talks about bail in bailable offences. A bail under non-bailable offences is covered under Section 437 of the Act. The Section states that when a person has been accused and arrested for committing a non-bailable offence without a warrant or appears before a court other than a high court or court of sessions, such an accused can be released on bail. But an accused may not be granted bail if:
- If there lies a reasonable ground to believe that an accused has committed an offence which is punishable by life imprisonment or death.
- A bail application is rejected if the accused has allegedly committed a cognizable offence and has a past criminal record where such an accused has been previously convicted for an offence which is punishable with life imprisonment, death or an offence which is punishable for a time period of 7 years or where such a person has been convicted for an offence two times or more having cognizable and non-bailable nature.
- A person can be granted bail if he/she is below the age of 16 years, is sick or infirm or is a woman.
- A person can be granted bail if the authority considers it just and proper to release person on bail.
- A person may be granted bail if the police officer during any stage of investigation has a belief that there are no sufficient grounds for a non-bailable offence, or further investigation is necessary to subject to the provision of Section 446, then he may be granted bail by submitting a bail bond without sureties.
- During the time of trial and before passing of the judgement, if the court has an opinion that the accused is not guilty of an offence, the court may release him on bail without presenting sureties.
An anticipatory bail has been discussed under Section 438 of the Code of Criminal Procedure. Any person who has an apprehension or a reason to believe that he can get arrested for a non-bailable offence; can approach the court to seek anticipatory bail. The person who has an apprehension can approach the sessions court or a high court for bail under this section. The important condition to apply for anticipatory bail under this section is that the person will be accused of an offence of a non-bailable nature. After filing the application, the court is required to assess and consider the merits of such an application.
The court considers several factors such as the history of the applicant, the antecedent of the applicant and the chances of the applicant absconding. The court also considers the facts that the accusation levied against such a person is made to harm his image in society or to humiliate the person or not. If the court where an application has been filed does not pass an order then the police officer has the right to arrest such a person without any warrant.
As per Section 438(2), there are conditions on which an anticipatory bail can be granted by the competent authority:
- The applicant has to be available for the interrogation process before the police when required.
- The person shall not make any threat, inducement or promise to any witness.
- The person is not allowed to leave India without the prior permission of the court.
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Exceptions that might be considered while granting bail by the court
There are certain defined exceptions which a court might consider while granting bail to the accused. These are as follows:
Hearing for Bail
After considering and hearing all the reasons stated by the person to grant bail, the court grants bail after being satisfied. All the evidence and facts are submitted to the court for seeking bail. The court is required to consider attributes such as the character of the accused, the nature of the crime, the financial status and employment status of the accused and the criminal history of the accused, if any. If the court grants bail, the magistrate imposes certain conditions upon the accused.
When can bail be denied?
In general, a bail application is not denied unless the person has been accused of a heinous offence and the punishment is of extreme gravity. There are some grounds on which bail can be denied. These are as follows:
Frequently Asked Questions
A person committing the below-mentioned offences is not allowed to apply for bail:
- If the offence committed by a person is punishable with life imprisonment or death.
- If the person accused is found to be a repeat offender and has been punished for such a similar offence.
- If the accused has tampered with the evidence or is found likely to do so.
- If the person accused is a member of a crime group or a terrorist institution.
- If it has been found that the accused might flee from the country in order to avoid any prosecution.
The authority considers several below-stated factors while calculating the bail amount. These are:
- The nature of crime – the seriousness of the offence and level of injury.
- The past criminal record of the accused, if any.
- The chances are that the accused can cause harm to the general public if released.
- The relationship of the accused with his/her family, place of work and the community to which the accused belongs.