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When Bail can be given to the accused
The Oxford English Dictionary defines Bail as “the temporary release of a person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.” But there is no definition of bail under the Code of Criminal Procedure, 1973. Basically, it involves the process of realizing a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the Court.
In order to understand bail and when bail can be granted to the accused, it’s important to understand the reason for arresting a person. The object of arrest and detention of the accused person is primarily to secure his appearance at the time of the trial and to ensure that in case he found guilty he is available to receive the sentence. If the presence of the accused could be reasonably ensured without arresting him or detaining him, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him.
If release on bail is denied to the accused, it would mean that even though he is presumed to be innocent till proven guilty beyond reasonable doubt, he would be subjected to the psychological and physical deprivation of jail life. This has a lot of consequences and it just does not affect the accused but also his family members. Like if the accused is jailed, he loses his job and is prevented from effectively contributing to the preparation of his defence. Further, the burden of his detention fall on his innocent family members, more so if he the only breadwinner of the family. Moreover, an arrest is restricting a person’s right to liberty, which is a fundamental right, unless there is a valid reason a person should not be arrested. A valid reason is not enough, the arrest has to be also made based on a valid provision of law. Otherwise, the arrest will be illegal and such an arrest can be challenged in a Court of Law.
Having said this, the main objective is not just to ensure presence of the accused, the presence is required for investigation, for the trial and to protect the society. When a person is accused of a serious crime and is likely to be convicted and punished for such a crime, there are chances that he would abscond in order to trial and the consequences of the trial. Then arresting such a person would become necessary and if such a person is arrested then granting him bail would be unwise because if such a person is released on bail, there are not only chances of him escaping but he can also tamper with the evidence or he may commit another offence. Therefore arrest sometimes is necessary and as mentioned earlier it should be made based on a valid provision of law.
But when the offence is not very serious or grave there are others methods of ensuring the presence of the accused such as summons. The provisions of the Code of Criminal Procedure, regarding the issue of summons or those relating to the arrest of the accused person under a warrant or without a warrant or those relating to the release of the accused on bail, are all aimed at ensuring the presence of the accused at the trial but without unreasonably and unjustifiably interfering with the liberty of the person arrested.
Whether the accused should be released or not released on bail depends on the nature of the offence the accused. The Code of Criminal Procedure categorizes offences and bailable and non-bailable. The First Schedule of the Code of Criminal Procedure refers to all the offences under the Indian Penal Code, 1860 and puts them into bailable and non-bailable categories. Although there is no criterion under the code to classify the offences into these two categories, the basis of this categorization rests on diverse considerations. Having said that, it can be generally stated that all serious offences, like, offences punishable with imprisonment for three years or more, have been considered as non-bailable offence, but there are certain exceptions to this as well. Minor offences will fall under the category of bailable offences and in most cases to arrest a person, who is accused of committing a bailable offence, a warrant is required and the Magistrate issues such a warrant. But in case the offence is non-bailable, it is not mandatory to arrest a person with a warrant.
If a person accused of a bailable offence is arrested or detained without warrant, he has a right to be released on bail. But if the offence is non-bailable that does not mean that the person accused of such offence shall not be released on bail. But in case of non-bailable offence, it’s not a matter of right, but only a privilege that can be granted at the discretion of the Court.
In a few cases, the accused is falsely implicated or fake case is filed against the accused, in such a situation if the accused apprehends his/her arrest then the accused can apply for Anticipatory Bail. Usually, the application of bail is made after the arrest and while awaiting the trial, but in case of anticipatory bail, the bail application is made before the arrest. A common misconception regarding anticipatory bail is that, if a person is successful in getting anticipatory bail then such a person cannot be arrested. But this is not true, even if a person accused is granted anticipatory bail, this will not prevent the police from arresting him, it only means that once arrested he can be released on bail. Section 438 of the Code of Criminal Procedure deals with anticipatory bail and it enables the superior courts to grant anticipatory bail. The application can be made anytime before the arrest if the accused person has reason to believe that he/ she will be arrested. It is not necessary that an FIR has to be filed in the name of the accused person. If the Court decides that the accused should be granted the bail then it first issues a temporary order and the Court will then inform the police and the prosecutor. After hearing the arguments of the prosecutor the Court can convert the temporary order into a final order and grant anticipatory bail to the accused.
Section 436 of the Code of Criminal Procedure provides that bail can be granted to the accused if he has not committed any non-bailable offence. In other words, when the offence is bailable the accused can be released on bail. The accused can be released on bail if the investigations are not complete within the prescribed number of days. Whenever an accused is arrested and detained in the custody of the police during the investigation and it appears that the investigation cannot be completed within twenty-four hours, and then such an accused person should be presented before the Judicial Magistrate. Such a magistrate from time to time should authorize the detention of the accused in such custody, for a term not exceeding fifteen days in the whole as the magistrate deems fit. The accused should also be released on bail if there is no reasonable ground for believing that the accused is guilty of a non-bailable offence. According to section 437(6) of the Code of Criminal Procedure, if the trial is not concluded within sixty days and the person is accused of non-bailable offence, then such a person shall be released on bail if he is custody during the entire period. Section 437(7) of the Code of Criminal Procedure states that if at any time after the conclusion of the trial of a person accused of a non-bailable offence and before the delivery of the judgment, the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of such offence then the Court can release the accused on execution of a bond without any sureties for his appearance to hear the judgment delivered.
The Court while granting bail imposes certain conditions sometimes. Like, the person or the accused applying for bail must execute a bail bond with or without sureties or the accused person cannot leave the country until the proceedings are complete, in order to be released on bail. A bail bond is a written document whereby the accused promises to appear before the Court as and when required or if the Court prescribes a particular date and time, then to appear before the Court at that particular date and time. The court also prescribes an amount that is to be paid for the accused to be released on bail. Sometimes, in order to bind the accused to the bail bond, the Court asks for a Surety. A surety is a third party who will be held liable if the accused does not follow any conditions in the bail bond. In such situations, the Court will ask the surety to keep collaterals worth the amount prescribed in the bail bond. It is not mandatory in all cases to be released on bail for a surety to be appointed. The same person necessarily need not be the surety the entire time, any person appointed as a surety can apply to be discharged as a surety and in such a case the accused has to replace another person as surety otherwise the accused can be arrested again.
Although bail is sometimes granted in non-bailable offences as well, the Court will not grant bail in cases where the accused has been convicted previously for cognizable offence, which is punishable with imprisonment for three or more years but less than seven years, or if the person is accused of an offence which is punishable with death penalty or imprisonment for life, or if the jail time is more than seven years and the offence is a cognizable offence.
The usual practice is to file the bail application in the Magistrate Court, usually in the Court of Judicial Magistrate First Class, but under section 439 of the Code of Criminal Procedure, High Courts and Sessions Courts have been given special power to entertain bail application in cases where the punishment prescribed by the law is imprisonment for more than seven years. In case of anticipatory bail, the Sessions Court has to be approached.
It is important to hire the best lawyer for bail matters in Sivasagar. who is experienced and expert in bail cases or matters, as the best advocates for bail matters in Sivasagar who is an expert in bail cases will know how to argue and convince the Court to grant bail to the person arrested or detained. Therefore it is essential to consult and hire the best lawyer or the best advocate. It is very difficult to find good lawyers and advocates who specialize in specific matters, due to this a lot of people who can’t find the best lawyer for bail matters in Sivasagar or the best advocate for bail matters in Sivasagar from the recommendation made by friends or family, research online but there are so many websites providing information regarding good lawyers but nobody is sure how credible these sources are and if they can be relied on. But there are reliable websites that provide valuable and credible information like Legal Resolved, that provide information regarding the best lawyer for Bail Matter in Sivasagar or the best advocate in specific fields across various cities in India.
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