Bail (Provision as to Bail and Bonds)
author- Shraddha rai
Bail (Provision as to Bail and Bonds)
The Code Of Criminal Procedure ,1973 (CrPC), came into effect from 1 April 1974. It received the assent of the President on 25 January 1974. For its application to the Union Territories of Andaman and Nicobar Island and Nagar Haveli and Lakshadweep, see the Code of Criminal Procedure (Amendment) Regulation, 1974(I of 1974).
Individual freedom is the basic concept in democracy , and hence, it must be safeguard. Therefore ,every individual including an accused is entitled to personal liberty and cannot be detained behind the bars, unless he is found guilty by the court of law. Hence the basic rule of envisages bail and not jail and thus enshrined in Article 21 of Indian Constitution – “No one shall deprive of his/her life and personal liberty ,except according to procedure established by law”
Chapter XXXIII containing sections 436 to 450 of the Code of Criminal Procedure, 1973 deals with the provision relating to the bail and bonds.
Introduction
The term Bail has not been define in the code. The word bail is derived from the old French verb ‘bailer’,which means “to give” or “to deliver”. According to the concise Oxford English Dictionary ‘bail’ means “temporary release of an accused person awaiting trail ,sometimes on conditions that a sum of money is lodged to guarantee his appearance in court”. In simple term bail is when a person enters a written bond ,also known as recognisance, committing to appear before the court to answer the charges made against them. Bail is based on the principal that the accused is presumed innocent until proven guilty.
Offence are categorise into two types namely:
1. Bailable Offence and
1. Non- bailable Offence
Bailable Offence
Bailable Offence is one in respect of which a person arrested is entitled to be released on bail from the custody or detention.
Section 436 of the Code confers on the accused, right to bail in case of bailable offences. The court grant bail against reasonable security.Case law: Vaman Narayan Ghiya vs the state of Rajasthan[1] : the apex court has held that no jurisdiction lies to any court while granting bail under section 436 CrPC except asking for security.
Sec.436A1.CrPC(Amendment) Act,2005 provides that in no case will an under trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.
Non- Bailable Offence
Section 437 of CrPC deals with provisions for bails regarding non-bailable offences which are more serious , when compared to the bailable offences. Generally the offences for which the punishment is three years imprisonment or more, are non- bailable. In the case of SiddharamSatlingappaMhetra v. State of Maharashtra , this court observed that personal liberty is a very precious fundamental right and should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
Different type of bail
- 1. Regular Bail: A regular bail can be filled under section 437 and 439 of CrPC. It is a bail where court gives order of bail to a person under arrest after paying the required amount of bail money.
- Interim Bail: This type of bail is granted to accused for a short period of time until his regular or anticipatory bail application is pending before the court. In Deepak Bajaj v. State of Maharashtra court held that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail applicton.
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1. Anticipatory Bail: Sec.438 of the CrPC makes provision for Anticipatory Bail. The expression anticipatory bail means ‘bail in anticipation of arrest’. It is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants anticipatory bail it makes an order that in the event of arrest a person shall be released on bail. There is no question of release on bail unless a person is arrested and therefore it is only on arrest that the order granting bail becomes operative.
RamberShokeen vs. State of NCT of Delhi Accused moved an application for grant of statutory bail under sec.167(2) of the CrPC seeking grant of statutory bail. Counsel for the accused id directed to supply the copy of the same.
Section 439: Special powers of High Court or Court of Session regarding bail: This section gives an unfettered discretion to the High Court or Court of Session to admit n accused person to bail, but that discretion must be exercised judicially. The power of the High Court and of a Court of Session to grant bail is not fettered by the restrictions contained in section 437.
Investigation Incomplete :According to sec.167 of CrPC a person arrested cannot be detained for more than 24 hour. Within 24 hour he should be presented before the magistrate. The detention can be extended special order from the magistrate. However, the period shall not exceed 90 days in case of investigation relating to an offence punishable with life imprisonment or death sentence, imprisonment for a term of not less than ten years, and 60 days in case of other offences. If the investigation is not completed within the prescribed period of 60 days as above, the person detained shall be released on bail.
(Sec.439.8)Cancellation and rejection of bail: Bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out. The rejection and cancellation of bail stand on different footings. Cancellation of bail is a harsh order because it takes away liberty of the person concerned.
Ram Govind Upadhya vs. Sudarshan Singh , the power of the court under the section to cancel bail be invoked either by the state itself or by any aggrieved part or even suomotu as held in the case of Puran vs. Ramvilas
Provision relating to bond of accused and sureties:
Section 440-445 lays down the provision relating to bonds of accused and sureties. A person to be released on bail is required to execute his own bond or bond for certain sum of money as the police officer or the court thinks fit or against one or more sureties. Then the person is released on bail. If he is in jail, the court orders the jailer to release him .(sece.442).
Bail in its fundamental concepts is a security for the prisoner’s appearance to answer the charges at a specific time and place. It is natural and relevant for any court to consider such security in relation to and in the light of the nature of the crime charged and the likelihood or otherwise of the guilt of the accused thereunder. The procedure of the bail takes place while the trial of the accused person still undecided. These provisions foresee in the code gives the brief concerning the provision of the bail. There can be no gain saying that freedom of an individual must yield to the security of the state. However, no right can be absolute and reasonable can be placed on them.
