Critical analysis on the concept of Bail and Judicial Discretion

Bail and Judicial Discretion

Bail is said to be a set of pre-trial restrictions that are imposed on a suspect to make sure that they suit the judicial process. Bail is that the conditional release of a defendant with the promise to seem in court when required. In some countries, especially the United States of America, bail usually implies a bail. This is money or some sort of property that’s deposited to the court by the suspect, reciprocally for the discharge from pre-trial detention. If the suspect doesn’t return to court, the bail is forfeited, and therefore the suspect could be mentioned on charges of the crime of failure to seem. If the suspect returns to form all their required appearances, bail is returned after the trial is concluded. In other countries, like the United Kingdom, bail is more likely to contains a group of restrictions that the suspect will need to abide by for a group period of time. Under this usage, the bail is often given both before and after charge. While in India, Indian law concentrates on the principles of presumption of innocence. The principle manifests freedom from arbitrary detention and is a wall against punishment before conviction. It averts the State from successfully employing its vast resources to cause huge damage to an un-convicted accused than he/she can inflict on society. While considering bail applications of the accused, courts have to balance considerations of private liberty with the public interest.

There are types of bail depending upon the gravity of the crime committed.

They are as follows –

Regular bail– A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.

Anticipatory bail– Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence.

Interim bail– This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.

The process to use for bail depends upon the stage at which the criminal matter is. It means whether the FIR is lodged or not, whether the accused or convict has been arrested or not. The difference between these three types is simple. Regular bail is granted when the FIR has been filed AND police have arrested the accused but anticipatory bail is granted when the FIR is lodged BUT the person is NOT arrested. He just apprehends his arrest and so he files an application for anticipatory bail to avoid his arrest. Provision of Regular bail is used after the arrest. While provisions of anticipatory bail are used before the arrest.

But we need to submit many documents like charge-sheet, case diary etc. before the court. The court studies those documents and takes the decision whether to grant the bail or to extend the period of the bailor to reject the application of the bail. But the process of collecting documents and studying them requires time. The documents need to be collected from lower courts or sometimes an investigation agency. While this process is ongoing the accused or convict has to stay in jail. To avoid this tenure of jail the court grants the interim bail of that person. Thus interim bail may be a temporary bail for a period during which higher court can call documents required to form a final judgment on the bail application during which court can either grant permanent bail, extent interim bail or maybe can reject bail application.

Basically there are two types of offences- bailable and non-bailable offences. Section 2(a) of CrPC defines bailable offences because the offence that has been shown within the First Schedule as bailable or which is formed bailable by the other law for the time being in force. As per the last item of the primary Schedule, an offence so as to be bailable would need to be an offence which is punishable with imprisonment for fewer than three years or with fine only. Some of the common bailable offences are Simple Hurt (Section 337; IPC), Bribery (Section 171E; IPC), common nuisance (Section 290; IPC), Death by Rash or Negligent Act (Section 304A; IPC). As per Section 2(a) of CrPC, non-bailable offence includes all those offences which aren’t included in bailable offence within the First Schedule. Further, the primary Schedule in its Second part at its end has defined non-bailable offence because the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years. The primary objective of the provisions for the bail should not be to detain and arrest an accused person but to ensure his appearance at the time of trial and to make sure if the accused is held guilty, he is available to suffer the consequence of the offence as such committed. Certain conditions are taken into consideration while granting or denying the bail. The court is empowered by Section 437 of CrPC to impose conditions. Bail cannot be denied unless the accused or convict has committed a heinous crime or a crime of higher magnitude. Also if the punishment of the crime committed is of extreme gravity. The possibility of the person absconding is considered. If the judge thinks, the person can flee from the country then his bail application is rejected. Sometimes bail is granted with some restrictions on movement. It means the person can’t leave the city or the country. The lawyer has to assure the judge that the person will be present for the hearings if required. The judge has to also consider the possibility that the person, when released, has the power or credibility of manipulating or contaminating the evidence or coercing the witnesses or disrupting the investigation by his power. If there is a minute possibility of these instances then the judge would reject the application of the bail. Even the plausibility of committing crime after releasing has to be considered. For avoiding the bail, the prosecution has to produce strong evidence in court or have to strictly object it.

Before the person is released, he must execute a bond by one or more sureties guaranteeing that the person will attend at the time and place mentioned in the bond, and shall do so until otherwise directed by the court or by the Police Officer. If insufficient sureties have been

accepted due to mistake, fraud or otherwise, or the sureties have afterwards become insufficient, the Court may issue a warrant of arrest of the released person, calling upon him to find sufficient sureties, and on his failing to do so, he may be committed to jail. S. 445 provides that if a person is required to execute a bond, with or without sureties, except in the case of a bond for good behaviour, the Court may permit him to deposit a sum of money or Government promissory notes of such amount as the Court may fix in lieu of executing the bond. S. 446 also provides that, at its discretion, the Court may also remit any portion of the penalty and enforce payment in part only. If a surety to a bond dies before the bond is forfeited, his estate is discharged from all liability in respect of the bond. The amount of the bond is determined by the judge based on the crime committed and the gravity of its punishment. Hence, we can conclude that Indian Law never does injustice to a person. There are provisions in the law that empowers our legal rights and helps us to avoid the misshapen.

“The views of the authors are personal

Frequently Asked Questions

What happens after bail India?

If you are granted bail at the station, you will have to enter into a bond to appear in the District Court as agreed.

Is bail amount refundable India?

No. The money that is held by courts through bail money or through other means (official liquidator or Court receiver) are interest-free deposits.

How long do you have to pay bail?

The defendant may pay bail at that time or any time thereafter. If the arraignment does not occur within 48 hours, the defendant will be given a bail hearing (or in some cases a special hearing to determine if there is probable cause for the charges).

How does a judge determine bail?

A judge determines the amount of bail based on factors like the severity of the alleged offence, the likelihood that the defendant will commit additional crimes after being released, and the chances that the defendant will flee the jurisdiction before trial.

Ameyprasad Atigre
Ameyprasad Atigre, currently pursuing 1st Year Law Course [B.A.LL.B (Hons.)] from Government Law College, Mumbai (Maharashtra). The areas of interest for him are Contract Law, Constitutional Law, Criminal Law, Labour Law, Human Rights Law, Intellectual Property Law, Cyber Law. He is looking forward to creating a breakthrough career in law, he takes acute care in developing his research skills as well as dealing with National and International Moot Court Competitions and International Law Committee. He has worked with Adv. Pandit Atigre in Dist. Court of Kolhapur. He has a keen interest in writing his own Blogs, Legislative Comments, Short Articles, Newsletter articles, Articles for Journals.