What is Bail?
Bail refers to the temporary release of a defendant in any criminal case who is awaiting a court hearing after posting a bail bond. It is valid from the moment of arrest and becomes applicable after arrest. Any conduct or omission that is punished by law at the time it is in effect, is considered an offence. When a suspect is apprehended, his statement is recorded, along with personal information such as his name, birthplace, current residential address, date of birth, occupation, family address, cellphone number, and charges brought against him. The police officer may also study the accused previous criminal record in the police station.
How to take Bail?
When someone is arrested, they are transported to the police station where the case is filed. The police station to which the suspect is brought is the one that has authority over the place where the commission of an offence took place. In the matter of seeking bail, the assistance of a criminal lawyer is needed.
There are two types of offences:
- Bailable
- Non-Bailable offence.
Bailable offence – Grant of bail is a prerogative afforded to the accused in the case of a Bailable offence. It might be delivered by a police officer who is in charge of the offender or by a court that has jurisdiction over the offence. The accused may be freed on bail by signing a “bail bond” that includes or excludes sureties. Certain terms and conditions may be included in the “Bail Bond,” such as: Without the approval of the court or the police officer, the accused cannot leave the state’s territorial authority. Every time the Accused is ordered to appear before a police officer, he must do so. The Accused is not allowed to tamper with any evidence utilized by the authorities in the inquiry. Furthermore, even if the offence is Bailable, the court has the authority to deny bail to an accused person if the individual granted bail fails to follow the terms of the release bond.
Non-Bailable offence – A Non-Bailable offence is one for which bail is not given automatically; instead, the accused must ask the court for permission, and bail is granted at the judge’s discretion depending on the facts. However, courts usually refuse bail if the “bail bondsman” is not properly enforced, or if the offence committed is serious, including the death penalty or life imprisonment, such as murder or rape. The deposit application must be submitted to the Magistrate. Applications are usually listed the day after they are submitted. On this day, the application will be heard and the police will bring the accused to trial. Justice of the peace can make arrangements as appropriate.
When can Bail be denied?
Bail may be rejected if there is a risk that the applicant may hinder the prosecution’s witnesses or otherwise taint the legal system.
- Bail can be rejected if the accused’s prior criminal record is significantly blemished, indicating that he is likely to commit another serious crime while on bail.
- An accused may be denied to get bail if he was previously convicted for an offence punishable with seven years in prison or life imprisonment, or else is convicted of two or more cognizable offences.
Application for Bail
A person can seek bail if he or she has been convicted of a crime. As previously noted, in the case of a Bailable offence, the accused must apply for Form – 45, which may be found in the second schedule with the help of a lawyer. This application will be submitted in court where the case procedures will be heard with the assistance of your lawyer. The court will only grant bail if it deems it appropriate. Bail cannot be granted without the bail application. When a person has already been convicted and is appealing to a higher court, he may request bail at this period.
Hearing for revocation of Bail
The judge considers all of the arguments for granting bail and then determines whether or not bail should be granted. The Court is given evidence and facts to obtain bail. Before granting or denying bail, the Court examines required considerations, including the accused’s character, the nature of the offence, the accused’s work and financial situation, and if the accused has criminal record. When bail is granted, the court may place restrictions on it.
Anticipatory Bail
Bail arises from an individual’s right to liberty, which is both a natural and basic right. Section 438 of the Code of Criminal Procedure was revised in 1973 to include the concept of anticipatory bail. The Law Commission of India introduced an Anticipatory Bail system in its 41st report. According to the study, the need for anticipatory bail arises because powerful people often try to incriminate their competitors in fraudulent cases to disgrace them or for other reasons by having them kept in jail for a few days. Apart from false cases, where there are reasonable grounds to believe that the person accused of an offence will not abscond or otherwise misuse his liberty while on bail.
If the person has a reason for getting arrested for a Non-Bailable offence, he or she may apply for anticipatory bail to the Court of Session or the High Court. The Court of Session and the High Court are authorized to hear Anticipatory bail petitions under section 438 of the Code of Criminal Procedure (CrPC). There are several parameters under the section that the court uses to determine whether anticipatory bail should be granted or not. The purpose of including such a provision in the code is to protect innocent people from being accused of being involved in false cases by powerful people or others. The anticipatory bail should only be approved in exceptional cases where the court believes that the individual seeking anticipatory bail is being framed in the charge.
Procedure to get Anticipatory Bail when FIR is not filed
- The lawyer will speak with the police in this case.
- The prosecution would believe that there are no grounds for anticipatory bail because no FIR has been lodged.
- The judge will agree, and your attorney will be instructed to withdraw the anticipatory bail verbally.
- In the event that the police create an intention to arrest you or your family, the lawyer will make an oral petition for a seven-day pre-arrest notice.
- Almost certainly, the court will accept this plea.
- An order will be issued as a result. This is usually referred to as the ‘notice bail.’
- If your bail application is denied, you have the option of going to the High Court.
- If the bail is denied by the High Court, you can appeal to the Supreme Court.
Procedure to get Anticipatory Bail when FIR is filed
- Before arresting you, the investigating officer will send you a notice of arrest.
- During this time, you can apply for anticipatory bail.
Why a Lawyer is required for Bail and Anticipatory bail?
Obtaining Bail is a critical stage in the criminal justice system for an accused person, and it should be undertaken with caution. The first step after being arrested should be to retain the services of an experienced criminal lawyer who can counsel and lead the accused through the bail procedure. Only a skilled legal mind can give the best advice, depending on the specific nature of the offence and the unique circumstances of each case that may impact the accused person’s prospects of receiving bail. Because a lawyer is familiar with the legislation pertaining to each offence, precedents in the field, and an awareness of the case’s surrounding circumstances, engaging a lawyer is critical to the process of obtaining bail.
