Introduction
The provisions for grant of bail find genesis in the concept of presumption of innocence until proven guilty. Criminal jurisprudence recognises the right to freedom for individuals that are accused and under-trial in a particular case and distinguishes their rights from convicted persons. Largely, the grant of bail is governed under the provisions of Code of Criminal Procedure, 1973 and are broadly classified as regular, anticipatory, interim and default bail.
However, over passage of time there has been a significant shift in the interpretation and significant applicability of the underlying jurisprudence behind grant of bail, particularly by the lower judiciary.
Often, the lower courts have refrained from granting bail without cogent reasons and such hesitation has not gone unnoticed by the Apex Court. While taking note of the continuous supply of cases seeking bail, the Supreme Court has laid down guidelines for grant of bail upon classification of offences. This article endeavours to navigate through the concept of bail and shed light upon the processes and considerations involved in the grant of bail.
Bailable And Non Bailable Offences
Based on the nature of crime and the severity of punishment, offences have been categorised as bailable and non-bailable in nature. Essentially, a bailable offence is a less serious and minor offence for which bail need not be formally applied through a court of law and can be granted by the police authorities themselves upon furnishing of the bail bond.
Non-bailable offences mandate the formal application before competent court of law and is not granted as a matter of right and is at the discretion of the Court.
Types of Bail
The present criminal law system in the country provides for distinct categories of bail based on the necessity and stage at which it is sought. Below is a brief description of the types of bail:
- Regular bail: This is the most frequent form of bail which is applied in cases where the accused has been apprehended by the police authorities and detained in an ongoing investigation/trial. An accused may seek to apply such bail either under police or judicial custody.
- Anticipatory bail: An individual who is apprehending coercive action by the police authorities in connection with a non-bailable offence may seek to move a competent court of law and seek anticipatory bail before the police has made any arrests. Such provision is crucial in cases of false framing of individual and prevents undue harassment and misuse of power while balancing personal freedom of an accused. An application for anticipatory bail can be made any time during the investigation and trial so long as the accused may be apprehending an arrest.
- Interim bail: While a regular or anticipatory bail application is pending consideration before any court, a person may also seek interim bail till the main bail application is decided by the court and may be released until the time being that the main application is either allowed or dismissed. The grant of interim bail by the courts has been strictly limited to cases wherein the court is of the prima facie opinion that the accused has been falsely implicated in the case.
- Default bail: The law provides for statutory or default bail in cases wherein the investigating authorities have failed to conclude the investigation within the stipulated period of 90 days in cases punishable by death, life imprisonment or imprisonment for more than 10 years, and 60 days in any other case.
Filing A Bail Application – Competent Authority
In case of bailable offences, a person who is arrested need not go through the rigours of the court and can move a simple application before the police authorities and seek bail upon furnishing a requisite bail bond. However, in cases of non-bailable offences, the relevant court of competent jurisdiction has to be approached depending upon the alleged offence and prescribed punishment.
Magistrate: Ordinarily, an application seeking bail lies before the Magistrate of competent jurisdiction under Section 437 of the CrPC and is empowered to heard and grant bail in cases wherein the maximum punishment for the offences is less than death or life imprisonment.
High Court and Court of Sessions: The High Court and the Court of Sessions can be moved for any of non-bailable offence and are further granted with a special power to grant bail in regard to offences which are punishable by death or life imprisonment.
No bar on approaching High Court directly: An application can be moved before either of the aforesaid forums and there is no specific bar to move an application directly before the High Court.
Fresh application before High Court maintainable if denied by Court of Sessions: A person aggrieved by rejection of bail from the Court of Sessions can move a fresh application seeking bail from the High Court since the Court of Sessions and the High Court both have concurrent jurisdictions. However, in cases wherein the bail has been rejected, it is general practice to approach afresh after some material developments have taken place, such as filing of charge-sheet etc.
Process For Filing Bail Application
Upon identifying the relevant kind of bail, which is to be filed, it must be identified on the basis of the FIR whether the alleged offences are punishable with life imprisonment or not and accordingly it would have to be seen whether the Magistrate can be approached or the Sessions Court/High Court.
Thereafter an appropriate Bail Application is required to be moved in the competent Court with all the case particulars along with the grounds for bail including but not limited to the legal precedents which reiterate the presumption of innocence, the constitutional and fundamental right to personal liberty under Article 21.
Components of a Bail Application
The bail application must cull out all the case details/FIR number/party details and thereafter provide for the grounds on which the bail is sought from the Court. The pleadings of the application must necessarily make out a case that the accused person must be enlarged on bail on account of the specific reasons enumerated therein.
Some of the grounds on which a bail application can be pressed in the Competent Court are:
- Presumption of prolonged investigation or trial – The Courts are cognizant of the prolonged timelines that are involved in the investigation and the trial process which may amount to unjust detainment of the accused.
- Age and Gender of accused – Oftentimes the Courts are considerate of the age of the accused particularly if the accused is an ailing senior citizen or a minor and acknowledges the vulnerabilities of this group and is conscious of the rehabilitation of first-time offenders into society.
- Medical condition – If any serious medical conditions persist and there is a risk to the health of an accused while remaining in custody, the Courts may take the same into consideration while considering a bail application.
- Cooperation with investigation – It must be demonstrated that the accused shall not come in the way of investigation of the offences and shall not cause any hinderance in the administration of justice.
Factors Considered for Grant of Bail
While criminal jurisprudence does not contemplate any authority to delve into the merits of a matter for the purposes of deciding whether bail ought to be granted or not, since that is the subject matter of trial and adducing of evidence, the primary objective of the Courts is to ensure that there shall be no obstruction in the administration of justice. There are several factors which are taken into consideration by the Court while considering grant of bail,
- The gravity of the offence and maximum punishment.
- The probability of the accused of manipulating witnesses’ and tampering evidence.
- The probability of the accused to flee from trial and not produce himself when required.
- The past criminal antecedents of the accused.
- The societal position and character of the accused to determine whether he has roots in society.
Having said that, the grounds for bail are adjudged by the Courts on the independent facts of each case depending upon the matric and accusations made out therein.
Cases When Anticipatory Bail is Not Granted
The settled position of law qua the grant of anticipatory bail is premised upon a balance between the rights of the individuals and the investigation process carried out by the police authorities. The considerations taken into account by the court include but are not limited to:
- The past antecedents of the applicant, whether they have undergone imprisonment on conviction.
- The probability of the accused to free from trial and investigation
- Examination of exact role of the accused
- Nature and gravity of accusations
- Likelihood of the accused to commit similar offences.
- Person under the age of sixteen or woman or sick and infirm person
The legal position while considering a variety of judgment passes by the Supreme Court emerges as follows:
- The accused must not be absconding or declared as a proclaimed offender.
- The accusations must not pertain to economic offences.
- Ordinarily not granted in offences which are punishable with death or life imprisonment.
SC/ST Act and Anticipatory Bail: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act) specifically prohibits granting anticipatory bail. The Supreme Court has upheld this restriction. Anticipatory bail should only be granted when the court believes that no offenses under the relevant sections of the SC/ST Act are established, and the essential elements of those offenses are not satisfied.
Appeal Before High Court Against Rejection Order
If a bail application is rejected by the Magistrate or the Court of Sessions, a Criminal appeal/revision lies before the relevant High Court seeking grant of bail. In addition to the aforesaid, the bar of res judicata is not applicable in cases while deciding a subsequent application for bail, irrespective of the result of the previous application, and therefore, an application seeking bail and be moved multiple times before the same forum, albeit with caution to the nature of change in circumstances and non-abuse of the process of law.
Appeal Before Supreme Court
Upon rejection of a bail application by the High Court of competent jurisdiction, an aggrieved person may consequently approach the Supreme Court under its extraordinary criminal jurisdiction by filing a Special Leave Petition. However, since such appeals are not statutory, it remains discretionary for the Supreme Court to entertain such pleas placed before it.
Bail Under Special Legislations
While the aforementioned principles govern the grant of bail in matters pertaining to offences under IPC, the grant of bail in special provisions which specifically override the provisions under the Code of Criminal Procedure, the grant of bail is made subject to fulfilment of special conditions under the particular Act, wherein often times the onus of proof is shifted upon the accused to prove his innocence as a condition precedent to being granted bail. Some of the legislations requiring such special conditions are as under:
- Prevention of Money Laundering Act, 2002
- Narcotic Drugs and Psychotropic Substances Act, 1985
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
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