Complete guide on Bails in India

Complete guide on Bails in India

Date : 30 Apr, 2020

Post By Adv. Kishan

Bail materially refers to the discharge of a person from legal custody on submission of security and undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the Court.

Bailable Offences: Bailable offense means an offense that is listed as bailable in the First Schedule or which is made bailable by any other law for the time being in force. Bailable offenses are usually less grave and less serious. Under Bailable offenses, bail can be claimed as a matter of right.

Non-Bailable Offence: Non-Bailable Offence is another offense than bailable offenses. Non-Bailable offenses are considered as grave and serious offenses, like the offense of murder. Under Non-bailable offenses, bail is a matter of discretion of the court.

Types of Bail in India: There are normally 3 types of bail in India which a person can apply. It depends upon the stage of the criminal matter. They are:

  1. Regular Bail: A regular bail can be granted to a person who is already in police custody after being arrested. That person can file a bail application for regular bail under Section 437 and 439 of the CrPC.

  2. Interim Bail: Interim bail is a bail granted to a person for a short period of time. Interim bail is granted to the accused person before the hearing for the grant of regular bail or anticipatory bail.

  3. Anticipatory Bail: A person who thinks that he may be arrested by the police for a non-bailable offense, then he can file an application for anticipatory bail. It is kind of an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before the arrest and if the anticipatory bail has been granted by the court, then a person cannot be arrested by the police.

Procedure for Bail:

  1. To get bail in a bailable offense, the suspect has to submit Form- 45 given in the Second schedule to the court. The police cannot grant bail without the court’s approval.

  2. To get bail in a non-bailable offense, he has to submit the same form before the Court, but the court has the discretion to grant bail.

  3. The bail amount the accused has to deposit is also on the discretion and decision of the court.

  4. In criminal cases with lower gravity, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.

Conditions when bail can be denied/ granted:

  1. When offense charged is of a very high magnitude and the punishment of committing it is passed by law is very high.

  2. If there is a chance that an applicant may obstruct the witnesses for the prosecution.

  3. If the applicant of bail has a bad past record.

  4. If the course of justice would be prevented by the person who seeks bail for the time being.

  5. If the applicant has been previously convicted of an offense punishable with at least 7 years imprisonment, life imprisonment, and the death penalty and/ or has been previously convicted on 2 or more occasions in cognizable offenses.

Meaning of Anticipatory bail: It is meant to be a safeguard for a person who has false charges or accusations made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.

Procedure to get anticipatory bail:  The person, who wants to seek it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving a proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

Conditions for getting Anticipatory Bail: Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:

  1. The person will make him/herself available for interrogation by the police as and when required by them.

  2. The individual shall not directly or indirectly make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police.

  3. An assurance that the person shall not leave India without prior permission from the court.

Procedure for filing Anticipatory Bail Application: 

  1. It’s advisable to engage a criminal lawyer once a criminal complaint or FIR has been lodged against you. Once engaged, a suitable course of action including the application for pre-arrest notice, notice bail or anticipatory bail can be decided upon.

  2. Once decided, the Lawyer would draft an anticipatory bail mentioning the reasons for the bail application and your version of the facts surrounding the matter. Application for bail is then made at an appropriate Sessions Court.

  3. When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case as fit, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, an application can be made in the High Court. If the High Court also rejects the bail, an application can be made in the Supreme Court.

Conditions when Anticipatory bail is not granted:

  1. For offenses/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Defense of India Rules, 1971.

  2. The provisions of section 438 are normally refused to those accused of particularly heinous offenses like murder and rape.

The author of this blog is Retd. Judge and Advocate Kishan having an experience of 35+ years in handling bails related matters from her experience he wants to share this beneficial information for the individuals having any issues with respect to the bails related matters.

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