Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.
In many cases, trials can begin weeks or months after an initial arrest, and if not for bail, many people, some of whom might be innocent, would have to wait in jail until their trials began. At the minimum, this can present a financial hardship, as the person would be unable to work. And, the person would also be missing his or her life -- family events, holidays, etc. Not everyone who is released on bail is eventually acquitted, so to prevent particular dangerous suspects from being released, several safeguards have been built into bail law.
The Bail Process
When you are an accused of some crime and arrested to record your statement and take information like the name, residence address, birth place, charge filed against you, etc. The police officer may also check back the criminal record if any in the police station and ask for finger prints to files a case against you. The crimes that are bailable and simple, you will be allowed to apply for bail immediately.
However, if the crime is a little bit complex and non-bailable, you may wait for 48 hours to claim your right to bail in the court wherein you are given a hearing. Depending upon the facts of the case, the judge decides whether you should get bail or not. Also, in situation you are given bail you are asked to deposit money with the court. Generally, in certain smaller crime cases, a standard amount is asked to be deposited for awarding the bail.
What is the law regarding bail in India?
The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail process and how it is obtained. However, it does not define bail. To get a glimpse of the law, we need to go deeper to section 2(a) Cr.P.C. wherein it says that bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense.
Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories which have been determined according to the nature of the crime. For instance, all serious offenses like offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses, all other offenses have been kept bailable offenses.
Later part of the Cr.P.C. talks about the process of bail under sections 436 to 450 wherein it has the provisions for the grant of bail and bonds in criminal cases and also talks about the amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. However, still a lot of discretionary power has been vested into the court to put a monetary cap on the bond.
Conditions for Bail
There are some conditions put under section 437 of the Cr.P.C. wherein you can ask for bail even if you committed non-bailable offense. In non-bailable cases, bail is not the right but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section S. 437 (3) elaborates the conditions set by the law to get bail in non-bailable offenses.
The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1). However, for that the Court has power to impose any condition which it considers necessary.
Some conditions that the court may place while granting bail are as follows:
- In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
- In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
- Otherwise in the interests of Justice.
Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek 'Anticipatory Bail'. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offense.
Procedure to Apply for Anticipatory Bail Application
The object of arrest and detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive sentence. If his presence at the trial could be reasonably ensured otherwise than his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the tendency of the criminal proceedings against him.
In fact ‘anticipatory bail’ is a misnomer as it is not bail presently granted in anticipation of arrest. When the Court grants ‘anticipatory bail’ what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting ‘anticipatory bail’ becomes operative.
When Anticipatory Bail should be applied for
Anticipatory bail is literally applied for 'in anticipation of arrest'. It is a direction to release a person on bail, issued even before the person is arrested.
If the accused has a reason to believe that s/he may be arrested on accusation of having committed a non-bailable offence, then s/he has the right to apply for an anticipatory bail in the Sessions Court or High Court.
One may apply for anticipatory bail after learning about a criminal complaint made against them to the police by their wife, or by any threats made by her family against themselves and their family.
It is also important to know whether, in cases where the FIR has been filed, the offence is bailable or non-bailable. While in the former bail in granted as a matter of right, the grant of bail in the latter is based on several contingencies.
How to apply for anticipatory bail
- Contact a lawyer to apply for pre-arrest notice/notice bail, and anticipatory bail.
- Get the lawyers to draft an anticipatory bail mentioning your version of the fact.
- Apply at the appropriate Sessions Court.
- When the matter comes up for hearing, it is advisable that your lawyer is accompanied by a trusted person.
Anticipatory Bail Application for Bailable& Non-Bailable Offenses
A person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (Cr.P.C) depending on the kind of offence that the police has registered.
Section 436 provides that when any person other than a person accused of a non-bailable offenses is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail.
[Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.
Conditions that may be imposed by the Court
The High Court or the Court of Session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
A. a condition that the person shall make himself available for interrogation by the police officer as and when required;
B. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
C. a condition that the person shall not leave India without the previous permission of the court.