Whenever any person is arrested in India, the first question for which they run to their lawyers is the bail procedure. In India, Bail is devised as a technique for effecting a synthesis of two basic concepts of human rights of the accused person - to enjoy his freedom and public interest and to produce the accused person in Court to stand trial.
Bail is a judicial release of an accused person from custody, on the condition that the accused person will appear in court at a later date. In India, criminal offenses are broadly defined as Bailable and Non-Bailable crimes. It is regulated by the Code of Criminal Procedure (CrPC). Under the CrPC, bail can be granted to an accused person either by a police officer or by a judicial magistrate. Bail is granted to an accused person to secure their presence at trial, and to protect their liberty while they are awaiting trial. It is generally granted when the accused can furnish sufficient sureties (guarantees) that they will appear in court as required. If the accused is unable to furnish sufficient sureties, they may be required to remain in custody until their trial.
The most significant case of Bail in India, Hussainaira Khatoon v. State of Bihar, raised the question of delayed Bail and the ambit under Article 21 of the constitution. Let us take a look at all the different types of Bail that an accused asked for in India.
Types of Bail in India
There are usually 5 kinds of bail under the Indian Penal Code (CrPC) that an individual may apply based on the stage of the associated criminal case. i.e. Regular Bail, Anticipatory Bail, Interim Bail, Default Bail, and Medical Bail.
Let's take a closer look at all types of Bail.
1. Regular Bail:
Regular bail can be granted to a person who has already been arrested and kept in police custody. This is the common type of bail people ask for during their trial, whether the offense is serious (non-bailable) or less serious (bailable). A person can file a bail application for regular bail under Sections 437 and 439 of the CrPC.
Regular bail is divided into two types based on the offense.
Regular Bail for Bailable Offences
Section 436 of the CrPC deals with the bail procedure in case of bailable offenses. The accused is entitled to get Bail as a matter of right. A statutory duty is imposed upon the Police Officer by the Court to release a person on Bail if requested. Further, it lays down the maximum period for which the police can detain an undertrial prisoner. It states that if during an investigation, the accused has been detained for a period extending up to 50% of the maximum period of imprisonment for the said offense, he shall be released by the Court on his bond with/ without sureties.
Grounds on which Bail is granted
The following conditions ought to be satisfied by the accused to proceed with the bail application procedure:
- The accused gets an advantage of doubt within the commitment of crime (they may be innocent)
- Inquiry of the offense to verify whether they were involved in the crime is required
- The offense committed is minor, which does not require imprisonment for ten years, captivity or death.
Regular Bail for Non-Bailable Offences
Section 437 deals with the powers of the trial court and the Magistrate in front of whom the police produce the offender to grant or refuse Bail. However, Bail may be granted for non-bailable offenses on the following grounds:
- If the Accused is below/at 16 years of age;
- If the Accused is a woman;
- If the Accused is ill or infirm
- For Habitual Offenders, Bail is granted only for Special Reasons
Only a police officer, the officer-in-charge, can release the accused under Section 437 (1). In the bail hearing, the Magistrate will refuse the bail application if:
- The person is guilty of an offense punishable by death, imprisonment with life, or imprisonment for seven years or more;
- Such a person had previously been convicted of an offense punishable with death, imprisonment with life or imprisonment for seven years or more or has been previously convicted on two or more occasions;
- Abatement, or conspiracy to commit, any grave offense
Certain restrictions are laid down on the accused that are released on Bail, which include:
- The accused shall attend under the conditions laid down in the bond;
- The accused shall not commit any offense similar to the one he is currently accused/suspected of;
- The accused shall not dissuade or discourage any individual acquainted with the facts of the case from testifying before the Court or tampering with any evidence.
2. Anticipatory Bail:
This type of bail is like a precautionary measure. If someone thinks they might get arrested for a serious crime, they can ask for anticipatory bail to avoid being taken into custody. Under Section 438 of CrPC, any individual who discerns that he may be tried for a non-bailable offense can apply for an anticipatory or advance bail application. The application shall be made to the High Court or Sessions Court, where the crime is alleged to be committed. A bail under this section is Bail before the arrest, and the police can't arrest an individual if the Court has granted anticipatory Bail.
According to Sushila Agarwal and others v. State (NCT of Delhi) and others, the Supreme Court of India clarified that anticipatory Bail extends to the end of the trial and is not a fixed duration.
Know more about: How To Get Anticipatory Bail?
3. Interim Bail:
As the name suggests, this type of Bail is granted temporarily. The interim Bail is granted to the accused before the hearing for a regular or anticipatory Bail grant. This is primarily because furnishing documents from the lower courts to the High Court takes time. However, the interim Bail is concluded during the bail hearing.
4. Default Bail:
This kind of bail procedure differs from the Bail granted under the sections mentioned above. Default bail is granted on the default of the police or investigating agency to file its report/complaint within the prescribed period. For an offense where an arrest can be made without a warrant, section 57 of the CrPC commands that the police officer shall not detain the accused for more than 24 hours. If the investigation is not concluded and the charge sheet is not filed within these 24 hours, section 167 grants the accused the right to a statutory or default bail.
5. Medical Bail
If an accused person is suffering from a medical condition and requires medical treatment while in custody, they can apply for bail. The court may consider medical grounds as a relevant factor in determining whether to grant bail, with the primary concern being the health and well-being of the accused.
It's important to note that the term 'medical bail' is not explicitly mentioned in the CRPC. Instead, a person accused of an offense can seek regular bail under Section 437 or anticipatory bail under Section 438, depending on the circumstances."
Documents required to get Bail
The following documents are required for getting bail in India, these are some of the general documents that are required to get bail, they may vary from court to court.
- Bail application: The bail application includes the name of the magistrate court, the name of the parties involved, an FIR copy, the name of the police station where the accused is in custody, date of custody.
- ID proof of the surety-giving guarantee for the person: The person who is giving surety must provide ID proof like a passport, Aadhaar card, driving license, PAN card, or voter ID card.
- Address Proof: The surety person provides a document that proves their residential address. It can be a utility bill, rent agreement, etc.
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Affidavit: The surety person has to provide an affidavit stating that they have sufficient means to pay the bail amount if the accused fails to appear in court. The affidavit also ensures that the surety person will produce the accused in court on the date of the trial.
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Income proof: The surety person have to provide documents to show their financial stability to pay for the bail. They can share financial proof in the form of salary slips, income tax returns, or bank statements.
- Demand draft or cheque for the sum to be paid for the bond.
- Declaration by the surety or sureties.
Bail Procedure in India
In India, bail is a legal process that allows a person who has been arrested or detained by the police to be released from custody, pending the outcome of their trial. The purpose of bail is to ensure that the accused person appears in court on the specified date and time and to minimize the risk of the accused person fleeing or tampering with evidence. Here is a Procedure to get Bail in India.
Step 1 - Application of Bail
To obtain bail, the accused person or their lawyer must file a bail application with the court. The application should contain the grounds on which bail is sought, as well as any relevant information about the accused person's background, character, and ties to the community.
Step 2 - Decision of the court
The court will then consider the bail application and decide whether to grant bail or not. In making this decision, the court will consider factors such as the nature and severity of the offense, the likelihood of the accused person fleeing or tampering with evidence, and the strength of the prosecution's case.
Step 3 - Bail bond
If bail is granted, the accused person will be released from custody upon the payment of a sum of money known as a "bail bond." This bond is intended to serve as a guarantee that the accused person will appear in court as required. If the accused person fails to appear in court, the bond may be forfeited and the accused person may be re-arrested and brought back into custody.
How is the Bail Amount Calculated?
The Bail amount is fixed depending on the following conditions:
- The seriousness of the crime, in terms of injury caused to others.
- The accused's criminal record.
- The possible dangers that the accused might cause to society.
- The accused's ties to the community, family, and employment.
While granting Bail for severe offenses, the prisoner is brought before the judge for a bail hearing. During the hearing, the judge must weigh the charges and circumstances for granting Bail to the accused. The Bail Bondman or the bail agent charges the fee to the accused and signs the bail bond after the amount is paid. The bail bond is signed by the accused when granting Bail. The accused must furnish the following documents before the Magistrate while applying for bail application:
- Bail Indemnity Contract
- Bail Bond Application Form
- Deposit of money
- Surety Form no. 2 sealed, two passport-size photographs of surety
- ID Proof, address proof of surety, and financial statements of surety
Grounds on which Bail can be granted
The following conditions ought to be satisfied by the accused to proceed with the bail application procedure:
- The accused gets an advantage of doubt within the commitment of crime (they may be innocent)
- Inquiry of the offense to verify whether they were involved in the crime is required
- The offense committed is minor, which does not require imprisonment for ten years, captivity or death.
Grounds on which Bail can be denied
As we know, Bail is a matter of judicial discretion and allowance or refusal of Bail depending on the judiciary. Courts are not bound by law to grant Bail to every accused. There are certain cases where the Court believes that granting Bail to the accused can be a dangerous or wrong example to society.
Generally, anyone arrested for any non-bailable offense punishable with life imprisonment or death is not released on Bail. However, an exception is given to women, children, or infirm people.
Committing any grave offense twice also prevents an accused person from getting Bail.
The Court also refuses any person who follows the conditions of Bail Bail.
Conclusion
In conclusion, obtaining bail in India is a crucial step for individuals arrested or detained by the police. The process involves various legal procedures and requirements that can be complex and overwhelming. However, by following the recommended steps and seeking the assistance of a qualified bail lawyer's assistance, individuals can navigate the system more effectively and increase their chances of securing bail. Remember, gathering all necessary documents, providing accurate and detailed information, and presenting a strong argument in court is essential.
FAQs
Which are the crimes that are not granted Bail in India?
Non-bailable offenses are crimes in which Bail is not given to the accused in India.
Why is the bail money required to pay in India?
Per the statutory law, the accused must pay the bail amount to get Bail in India.
What are the types of bail in India?
Based on the types of criminal act, four types of bail includes Regular Bail, Interim Bail, Anticipatory Bail, and Default Bail.
In which crime cases, we can't apply for bail?
In the following scenarios, bail can not be granted:
- When the offense is punishable by death or life imprisonment.
- When the accused is a repeat offender and has been previously convicted of a similar offense.
- When the accused has tampered with evidence or is likely to tamper with evidence.
- When the accused is a member of an organized crime group or terrorist organization.
- When the accused is a flight risk and is likely to flee the country to avoid prosecution.
What happens when bail is rejected?
A bail can be applied again on the account of change if the session court declines the bail.
Can I file a bail petition under section 437 CRPC if the session court declines the bail?
According to sec 436 of CrPC, bail can be granted only if the accused is available.
Author Bio: Advocate Tejas Pramod Deshpande epitomizes legal excellence, offering specialized expertise in Criminal Law, Civil Law, Writ Petitions, and an array of other legal domains. He has dealt with high-stakes Criminal matters. With an illustrious career spanning over two years, Advocate Tejas Pramod Deshpande boasts a profound reservoir of legal acumen and experience. His dedication to the pursuit of justice is reflected in his extensive practice across the District as well as the High Court, where he has honed his skills and earned a sterling reputation for his unwavering commitment to his client's interests.
