Bail means the release of a suspect in a criminal offence awaiting the court trial. Release on bail is only temporary in nature. A person can be given bail only in some offences and after paying bail bond.
Bail can be of two types:
- Regular Bail: This kind of bail is granted to a person who is already in police custody for an offence, or someone who has been alleged of committing an offence. Regular bail is covered under Sections- 437 and 439 of Code of Criminal Procedure.
- Anticipatory Bail: This kind of a bail is applied for before the actual arrest is made, in an anticipation or fear of arrest by the police. Anticipatory bail is covered under Section- 438 of Code of Criminal Procedure.
Procedure to apply for Bail:
Bail cannot be granted in all situations. There are two kinds of offences- bailable and non bailable. The procedure to get Bail in India is different in bailable and non-bailable offences. However, in both cases, you need a good criminal lawyer.
- Bailable Offence:
Bailable offences are those where getting a bail is a matter of right available to the accused. Bail in such offences can be given either by a police officer who has custody of the accused, or a court of appropriate jurisdiction. The accused can be released on bail after executing “bail bond” (with or without sureties).
Examples of bailable offences are giving false evidence’, selling of adulterated drugs, selling obscene books, causing hurt, etc.
- Non-Bailable Offence:
In non-bailable offences, bail is not a matter of right. The accused is required to take permission from the court. Even the court is not outrightly obligated to grant bail and it is only after the court is convinced of the facts, it is granted.
In such offences, the accused has to file a bail application before the Magistrate (conducting his/her trail). This application is then heard (usually on the next day of the filing of the application). On this day, the police will present the accused in court.
There are several reasons for which the court may refuse to give bail. If the bail bond has not been executed, or the offence is of a serious nature, punishable with death or life imprisonment (eg. murder or rape), of even in cases where the accused has attempted to abscond or tries to prevent his arrest, etc.
Examples of non-bailable offences include murder, kidnap, dowry death, trafficking, counterfieting of coins, etc.
Factors determining the granting/denial of Bail
As stated above, bail is granted based upon the nature and gravity of the offence. Given below are situations/conditions/factors that determine the granting and denial of bail.
- Gravity of the offence: In bailable offences, bail is a matter of right and non-bailable offences are the ones in which bail is not a right of the accused. However, bail is generally not denied, unless the offence that the offender is charged with is very grave and its punishment is extremely stringent.
- Obstructing the witnesses: Bail would be denied if the applicant is expected to obstruct with the witnesses for the prosecution or obstruct and pollute the process of justice.
- Past record of the accused: If the past record of the accused applying for bail is bad and is suggestive of him/her to commit another serious offence while on bail, there is a high chance that bail will be denied to such a person.
- Preventing course of justice: If the course of justice would be prevented if bail is given to the accused at the time, bail can be denied.
Previous conviction: Bail could be denied in situations where the accused has previously been convicted of an offence which is punishable with 7 years of imprisonment/life imprisonment/death penalty and/or has also been previously convicted two or more times for offences that are cognizable in nature.
