BAIL PROCEDURE IN INDIA

To know more about bail we need to understand why the bail is made in a court. A bail is made when a person is to be taken under arrest or in case of anticipatory bail before the anticipation of arrest. Arrest is basically depriving the person of his or her liberty during the procedure of investigation or sometimes in order to put a control on any future crimes. Detaining a person in a jail is the result of an arrest. Any citizen can be arrested for breaking of a law or commission of an illegal activity.

The definition of bail was roughly drafted in the case of Govind Prasad v State of West Bengal as the security appearance of an accused under which he is released free during a pending trial however there is no particular definition of ball under the code. It may also be defined under terms of cash or property, which is to be pledged to the court. The person who provides the guarantee of return of the accused is to be called the surety.

There are various kinds of bail like interim bail where a certain time is granted to the accused before the hearing of the case. There is also Permanent Bail, where the bail is granted only after the hearing and then there is Anticipatory bail.

The concept of Anticipatory Bail is used under cognizable offence more. The concept of anticipatory bail can be applied as in ‘anticipation of arrest’ of a person i.e. when a person believes that he might be arrested under false charges especially if under non-bailable offence.

The Application of Bail can be filed under section 436, 437 and 439 of the Code of Criminal Procedure, 1973 and the anticipatory bail can be filed under section 438 of the same procedure.

Any Judicial Magistrate or court can grant bail to an accused however the anticipatory bail can only be granted either by the Sessions Court or the High Court.

Bail can be rejected if there is sufficient ground for refusal believing that the defendant will abscond or will commit any further offences or will interfere with the witnesses. The court also has discretion to apply certain conditions on the person it is granting bail to.

In the case of Praveen Bhatia and others v. State of Punjab and another it was held that any person who is under 16 years or above 60 years, any woman, any sick person, in case of cross case or where further inquiry is pending; the person maybe released under bail.

An application for anticipatory bail can be filed after once the accused is aware about the complaint made against him be it through FIR or any other contingency. In case of anticipatory bail the Public Prosecutor is to be given the control. If there is no FIR filed the Public Prosecutor is to take the case to the judge and make an oral prayer for at least seven days before the arrest. If the reasons are sound then the judge is most likely to grant a plea. However, if the bail application is rejected in the Sessions court the accused and the lawyer have the provision to apply for the same at the High Court. In case the FIR ha been filed the assigned investigating officer has to send a notice of arrest and then the same procedure as mentioned above is to be followed.

Anticipatory bail has been highly criticized too because it is considered to be another way for the rich to protect themselves against the power of law. The object behind introducing this law was to save the innocent, however the influential have used even this for his or her own advantage.

In conclusion, it is evident that due to corruption the provisions of bail and anticipatory bail are being misused. To ensure that the law is being strictly implicated it should be suggested to the judge panel that before granting anticipatory bail they must do a background check on the person applying for the bail. In case of ordinary bail there must be a solid background check done on the sureties and along with that the pledge amount must be such that the accused is forces to come back.

This post is written by Jagriti Mahajan of Kurukshetra University (2021) Batch. Dial 99888-17966 for more info.