Introduction:
Bail is an essential element of the criminal justice system in India. It is a temporary release granted to a person who has been arrested and is in police custody or judicial custody. Bail allows the accused to be released from custody until the time of their trial. The law of bail is a complex and ever-evolving aspect of Indian criminal law. In this article, we will discuss bail and its elements in India.
What is Bail?
Bail is the process of releasing an arrested person from custody on certain conditions before their trial. The word ‘bail’ is derived from the French word ‘bailler,’ which means ‘to deliver.’ The objective of bail is to ensure that the accused appears for their trial and does not commit any further crimes while on bail. Bail is granted in both bailable and non-bailable offenses.
Bailable Offense:
A bailable offense is an offense for which bail can be granted as a matter of right. Section 436 of the Code of Criminal Procedure (CrPC) lists the offenses that are bailable. The accused can apply for bail at any stage of the proceedings. The bail application can be made to the police or the court. If the bail application is rejected by the police, the accused can approach the court for bail.
Non-Bailable Offense:
A non-bailable offense is an offense for which bail cannot be granted as a
matter of right. Section 437 of the CrPC lists the offenses that are nonbailable. The accused can apply for bail only after the completion of the investigation and the submission of the charge sheet. The bail application has to be made to the court, and the court has to satisfy itself that there are reasonable grounds for granting bail.
Elements of Bail:
The grant of bail is subject to the satisfaction of certain conditions. The following are the elements of bail:
- Nature of the Offense:
The nature of the offense is an essential element of bail. In bailable offenses, bail is granted as a matter of right. In non-bailable offenses, bail is granted based on the nature of the offense, the severity of the punishment, and the likelihood of the accused tampering with evidence or absconding.
- Antecedents of the Accused:
The antecedents of the accused are also considered while granting bail. If the accused has a history of committing similar offenses or has a criminal record, the court may refuse bail. The court may also take into account the likelihood of the accused committing further offenses while on bail.
- Strength of the Evidence:
The strength of the evidence against the accused is also a factor in granting bail. If the evidence is weak or insufficient, the court may grant bail. On the other hand, if the evidence is strong, the court may refuse bail.
- Likelihood of the Accused Absconding:
The likelihood of the accused absconding is also considered while granting bail. If the court believes that the accused is likely to abscond and not appear for trial, bail may be refused. The court may impose certain conditions, such as surrendering the passport, to ensure that the accused does not abscond.
- Likelihood of the Accused Tampering with Evidence:
The likelihood of the accused tampering with evidence is also a factor in granting bail. If the court believes that the accused is likely to
| tamper with evidence, bail may be refused. The court may impose certain conditions, such as not contacting the witnesses, to ensure that the accused does not tamper with evidence.
Types of Bail: The following are the types of bail available in India: |
| Regular bail
Regular bail is the most common type of bail in India. It is granted to a person who has been arrested or detained for a crime that is bailable. A bailable offense is one that is punishable by imprisonment for less than three years, or with a fine. Regular bail can be granted at any stage of the investigation or trial, and the court has the discretion to impose certain conditions on the accused before releasing them on bail. Interim Bail Interim bail is granted to an accused person for a limited period, usually during the pendency of an investigation or trial. It is granted in situations where the court believes that the accused is not likely to abscond or tamper with evidence and that there is no imminent danger of the accused committing any further crime. Interim bail can also be granted to an accused person who needs medical treatment or has a family emergency. Anticipatory Bail: This is granted to a person who apprehends arrest in a non-bailable offence. The person can approach the court and request for anticipatory bail to avoid being arrested.
Authority to grant Bail in India |
| In India, the authority to grant bail is vested in the judiciary. The courts in India have the power to grant bail to a person who has been arrested and is in police custody or judicial custody.
The power to grant bail is governed by the Code of Criminal Procedure, 1973 (CrPC). Section 436 to 439 of the CrPC deals with the grant of bail. The Supreme Court and High Courts of India have also laid down guidelines and principles for granting bail. The courts consider various factors such as the nature and gravity of the offence, the antecedents of the accused, the likelihood of the accused absconding or tampering with evidence, and the interests of justice while granting bail. It is important to note that bail is not an absolute right and can be denied in certain circumstances. However, the courts have also emphasized that bail should not be withheld as a punishment or as a means of extracting a confession or information from the accused. |
| Special Bail and its procedure to access
In India, Special Bail is a type of bail that is granted to a person who is in custody for a specific period of time and is unable to secure bail through the normal process. It is a form of bail that is granted by the High Court or the Supreme Court, depending on the jurisdiction. Special Bail can be granted in cases where the accused is facing serious charges, such as those under the National Security Act or the Unlawful Activities (Prevention) Act. It can also be granted in cases where the accused is facing political persecution or is a victim of false charges. To obtain Special Bail, the accused or their legal representative must file a petition with the High Court or the Supreme Court, depending on the jurisdiction. The petition must explain the reasons why Special Bail should be granted and provide supporting evidence. |
The court may grant Special Bail based on various factors, such as the seriousness of the charges, the duration of the custody, the health condition of the accused, and any other relevant factors. If granted, the accused will be released from custody for a specified period of time, subject to certain conditions imposed by the court.
It is important to note that Special Bail is a discretionary power of the court and is not an absolute right of the accused. The court may deny Special Bail if it deems it inappropriate or if it believes that the accused may flee or tamper with evidence.
REFERENCES
- WIKIPEDIA
- LEGAL SERVICES INDIA https:www.legalserviceindia.com
THIS ARTICLE IS WRITTEN BY OM PRAKASH
TIWARI , A FIRST YEAR STUDENT OF FIMT,
GGSIPU , NEW DELHI
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