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Procedure for Getting Bail in India

Procedure For getting Bail 

The crime rate in India has been growing at a rapid rate. To control the crime rate, police has to arrest the suspect. But certain times, the suspected people who are arrested are not the actual culprits. They can escape through the clutches of police only through bail.

Bail is the method developed to grant temporary relief to the suspects of crime. The concept was originally invented in England. The majority of Laws introduced un India were originally enacted by Britishers.

The concept of bail was prevalent in England around 399 BC. Its first instance was when Plato tried to procure a bond in order to release Socrates. Getting inspired from that, India also, later on, introduced this concept[1].

According to the recent research by National Crime Records Bureau (NCRB), there are almost 22.2 million people under trial in India. This is a large number to be looked at. This number is quite evident about the conditions of Under trials. So, the concept of bail comes as a necessary tool to help these people.

The Right to get bail is a Fundamental Right of the people in conflict with Law. The Article 21 of the Constitution of India speak about the Right to life and Liberty. This Right provides all the people to demand and get Bail.Iyer puts it with the full authority of the Supreme Court: “Personal liberty is deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community”. The constitutional emphasis was made clear in Balchand (1977): “The basic rule may perhaps be tersely put as bail, not jail”[2].

The System of bail in India is a property-oriented approach. This helps people who have money to evade away from the clutches of Law to an extent. The Right to get Bail is important for all and its importance cannot be ignored under the purview of Article 14,19 and 21.

The term ‘Bail’ is not defined anywhere in the Criminal Procedure code,1973. The section 2(a) of this code defines bailable and non-bailable offences. The term Bail grants temporary freedom to the suspect, in exchange of bond provided by him.

The Right to Bail was first recognized in the Charter of Rights, the Magna Carta which was introduced in 1215.[3] This Charter stated for the very first time that a man cannot be convicted until he has faced the trial and delay in trial due to numerous reasons, grant him the right to get bail. Followed by this, the Habeas Corpus act came in the year 1679, which recognised the Right of Prisoners to get bail from the magistrate.

The Criminal Procedure Code,1973 covers all the provisions relating to bail with section 436 to 450 dealing with bail and bonds, in criminal cases in India. There are three types of bail mainly, regular bail, interim bail and Anticipatory bail. The Regular bail is generally granted when a person is arrested under Section 437 and Section 439 of the Cr. P.C. The interim bail is granted before the procedure for granting a regular or anticipatory bail starts.The reason behind this is that the granting of bail by the High Court or the Court of Session requires documents to be sent by the lower courts, which takes time. So, for the time being, the provision of interim bail is provided. The next type of bail is Anticipatory bail, granted according to the Section 438 of the Criminal Procedure Code. The application for Anticipatory bail can be made before the High Court or Sessions Court.

There are certain circumstances under which bail can be granted by the police. If the case pertains to the situation, when the arrest is made without a warrant, four sections of Cr. P.C come into play. The Section 43 of Cr. P. C. provides that if the person is arrested by any person and then he is brought before the police, he can be granted bail by the police. The Section 56 enables the police officer to grant bail to that personunder the provision contained in this section. The Section 169 of Cr.P.C. provides the option of bail when investigation is made, by the police officer. The section 170 confers authority to give bail, in the officer-in-charge of the police station in case the person is accused of committing a non-bailable offense.

The bail is also available when the person is arrested after issuance of a warrant. The section 73,81 and 82 of Cr. P.C. helps in getting bail under this situation.

Process of bail

The first step begins with the arrest of the accused person. The police gather his personal information such as date of birth, address, etc and then do a little investigation into his personal history, check on his previous criminal records, if any.

After this if person wants bail, he has to submit a bail application. The convicted person has a right to get bail. There are two types of offences namely, bailable and Non-bailable offences. In the case of bailable offence, the Form-45 which is provided in the second schedule has to be filled. After it is filed, the court has to approve the bail during the proceedings. In case of non-bailable offense, the suspect has to fill up the same form and file it in the court where his case is to be presented, the only change is that here the court has the discretion to grant bail.

Bail is also granted on appeal. If a person is already convicted and applies for appeal in the Higher Court, he can apply for bail. This is followed by the process of bail hearing, in this the Judges hears all of the reasons to grant bail and then announces their decision. The judges will consider the character of the accused, nature of the crime, employment situation, financial background, criminal history etc.

When the judge grants the bail then he imposes some conditions along with it. These conditions are most likely related to alcohol tests, constraints in travel, necessary conditions in employment, periodic meetings etc.

The defence attorney has to provide necessary Evidences to prove the above stated facts. The Judges settle the bail amount to be paid by the accused when he appears in the court.

The next step is setting the bail amount.The Judge announces an amount to be paid by the accused when he appears in court. There are certain crimes for which bail amount is already decided, but for the offences when it is not pre-decided, the judges decide it on the basis of gravity of the crime, employment Status, Criminal records of the accused etc.

In the Cash bill situation, the accused has to pay the full amount in cash, via credit card or cheque at the time of bail. But, in the case if they are unable to furnish the entire amount of money, the relatives or friends, known as bail bondsman can contact the bail agent. This situation is called surety bond.

Thus, getting a bail is the most important Right of the suspect.


References

[1]https://blog.ipleaders.in/bail-procedure/#:~:text=Bail%20can%20be%20given%20by,committing%20a%20non%2Dbailable%20offense.

[2]whether-getting-bail-fundamental-right-india/#:~:text=Refuse%20to%20give%20Bail-%20against,right%20to%20life%20

[3]https://www.humanrights.com/what-are-human-rights/brief-history/magna-carta.html#:~:text=Magna%20Carta%2C%20or%20%E2%80%9CGreat%20Charter,turning%20point%20in%20human%20rights.&text=Among%20them%20was%20the%20right,be%20protected%20from%20excessive%20taxes.

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