Bail is a temporary release from police custody but accused will fully cooperate to police in the entire process of investigation of case and the accused promise that he will appear in court whenever required.
We can get bail by submitting an application to police station or court after or even before the arrest.
Section 336 – 339 of crpc, 1973 deals with every aspect related to bail.
Procedure to get bail
For taking bail we have to sign on a bail bond and then pay the specified bail amount. 2 persons are also required at the time of bail as security they guarantee that the accused will cooperate in further investigation process and will not escape. However, if such a person is unable pay the specified sum of money or bring the sureties, bail will not be rejected. Such a person is termed as an indigent person. A person is said to be indigent when he is unable give bail within a week of his arrest. The word appears in this section also includes a person who has voluntarily produced himself/herself before the court or police where no warrant or summons was issued, if a person does not comply with the conditions of the bail-bond, the court can re-arrest such a person or issue a summons or a warrant.
In which cases bail is permissible
There are two types of offence bail able and non bail able There is no clear distinction between a bailable and a non-bailable offence. However, there are some established principles that are used by the courts to make this distinction. Generally, non-cognizable offence are considered to be bailable., bail able offences are those in which bail can easily be granted to prevent his right to personal liberty because they are less serious offence .In a bailable offence, the police officer in charge has the power to grant bail to the person accused. An offence is said to be bailable when the punishment for that offence is lesser than 3 years. It is the right of the accused to be released on bail in a bailable offence. This right is subject to certain conditions.
If the offence committed is non-bailable, the police officer cannot himself grant bail to the accused. Only the magistrate can authorize the bail in a non-bailable offence. An offence is said to be non bailable and when the punishment for it is more than 3 years. It is to be noted that just because the offence is non-bailable does not mean that the person accused will not be granted bail at all. In such cases it is up to the discretion of the court as to whether grant bail or not.
Following are a few accepted factors which the court take into consideration while granting bail in case of non-bailable offences:
• The severity of the punishment upon conviction,
• Danger of the accused absconding if granted bail,
• Probability of the accused tampering with witnesses and evidence if granted bail,
• The health, age and sex of the accused seeking such bail,
• The probability of the person committing more offences if released on bail, etc.
Court can lay down certain conditions while granting bail to the accused which have to be strictly adhered to. These conditions can be imposed only by the Court and not by the police. It is important that such conditions are reasonable in nature. The conditions imposed should be such that are linked with the preventing of the escape of the accused or preventing the accused to commit any further crime or such a condition in the interest of Justice.
Concept of Bail to Lunatics:
Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been vested with great powers and wide discretion in the matter of grant or refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is charged of an offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed. An accused of unsound mind may be released on security, irrespective of the offence with which he is charged not only on the finding by the court that the accused is of unsound mind, but also prior to such finding, during the pendency of the inquiry into his state of mind [section 328 (2)]
The Code of Criminal Procedure (1898) did not contain any specific provision of anticipatory bail. The Law Commission of India, in its 41st Report dated September 24th 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant Anticipatory bail.
Whenever, there is a discretion upon the court with respect to granting bail, there are certain established principles which have to be adhered to. However, this list of principles are not exhaustive. A good examples of the principles that the courts have to take into consideration are explained in Sanjay Chandra v. CBI (explained in Section 439).
When a person is detained before the final judgement, there is a question on such a person’s personal liberty as prescribed by Article 21. In most bail cases there is always going to be a conflict between the interest of the society at large and the personal liberty of the accused