Bail denotes the security taken from an accused to appear before the Court on a fixed date. It is the provisional release granted to an accused in a criminal matter in which the judgment of the Court is pending. An undertrial person is released on bail by giving security in the form of a bail bond for his appearance before the legal authority whenever asked to appear.
The basic object behind granting bail to make sure that the accused doesn’t remain in custody for a long time until the verdict of the case is given by the judge. By granting bail the law administering authorities want to be assured that the accused will be available to appear before the Court during the trial as and when required by the Court.
CONSIDERATION OF BAIL APPLICATION:
The Courts generally consider:
- The nature and gravity of the offence the accused is charged with.
- The nature of the accusation leveled by the complainant or the victim.
- The nature and credibility of the evidence supporting the accusation
- The severity of the punishment to which the accused may be subjected if found guilty.
- The risk of the accused absconding, tampering with the evidence, or threatening or causing physical harm to the complainant.
- The danger of continuation or repetition of offence.
- Health, age, and sex of the accused and the victim.
- Whether the grant of bail would obstruct the course of justice
- Whether there is reasonable and credible evidence to believe that the accused is guilty of the offence he is charged with.
BAIL IN BAILABLE OFFENCES:
In case of arrest or detention made without warrant of any person who is not accused of the non-bailable offence by an officer in charge of a police station, or appears or is brought before a Court, such person is ready to furnish bail at any time while in the custody of such officer or at any stage of the trial before the Court such person shall be released on bail.
However, if the officer or Court deems fit, may, instead of releasing the person on bail discharge him if he is ready to execute a bond without sureties for his appearance before the Court.
Where a person released on bail-bond has failed to comply with the conditions of the bond regarding the time and place of attendance, the Court may refuse to release him on bail. Subsequently, when such a person appears before the Court in the same case any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by bail bond to pay the penalty thereof.
BAIL IN NON-BAILABLE OFFENCES:
1) In case of arrest or detention without warrant of any person accused or suspected of committing any non-bailable offence by an officer in charge of a police station or appears before a Court except the High Court or Court of Session, he may be released on bail,
(i) The Court shall refuse to release such person on bail when there is reasonable evidence that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) The Court shall not release such person if such offence is a cognizable offence and he had been earlier convicted of an offence that is punishable with death, imprisonment for life or imprisonment for seven years or more, or such a person had been convicted on two or more cases of a non-bailable and cognizable offence.
However, the Court may direct a person mentioned in clause (i) or clause (ii) to be released on bail if such person is a woman, sick, infirm, or is under the age of sixteen years.
The Court may also direct that a person mentioned in clause (ii) be released on bail if it finds it just and proper so to do for some other special reason.
If the accused is entitled to bail and is also ready to comply with the directions of the Court the mere fact that an accused’s presence may be required during an investigation for identification by the witnesses shall not be sufficient ground for refusing to grant bail.
2) If during the period of investigation, inquiry, or trial the police officer or Court handling the case finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there is sufficient evidence for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A of Cr.P.C. be released on bail, or, a bond without sureties at the discretion of such officer or Court for appearance as and when required.
3) In case of a person accused is punishable with imprisonment which may extend to seven years or more
or of an offence under Chapters 6,16 and 17 of the Indian Penal Code or abetment of, conspiracy or attempt to commit, any such offence,
is released on bail as provided in sub-section (1)
the Court may impose any condition in the interest of justice to ensure that such person released on bail shall appear before the Court in compliance with the conditions of the bond, or he shall not commit an offence identical to the offence of which he is accused or of the commission of which he is suspected.
4) ) Before releasing an under-trial person on bail as provided under sub-section (1), or sub-section (2), the officer or a Court shall record in writing his or her reasons for releasing that under-trial person.
5) A Court that ordered the person to be released on bail under sub-section (1), or sub-section (2), may direct such person to be arrested if it considers it necessary so to do so.
6) Where a case tried before a Magistrate of a person accused of any non-bailable offence is not concluded within sixty days from the first date fixed for taking evidence in the case and the accused is in custody during the whole of the period, such accused person is released on bail unless the Magistrate directs otherwise for reasons to be recorded in writing.
7) After the conclusion of the trial of a person accused of a non-bailable offence and before judgment is given the Court finds that there are reasonable evidence for believing that the accused is not guilty of any such offence, it shall release the accused if the accused executes a bond without sureties for his appearance to appear before the Court to hear the judgment delivered.
MAXIMUM TIME ALLOWED FOR DETAINING AN UNDER-TRIAL PERSON:
In case of an accused person who has, during the period of investigation, inquiry, or trial of an offence not being an offence for which the punishment of death has been specified under the law been detained for a period extending up to one-half of the maximum period of imprisonment given for that offence under that law, he shall be released on presenting to the Court a personal bond that may be with or without sureties.
However, the Court may after recording the reasons in writing, order the continued detention of such person for a period more than one-half of the said period or the Court may if it deems fit release him on bail instead of the personal bond with or without sureties.
During the period of investigation inquiry or trial, no such person shall be detained for more than the maximum period of imprisonment given for the said offence under that law.
BAIL TO PERSON APPREHENDING ARREST:
Whenever any person is afraid of being arrested because of being accused of committing a non-bailable offence, he may apply to the High Court or the Court of Session, and if the Court deems fit, direct that in the event of such arrest, he shall be released on bail.
The Court may however impose certain conditions for granting the bail to prevent the accused from absconding, tempering the evidence, or threatening the witnesses.
So if such a person is arrested without a warrant on such accusation by a police officer, and is ready to furnish bail, he shall be released on bail.
If a Magistrate taking cognizance of such offence decides that a warrant should be issued against that person, he shall issue a bailable warrant following the direction of the Court.
BOND OF ACCUSED AND SURETIES:
Before releasing any person on bail or his bond, a bond for a particular sum of money as the police officer or Court finds sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties on the condition that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend as per the directions given by the police officer or Court, as the case may be.
In case of any condition imposed for the releasing of a person on bail, that condition shall be mentioned in the bond.
The Court may either hold an inquiry or accept affidavits as it thinks fit as a proof of the facts contained therein for the sufficiency or fitness of the sureties.
AMOUNT OF BOND AND REDUCTION THEREOF:
The circumstances of the case shall fix the amount of every bail bond executed and such amount shall not be excessive.
The bail required by a police officer or Magistrate be reduced as per the directions of the High Court or Court of Session.
DECLARATION BY SURITIES:
A surety to an accused person for release on bail has to give the relevant particulars in the declaration before the Court as to the number of persons to whom he has stood surety including the accused.
DISCHARGE FROM CUSTODY:
When the accused is in jail the Court that has admitted him to bail shall issue an order of release to the officer in charge of the jail, and the officer on getting such order shall release the accused. Once the bond has been executed, the person whose appearance has been executed shall be released.
PROCEDURE WHEN BOND HAS BEEN FORFEITED:
If a bond under Cr.P.C. is for the appearance of a person, or production of property, before a Court and if the Court is satisfied that the bond has been forfeited, the Court shall record the evidence of proof of such forfeiture and may call upon any person who is bound by such bond to pay the penalty thereof or to show the reason why it should not be paid by him.
If sufficient reason is not shown for not paying the penalty or if the penalty itself is not paid the Court may recover the same as if such penalty was a fine imposed by it under Cr. P.C.
However, if the penalty is not paid and the Court order to recover the same is not able to recover it then the surety shall be liable to imprisonment in civil jail for a maximum of six months.
The Court may, at its discretion, remit any portion of the said penalty and ask for payment in part only.
In case of a surety dying before the forfeiture of the bond, his estate shall be discharged from all liability of that bond.
In case of any person who furnished security under section 106 or section 117 or section 360 of Cr.P.C. is convicted of an offence, and the commission of the offence constitutes a breach of the conditions of his bond, or of a bond that is executed instead of his bond under section 448,
Against the surety, a certified copy of the Court’s judgment convicting him of such offence may be used as evidence. If such certified copy is so used, the Court shall assume that such offence was committed by the surety unless the contrary is proved by him.
CANCELLATION OF BOND AND BAIL-BOND:
Without prejudice to the provisions of section 446 of Cr.P.C., in case of forfeiture of a bond for appearance of a person for breach of a condition, the bond executed by such person and the bond, if any, executed by one or more of his sureties shall stand canceled; and
If the Police Officer or the Court for appearance before whom the bond was executed, is satisfied that there was no sufficient reason for the failure of the person bound by the bond to comply with it then no person shall be released only on his bond in that case.
However, on the execution of a fresh personal bond for such sum of money and bond by any number of surety as the Police Officer or the Court thinks sufficient, he may be released in that case.
However, the orders of forfeiture of the bond are appealable, if the order is made by a Magistrate, an appeal may be made to the Sessions Judge and if an order is made by Court of Session appeal may be made to the Court to which an appeal lies from an order made by such Court.
The Criminal Procedure Court gives Courts a wide discretion for those held in judicial custody or who apprehend custody. Thus, it is at the Court’s discretion to accept the bail bond that is furnished by an accused in the Court and no express right conferred on the person for release. The Supreme Court stated that any Court while granting or denying bail should give reasons for the same as the issue is to protect the liberty of the accused and obstruction of delivery of justice by the offender.