BAIL
Introduction
Bail is a
statutory concession is given to an accused under the provisions of Cr. P.C
Generally, it means to set a person free from custody whose freedom of movement and liberty was taken away by police. Bail may be claimed as a matter of right in the bailable offense.
DEFINITION OF BAIL
“Bail is the release of a person from the custody of police and delivering into the hands of
sureties. Who undertakes to produce him in Court whenever required to do so.”
KINDS OF BAIL
(I)
Bail
incognizable offense.
(ii)
Bail
in non-cognizable offenses.
(iii)
Bail
before arrest
(iv)
Bail
after arrest
GRANT OF BAIL
Bail may be granted in the following cases
1. Grant of bail in bailable offenses
u/s 496
i.
AS
OF RIGHT
In bailable offenses, the person accused has the right to grant bail.
ii.
Determination
of offenses
Schedule II column V of
Crpc provides whether a particular offense comes into the category of bailable
offense or not
iii.
AUTHORITY
TO GRANT BAIL
Following authorities may
grant a bail
· Court of Law
· An officer of the Court
· Officer-in-charge of the police station
iv.
CONDITIONS
FOR GRANT OF BAIL
Bail may be granted to
any person who is accused of a bailable offense.
If the person is arrested or
detained without a warrant by an officer-in-charge of a police station
If the person appears
before the Court in answer to a process issued by the Court or he is brought
before the Court by the police or some other competent authority.
FORM OF BAIL BOND
The form of bail bond
should be in accordance with Form 41 of the schedule of Crpc.
EXCEPTIONS:
Bail cannot be granted to
a person when the magistrate is of the opinion the breach of the peace cannot be prevented
otherwise by detaining a such person in custody.S.107 (4)
Bail cannot be granted to
a person when security proceedings are taken against him. S.117 (3) Crpc
2. Grant of bail in non-bailable offenses
In offenses not punishable with death, imprisonment for life or 10 years,
the grant of bail is a rule and refusal is an exception but it cannot be claimed
as of right.
As a general rule bail shall not be granted in offenses
punishable with
death, imprisonment for life, or for 10 years.
Exception:
The court may grant bail in the following cases after giving
notice to the prosecution to show cause why these should not
be released.
(a)
Where
the person accused is under the age of 16 years.
(b)
Any
woman
(c)
Any
sick person
(d) Any infirm person
IN THE FOLLOWING CASES COURT GRANT BAIL AS A MATTER OF RIGHT:
The accused may be released
on bail if there are sufficient grounds for further inquiry into his guilt.
Case of further inquiry
means a Court comes to a definite conclusion that there are no reasonable
grounds for believing that the accused has committed a non-bailable offense.
Where the trial is
concluded but the judgment is not delivered and the Court has reasonable
grounds to believe that the accused is not guilty of such offense. The Court
shall release him upon his executing a bond for appearance in Court for hearing
the judgment.
If the bail is granted in
non-bailable offenses then the Court or the officer of the Court shall record
his reasons for doing so.
CANCELLATION OF BAIL U/S.497 (5)
The Court which granted
bail and also the High Court and the Court of Session were granted powers to
cancel it and order for the release of the accused.
Bail-in non-bail-able
offenses is discretionary and cannot be demanded as of right.
PRE-ARREST BAIL
S.498 Crpc talks about
bail before arrest.
Provisions of S.498 are
intended to be used very sparingly in exceptional cases.
Pre-arrest bail is an
extraordinary concession that is to be extended who has been implicated
falsely.
MEANING OF PRE-ARREST BAIL
Bail granted to an
accused before his arrest when he physically surrenders himself before the
Court u/s 498 is termed as bail before arrest.
OBJECT OF PRE-ARREST BAIL
Basic idea and object of
law of pre-arrest bail is to protect liberty and honor of respectable citizen
from the humiliation at the hands of police.
CONDITIONS OF PRE-ARREST BAIL
a. There should be apprehension of imminent arrest with the effect of virtual restraint on the petitioner.
b. There must be apprehension of
ulterior motives i.e. humiliation, unjustified harassment, and apprehension of irreparable
damage to the reputation.
c. It should be otherwise a fit case on
merits for the exercise of discretion in favor of the petitioner for the purpose of
bail.
d. ON this behalf the provisions
contained in s. 497 Crpc would have to keep in mind.
e. The petitioner should physically
surrender himself before the Court.
CASES WHERE BAIL BEFORE ARREST GRANTED
I.
Case
of further inquiry
ii.
Personal
enmity between parties
iii.
Insufficient
evident
iv.
Child
v.
Female
vi. Old man
CASES WHERE BAIL BEFORE ARREST NOT
GRANTED
I.
If the offender is a habitual offender
ii.
If
the offender is a previously convicted person
iii.
If
there is the likelihood of absconding of the accused
iv. If there is a reasonable apprehension of the accused being tempering the prosecution evidence?
PRE-ARREST BAIL IN BAILABLE OFFENCES
pre-arrest bail should be
granted for bailable offenses.
PRE-ARREST BAIL-IN NON-BAIL ABLE OFFENCES:
Pre-arrest bail in non-bailable offenses not be allowed where the offense is punishable by death or imprisonment
for life or imprisonment for 10 years.
Exception:
In other cases, it may
be allowed
CONDITIONAL BAIL BEFORE ARREST:
The Court could make an order of pre-arrest bail conditional i.e. where bail is granted to an accused
under section 123-A and it may be canceled if the condition is not fulfilled by
the accused.
CONDITION IN NON-REGIST CASE:
Section 498-A provides clearly, that pre-arrest bail cannot be granted to a person against whom no case is registered.