Bail serves as a pivotal element in India’s judicial system, allowing accused individuals to secure temporary freedom, ensuring their constitutional rights are upheld. It is the balance between individual liberty and public safety in which a person accused of a crime gets an opportunity to raise his defence properly. The term bail is derived from a French word ‘bailer’ which means to deliver or to give. Bail is nowhere defined in Code of Criminal Procedure, 1973 but there are provisions of Bail mentioned under sections 436 – 450 of the Criminal Procedural Code, 1973.
- Section 2(a) of Cr.P.C. defines Bailable and Non-bailable Offence
- Section 2(a)- ‘bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence.
A bond refers to a surety arrangement wherein the bondholder agrees to pay any resultant loss if the litigant fails to appear before the court. Contrarily, bail refers to the temporary release of an accused awaiting trial as long as it is secured by the deposit of a specified amount of money with the authority for the purpose of guaranteeing the appearance of the latter in the court.
In this blog, we’ll cover more about bailable and non-bailable offences, types of bail, the bail process, the role of a criminal lawyer in securing bail, alternative to bail, post-bail procedure.
Bailable and Non-Bailable Offence
It is essential to understand the distinction between bailable and non-bailable offences, as this classification significantly impacts the legal rights and options available to the accused.
What are Bailable Offences?
Bailable offences are less severe crimes where the accused has a legal right to be granted bail upon arrest. Examples of bailable offences include defamation and other minor petty thefts. The bail amount and the eligibility to get it under the Code of Criminal Procedure (CrPC) are fixed making the whole process simpler for the accused to get released. Bail is processed at the police station.
What are Non-Bailable Offences?
Counterfeiting, drug trafficking, dacoity, and any crime that calls for the sentence of death is not bailable. In such circumstances, bail is not a right but a mercy granted by the discretion of the court on the basis of such circumstances where the heinousness of the crime is a factor.
Securing Bail for Both Types
The bail process is easy for bailable offences because the law defines the bail amount. For the non-bailable offences, the court takes into account the record or history of the accused, his chances of fleeing the jurisdiction to avoid trial, and the nature of the offence. BNSS (Bail, No Bail, Surety and Security) and appeal orders are very fundamental aspects of the bail process.
Types of Bail
Different types of bail exist based on the circumstances and nature of the accusation. Below are the key types of bail available in the legal system:
Regular Bail
Regular bail is granted after arrest to release the accused from custody. It can be cancelled if allegations resurface or suspicion arises. The bail petition must be filed within the jurisdiction where the detention occurs. Remedies and duration depend on the case’s specifics.
Anticipatory Bail
Anticipatory bail is a pre-arrest bail granted by court order to prevent detention after an accusation. Conditions are set based on the court’s reasoning to protect the individual.
Interim Bail
Interim bail provides temporary relief for individuals, often due to family crises or reputation concerns. Granted by a Sessions Judge, this short-term release lasts until final bail proceedings.
Statutory (Default) Bail
Statutory bail, or default bail, is granted if the prosecution fails to file a charge-sheet within a specified timeframe. This right empowers the accused to secure bail under certain conditions while in custody.
Medical Bail
Medical bail is granted when the accused requires urgent health treatments, such as bullet injuries or surgeries. It is rooted in human rights, allowing temporary release for medical emergencies.
The Bail Process
The bail process follows a structured legal framework, from the moment of arrest to the court’s decision on bail.
Step 1: Arrest and Booking
Immediately after arrest an individual is taken into custody. There is recording of details of arrest. Arrests are covered under Code of Criminal Procedure, 1973, whereby every right of the accused is protected. The accused is then presented before a Judicial Magistrate.
Step 2: Bail Hearing and Procedures
This is when the court considers application for bail, and it weighs in details of the offence committed – to its nature as in murder, or possible interference with evidence and the arguments presented by the prosecuting attorney- whether to grant, deny, or rescind bail.
Step 3: How Bail Amount is Set
The amount of bail is set according to the offence in terms of danger perceived, in terms of security, and the chances of appearance in court by the accused. The higher the seriousness of the offence, the higher the value of bail. Bail is set by the court and is fair and proportionate with an aim at avoiding unjust confinement.
The Role of a Criminal Lawyer in Securing Bail
A legal aid criminal lawyer usually plays a more significant role in the bail process by making a representation and defending the accused.
Preparation and Filing of the Bail Application
The attorney applies for bail while having in place all the legal paperwork. This includes appearance notices as well as the requirements of court bail.
Protection of rights of the Accused
A criminal lawyer protects the rights of the defendant during the process and will ensure they have a fair and just chance, besides that plea bargains or technical violations do not take over the case.
Negotiating Bail Terms
An attorney is to negotiate good bail terms and normally works with bail bond agents to keep the bail amount to a minimum and can even apply for a reduction hearing if the set bail amount is viewed as too high.
Challenge a Bail Denial
This decision not to let the accused out on bail is overturned through stronger arguments or by appealing to a higher court seeking bail on different terms if denied.
Speed up the Bail Process
An expert lawyer can speed up the bail process through preparation of documentation, arguing for quick hearings, and ensuring no back-and-forth in the courts hampers one’s bail.
Alternative to Bail
There are so many alternatives to traditional bail, with each providing a different means of monitoring and the subsequent release of the accused before trial.
Electronic Monitoring
Electronic Monitoring (EM bail) tracking an alleged criminal’s movement via GPS monitors movement and location of an arrested person. Information is relayed to a control centre, which keeps the individual within a set boundary. It will raise an alarm in case of infringement of the boundary.
Conditional Release
In conditional release, the accused is allowed to go free on certain conditions like attending counselling or surrendering passports. These conditions are based on criteria such as escape risk and locality, hence requiring proof of address or sureties.
Pretrial Release Programs
These programs are set and administered by pretrial services agencies. In effect, they operate with the support of bail bondsmen in ensuring that accusations comply with the stipulated conditions.
Supervised Release
Supervised release in this case entails tracking the accused at intervals, which may include location monitoring and even family participation. Prosecution keeps a glimpse of one who is released awaiting determination of the trial.
Post-Bail Procedure
After bail has been accepted, the procedure goes ahead as follows to ensure the trial process continues going on fluently and the accused abides by all the terms given:
A bail order is issued
Once a bail is given, the court comes up with a bail order indicating the terms under which a person is set to be released. This indicates on which terms and conditions the defendant has to observe and also the sum or security deposit required.
Verification of Surety
The sureties that a defendant gives, which is either property or people, verifies whether they meet the court’s requirements. In this way, the surety can be held responsible if the defendant misses the court proceedings.
Release Warrant and Process
Once the surety is authenticated, the court issues a release warrant. The accused is freed from custody by the release process. In some cases, this may require the interventions of the court officials and detention centres.
Compliance with Bail Conditions
The defendant is bound to comply with all the bail terms issued by the court such as appearing before the authorities. Non-compliance incurs fines, increased security terms, or further legal action.
Penalties for Bail Revocation
The bail can be cancelled if the accused fails to abide by the terms and conditions of bail or if new evidence comes in. The cancellation of the bail could mean arrest, enhanced criminal charges, and loss of the deposited security. A court could order the appearance of the accused for further proceedings, and he might face a sentence.
Conclusion
Individuals must understand the nuances of the bail process, including the various types of bail and the roles lawyers play. Alternatives to bail, such as electronic monitoring and pretrial programs, can provide a possible solution whereby the accused adheres to his conditions yet remains at liberty. After bail is obtained, post-bail procedure demands to observe strict conditions not to have it lifted. The essential bail system ensures that the rights of the accused and public safety are balanced, thus guaranteeing a fair process in litigation from start to finish. Contact Zolvit lawyers for instant legal assistance and guidance.
FAQs Related To Criminal Bail Process
How long is bail valid for?
Bail is typically valid until the conclusion of the trial or until the court issues a new order regarding the bail status. The duration can vary based on the specific case circumstances, judicial directives, and any extensions granted by the court.
Is the bail amount refundable?
Yes, the bail amount is refundable once the trial concludes, provided the accused has adhered to all bail conditions and attended all required court appearances. However, fees paid to bail bond agents may not be refunded, as these are considered service charges.
What is the highest bail amount paid in India?
The highest bail amount paid in India was reportedly set at ₹100 crore (approximately $12 million) for the Bollywood actor Salman Khan in the 2002 hit-and-run case. Such exorbitant bail amounts are rare and typically reserved for high-profile cases involving serious allegations.
Can bail be cancelled once granted?
Yes, bail can be cancelled once granted if the accused violates bail conditions or if new evidence suggests a risk of flight or danger to society. The prosecution can file a petition for bail revocation, prompting a court review of the circumstances.
How many times can bail be applied?
Bail can be applied for multiple times, but subsequent applications may be scrutinised more closely. If a bail application is denied, the applicant may present new evidence or changes in circumstances to strengthen their case in future applications.
Can family members be surety in bail?
Yes, family members can serve as sureties for bail, provided they meet the court’s requirements and demonstrate the ability to ensure the accused's compliance with bail conditions. Sureties must provide documentation and possibly security, such as property deeds.
Can someone be released without posting bail?
Yes, an individual can be released without posting bail if granted alternatives like pretrial release or supervised release, where they must comply with specific conditions instead of paying bail. In some cases, the court may also release individuals on their own recognisance.
Do all criminal charges qualify for bail?
Not all criminal charges qualify for bail. Non-bailable offences, such as serious crimes like murder or drug trafficking, may require special considerations and are generally subject to judicial discretion. In these cases, bail is not a right but a privilege granted at the court's discretion.
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