Introduction
In this article, we are going to discuss how to get bail in India and what is the exact bail procedure in India?
We will also discuss the conditions under which the bail is granted or denied and basically everything you need to know regarding bail in India will be covered in this article.
Keep reading to find out more
What is Bail?
In general terms, a Bail means getting a temporary release to a suspected person accused in any criminal case who is waiting for the trial before the court after paying the bail bond.
Types of bail in India?
There are mainly three types of bail in India which are
- Regular Bail
Regular bail is governed under sections 437 and section 439 of the Code of Criminal Procedure (CrPC). Regular bail is granted when the person is already in the custody of police for an offence or when there are allegations of him committing the same.
- Anticipatory bail
The anticipatory bail is governed under section 438 of the Code of Criminal Procedure (CrPC). Anticipatory bail comes into play when a person has a fear of arresting. As the name suggests anticipatory means beforehand. So When a person has done something wrong in the eyes of law and he/she knows that he/she will be arrested soon. so in that case an anticipatory bail can be filed.
- Interim Bail
An interim bail is filed before regular or anticipatory bail. An Interim bail is granted for a short period of time. Filing for a regular or anticipatory bail is done from the high court and session court, which needs time. So for the time being the lawyer files for interim bail. If it expires, it can also be renewed.
Surety in bail and who can give surety of bail in India?
When an accused person seeks bail in court, the court can ask for surety. The purpose of surety is to make the person responsible for the act of the accused after the release.
Now the question comes that who can be a surety?
A surety can be any real person, an Artificial person or any commodity cannot be presented as surety in front of the court. According to section 441(4) of the Code of Criminal Procedure, Magistrate can check the fitness or sufficiency of surety and may reject surety if not satisfied with the reliability, identity, fitness, or sufficiency of surety.
How to get bail in India | Bail procedure in India
Let us now discuss that what is the exact procedure for getting bail in India?
When a person is arrested he/she is taken to a police station closest to where the accused resides. You must take the help of a criminal lawyer or a lawyer who has specialization in bail matters.
Let’s see how we can file an application for getting bail in India?
When a person is accused of any crime he/she can apply for bail. In case of a bailable offence, the accused can file the application under form 45 provided in the second schedule. Your lawyer will file the application on your behalf in the court where the court proceedings will be heard. The court will only grant the bail if it feels that it is fit to grant the bail.
Hearing of the bail:
The judge will hear all the reasons given by your lawyer to grant the bail. The pieces of evidence and the facts are presented before the court and after verifying the facts, the court will decide whether the bail should be granted or not. The Court takes into account factors like the character of the accused, the nature of the crime, the employment and financial condition of the accused, whether the accused has a history of convictions, etc. When a Bail is granted, the Court may also impose certain conditions.
Types of offences and their scope of bail
So majorly there are two types of offences, bailable offence and non-bailable offence. Let’s discuss each of them one by one.
- Bailable Offences
In case of a bailable offence, it is the right of the accused to ask for bail. The bail-in this case is either given by the police officer who has the custody of the accused or it is given by the court under whose jurisdiction the case falls. The accused may be granted bail on furnishing bail bonds.
The bail bonds have certain terms and conditions like,
- The accused cannot leave for another state without taking permission from the police or the court.
- The accused cannot tamper with the pieces of evidence
- The accused has to be present before the police or the court whenever he is called.
Examples of bailable offences are
- Participating in an unlawful Assembly.
- Participating in riots.
- Armed with a deadly weapon.
- When a public servant disobeys the law with an intention to cause injury to another person.
- If a person wears a uniform or carries a token used by a public servant with a fraudulent intention.
- If a person is found bribing during election campaigns.
- If a person is found to give false statements in connection with elections.
- If a public servant refuses to take an oath when he is duly required to take one.
- If a person obstructs a public servant in the discharge of his public functions.
- If a person gives or fabricates false evidence in any kind of judicial proceedings.
- If a vendor/ seller is selling any food or drink as food and drink, knowing that it is poisonous.
- If any person causes disturbance in a peaceful assembly or in a religious environment.
If an accused wants to get bail in a bailable offence then form 45 given in the second schedule has to be submitted by the person in the court where the proceedings are to be heard. The bail will only be granted when the court approves it.
- Non Bailable Offences
In a non-bailable offence, the accused doesn’t have the right to seek bail. In this case, the accused has to seek permission from the court and the decision to grant bail or not completely depends upon the court.
Generally, the court refuses to grant bail in such cases because the cases are grave in nature.
Examples of non-bailable offences are
- Committing or even attempting to commit murder under Section- 302 and 307 of the Indian Penal Code.
- When a person commits or attempts to commit rape defined under Section- 376 of the Indian Penal Code.
- In cases of dowry death under Section- 304 (B) of the Indian Penal Code.
- When a person voluntarily causes grievous hurt defined under Section- 326 of the Indian Penal Code.
- When a person kidnaps another individual defined under Section- 363 of the Indian Penal Code.
When the suspect is accused of committing a non-bailable offence, he has to submit the same form as above before the Court in which his case is being heard, but, granting of bail is at the discretion of the court only.
Difference between bailable offences and non-bailable offences
Let us understand the difference between bailable and non-bailable offences
| Basis of difference | Bailable Offence | Non-bailable Offence |
| Provision under IPC | It is defined under section 2(a) of CrPC, as an offence which is shown as bailable in the 1st schedule, or which is made bailable by any other law for the time being in force. | It is also defined under section 2(a) pf CrPC, as any other offence other than bailable. |
| Intensity of Crime | Bailable offences are considered less serious in nature. | Non- Bailable offences are considered more serious/heinous in nature |
| Seriousness of Punishment | Punishment can be of up to 3 years or less | The punishment is for more than 3 years |
| Scope of bail | Bail can be claimed as of right and is granted as a matter of course by the police officer or by the court. Its provision can be traced u/s 436 of CrPC | Bail cannot be claimed as a right. Only Judicial Magistrate has discretionary power to grant bail after considering the facts and circumstances of the case. Provision for Non- Bailable offence is given u/s 437 of CrPC |
| Examples | Cheating (Sec. 407 IPC), Affray (Sec.160,IPC), Bribery for elections (Sec 171E IPC) | Dowry Death (Sec. 304B, IPC), Murder (Sec. 302, IPC), Rape (Sec.376, IPC), Voluntarily causing Grieve Hurt (Sec. 326, IPC) |
| Bail Procedure | When the accused brings proper surety after his/her arrest, the investigating officer of the concerned Police Station is bound to release the accused on Bail. | Accused need to be present before the Judicial Magistrate within 24 hours from the time of arrest by the Investigating Officer of the Police Station. At that time, he/she can make an application for bail to the magistrate either by himself or through an Advocate. |
When can a bail is granted or denied
Here are a few instances where the bail of an accused can be granted or denied..
- The bail of an accused cannot be denied unless the offence is of grave nature and the punishment of committing it is passed by law is of extreme gravity.
- The bail can be denied if the accused is found to pollute the process of justice or mess with the evidences.
- The bail can be denied if the past record of the accused is not good and it suggests that he will commit yet another serious offence if granted bail.
- The bail can be denied to an accused if he has been previously convicted of an offence 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 offences.
Hire a good lawyer
It is very important to hire a lawyer who has a good experience in bail matters. They will be the best advice givers during the tough times.
Getting a bail after arresting is very crucial for an accused and only a trained legal mind can think of the all the possible ways based upon the exact nature of the offence and the special circumstances of each case that might affect the arrested person’s chances of being granted bail.
Conclusion
So this was all about how to get bail in India? I hope this article would be of some help to you. For consultation regarding bail matters you can visit our website.