BAIL & ANTICIPATORY BAIL

Bail denotes the provisional release of an accused in a criminal matter in which the court is yet to announce a judgment. The expression ‘bail’ means a security deposited to appear before the court for release. Originally, the word is derived from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’. A ball is granted to an accused after presenting a bail bond to the court.

The primary objective of arrest is to ensure that the accused in a criminal case appears before the court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as a conditional liberty to the accused.

Types Of Bail In India

There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal matter:

  1. Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC.
  2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
  3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.

How To Apply For Bail?

 

If the police have already arrested the person and taken him to the police station, the bail lawyer can file a bail as per the bail application format given in the CrPC. The bail application is to be filed and approved by the court and then presented to the police to get the arrested out of jail.

The bail amount or the bail bond to be deposited depends upon the discretion of court. However, a standardised bail amount is set and deposited for bail in less serious criminal cases. 

Conditions for Bail inBailable Offences

Section 436 of the CrPC lays down that a person accused of any bailable offence under the IPC can be released on bail.  Bailable offences under the IPC include unlawful assembly (Section 144 of CrPC), payment of bribe during elections, fabrication of false evidence, sale of poisonous food or drink knowingly, participation in riots, being armed with deadly weapon, furnishing false information, threat of injury to public servant, selling adulterated drug, selling obscene book, causing death by negligence (Section 304A), stalking, criminal defamation, etc.

In any of the above-mentioned offences, a person can hire a bail/anticipatory bail lawyer  to apply for bail. However, there are certain conditions on which a bail can be granted in case the person is arrested or is likely to be arrested for a bailable offence:

  1. There are sufficient reasons to believe that the accused has not committed the offence.
  2. If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
  3. The person is not accused of any crime for which is punishable with death, imprisonment for life or imprisonment up to 10 years.

Conditions For Bail In Non-Bailable Offenses

An accused does not have the right to apply for bail in case of a non-bailable offence. The power to release a person on bail in a non-bailable offence lies with the court. Section 437 of the CrPC lays down the power of court to grant a bail to a person even in a non-bailable offence.

Non-bailable offences under the IPC include sedition, waging or attempting to wage war against the government, counterfeit of Indian currency, adulteration of drug, murder (Section 302), culpable homicide not amounting to murder (Section 304), dowry death (Section 304B), abetment of suicide, abetment of suicide, abduction of child under 10, trafficking of person, rape (Section 376), cruelty by husband or his relatives (Section 498A), etc.

A person can get legal advice from a good criminal law lawyer to apply for a bail in non-bailable offence. The conditions on which the court grants a bail in a non-bailable offence are as follows:

  1. If the accused is a woman or child, bail can be granted in a non-bailable matter.
  2. If there is a lack of adequate evidence, the court can grant a bail in non-bailable offence on discretion.
  3. If there is a delay in registering the FIR by the complainant.
  4. If the person accused is physically or gravely sick.
  5. If there is some corroboration as to personal animosity between the accused and the person who filed the criminal matter.

Cancellation Of Bail

The court has the power to cancel a bail granted even at a later stage. The power of the court is laid down under Section 437(5) and 439(2) of the CrPC. The court can cancel the bail granted by it and give directions for the arrest of the person in police custody. However, the court does not have the power to cancel a bail granted by a police officer.

It is always suggested to consult the best criminal defence lawyer near you to file a bail application in case of bailable or non-bailable offence. A lawyer can give you legal advice regarding the correct legal remedy and the kind of bail that

 

 

ANTICIPATORY BAIL

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

Conditions that are taken into consideration by the court when granting anticipatory bail include, but are not limited to:

  • The person will make him/herself available for interrogation by the police as and when required by them.
  • The individual shall not directly or indirectly make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police.
  • An assurance that the person shall not leave India without prior permission from the court.

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