A brief note of Bail in bailable and non-bailable offence
Bail
Provisions Under CrPC
The
term ‘bail’ is nowhere defined in the Criminal Procedure Code, 1973. still, it has
been defined in CrPC under sections 436- 450. The first schedule of CrPC also
defines which offenses are bailable and which are not. Generally, on-bailable
offenses are more heinous crimes.
Bail
in Bailable Offence
A
person other than a person indicted of an on-bailable offense may be released on
bail under this section on similar terms as may appear reasonable to the police
officer or the Court. A person released under this section by the police
officer need not approach the Court for a fresh bail as held by the High Court
of Rajasthan. But the Allahabad High Court has provided that a person released
on bail by the police must seek fresh bail from the Court to appear before the Court.
The
power to release the indicted on bail under Sections 436 and 437 vests in the
Court before whom he appears or is brought. The power of the Magistrate to
grant bail doesn't depend upon his capability to try the case but on the discipline
specified for the contended offense. thus, an Executive Magistrate has the power to
grant bail only in respect of offenses punishable with a fine or imprisonment of up to three months. It have been held several opinions that the conditions of the bail- bond shouldn't be
unreasonable or overly harsh and rough to abate the purpose of bail. The
quantum of bond or bail- bond shouldn't be too high it should be fixed keeping
in view the circumstances of the case and the capacity of the indicted
person.
The
object of granting bail is to secure the appearance of the indicted person
to answer the charge at a specified time and place, Court while considering
the bail operation should take into consideration the nature and graveness of
the offense charged, the liability of the indicted’s involvement in it, the police
report, the data stated in the solicitation as also the grounds of opposition
to the entitlement of bail, etc. It has
been held that turndown to grant bail in violation of Section 436 will render
the detention of the indicted illegal and the police officer causing similar
detention may be held guilty of the offense of unlawful confinement under
Section 342, IPC.
Sub-section(
2) provides that where a person indicted
of a bailable offense has been released on bail pending his trial; if he
absconds or commits a breach of the condition of bail- bond or is set up to intimidation of, buying, or
tampering with the execution substantiation or indulging in any subversive
act which is prejudicial to a fair trial, the High Court or the Court of Session
may bring its essential power under Section 482 and
beget similar person to be arrested and
to be kept in guardianship canceling
his bail- bond. The Court may also order recovery of penalty from the surety
under Section 446 of the law.
It
has been held by the Bombay High Court that the order granting bail and
incidental terms is basically an interim order that can able of revision as and
when necessary. While granting bail, the Court has the power to
circumscribe the movements of the indicted outside India and may direct him to
surrender his passport. The right to be
released on bail in case of a bailable offense is a legal and indigenous
right of the indicted person, turndown of this right is a curtailment of the
right of particular liberty guaranteed by Article 21 of the Constitution of
India and, thus, there should be no question of discretion in granting
bail.
In
Rasiklal v. Kishore Khanchand Wadhwani[1], the indicted was released on
bail for the offense of vilification which is a bailable offense. Held, the Court
isn't bound to issue notice to the plaintiff and hear him before allowing the
indicted his release on bail. thus, the cancellation of bail of the indicted on the ground that the plaintiff wasn't heard
and therefore principles of natural justice were violated was held not to be
justified. The appeal was thus, allowed by the Apex Court. [2]
436-A. The maximum period for which an undertrial prisoner can be detained
Where
a person has, during the period of disquisition, inquiry, or trial under this law of an offense under any
law( not being an offense for which the discipline of death has been specified as one of the corrections under that law) experienced detention for a period extending
upto one- half of the maximum period of imprisonment specified for that offense
under that law, he shall be released by the Court on his particular bond with or without sureties handed that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in jotting, order the
continued detention of a similar person
for a period longer than one- half of the said period or release him on
bail rather of the particular bond with or without sureties handed further that no similar person shall, in any case, be detained
during the period of disquisition, inquiry or trial for further than the maximum period of
imprisonment handed for the said offense
under that law.
Explanation:
The
duration of detention that has passed owing to the accused's delay in the proceeding is excluded from calculating the period of detention under this
section for granting bail.
Comment:
This
special provision has been added to the Code of Criminal Procedure to protect
prisoners awaiting trial from arbitrary confinement that occasionally goes
beyond the term of imprisonment that the offense committed by the undertrial is
punishable under.
According
to the clause, the court may release an undertrial on a personal bond with or
without sureties if they have been detained for some time equal to up to
half of the maximum sentence allowed for the offense they are accused of
committing.
The
Court may, however, order the continued detention for a longer period than
one-half in exceptional cases for reasons to be recorded in writing. Where the
proceedings have been delayed at the instance of the accused undertrial, such
period of delay shall be excluded in computing the period of detention under
this section.
How
to get Bail in a Non-Bailable Offence?
Bail
can be granted in non-bailable offenses by the courts. The personal liberty of the accused is also important for the law that’s why the Supreme Court laid down
the rule of Bail, not jail. When it comes to non-bailable offenses, this rule
is not generally followed, as in this case bail is not the matter of right of
the accused but is a matter of discretion of the competent authority like the Court or police officer whether to grant bail or not and its entitlement
depends upon certain circumstances. This composition will bandy all the
situations and possibilities in which bail can be granted in a Non-Bailable
Offence.
Circumstances
in which Bail can be granted in a non-bailable offense
Bail
is a matter of discretion of the Court in case of a non-bailable offense that is, an
indicted person isn't automatically entitled to get released on bail after
submission of sureties and bond. It's a matter of the discretion of the court and
police officers to release them. The area of this discretion depends upon the
following points of consideration or circumstances
•
soberness of the Crime, as an illustration, if the offense is severe i.e.,
punishable with death or life imprisonment the chances of getting bail are
less;
•
Nature of the blameworthiness that is, whether the blameworthiness is severe,
dependable, or mild;
•
inflexibility of the discipline; short term, long term imprisonment; death judgment.
•
Nature of substantiation; dependable or untrustworthy;
•
threat of indicted absconding or fleeing if released
•
threat of substantiations being tampered with;
•
prolonged nature of Trial i.e., dragged trials beyond necessity;
•
occasion for the aspirant to prepare his defense;
•
Health, age, and coitus of the indicted i.e., a person may be released if he's
under the age of 16 times, is a woman, a sick, or tender.
•
Nature and graveness of the circumstances under which the offense is committed.
•
Position and status of the indicted concerning substantiations i.e.,
whether he's in a position to dominate them on release.
•
Interest of society and possibility of commitment to further offenses on
release.
Who can grant bail in a non-bailable
offense?
The magistrate or Police officer: When an accused person is arrested by
the police, without a warrant, in a non-bailable offense, then the
officer-in-charge of the police station or the magistrate, if brought before
him, can release the accused under Section 437.
But if the offense is of a severe
nature i.e., punishable with death or life imprisonment; or if the accused is a
former, habitual, or repetitive criminal then the accused must not be released
except if he is under the age of 16 years, is a woman, a sick or infirm or it
appears to the Court that there are reasonable grounds to believe that accused
have not committed the non-bailable offense.
Session or High Court: The High Court and Court of Session can
grant bail even in the offenses
in which the magistrate cannot grant bail, on
certain conditions which it deems fit in the social interest and interest of
justice under Section 438. The Court of Session and High Court enjoy immense
power regarding the bail.[3]
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