BRIEF INTRODUCTION ON BAIL BY AESHA SHETH @LEXCLIQ

If we talk in general terms bail means temporary release of an accused person on a temporary basic.

The provisions relating to bail have been specified in the Criminal Procedure Code from section 436 to Section 450. As you know that our Indian Constitution talks about every individual of the person have the right of personal liberty and freedom. According to this rule accused person has also the right of having liberty and freedom. Because of this reason concept of personal liberty and freedom and also the concept of bail is going in hand in hand.

After reading this you must be thinking that what the need of arresting the person is. So the need is that when the trial is conducting in the court the accused person is presented in the court before any delay. So because of this reason arresting the person is so important.

If the person has committed the bailable type of offence, so under this a person can release on bail. If the punishment for certain is less than 3 years so that offence is considered an bailable offence. And because the punishment of the offence is less, in this type of offence accused person can release on bail. According to Section 436 of Criminal Procedure Code if te person commits the bailable offence and that person is arrested without the warrant so under this type of offence the police authority have to release a person on bail.

When the nature of the act is converted under the Grievous hurt so that type of offence is considered as non-bailable offence. So as the name of offence suggest under this type of offence person is not available to get the bail.

If the person has committed the non-bailable offence, after the arrest by the police officer the accused person is presented before the Magistrate. In non-bailable type of offence person is also release on bail, under section 437 of Criminal Procedure Code, if the certain conditions are fulfilled:

  • Such person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment.
  • If such offence is a cognizable offence and he had been previously sentence of an offence punishable with death, life imprisonment for 7 years or more, or he had been earlier convicted on two or more instance of a non bailable and cognizable offence. But a person who is:
  1. Under age of 16 years
  2. A woman
  3. A sick
  4. Infirm person may be released on bail even if the offence charged is punishable with death on imprisonment for life or the accused is previously convicted.

This section says that if the court finds out that there is no sufficient ground to believe that, that person has committed crime, but there is a need of further inquiry so upon this ground court may grant the bail to the accused person.

Concept of Anticipatory bail:

Section 437 talks about the bail in the non-bailable offence, after the arrest of the person. But section 438 of this code talks about anticipatory bail. Anticipatory bail means bail of person prior to their arrest. If the person feels that there are the chances of arrest of that person, under these circumstances a person can apply for the anticipatory bail in the law of court under section 438 of Criminal Procedure Code. After the application goes into court and if the Court feels that there are no sufficient means to believe that the person has committed the crime, and if the person is arrested that may be harm the reputation and honor of that person so after checking all the facts the court may grant the anticipatory bail to the person.

Essential:

  1. There should be reasonable apprehension of arrest- The pre arrest bail is granted by the court only when the person satisfies the court that he is falsely involved in the case.
  2. Non Bailable offences – Pre arrest bail is only granted in the matters of non bailable offences.
  3. Application must be given before the arrest of the accused

Power:
Both the session court and high court has the power to permit anticipatory bail but in accordance with the plan of action first the application of anticipatory bail must file in session court and if its banish by the court than the accused can challenge it in high court.

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