Table of Contents
INTRODUCTION
In India, Bail is governed by the Code of Criminal Procedure, 1973. It means the temporary release of a suspect in any criminal offence who is awaiting court trial after paying the bail bond. It becomes applicable after arrest and becomes effective from the moment of the arrest.
It is not defined in the Act but the terms bailable offense and non-bailable offenses are defined under Section 2(a). Section 436-450 governs the provisions relating to bail under the Act.
An offence is any act or omission made punishable by law for the time being in force. When a suspect is arrested, his statement is taken on record and personal information such as his name, birthplace, present residential address, date of birth, profession, address of the family, mobile number, and charges filed against him are noted. The police officer may also review the past criminal record if any in the police station and ask for his fingerprints to file a case against the accused.
Section 436
Section 436 of CrPC states that any person who is detained by a police officer, who doesn’t have a warrant or that person is prepared in the custody of the police officer before the court has granted him bail, shall be released through a bond without any kind of sureties.
If the person has failed to follow the bailbond then he can be refused bail. In case, the person appears in court, such refusal will be subject to the court and it can call that person and impose a penalty given under Section 446 of Cr.P.C.
Types Of Bail
Regular bail
Sections- 437 and 439 of the Code of Criminal Procedure. It is granted to a person who is already in the police custody of an offence or when there are allegations of him committing the same.
Anticipatory bail
Section- 438 of the Code of Criminal Procedure. The term “anticipatory bail” is self-explanatory. It is a kind of bail that is granted to someone who is expecting to be arrested by the police for a non-bailable offence
Interim Bail
It is granted before the trial for the grant of a regular or anticipatory bail takes place. It is granted for a short period of time.
Types of offences
Bailable Offence
In case of a bailable offence, the grant of bail is a right available to the accused. It may be either given by a police officer who is having custody of the Accused or by the court under whose jurisdiction the offence falls. The accused may be released on bail, on executing a “bail bond”, with or without furnishing sureties.
Non Bailable Offence
A non-bailable offence is a crime in which the grant of Bail is not a matter of right but, the accused has to seek the permission of the court, and upon the discretion of the court based on the facts, bail is granted.
How to apply for It?
When a person accused of committing a criminal offense is arrested by the police, they have the legal right to file an application for a release from police custody. An accused person must contact a criminal lawyer in Delhi to assist them in filing a bail application.
- In case, a person is arrested he is taken to the police station to file the case.
- The police station where the suspect is taken is the one which exercises jurisdiction over the area where the suspect resides.
- In a bailable offence, the suspect has to submit Form- 45 given in the Second Schedule to the court in which his case is being heard. The police cannot grant bail without the court’s approval.
- In case, the suspect is accused of committing a non-bailable offence, he has to submit the same form before the Court in which his case is being heard, but, granting of bail is at the discretion of the court only.
- The bail amount the accused has to deposit is also at the discretion and decision of the court.
- However, in criminal cases with lower gravity, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.
Bail Application
- The name of the court under which the bail application is going to be filed
- The section of CrPC
- The name of the parties
- The FIR number
- The name of the police station in which the accused is in custody
- The date and day on which the arrest of the accused was made
- The ground on which the accused should be granted bail
- The surety of the accused not absconding if bail is granted
- The signature of the applicant
- Prayer
Circumstances
When the arrest is made without a warrant
Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The private person after the arrest should bring the convicted person to the police station or hand him over to the police officer as soon as possible. The police will if it thinks that the convicted person should be released, release him.
Section 56 of the Cr.P.C. enables the police officer to bail that person out under the provision contained in this Section.
Section 169 of Cr.P.C. state that the bail can only be set when the investigation is made. Until then this Section does not provide bail. Bail can be given by the officer-in-charge of the police station or the police officer who is investigating.
Section 170 of Cr.P.C. confers the authority to give bail, to the officer-in-charge of the police station in case the person is accused of committing a non-bailable offense.
When the arrest is made with the issuance of the warrant
Section 73 of Cr.P.C. states that if the court is issuing the warrant under which it is specified that if the person executes a bond in which he has provided sureties for appearing before the court when the court specifies, then the police officer to whom the warrant is issued will be allowed to give bail to the person.
According to Section 81 of Cr.P.C. and Section 82 of Cr.P.C., it is specified that if the arrest is made in the district, the police officer other than the District Superintendent of Police or the Commissioner of Police can release the accused from custody, but in case the arrest is made out of such district then the District Superintendent of Police or the Commissioner of Police in the area of arrest can release the convicted.