Thursday, April 18, 2024

How to get bail in India?

The crime rate in the country with the largest democracy in the world is very high. India witnesses a large number of crimes on a daily basis. Many times police are successful in tracing criminals, however, the trial starts after a few weeks or months from their conviction. The convicted criminal may not be guilty and still be required to face jail time. The only way for this wrongly accused man of a crime is to get bail.

Only in 399 BC did the concept of bail become popular in England. Plato attempted to obtain a bond in order to free Socrates in the first instance. India later developed this concept after being inspired by it.

In this article, we discuss basic concepts of bail. If you are a lawyer, and you get a call your client is jailed, then read here how to get him out from it.

What is bail-the concept

Bail is a kind of security or bond that is offered to release a person from prison. A bail is an option of pre-release of a convict before the beginning of his/her trial in the court. Criminal Procedure Code, 1973 nowhere defines the term bail, but section 2(a) of Crpc defines the terms ‘bailable and non-bailable offense. 

Evolution of the concept of bail

The concept was first established in England, as previously stated. In England, judges used to travel from place to place to hear cases that came up from session to session. The prisoners would have a difficult time during this time due to the unsanitary prison conditions. As a result, the bail system was established to allow pretrial detainees to be released.

->Later, in 1215, the Magna Carta, or Charter of Rights, was introduced, which provided citizens the right to trial and specified that a man cannot be condemned until he has faced the trial. The Westminster Statute of 1275 split the charges into bailable and non-bailable categories.

->The Habeas Corpus Act was passed in 1679, and it allows the magistrate to release convicts in exchange for bail. The English Bill of Rights, which was enacted in 1689, provided a safeguard against excessive bail amounts. In England, the Bail Act of 1976 is now in effect.

->In the case of the USA, the Bill of Rights was enshrined in the Constitution in 1791. It ensured that all bail provisions were met.

->The Criminal Procedure Code of India, which was enacted in 1973, has regulations on bail.

–>Sections 436 through 450 are concerned with the granting of bail and bonds in criminal trials.

What are the different types of bail?

Commonly there are three types of bail, 

What is Regular bail?

Someone put in arrest by police and kept in custody has the option to get released on bail under section 437 and section 439 of the Cr.P.C.

Section 437

It provides that if a person is detained without a warrant by a police officer for the commission of a non-bailable criminal, or if there are reasonable grounds to suspect that there are insufficient grounds to prove that the person has committed any non-bailable offense, the person can be released. If he appears in a court other than the Court of Sessions or the High Court, this must be followed.

Section 439 provides special powers to the High Court and the court of sessions. It enables these courts to release people on bail for offenses specified in Section 437 (3) of CrPC. It also offers that any condition that the magistrate imposes can be set aside when High Court granted bail after informing the public prosecutor through notice. 

Court has also the right to direct the arrest of that person under sections 437, and section 439.

What is Interim bail?

Interim bail is a short-term bail that is granted before the finalization of regular or anticipatory bail.  The rationale for this is that granting bail by the High Court or the Court of Session necessitates the submission of paperwork by the subordinate courts, which takes time. As a result, interim bail is available for the time being.

Interim parole can be renewed, but if it expires, the person to whom it is granted must be sent to prison.

What is Anticipatory Bail?

It states that anyone who expects to be arrested as a result of an accusation of committing a non-bailable crime may apply for anticipatory bail. An application to the High Court or the Court of Sessions is required. A person apprehending arrest for any reason to believe is directed under Section 438 of the Criminal Procedure Code.

As per the section 438, a person is released under some conditions given below:

-The convicted agrees to present anytime when the investigation is needed

-The convicted can not disable someone to collect the facts against him during the proceedings

-They can’t leave India without the court’s permission 

When police can give bail to the convicted?

Police can give bail to the convicted under the following conditions:

When police arrests the accused without a warrant 

Under section 43 of Cr. P.C, when someone is by a private person, then section 56 of the Cr. PC. enables police officers to bail that person.

Section 169 of Cr. P.C says that bail can be set when the investigation is done and the investigation officer is authorized to give bail.

If a person is accused of committing a non-bailable offense, then an officer in charge of the police station has the authority to give bail under section 170 of Cr.P.C.

When police arrest with a warrant

As per Section 73 of Cr.P.C., the police officer who has a warrant against the convicted person in jail is authorized to give bail to him.

Section 81 of Cr.P.C. and section 82 of Cr.P.C. has provision if the jailed person is arrested in the district, then a police officer other than the district SP or police commissioner can release the accused from custody. If an arrest is made out of the district, then SP or commissioner in the area of arrest can release the convicted.

What are different options to post bail?

Cash bail- Convicted person in jail has to submit the specified amount to the court. Amount can also be given through cheque or credit card. 

Surety bond or bail bond– When an accused person in jail seeking bail isn’t able to pay the complete bail amount, his/her relatives can take assistance from a bail agent assisted by the insurance company. Bail agents take liability as a bail bond to pay the bailable amount in the future if the accused fails to do it in the future.

Property bond: In this mode of bail, the accused person in jail can give legal authority of his property to the court. The court can forfeit property in case he/she does not appear on calling.

Citation-Accused is given bail with a citation for the accused to appear in the court from time to time.

Release on personal recognizance- In some minor cases, a person is released on bail with their own personal recognizance. 

What are bailable offenses?

In case of the following bailable offenses, a convicted person has the right to get bail under section 436 of the Cr.P.C. :

  • Causing hindrance in public places where people worship
  • Putting a public servant’s duties in jeopardy
  • Giving bribes during election campaigns
  • Making false evidence, and so on.

Conditions to get bail in non-bailable offenses?

If an accused has committed a non-bailable offense, he/she has no right to apply for bail. Still, there are some provisions under section 437 of the Cr.P.C, where convince under certain conditions can get bail from the court:

1- If a convict is a child or a woman

2-In shortage of evidence

3-If the accused is physically or mentally disabled.


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