What is a Bail?
Bail is a judicial term that alludes to the interim release of someone who has been criminally prosecuted. Bail is the temporary release of an individual who has been convicted of a particular offence, subject to certain circumstances and the necessity that he abides within the court’s jurisdiction. Bail is said to be the release from imprisonment of a person accused of any offence that is punishable or stigmatized in compensation for an amount of money pledged in lieu of the accused’s appearance in court at the designated time. The person who makes the deposit acts as a guarantor.
TYPES OF BAIL
- REGULAR BAIL
When a person is arrested and kept in custody, he can be released on regular bail under sections 437 and 439 of the Cr.P.C.
SECTION 437 states that if an individual is arrested without a warrant by a police officer for the execution of a non-bailable criminal act, or if there are reasonable grounds to suspect that there is inadequate evidence to prove that the person has committed any non-bailable offence, the person can be released. If he appears in a court other than the Court of Sessions or the High Court, this must be followed. Besides that, this person cannot be granted bail if there are reasonable grounds to believe he is guilty of a crime punishable by death or life imprisonment, or if he has previously been convicted of a crime punishable by the same.
SECTION 439 It provides the High Court and the Court of Sessions with special powers in this domain. It allows these courts to release people on bail for offences listed in Section 437(3) of the Code of Criminal Procedure. The court has the authority to impose whatever condition it believes is relevant.
It also states that any restriction imposed by the magistrate might be overturned if the High Court grants bail after notifying the public prosecutor. In this scenario, bail should be allowed if the offence is punishable by life imprisonment and can be prosecuted alone by the Court of Sessions. The courts have the authority to order that person’s arrest under both of these sections.
- INTERIM BAIL
Interim bail is granted prior to the procedure for granting regular or anticipatory bail. This is only given for a limited time. The reason behind this is that granting bail by the High Court or the Court of Session necessarily requires the submission of paperwork by the subordinate courts, which takes time. As a result, interim bail is available for the present term.
Interim bail can indeed be extended, but if it expires, the individual to whom it is granted is sent to prison.
- ANTICIPATORY BAIL
A person trying to apprehend imprisonment for any reason to believe is regulated under Section 438 of the Criminal Procedure Code. It states that anyone who expects to be arrested as a result of an accusation of committing a non-bailable crime might apply for anticipatory bail. An application to the High Court or the Court of Sessions is required.
If a person is released, there are various conditions that must be met, according to this section:
- The person must be present at all times during the investigation;
- He may not bribe anyone to prevent him from disclosing the facts against him during the proceedings
- He may not leave India without the court’s consent.
It was also said that if an arrest is made without a warrant by a police officer, the suspect can be released on bail. There is a need for anticipatory bail that mainly arises because influential people sometimes try to incriminate their rivals in false cases in order to disgrace them or for other reasons by having them detained in jail for a few days. Quite apart from criminal offences, where there are grounds to believe that a person accused of an offence will not escape justice or otherwise misuse his liberty while on bail, there is no need for him to be taken into arrest, held in detention for a few days, and then seek bail.
The purpose of anticipatory bail provisions is to ensure that no one is arrested unless and until convicted. When a person has grounds to suspect he may be arrested for a non-bailable offence, he can appeal to the High Court, the Supreme Court, or the Court of Session for anticipatory bail under Section 438 of the CrPC. Certain factors are taken into account when granting anticipatory bail, such as:
- The essence and sincerity of the accusation
- The applicant’s background, including whether he has previously served time in prison following a court conviction for any cognizable offence
- The applicant’s ability to escape from fair trials
- If the accusation was made with the intention of injuring or humiliating the applicant by getting him imprisoned, either reject the application right away or give an interim order granting the applicant’s petition.
A summons for appearance entitles an accused to apply for anticipatory bail. It has also been held that anticipatory bail cannot be granted to a person for doing something that is likely to be interpreted as the commission of a crime, even if the offender intended to do so in the exercise of his rights. The difference between an ordinary bail and an anticipatory bail order is that the former is granted after arrest and thus means release from police custody, whereas the latter is granted in anticipation of arrest and is effective at the time of arrest.
CONDITIONS FOR ANTICIPATORY BAIL
While granting anticipatory bail, the High Court or the Court of Sessions may impose the conditions specified in Section 438(2). The basis for determining that comment thread is only illustrative, and the court may impose other conditions as it sees fit in order to strike a balance between individuals’ rights to personal freedom and the investigative rights of the police. The following requirements must be fulfilled while providing such bail:
- The applicant should make himself available for impugning by a police officer as instructed by the court or as obligated by the police officer.
- The applicant should not move out of the country without acquiring permission.
- The applicant should provide the concerned police station with his or her domestic home address, native address, and mobile number.
- The applicant should not give any extra incentive, threat, promise, or any other form of incentive to anybody who is consistent with the facts of the matter.
The court authorizing anticipatory bail cannot implement the condition that the direction to be granted bail will always be effective for a determined period of time after arrest, because such an order would prevent the applicant from applying for regular bail under section 437 of the CrPC immediately after arrest, before the timeframe specified in the order comes to an end. Section 438 does not give the court the authority to override the provisions of Section 437 and to stay the applicant’s right to apply for and obtain bail for a specified period of time.
Connect with an expert lawyer to get free legal advice.
HOW TO GET ANTICIPATORY BAIL
The procedure followed for an anticipatory bail application in India depends on whether an FIR has been filed or not.
- When FIR is filed
- Whenever an FIR is filed, the investigating officer will issue a notice of arrest.
- As soon as the applicant receives the above notice, he or she must apply for anticipatory bail along with the same procedures laid down.
- When FIR is not filed
- The public prosecutor will communicate with the officer involved.
- Even though no FIR has been filed, the prosecutor will draw the conclusion that there are no grounds for anticipatory bail.
- The judge will agree, and your lawyer will be asked verbally to withdraw the anticipatory bail.
- The lawyer will then make a verbal request for a seven-day pre-arrest notice if the police decide to arrest you or your family.
- The judge will likely grant this bail application.
- An order will be issued as a result. This is commonly referred to as the “notice bail”.
- If your bail application is denied, you may appeal to the High Court.
- If the bail is also denied by the High Court, you may file an appeal with the Supreme Court.
Even though consulting a lawyer is considered necessary in order to acquire anticipatory bail, you should be cognizant of the amount of money that you’ll have to spend for the same. In India, the regular bail cost ranges between Rs.25,000 and Rs.30,000.