BAILS AND ANTICIPATORY BAIL IN INDIA, HOW TO GET ANTICIPATORY BAILS IN INDIA
The word Bail is derived from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’. How To Get Anticipatory Bail
“Bail is money or some form of property that is deposited or pledged to a court, in order to secure the release from jail of a suspect who has been arrested, with the understanding that the suspect will return for their trial and required court appearances. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear” How To Get Anticipatory Bail
There is a provision for two kinds of bails under Cr. Pc:
Regular bail (Section 436)
Anticipatory bail (section 438)
“Bail Is a Rule and Jail an Exception”.
Chapter 33 of the Cr.PC is based on the procedure of bails. We have already discussed that Bail are having two kinds one is Regular Bail and another is Anticipatory Bail. First we will discuss about regular and than anticipatory bail.
REGULAR BAIL
Bail is a written agreement between the Court and the accused where the accused agrees to appear in court and assist and cooperate with the police as and when called upon by the Court.
Bail Applications are usually filed before the Court of Judicial Magistrate initially (in certain circumstances, it has to be filed before the Sessions Court).
If the Bail Application is rejected by the Court of Magistrate, the accused can file the same before the Sessions Court, the High Court and then the Supreme Court.
An application for bail can be filed both for bailable as well as non- bailable offences though the authorities with the power to grant bail, in both the cases are different.
BAILABLE OFFENCE
A bailable offence is defined under Section 2 (a) of the CrPC as an offence which is shown as bailable in the first schedule of CrPC or an offence which is made bailable by any other law for the time being in force.
NON BAILABLE OFFENCE
A non-bailable offence is defined in Section 2(a) of the CrPC as any other offence which is not a bailable offence. For example, murder under Section 302, rape under Section 376 and attempt to murder under Section 307 of the Indian Penal Code, 1860.
The Police have the power to grant bail in case of bailable offences after securing the surety amount. As soon as the challan is filed in Court, the accused has to fill the prescribed bail bond in order to get regular bail from the Court.
Bail is a matter of right and the police officers are bound to let out the accused on bail if the guarantor, on the accused’s behalf, is present and the surety amount is furnished.
CONSIDERATIONS WHILE GRANTING BAIL
At the time of deciding the application seeking bail, the Court should look at the prima facie material available and should not go into the merits of the case by appreciation of evidence.
The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital has stated few factors to be taken into consideration, before granting bail, namely:
i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
iii) Prima facie satisfaction of the Court in support of the charge.
The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors , has held that, “the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.”
CONDITIONS FOR BAIL IN BAILABLE OFFENCES
Section 436 of the CrPC lays down that a person accused of any bailable offence under the IPC can be released on bail.
Bailable offences under the IPC include-
unlawful assembly (Section 144 of CrPC),
payment of bribe during elections,
fabrication of false evidence,
sale of poisonous food or drink knowingly,
participation in riots,
being armed with deadly weapon,
furnishing false information,
threat of injury to public servant,
selling adulterated drug,
selling obscene book,
causing death by negligence (Section 304A),
stalking,
criminal defamation, etc.
However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offence:
There are sufficient reasons to believe that the accused has not committed the offence.
If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years.
(Click Here To Read About “Bails and Bail Bond Procedure In India”)
CONDITIONS FOR BAIL IN NON-BAILABLE OFFENSES
An accused does not have the right to apply for bail in case of a non-bailable offence. The power to release a person on bail in a non-bailable offence lies with the court. Section 437 of CrPC lays down the power of court to grant a bail to a person even in a non-bailable offence.
Non-bailable offences under the IPC include
sedition,
waging or attempting to wage war against the government,
counterfeit of Indian currency,
adulteration of drug
murder (Section 302),
culpable homicide not amounting to murder (Section 304),
dowry death (Section 304B),
abetment of suicide,
abetment of suicide,
abduction of child under 10,
trafficking of person,
rape (Section 376),
cruelty by husband or his relatives (Section 498A), etc.
The conditions on which the court grants a bail in a non-bailable offence are as follows:
If the accused is a woman or child, bail can be granted in a non-bailable matter.
If there is a lack of adequate evidence, the court can grant a bail in non-bailable offence on discretion.
If there is a delay in registering the FIR by the complainant.
If the person accused is physically or gravely sick.
If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.
ANTICIPATORY BAIL
Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code.
Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this).
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.It is only issued by the Sessions court and High Court.
ELIGIBILITY OF ANTICIPATORY BAIL
When any person apprehends that there is a move to get him arrested on false or trumped up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
Anticipatory bail can be granted by Sessions Court and High Court.
CONDITIONS OF ANTICIPATORY BAIL
The High Court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
a condition that the person shall make himself available for interrogation by the police officer as and when required;
a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer
a condition that the person shall not leave India without the previous permission of the court.
PROCEDURE OF APPLYING FOR ANTICIPATORY BAIL
The process to apply for a bail depends upon the stage at which the criminal matter is. In case, the person is not yet arrested by the court, but fears that an FIR may be filed against him with the police, the person can hire a criminal defence lawyer in India to file an anticipatory bail application.
For instance, if the person has an apprehension that his wife may file a false 498A case against him, he can obtain an anticipatory bail before the police register a complaint against him.
If the police have already arrested the person and taken him to the police station, the bail lawyer can file a bail as per the bail application format given in the CrPC. The bail application is to be filed and approved by the court and then presented to the police to get the arrested out of jail.
The bail amount or the bail bond to be deposited depends upon the discretion of court. However, a standardised bail amount is set and deposited for bail in less serious criminal cases.
CANCELLATION OF ANTICIPATORY BAIL
An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution if the Accused violates the conditions of bail or try to hamper with the trial or investigation.
