Apply for Bail but When and How?

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Last Updated on September 9, 2018 by Legalseva.net

About Bail

The word Bail is not defined in CrPC but it has to be understood as a concept. Bail means the release of a person from the custody of police and his delivery to the sureties who undertake to produce him in court upon appointed day.

Bail materially refers to the release of a person from legal custody on deposit of security and undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the Court. Law Lexicon defines “Bail” as security for the appearance of the accused person on giving which he is released pending trial or investigation. The basis of bail lies in the principle that there is a presumption of innocence of a person until he is found guilty.

 

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About the bailable and non-bailable offense

Offenses under the Criminal Law are classified into a bailable and non-bailable offence.

Section 2(a) of the Code of Criminal Procedure, 1973, provides that “bailable offense” refers to offenses which are shown as bailable in the First Schedule or which is made bailable by any other Law and non-bailable offense means any other offense not specified in the First Schedule. A general reading of the bailable offenses in the Schedule indicates that by and large not so serious offences are considered as bailable and other offenses are considered as non-bailable.

 

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According to the First Schedule offenses under any Law other than the Indian Penal Code which is punishable with imprisonment for 3 years or more have been considered as “non-bailable” and offenses which are punishable with less than 3 years have been considered as “bailable” offenses. However, this rule is subject to any rule made to the contrary.

Can a person accused of non-bailable offense, be ever released on bail?

Yes, it does not imply that a person who is accused of non-bailable offense would never be released on bail. The release of a person accused of a non-bailable offense is left to the discretion of the concerned authorities whereas, in case of bailable offense, it is right of the accused to be released on bail.

 

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If bail application has been rejected, can the same be filed again?

Yes, bail application can be subsequently filed even after rejection. The principle of constructive res judicata does not apply to such applications [Gama v. State of U.P., CriLJ 242 (All)]. However, subsequent applications shall be placed before the same Judge who had passed earlier orders to prevent abuse of process of Court [Shahzad Hassan Khan v. Ishtiaq Hassan Khan (1987)2 SCC 684].

 

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If accused has been granted bail then can even similarly placed co-accused be granted bail i.e. grant of bail on parity?

At the very outset, it is stated that a Judge is not bound to always grant bail on parity. Such a decision would be taken by the Judge in view of the facts and circumstances of each case.

The judicial dicta in this context which expounds the issue are:

  1. Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.R. 263)– In this case, the Allahabad High Court enumerated the following for grant of bail on parity:
  • That a judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well- settled principle and ignores to take into consideration the relevant facts essential for granting bail;
  • That failure of justice may be occasioned if bail is granted to an accused on the basis of parity with another co-accused whose bail order does not contain any reason.
  • If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity.
  1. Nanha v. State of U.P. (1993 CriLJ 938)– This case elaborately discussed the issue of grant of bail on parity and concluded that:
  • Parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail application of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail.
  • That the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, that there are sufficient grounds for releasing the applicant on bail.
  • If on examination of a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail.

 

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In which cases release on bail is mandatory?

The circumstances under which grant of bail is mandatory:

  1. Where the person is not accused of a non-bailable offense is arrested or detained without a warrant. In such cases, the concerned police officer if he thinks fit shall if such person is indigent and unable to furnish surety discharge him on executing bond without sureties for his appearance as provided in Law.
  2. Where the investigation is not completed within the stipulated time period– Section 57 of CrPC provides that a person arrested without a warrant cannot be detained for more than 24 hours. However, if the concerned police officer deems it necessary to detain such person for more than 24 hours for purpose of investigation he can do so after obtaining Magistrate’s order under Section 167 of CrPC.
  3. Where no reasonable ground exists to believe that the accused has committed a non-bailable offence- Section 437(2) of CrPC entails that if it appears to the concerned officer that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, then the accused shall be pending such inquiry, be released on bail.
  4. When the trial of a person accused of a non-bailable offense is not completed within a period of 60 days– Section 437(6) of CrPC.
  5. When the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such, it shall release the accused on Bail- Section 437(7) of CrPC.

 

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Can a bail once granted be cancelled?

Yes, the CrPC under Section 439(2) provides for cancellation of bail by a High Court or a Court of Session. The provision empowers the High Court or Court of Session to direct that any person who has been released on bail to be arrested and commit him to custody.

 

What are the grounds on which a bail can be cancelled?

The Criminal Law does not specifically enlist the circumstances or grounds on which High Court or Court of Session to cancel a bail. However, precedents indicate circumstances under which a bail can be cancelled.

In the case of Public Prosecutor v. George William, the Court listed 5 circumstances under which bail could be cancelled. They were:

  • Where the accused during the period of bail commits the same offense for which he is being tried;
  • Hampers investigation;
  • Tampers evidence, like intimidating prosecution witness;
  • Runs away or goes beyond the control of sureties;
  • Commits acts of violence against police or informant

Other grounds as inferred from judicial dicta are as under:

  • Misrepresentation of facts [Brijeshwar Dayal Verma v. State of U.P. [1992 Cri LJ 411 (All HC)]
  • Improper exercise of discretion by Judges [State of Maharashtra v. Anant Chintaman Dighe (1991)3 SCC 209]
  • Bail granted on the basis of irrelevant material [Rohit Bansal v. State & Anr. CRL.M.C. 844/2017 & CRL.M.A. No. 3554/17]

 

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About anticipatory bail and provision related to it

Anticipatory bail is bail that is applied for prior to one’s arrest or detention by an authority but in anticipation of the same. Section 438 of the Criminal Procedure Code prescribes that a person may apply to an appropriate High Court or Court of Sessions for anticipatory bail when he has reason to believe that he may be arrested on the accusation of having committed a non-bailable offense (note that this provision does not apply in every state in India). The filing of an FIR is not a mandatory pre-condition for the filing of an application for anticipatory bail. When directing the grant of anticipatory bail, the Court may set such conditions as it deems fit. Anticipatory bail orders are usually time-bound and are not granted as a matter of right – they court must be satisfied that the person will not interfere with the investigation or hamper the inquiry into the crime and that the accused would be subjected to undue harassment or unjustified detention if the order were not to be granted. Anticipatory bail is usually not granted for heinous crimes (rape, murder etc) or for certain specific offenses under special statutes (such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Defence of India Rules, 1971, etc)

Pursuant to granting of anticipatory bail and the arrest of the person the person must be released upon fulfilling the conditions of the bail (depositing the mentioned surety).

 

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Conclusion

In general terms, bail means the temporary release of a suspect in any criminal offense who is awaiting court trial after paying the bail bond. It becomes applicable after arrest and becomes effective from the moment of the arrest. An offense is any act or omission made punishable by law for the time being in force. When a suspect is arrested, his statement is taken on record and personal information such as his name, birthplace, present residential address, date of birth, profession, the address of the family, mobile number, charges filed against him are noted. The police officer may also review the past criminal record if any in the police station and ask for his fingerprints to file a case against the accused.

This post is written by Aishwaraya Pal, a student of Bharati Vidyapeeth University. For any subject specific advice, please dial 99888-17966 for LegalSeva.

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