How to Apply for Bail in India

Understanding the real meaning of bail as per Indian laws is a measure of protecting personal liberty. It is a principle of law that every person is innocent until proven guilty. Connected with this, a balance is required between allowing a guilty person to go scot-free while ensuring that injustice is not done. Thus, knowledge of bail becomes important for accused individuals, as it preserves their freedom and might affect the progress of their case.

This blog delves into the nuances of bail in India, providing a comprehensive overview of its types, application procedures, and legal considerations.

An Overview Of Bail

Bail is the temporary release of an accused person awaiting trial, secured by a financial guarantee or other conditions, ensuring their appearance in court.

What is Bail?

Essentially, bail is the temporary release of an accused pending the trial proceedings held against him. This release is conditional as it binds the accused to attend court proceedings whenever required. The provision is based on the principle that everyone is presumed innocent until proven otherwise. The provision also finds its articulation in Article 21 of the Indian Constitution, granting the right to life and personal liberty.

Types of Bail

• Regular Bail: This is granted to a person who is already behind bars or held in police custody; it is sought out after the person has already been taken into custody. Sections dealing with the bail in cases of non-bailable offenses are provided in Section 437 [Section 480, BNSS], while Special Powers of the High Court or Court of Session concerning bail are given under Section 439 [Section 483, BNSS].
• Anticipatory Bail: If a person suspects they may be arrested for a non-bailable offense, anticipatory bail may be sought. This issue has gained prominence recently as some corporate rivals and other prominent personalities attempt to frame their opponents with false charges. An anticipatory bail application under Section 438 of the CrPC [Section 482, BNSS] would be similar to pre-arrest bail. Therefore, if anticipatory bail is granted under Section 438, there would be no arrest of the person concerned by the investigating officer.
• Interim Bail: Interim bail is a bail granted by the Court on a temporary basis while any application is going on, or until an anticipatory bail or regular bail application is admitted by the Court. It is issued according to the exigencies of the case. The time for interim bail can be stretched, but if the accused is unable to furnish the Court to confirm and/or continue the interim bail, he loses his liberty and is either sent to jail or is issued a warrant against him. Interim bail, for one, offers possible relief to those accused who perceive the charges against them to be false and who desire prompt release from incarceration or bail.

Also Read : Types of Bail under CrPC

What Is The Court Process For Bail Applications In India?

The court process for Bail Application in India is as follows:

Regular Bail Application

• Filing the Application: Regular bail applications can be filed after arrest. Generally, they are filed in the Magistrate's Court for less serious offenses or within the Sessions Court for more serious offenses.
• Court Hearing: The court looks into the arguments, both for the prosecution and for the defense. The prosecution may oppose the bail, on grounds such as the severity of the offense, the risk of absconding, or potential tampering with evidence. The defense puts forward arguments for bail, emphasizing factors like the cooperation of the accused, the absence of any previous conviction, or lack of evidence, etc.
• Court's Decision: There are many things considered by the court when deciding upon a bail. These include the seriousness and nature of the offense, the strength of the evidence against the accused, and the past criminal record of the accused, whether the accused is likely to flee or destroy evidence. Moreover, the court has to see whether the accused is likely to influence or intimidate the witnesses. When bail is granted, it usually states such conditions as securing a personal bond and a surety, regularly reporting to the police, and not leaving the country without prior permission.
• Post-Bail Compliance: The accused must adhere to all bail conditions.

Anticipatory Bail Application

• Filing the Application: Application under Section 438 of the Code of Criminal Procedure is filed in the Sessions Court or the High Court before the arrest occurs, giving reasons for the apprehension of arrest.
• Court Hearing: The court listens to arguments from both the applicant and the prosecution; considerations are similar to those of a bail application.
• Court's Decision: The Court may grant anticipatory bail with conditions that provide protection from arrest. Sometimes it may reject the bail application as well.
• Compliance: If granted, an individual will have to abide by the conditions stipulated in the anticipatory bail.

When Can You Get Bail In India?

Following are the steps to get bail:

• Filing of Application: The bail application is filed by the accused or their attorney before the appropriate court-Magistrate Court, Sessions Court, or High Court.
• Notice to Prosecution: The court issues a notice to the prosecution, affording it an opportunity to present its case.
• Hearing: Within a court hearing, both parties, that is, the accused and the prosecution, put forth their respective arguments.
• Court's Decision: The court will consider various factors when deciding whether or not to grant bail.
• Bail Bond and Sureties: If bail is granted, the accused are required to execute a bail bond and, sometimes, to produce sureties-who are persons that guarantee that the accused will come to court.

Relevant Case Laws

A few case laws are:

Siddharam Satlingappa Mhetre v. State of Maharashtra

The case Siddharam Satlingappa Mhetre v. State of Maharashtra consists of the guidelines detailed by the Supreme Court on granting anticipatory bail. The Court said that it should be exercised with discretion in balancing individual liberty with societal interests.
According to the court, the following factors are to be taken into account: firstly, the nature and gravity of the accusations; secondly, the antecedents of the applicant; thirdly, the possibility of the applicant fleeing from justice; and lastly, the possibility of the accusations being made with the object of injuring or humiliating the applicant by having him so arrested.

State of Rajasthan v. Balchand alias Baliay

The 1977 Supreme Court case State of Rajasthan v. Balchand alias Baliay established the principle that "bail is the rule and jail is the exception." In essence, this landmark judgment further affirms that the primary tenet of criminal jurisprudence is to allow for bail, not refuse it, unless there are very strong reasons. The court further stated that arrest is to be avoided unless it is necessary, and that bail primarily serves to ensure that the accused is present during trial and not to punish before conviction.

Sanjay Chandra v. CBI

In the case of Sanjay Chandra vs CBI, the Supreme Court has pointed out that bail may not be refused as punishment. The court reiterated that bail is for ensuring the accused's presence during trial, not for pre-trial punishment. The court emphasized the requirement of compulsion for detention and should not only be based on the severity of the charge, but also on considerations such as the accused fleeing from justice, tampering with evidence, or persuading witnesses. This judgment further reiterated the principle that bail is the rule, and jail is the exception.

How To Apply For Bail In India?

The following is the procedure to apply for bail in India:

• Understand the Type of Bail: whether you require regular bail (post-arrest), anticipatory bail (before arrest), or interim bail (for delayed charge sheet filing). Each will have its procedure.
• Consult an Advocate: Hire a criminal Advocate who specializes in bail applications. They will prepare the application, appear in court, and advise on legal strategy.
• File the Application: For regular bail, apply before the Magistrate's Court or Sessions Court according to the offense. For anticipatory bail, file in the Sessions Court or the High Court. For default bail, apply under Section 167(2) of the CrPC [Section 187, BNSS].
• Attend Court Hearings: Attend a hearing in court where your lawyer will argue for the grant of your bail application while the prosecution will oppose it.
• Comply with Bail Conditions: If you are granted bail, ensure you comply with all the conditions set by the court, such as providing bonds, attending hearings, or reporting to the police.

What Are The Conditions For Bail In India?

The conditions for bail in India are as follows:

• Personal Bond and Surety: The accused may be required to execute a personal bond, i.e., a written promise to come to court. The bond would, however, need to be supported by the provision of one or more sureties via individuals who undertake liability for ensuring the accused's presence.
• Deposit of Security: The court may require the accused to deposit a certain amount of money or other valuable assets as security against forfeiture if the accused fails to report.
• Regular Reporting to the Police: The accused must report monthly to a local police station.
• Restriction on Travel: The court may impose a ban on leaving a country or certain areas without prior permission for any travel outside such boundaries.
• No Tampering with Evidence or Witnesses: Typically, the accused is barred from tampering with evidence or influencing witnesses.
• Attendance at Court Hearings: The accused has to make every appearance in court related to the case.
• Cooperation with the investigation: The court may direct the accused to cooperate with the ongoing investigation.
• Surrender of Passport: The individual will also often be ordered to surrender his passport so that he does not leave the country.

When Is Bail Denied In India?

• Grave Offenses: The court does not grant bail in the case of grave offenses, for example, murder, rape, or terrorism.
• Risk of Absconding: Bail will be denied if the court believes that the accused may abscond.
• Threat to Witnesses or Evidence: Bail is denied if there is a chance that the accused will destroy evidence or influence witnesses.
• Previous Criminal Record: A criminal past will mean denial of your bail.
• Public Interest: If giving bail to the accused is going to create a public disturbance, then bail will be denied.

Tips to Improve Chances of Getting Bail

• Cooperate with Investigation: Demonstrate willingness to cooperate with the police.
• Provide Strong Evidence: Present evidence that supports your case.
• Engage an Experienced Lawyer: A skilled lawyer can effectively argue your case.
• Demonstrate Strong Community Ties: Show that you have strong ties to the community and are unlikely to flee.
• Adhere to Court Orders: Comply with all court orders and conditions.

Related Articles

How To Get Bail In Section 354 IPC Case?

What To Do If Bail Is Rejected In Sessions Court ?

How To Get Bail In IPC 353?

Conclusion

The bail process in India is a delicate balance between individual liberty and the administration of justice. Understanding the legal framework and following the proper procedures can significantly impact the outcome of a bail application.

FAQs

A few FAQs are:

Q1. Can I get bail in a serious criminal case?

While challenging, bail is not impossible in serious cases. Courts consider various factors, and strong legal representation is essential.

Q2. How long does it take to get bail?

The time varies depending on the court’s workload and the complexity of the case. It can range from a few days to several weeks.

Q3. Can a bail order be canceled?

Yes, a bail order can be canceled if the accused violates the conditions of bail or if new evidence emerges.

Q4. What documents are required to apply for bail?

Required documents include the FIR, charge sheet, and any evidence supporting the bail application.

Q5. Can bail be granted in non-cognizable offenses?

Yes, bail can be granted in non-cognizable offenses, as they are generally less severe.

Q6. Can I apply for bail without a lawyer?

While you can, it is highly recommended to engage a lawyer, as they can navigate the complex legal procedures.

Q7. How much does bail cost in India?

The cost varies depending on legal fees and court-imposed conditions. The court will determine the bail amount and any sureties required.