Law of bails
Date : 12 Oct, 2020
Post By Advocate Atishaya Kaushal
Object and Meaning of Bail
The object of arrest and detention of the accused person is to secure his appearance at the time of trial and to ensure that in case, he is found guilty, he is available to receive the sentence. If his presence at the trial could be ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him.
The release on bail is crucial to the accused as the consequences of the pre-trial detentions are given. If the release on bail is denied to the accused it would mean that though he is presumed to be innocent till the guilt is proven beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jail accused loses his job and is prevented from contributing effectively to his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of the family.
Where a person is accused of a serious crime and is likely to be convicted and punished for such a serious crime, he would be prone to abscond or jump bail in order to avoid the trial and consequential sentence. If such a person is under arrest, it would be rather unwise to grant him bail and restore his liberty.
Further, where the arrested person, if released on bail, is likely to put an obstruction in having a free trial by destroying evidence or by tampering with the prosecution witnesses, or is likely to commit more offences during the period of his release on bail, it would be improper to release him on bail. On the other hand, where there is no such risk involved in the release of the arrested person, it would be cruel and unjust to deny him bail.
Bailable and Non Bailable Offences
The code has been classified into Bailable and Non- Bailable Offences. According to Section 2(a), Bailable Offences are offences which are mentioned in First Schedule, or which is made bailable by any other law. There is no such criterion to determine whether any particular offence is bailable or non-bailable. However, it can be stated that all the serious offences, which are offences punishable with imprisonment for three years or more have been considered as non-bailable offences, but there are exceptions to the same as well.
If a person accused of a bailable offence is arrested or detained without warrant, he has a right to be released on bail. But if the offence is non-bailable that does not mean that the person accused of such offence shall not be released on bail, but here in such a case, bail is not a matter of right, but a privilege to be granted at the discretion of the court.
The classification of bailable and non-bailable has been devised for making a threshold decision as to whether the accused person should be released on bail. If this threshold decision is not in his favour, further probing is necessitated before making a decision as to his release on bail.
Circumstances in which release on bail is imperative Cases other than those of non-bailable offences, Section 436 provides that when a person, not accused of a non-bailable offence is arrested or detained he can, as of right, claim to be released on bail after furnishing the bail bond. This section covers all the cases of persons accused of bailable offences. The right to be released on bail under Section 436 cannot be nullified indirectly by fixing too high the amount of bond or bail bond to be furnished by the person seeking release. Right to be released on bail if the investigation is not completed within the prescribed number of days- whenever an accused person is arrested and detained in custody by the police during the investigation and cannot be completed within 24 hours as fixed by law, the accused person must be forwarded to a Judicial Magistrate. It is also not proper for the court to extend the period of judicial custody without insisting on the production of the accused if further detention of the accused becomes necessary for the completion of the investigation, the magistrate may authorize the detention of the accused person otherwise than in custody of the police. But the detention shall not exceed 90 days, where investigation relates to an offence punishable with death, imprisonment for life or for a term of 10 years or more, and of such detention shall not exceed 60 days where the investigation relates to any other offence, the accused shall be released. Discretion in the grant of bail in cases of non-bailable offences Bail is a matter of right if the offence is bailable, but it is only a matter of discretion if the offence is not bailable. It will be seen that the scope of the discretion depends upon various considerations: 1. The scope of discretion varies in inverse proportion to the gravity of crime as bail gets narrowed down. 2. As between the police officers and the judicial officers, wider discretion to grant bail has been given to judicial officers 3. Amongst the judicial officers and courts, a high court or a court of Session has far wider discretion than the given to other courts and judicial officers. While considering the question of bail in case of “non-bailable offences” there cannot be very rigid and inflexible rules; however, the courts can for their guidance look into the following circumstances: 1. The enormity of the charge 2. The nature of the accusation 3. The severity of the punishment which the conviction with entail 4. The nature of evidence in support of the accusation 5. The danger of the accused person’s absconding if he is released on bail 6. The danger of witnesses being tampered with 7. The protracted nature of the trial 8. Opportunity to the applicant for preparation of his defence and access to this counsel 9. The health, age and sex of the accused 10. The nature of gravity of the circumstances in which the offence is committed 11. The position and status of the accused with reference to the victim and the witnesses 12. The probability of accused committing more offences if released on bail etc 13. Interests of society The author of this blog is Advocate Atishaya Kaushal having an experience of 4 years in handling Criminal matters from her experience he wants to share this beneficial information for the individuals having any issues with respect to Bail.
