Bail is a process by which an arrested/accused person can be released, just by ensuring their future appearance in court for trial, this means that procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigatio
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: ” Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence”. Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the discretion of the court to put a monetary cap on the bond.
Right to Bail is a limited right because it is available only for Bailable offences and this right is made available to an arrested person through Section 436 of CrPC. If a person is accused of committing a bailable offence then police cannot reject his request. Also, it is not necessary for an arrested person to take bail from the court when he has already procured bail from the police.If a person is under judicial custody, the Magistrate cannot reject his bail application if he is charged for bailable offence.
When you are an accused of some crime and arrested to record your statement and take information like the name, residence address, birth place, charge filed against you, etc. The police officer may also check back the criminal record if any in the police station and ask for finger prints to files a case against you. The crimes that are bailable and simple, you will be allowed to apply for bail immediately.
However, if the crime is a little bit complex and non-bailable, you may wait for 48 hours to claim your right to bail in the court wherein you are given a hearing. Depending upon the facts of the case, the judge decides whether you should get bail or not. Also, in situation you are given bail you are asked to deposit money with the court. Generally, in certain smaller crime cases, a standard amount is asked to be deposited for awarding the bail.
Bail is also available to a person who is accused of Non-Bailable offence. But in such circumstances, Bail cannot be availed as a right but is dependent on the discretion of Court. An exception has been created for persons under 16 years, women and the sick and the infirm, even if they are arrested for a Non-Bailable Offence.
In State of Rajasthan v Balchand AIR 1977 SC 2447, the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon’ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.
In Moti Ram and Ors. v State of M.P AIR 1978 SC 1594, the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail.
In Maneka Gandhi v Union of India AIR 1978 SC 571, Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in India. No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn’t high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would
find it difficult to furnish bail even if it’s a small amount.
Further in Hussainara Khatoon and others v. Home Sec,State of Bihar AIR 1979 SC 1360 , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released.
the High Court in exercise of its inherent powers under S. 561-A of Cr. P.C. (of 1898) could cancel bail granted to an accused in a bailable offence, the Supreme Court held that this inherent power has to be exercised rarely, carefully and with caution. Such an exercise must be in compliance with the tests specifically laid down in the section itself.
Some conditions that the court may place while granting bail are as follows:
- In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
- In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
- Otherwise in the interests of Justice.
A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior release on recognizance or on bail.
(7) Identity of responsible members of the community who would vouch for his reliability.
(8) The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear.
How much to pay for the surety to get bail?
It has been stated in Delaney v Shobe, 218 (inability to give bond in the amount set is not sufficient reason for holding the amount excessive). that the factors to be taken into consideration in determining the amount of bail are:
(1) ability of the accused to give bail,
(2) nature of offense,
(3) penalty for the offense charged,
(4) character and reputation of the accused,
(5) health of the accused,
(6) character and strength of the evidence,
(7) probability of the accused appearing at trial,
(8) forfeiture of other bonds, and
(9) whether the accused was a fugitive from justice when arrested.
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