KNOW YOUR RIGHTS - BAIL
BAIL
Bail in law refers to the release of a person who has been arrested or detained, often pending a court appearance or trial, in exchange for a specific amount of money or other conditions set by the court. The purpose of bail is to ensure that the individual will appear in court as required and will not engage in further criminal activity while released from custody.
TYPES OF BAIL
There are different types of bail arrangements:
- Cash Bail: The individual or someone on their behalf pays the full bail amount in cash to the court.
- Surety Bond: A bail bondsman pays the bail amount on behalf of the individual, typically charging a non-refundable fee (usually a percentage of the bail amount).
- Property Bond: The individual or someone on their behalf offers property (such as real estate) as collateral for the bail amount.
- Release on Recognizance (ROR): In some cases, the court may release the individual without requiring bail, based on the person's reputation, community ties, and assurance of their appearance in court.
BAILABLE CASES
In the case of bailable offenses, the granting of bail is a matter of legal right. This means that bail cannot be refused and shall be granted by a police officer in charge of a police station having the accused in their custody. The release may be ordered upon the accused executing a bond, even without sureties.
NON-BAILABLE CASES
In non-bailable cases, only the court can order the release of the accused person on bail. However, if the police officer or the magistrate is of the opinion that there is not sufficient material against the accused and that the complaint needs further investigation, he may also release the accused on bail (Sec. 437(2) Cr.P.C.). Normally, bail is not granted when the accused person appears, on reasonable grounds, to be guilty of an offense punishable with death or imprisonment for life. However, women, children under 16, and sick people can be released on bail by a magistrate even if charged with offenses punishable with death or life imprisonment. An accused person is entitled to be released on bail as soon as reasonable grounds for guilt cease to appear, between the close of the case and the delivery of judgment. A person released on bail may be taken into custody by an order of the court if their conduct subsequent to release is found to be prejudicial to a fair trial (Sec. 48 Cr.P.C.) or if they do not observe the conditions of the bail.
POWER OF THE COURT TO GRANT BAIL
The discretionary power of the court to grant bail is a judicial power given by established principles. Before granting bail, the court must consider the seriousness of the charge, the nature of the evidence, the severity of the punishment prescribed for the offenses, and in some cases, the character, means, and status of the accused.
GRANTING OF BAIL BY THE MAGISTRATE
If a person is arrested for a non-bailable offense, and there exists reasonable ground to believe the guilt of the person, they may not be granted bail by the police officer. In such cases, the accused person must submit a written application to the court to grant bail. The court must grant bail unless the person is charged with a crime punishable with death or life imprisonment; in such cases, only the Sessions Court or the High Court can grant bail.
COMMON POLICE OBJECTIONS TO BAIL
- Flight Risk: The police may argue that the accused is a flight risk, meaning there is a high likelihood they will flee the jurisdiction or evade trial if released on bail.
- Threat to Public Safety: If the accused is deemed to pose a threat to public safety or is involved in serious criminal activity, the police may object to bail to prevent potential harm to others.
- Evidence Tampering: Police may argue that granting bail could lead to tampering with evidence or witness intimidation, especially in cases where there are concerns about the accused interfering with the investigation or influencing witnesses.
- Repeat Offender: If the accused has a history of committing similar offenses or has previously violated bail conditions, the police may object to bail based on concerns about future criminal behavior.
- Seriousness of the Offense: For particularly serious offenses, such as those punishable by death or life imprisonment, police may object to bail due to the gravity of the charges and the potential impact on victims or the community.
- Non-Cooperation: If the accused has not cooperated with law enforcement during the investigation or has a history of non-compliance with legal obligations, the police may raise objections to bail.
These objections are typically presented to the court during bail hearings, where the prosecution argues against granting bail based on these grounds. The court then considers these objections along with other factors before making a decision on whether to grant bail to the accused.
REFUSAL OF BAIL BY THE MAGISTRATE
If bail is refused, the magistrate must record the reasons for the same. Such a record is necessary to make a proper appeal for bail in Higher Courts.
ANTICIPATORY BAIL
Anticipatory bail is a legal provision that allows a person to seek bail in anticipation of being arrested. Here's how it typically works:
- Purpose: Anticipatory bail is sought by individuals who fear they may be arrested in connection with a non-bailable offense. It is a preventive measure to secure bail before actual arrest.
- Application: To obtain anticipatory bail, a person must file an application before the relevant court or authority. The application must detail the reasons why the applicant believes they may be arrested and why bail should be granted preemptively.
- Conditions: The court may grant anticipatory bail with certain conditions, such as surrendering passport, refraining from leaving the jurisdiction without permission, or cooperating with the investigation.
- Validity: Anticipatory bail is typically valid for a specified period, after which it may need to be renewed or extended if the threat of arrest persists.
- Arrest Avoidance: If the anticipatory bail is granted and the person is subsequently arrested, they can avoid actual custody by presenting the bail order to the arresting officers.
- Appeal: If anticipatory bail is refused, the applicant may appeal to higher courts for relief.
Anticipatory bail is granted at the discretion of the court based on the merits of the case, the likelihood of arrest, and other relevant factors. It is a legal safeguard to protect individuals' rights and prevent potential harassment or misuse of the arrest process.