The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners form disease ridden jails while they were waiting for the delayed trials conducted by traveling justices, prisoners were bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial.
If the accused did not appear, his' bailor
would stand trial in his place. It became the practice for property owners, who
accepted responsibility for assuring persons to forfeit money when their
charges failed to appear for trial. In the event of non-appearance the bond is
for feited. 'Bail' in English common law is the freeing or setting at liberty
of one arrested or imprisoned or imprisoned upon any action, either civil or
Criminal, on surety taken for his appearance on certain day and a place named.
Under the Indian law the word 'bail ' has not
been defined in the code Criminal procedure 1973 have defined the expression
'bailable offence' and non- bailable offence respectively in section 4( 1) (b)
and sec; 2 (a). The word 'bail' means the security for a prisoner's appearance
for trial. The effect of granting bail is accordingly not to set the prisoner
free from jailor custody, but to release him form the custody of law and to entrust
him to the custody of his sureties who are bound to produce him to appear at
his trial at a specified time and place. Under the provisions of Cr P.C., bails
may be studied under three heads:
(1) Bails in bailable offences.
(2) Bails in non-offences.
(3) Anticipatory Bail.
1. Bails in Bailable offences –
where an arrested person is accused of a
bailable offence he shall be released on bail at any time while n custody, if
he is prepared to give bail. But the officer in charge of a police station
detaining the accused without a warrant may, instead of taking bail form such
person, discharge him on executing a bond without sureties for his appearance.
In every bailable offence bail is granted as a matter of favour. No discretion
has been granted to courts in such cases.
The granting of bail is imperative under sec.
436 of code of Criminal Procedure. Where a person fails to comply with the
conditions of the bail bond regarding time and place of attendance, the court
may refuse to release him on bail, when on a subsequent accession in the same the
appears before the court or is brought in custody and any such refusal shall be
without prejudice to the powers of the court to call upon any person bond by
such bond to pay the penalty there of under sec. 446 in which the procedure
when bond his been for feinted is given.
2. Bails in Non-Bailable
Offences :
All offences which do not fall under the
category of bailable offences are non-bailable offences. A person accused of a
non-bailable offence maybe released on bail, subject to certain restrictions.
Sec. 437, Cr P.C., lays down that a person arrested for a non-bailable offence
shall not be so relapsed if there appears reasonable grandees for believing
that he has been guilty of an offence punishable with death or imprisonment for
life. But there is also an exemption in the section, in the case of a person
under the age. Of sixteen years or any woman or any sick or infirm person
identification by witnesses is no ground for refusing bail.
3. Anticipatory Bails:
Sec. 438 Cr. P.C. 1973 says the issuance of a
direction that in the event of arrest of the application he shall be released
on bail. Sec. 438 confers power on the High Court as also the Court of Session
to grant bail to any person apprehending arrest on an accusation of having
committed a non-billable offence in anticipation of his arrest, which is called
anticipatory bail.
The object of this section is that if a
person has already obtained an order from the session judge or the High Court,
he would be released immediately without having to undergo the rigours of jail
even for a few days which would necessarily be taken up if he has to apply for
bail after arrest.
Application for Anticipatory
bail and its Contents
It is unrealistic to expect the applicant to
draw up his application with the meticulousness of a pleading in a civil case
and such is not the requirement of the section. But specific events and facts
must be disclosed by the applicant in order to enable the court to judge the
reasonableness of his belief.
Apart from the fact that the very language of
the statute compels this contraction there is an important principle involved
in the insistence that facts on the basic of which a direction under sec. 438
(1) is sought must be clear and specific, not vague and general it is only by
the observance of that principle that a possible conflict between the right of
an individual to his liberty and the right of the police to on investigate into
crimes reported to them can be avoided.
Rule of prudence requires that the notice
should be given to the other side before passing a final order for 75 anticipatory bail so that wrong order of
anticipatory bail so that wrong order of anticipatory bail is not obtained by a
party placing incorrect or misleading facts or suppressing material facts.
Authorities Competent to
grant bail Police officers, Magistrates, courts
and Government are empowered to grant bail under the various provisions of the
code of Criminal Procedure code.
(a) Police Officers:
Police officer are empowered to grant bail to
persons arrested without a warrant under sec. 41 (when police may arrest
without warrant) or sec. 42 (Arrest on refusal to give name and residence) or
Sec. 43 (Arrest by private person and procedure on such arrest) or Sec. 151 Cr.
P.C. (Arrest to prevent the Commission of cognizable offences) or to a person
arrested under a available warrant issued by a court, or to accused person to
appear before the court when required.
(b) Magistrates and Courts:
The Magistrates and Court are empowered to
grant bail to any accused person. The provisions elating to bail are laid down
in various sections of the Cr. P.C. like 436 to 439 in chapter XXIII of the Cr.
P.C. the question of granting bail for apprehending arrest has been provided in
sec. 438 of Cr.P.C.
(c) Government:
Under sec.339 Cr. P.C. the Government may,
upon and application who is lunatic and on such relations or friends giving
security to the satisfaction of the state Government concerned, Order relatively
or friend. Under sec. 432 Cr.P.C. The Government is empowered to suspend or
remit sentence.
The usual practice is that a person desiring
bail should first approach the lower court, but this practice is not inflexible
because under sec 439 Cr P.C. special power have been conferred on the High
Court or the court of session regarding bail. Further when a person has reason
to believe that he may/be arrested on an accusation of having committed a
non-bailable offence he may under sec, 438 Cr P.C. apply to the High Court or
the court of session for a direction under the said section and that the Court
may if it thinks fit direct in the event such arrest that he shall be released
on bail. In order to enable the judge to decide whether bail should be granted
or not and what exactly are the terms on which he should be granted bail. It
would be advantageous of notice is given to the public prosecutor.
Though there is no provision which compels
the court to give notices to the public prosecutor before granting bail the
court has such power to direct notice in appropriate cases. Since bail in
bailable cases is a matter of right for the accused to be enlarged on bail,
there is no scope for giving notice to the Public prosecutor.
The circumstances which should be weighted on
behalf of the prosecution and against the accused are:
1) That there is every liklyhood that the
accused will be absconding on his release.
2) That there is a reasonable apprehension
that the accused might tamper with the evidence of the prosecution witnesses by
his influence where by the prosecution would be hindered and would not get a fair
opportunity of adducing incriminating evidence against the accused.
3) That there is danger of such offence being
repeated and continued etc.
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