Bail is an integral part of criminal law adopted in India. No definition is provided in the code of criminal procedure. And it means the release of a person from prison awaiting trial or appeal. The court is having discretion to release the accused from jail.
While deciding the application court consider
- the nature of the offence committed by accused
- gravity of offence
- employment status
- history, the financial condition of the accused
- character and reputation of the person
- age of accused
- health condition of accused
- evidence collected by police against the accused
- criminal record of the accused
- Court has also power to put conditions while granting the application of the accused.
Types of Offences
There are two types of offences as prescribed in the Code of Criminal Procedure 1973. One is a bailable offence and the other is non Bailable offence.
In bailable offences, police have powers to release the accused persons by furnishing surety and in Non-Bailable offence police do not have powers to release the accused and only courts have powers to release the accused on the merit of the case. If a person is having an appreciation of arrest in that case such a person can apply for ABA also.
Temporary release of an accused person awaiting trial. This the dictionary meaning. Sometimes the court put the condition to deposit money in the court to guarantee their appearance in court.
In Hussainara Khatoon’s judgment, the court held that if a person in jail for a longer period than the punishment prescribed in the Indian penal code, in that case, he is liable to release.
The provisions of bail have provided in Section 436 to 439 of The Code Of Criminal Procedure, 1973.
Section 436 When bail is to take under this section
This section tells about bailable offences if a person arrested other than non-bailable offence in that case police officer or court shall release the person. This means when the police arrest a person in bailable offence in that the police officer has powers to release the person from the police station if the person is ready to provide surety.
The application shall decide on the same day (Kedar Nath Tiwari Vs State of UP)
When the bail application filed by the accused in the bailable offence. The same shall decide by the court on the same day. Or till the disposal, the magistrate can grant interim bail.
The imposition of conditions (Chowriappa Constructions Vs.Embassy Constructions Devpt. P. Ltd.)
The magistrate has not competent to impose conditions in the bailable offence. The imposition of conditions likes to appear before the investigation officer has unsustainable. Hence, order setaside.
Ready to furnish Surety (Dharmu Naik Vs Rabindranath Acharya)
When the Accused has ready to furnish surety in that case police officer has no discretion to refuse bail under this section.
Cancellation (Ratilal Bhanji Mithani Vs Asst. Collector of Customs)
There is no express provisi0ns for cancellation of bail under this section. However, if accused found in tempering evidence, intimidating, bribing or tampering prosecution witness, the High Court has inherent powers to cancel the bail and arrest the accused.
Section 437 When a person applies for bail in case of non- bailable offence
A person can apply for bail under this section when he is arrested for the commission of any non-bailable offence without a warrant and he brought before other than High Court or Sessions Court.
The court shall reject the application if there are reasonable grounds for believing that he has been guilty of an offence punishable death or imprisonment of life or he may be previously convicted for the offence punishable death or imprisonment of life.
Disposal of Bail application on the same day (Amarawati Vs State of UP)
It has held that the High Court shall not direct its subordinate court to decide bail application on the same day. As it would be interfering with judicial discretion of the court hearing the bail application. Ordinary, the bail application u/s 437 of Cr.P.C. shall decide on the same day and if magistrate shall not decide on the same day, he must record his reason in writing.
Surrender before Magistrate (State Vs Maguni Charan Sahu)
If the accused voluntarily surrender before the magistrate, it is considered that he submitted to the magistrate. And magistrate has the power to entertain his bail application and release him on bail.
Parity ground (Kalyan Singh Vs State of MP)
That the grant of bail to one of the accused does not give right of bail to co-accused. Accused can not claim ground of parity, as co-accused has granted bail when no material available against him.
Bail-in Case and Cross cases (Ashish Patelia Vs State of Chattisgarh)
In case and cross cases where both the parties received serious injuries. FIR has registered. It is usual practice to grant bail to accused persons in both cases. Where in cross-case registered u/s 307, 34 IPC. One party has released on bail. It has held that accused in cross-case also entitled to release on bail.
Bail in Murder Cases (Ram Govind Upadhyay Vs Sudarshan Singh)
When the accused has in jail for one year is not a ground for bail to accused in heinous crime like murder. And also it has not a relevant consideration. The court shall very cautious in granting bail in murder cases. Murder is a heinous crime against society.
Power of magistrate to release accused on bail in sessions triable offence (Rajendra Nath Shrivastav Vs state of UP)
Where the offence involved punishment for life imprisonment or the death penalty, the magistrate has no jurisdiction to grant bail in those cases. The magistrate can not usurp the functions of sessions judge at the time of investigation itself.
Section 438 Direction for granting bail to person apprehending arrest
If a person is arrested on accusation of non-bailable offence, in that case, he may apply to High Court or Sessions Court for bail and if the court thinks, such person shall release on bail with conditions. For making anticipatory bail applications there shall the apprehension of arrest in the non-bailable offence. And if the court allows anticipatory bail application in that case such person should furnish surety in the police station.
In Arnesh Kumar Vs State of Bihar, the supreme court said that no arrest shall not take place only because the offence is non-bailable and cognizable. And police shall not arrest routinely on the mere allegation of commission of offence made against a person. A checklist has provided to all police officers. Notice of appearance needs to give to accused u/s 41 A of Criminal procedure code. If police officers failed to comply the guidelines shall liable for departmental inquiry.
Who can apply for anticipatory bail (Natturasu Vs State)
When a person apprehending his arrest by magistrate remanding him to custody u/s 209 can apply for anticipatory bail under section 438 of Cr.P.C. Where the accused apprehend his arrest in view of that non-bailable warrant has issued against him based on charge-sheet filed against him, he can apply for anticipatory bail.
Not Applicable to the bailable offence (Joginder vs the State of Haryana)
This section can only invoke only in cases of non-bailable offence. This section shall not attract to the bailable offence.
ABA in serious offence (Pokar Ram Vs State of Rajasthan)
It is not appropriate to grant bail in serious offences like murder. Even in assuming that public prosecutor consented for grant of ABA, judicial priority demands Session Judge to take into consideration the serious nature of accusation and gravity of the offence.
The apprehension of arrest in section 156 (3) investigation
When magistrate sent the complaint for investigation to the police u/s 156(3) of CrPC, it is sufficient for the petitioner to entertain a reasonable belief that he may be arrested. And in such cases, he may grant ABA.
Sections 439 Special powers of High Court or Court of Session
This section provides the powers of High Court and Session court regarding bail for the offences exclusively triable by the Sessions Court.
Also, read Landmark Judgement of Supreme Court of India