What is bail?
Although bail is not defined under the Cr.p.c law lexicon defines Bail as “security for appearance of the accused person on giving which he is released pending trial and investigation”. Black law’s dictionary defines as “to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court”
In other words Bail is the conditional release of a person during the pendency of his trial upon satisfaction of certain conditions imposed upon him by the court granting bail. India follows an acquisitorial process of justice whereby a person accused of an offence is innocent until proven guilty, hence it is only after the trial is concluded, that the person is said to be a convicted for his crimes and undergoes the punishment prescribed under the law. Hence the main purpose of bail is to prevent the pretrial punishment of the Accused. Bail also aims at securing the presence of the accused before the court by imposing necessary conditions on him.
Bail is one of the most crucial steps of a criminal justice system as it ensures that the accused who is yet to be proven guilty is not kept behind bars indefinitely or till the time the trial concludes, as the time lost behind bars cannot be brought back. Furthermore the continued detention has a negative effect not only on him but also the members of his family.What also needs to be understood is that when a person who is an accused in a serious crime is released on bail, it may lead to serious consequences as such a person may tamŚper with the evidence, pressure witnesses or abscond from the clutches of law. Hence the court while granting bail entails balancing the liberties of the accused with the interest of the society and the victim.
What are bailable and non bailable offences?
Bailable offences under BNSS, 2023 defines bailable offences as offences which is made bailable in the first schedule, or which is made bailable by by any other law; and non-bailable offence means any other offence. Hence from the foregoing definition it is clear that no qualitative distinction has been made between the two kinds of offence. However it can safely be stated that serious offences are considered Non Bailable in nature whereas all other offences are Bailable.
In Bailable offences the Accused who has been arrested and detained without a warrant has rights to be released on bail upon him furnishing sufficient bonds to the court.
Contrary to what the name suggest, in Non Bailable offences there is no carte blanche embargo on the courts power to grant bail to such an accused; his release is subject to the discretion of the court concerned.
What are the different kinds of bails?
Anticipatory Bail
Anticipatory bail is bail granted to an accused who is apprehending arrest in connection with a non bailable offence. Arrest is a significant adverse step taken by the authorities against the accused. Arrest of an accused not only has serious implications upon the livelihood, reputation and goodwill of the accused person and his family. Anticipatory bail serves as a protective remedy intended to safeguard the liberty of an individual against unnecessary arrest. Such a remedy is commonly sought when a person becomes aware that a non-bailable offence has been registered against him.
Regular Bail
Regular Bail is granted to an accused after his arrest and detention. It enables an accused to be released from custody upon him complying with the conditions imposed by the court. The process of trial is a lengthy one and may take years to come to an end, hence in such a situation granting bail to the accused prevents pre-trial incarceration. There are various factors which the court considers while granting regular bail and the gravity of the offence is only one of those factors.
Default Bail
Default bail is granted to an accused when the investigation with regards to offences alleged against him is not complete within a stipulated time period. The time period stipulated with regards to offences In offences involving imprisonment for 3 years the investigation has to be completed within 60 days whereas in offenses punishable with imprisonment for a period more than 7 years the investigation has to be completed within 90 days. Failure on part of the investigation agencies to complete the investigation within stipulated time give the Accused a right to be released on default bail.
Interim Bail
Interim Bail is a kind of temporary bail granted to the accused on humanitarian consideration. It is not a complete release from custody. Interim bail is granted in cases where the accused has to attend some personal function like the funeral, wedding etc.
Transit Bail
Transit Bail is a bail granted to a person who apprehend arrest at the hands of police of another state. After obtaining the said bail the accused person can freely travel to the state where the said offence against him is registered.
How to obtain a Bail?
Before the question of obtaining bail is considered one has to analyse the sections under which the allegations against him are made. Thereafter based upon the circumstances of the accused the accused may opt for one of the following courses.
- If the offence alleged against him is bailable in nature he may obtain bail by furnishing security to the police or to the court.
- If the person is accused of a non-bailable offence and anticipates imminent arrest he may, in order to avoid arrest, approach the competent court seeking anticipatory bail.
- If the said accused is arrested by the police with or without a warrant in connection with a non bailable offence the accused may file a regular bail application before the concerned court.
- If a non-bailable offence is registered against the accused in another State or district and the accused apprehends arrest while travelling to the concerned jurisdiction, he may approach the court having jurisdiction over him seeking transit bail or transit anticipatory bail.
(Note: The remedies discussed above are illustrative in nature and the maintainability of a particular remedy depends upon the facts of each case).
What are the Conditions normally imposed by the Court?
The court in most cases imposes a combination of conditions, with the aim of ensuring the presence of the Applicant/Accused before the court. Some of the conditions are as follow.
- Furnishing of cash security.
- Furnishing of one of more Solvent sureties of a particular amount.
- Personal Recognizance bond.
- Travel restriction (including surrender of passport).
- Regular attendance at the police station on a day designated by the court.
- Condition restricting any direct or indirect influence upon the victim or witness.
- Condition restricting any attempts to tamper evidence.
The foregoing list is not an exhaustive one, the court may impose additional conditions while considering the facts of each case individually.
What happens when the conditions imposed in the bail order are violated?
Violation of the conditions imposed by the court would warrant cancellation of the bail along with forfeiture of the cash security. Violation of the conditions imposed results in the curtailment of the liberties granted by the court in the bail order. Hence if an Accused wants to avail of a free life while awaiting trial he must comply with every single condition imposed by the court on him. An application for cancellation of bail can be made by the victim through a private lawyer or through the public prosecutor.
Can the bail conditions be relaxed ?
Yes, The Applicant/ Accused can make an application for relaxation of the conditions. The usual procedure involves making an application praying for the relaxation of the bail condition imposed by the court. The said application is determined by the court after considering the arguments of the Accused and the prosecution.
Conclusion
Bail serves an important role in prevneting the pre-trial incarceration of person accused of an offence. However getting one is easier said than done. Large back logs in criminal courts including the High court does really help in getting a speedy bail. Many criminal court also take a superifical approach when it comes to granting bail to indivuduals in serious offences. In India where majority of the prisoners are under trial prisoners bail is very important so as to ensure that these indivduals do not suffer more than they ought to.