By Anish Bachchan
Introduction: Understanding Bail
When we play the board game called Monopoly, there is a feature in the game which is called Go to Jail. The said game has a special card called the “Get out of Jail Free” card. If a player gets a card then they can get out of jail. Bail is the legal version of the “Get out of Jail Free” card in real life.
When we talk about bail, we often think of politicians and rich people getting bail easily when they commit a crime while it takes months for the poor to get the same thing, for committing the same crime.
Bail is the most important aspect of the Code of Civil Procedure. If a person commits a crime and he goes to jail, then they can seek bail to get themselves out of jail. Before we talk about bail, we need to understand bailable and nonbailable offenses.
|Bailable Offenses||Nonbailable Offenses|
|If a person commits a crime that is not considered very evil and odious, then that offense is called a bailable offense. It is mentioned under Section 2(a) of CrPC. Acts like wearing a soldier’s uniform, giving false information, selling explicit books, etc. can come under bailable offenses.||Those acts that are more severely heinous than bailable offenses are called nonbailable offenses. A person committing a nonbailable offense could not get bail unless they get granted by the court. The magistrate has the discretion for allowing the bail as they see fit. Under Section 437 of the CrPC, a person on the death penalty or life imprisonment can get their bail granted if:
Crimes like Sedition, rape, dowry death, abetment to suicide, attempt to murder, etc. come under non-bailable\ offenses.
How can a person seek a bail (Types of Bail)
|Regular Bail||Interim Bail||Anticipatory Bail|
|A person who is in prison can seek bail under Sections 437 and 439 of the CrPC. In other words, a person can only get this bail if they get arrested.||In this, an interim bail is given in a shorter period. A person can get an interim bail before the court announces the hearing for their regular or anticipatory bail.||In the third type of bail, a person is afraid that they will be arrested for a nonbailable offense. so they can seek anticipatory bail. Section 438 of the CrPC explains the provisions of the anticipatory bail. Once the bail is granted by the court, the police will no power to arrest the person. In other words, this bail is the ‘Get out of Jail Free’ card before getting arrested.|
|Sumit Mehta vs. State of NCT of Delhi: The court held that any hindsight that is mentioned in Section 437(3) should not be considered carte blanche in the court just to impose any condition.
In this case ‘any condition’ means acceptable in the facts that are permissible in the situation. Furthermore, their sense must have pragmatic and effective circumstances.
|Samundar Singh vs. the State of Rajasthan: The Apex Court prohibited the High Courts from giving anticipatory bail to a person who is involved in Dowry Deaths cases.|
Importance of Bail
In a criminal justice system, bail is its fundamental aspect. The existence of bail means that the legal system of a country is based on the principle of a fair and reasonable trial. In this principle, a person is not deprived of their liberties. Bail is a term that is not only vague but it is quite unstable when it comes to bail bond amount, considerations for getting bail, and the bail bond conditions.
One major aspect of the Indian legal system is that a person’s right to liberty cannot be taken away unless the law allows it. The law can only punish a person once the process of conviction is completed. Another significant aspect of our legal system is that we believe in the innocent until proven guilty principle. That way we can ensure a fair and reasonable trial.
In Maneka Gandhi vs. Union of India, the Supreme Court reminded everyone that if someone’s liberty is deprived without any due process, it must be considered an act of punishment.
In Vaman Narain Ghiya vs the State of Rajasthan, the court quoted:
“Law of bail like any other branch of law has its own philosophy and occupies an important place in the administration of justice.”
In Kalyan Chandra Sarkar vs. Rajesh Ranjan, the Supreme Court mentioned the substantial change in facts and hindsight of the case. The person has to make another application for the granting of bail. Therefore, no apprehension would be there when it comes to entertaining a second application.
Major Grounds for Rejection for Bail
- The Court must keep in their minds and hearts the gravity of the case and its punishment. For example, if a person named A tried to murder B, after A’s arrest B dies in a hospital, given the severity of the situation, it would be hard for A to get anticipatory bail. The evidence must support the severity of the situation.
- There is a possibility of the person who is accused will hamper the evidence or there is a likely situation that they will attempt to meet the victims or witnesses. The accused person might use intimidation tactics like threats of violence or damage the credibility of the evidence in order to turn the case in their favor.
- The accused might be obstructing the proceedings of due course of justice. The accused might do something which could potentially destroy the process of justice.
- The court must have a prima facie satisfaction in support of the charge which includes the lack of seriousness of the charge.
- The accused might flee the country. The courts show their concern that an accused person will try to leave the country during court proceedings. For example, A who is accused of rape flees to France to escape justice. The most popular case is the Roman Polanski sexual assault case, where the famed director is accused of sexually abusing a minor. He fled the US in order to escape justice.
- Try to escape from the court proceedings: The law is afraid that if they give someone a bail (who committed a heinous crime like sedition), there is a possibility that they might escape the proceedings of justice.
- Misuse of the conditions of the bail: The law established in India believes that if an accused person gets released from jail, there is a possibility that they might misuse, the conditions of the bail. It is especially in the case of the accused person who is in severe criminal cases.
- In Sukhwant Singh vs The State of Punjab, the court held that:
“Reputation of a person is his valuable asset and is a facet of his right under Article 21- Grant of interim bail pending regular bail application.”
- Akhtari Bi(Smt.) vs. The State of M.P:
“Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail”
- Pratap Singh vs. State of U.P. and Others:
“We reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person.”
- Nityanand Rai vs. The State of Bihar: The Apex Court explained that for the cancellation of bail the grounds which are considered must be those which come into the picture after the person who is accused is scot-free through bail. The grounds must be easily referred to as the conduct of the person who is accused while they are out on bail.
- Prakash Kadam and others vs. Ram Prasad Vishwanath Gupta and another: The Apex Court realized that during the consideration of a matter regarding a bail’s cancellation, the court must go through the severity and nature of the offense, albeit it is not the only reason to reject the bail which is mentioned in Prabhakar Tewari vs. The State of UP. The prima facie is at odds with the person in question as well as their position and status. If their allegations against them are severe then their bail will be canceled even if the person does not misuse the bail granted to them.
- Subodh Kumar Yadav vs. The State of Bihar: If the Supreme Court believes that the superior courts unraveling the workings of the subordinate court while the latter made an error by granting bail based on an irrelevant material or a non-application in mind, or it does not make any statutory bar to accept any bail, or there is any misconduct that is not listening to either prosecution of the complainant, then the bail will be canceled.
Bail serves as a deterrent against the abuse of the right to liberty mentioned in the provisions of the Fundamental Rights of the Indian Constitution. It ensures that a person who is in police custody while going through a trial must get a free and fair trial. A person is innocent until they are proven guilty by the court.
At the same time, a person must respect the principles, conditions, and guidance given by the bail. If they fail to do so then it will be very difficult for them to get another bail. Furthermore, those abuse of said rules of bail will be used against the person in a case that might make things worse for them.
Thus, they mustn’t break the trust of the bail. Bail is the “Get out of Jail Free” card except, there are some limitations to it. That way our legal system in India will improve for the better.
- Cancellation of bail: all one needs to know
- While granting bail the Court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction, and the nature of evidence in support of the accusations.
- WHAT IS BAIL AND THE GROUNDS FOR REFUSAL?
- Bailable and Non-Bailable Offence
- Bail under the Indian legal system
- The Law on Anticipatory Bail: from ‘Sibbia’ to ‘Chidambaram’
- Roman Polanski sexual abuse case
Author: Anish Bachchan is a 5th Year Law Student at Amity Law School, Noida.
Also Authored at The Los Angeles Times, The Times of India, Live Wire, Youth Ki Awaaz, Legal Service India, and Law Corner. I have also published two books i.e.
1. Patent 101 Level 1: Understanding Patent of Aggressive Monetization of Video Games
2. Contempt of Court with References to Media Trials