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Bail Lawyer Delhi
Bail is a type of security which is given by the accused in a case to the Court of law, that he shall attend the proceedings adhering to all the conditions of the Court. The grant of bail by a Court may require either a personal bond and surety bond as a prerequsite. The term bail is not defined under Criminal Procedure Code, 1973 (Cr.P.C.), although the terms ‘bailable offense’ and ‘non-bailable offense’ have been defined under Section 2(a) of the Cr.P.C.
Conditions for Bail to be granted and not granted
- In cases of bailable offences mentioned under Schedule I of the Cr.P.C., 1973, an accused has right to demand and be granted bail under the provisions of Section 436 of Cr.P.C.
- Wherein, in cases of non-bailable offences mentioned under Schedule I of the Cr.P.C., 1973, the decision to grant bail is based upon the critierias laid down under Section 437 of Cr.P.C.
Persons who can be released on bail
The following is the list of persons that may be released on bail as enumerated under Section 437 of Cr.P.C.:
- Any person under the age of 16 years.
- Any person above the age of 60 years.
- Any woman may be released on bail.
- Any person who is sick or infirm
- The Courts may also release the person on bail if they are of the view that it is just and porper to do so for any other special reason, or, if there are reasonable grounds for the Court to believe that the acused has not committed a non-bailable offence but further inquiry has to be made into his guilt.
- Further, in case of a situation where a trial has arrived at its final stage, but the judgment is yet to be announced, if the Court is of the opinion that the accused is not guilty of a non-bailable offence, he may be released on bail.
Persons who cannot be released on bail
The following is the list of persons who may not be released on bail as enumerated under Section 437 of Cr.P.C.:
- If there are reasonable grounds to believe that the person is guilty of an offence which is punishabe by death or imprisonment for life.
- If the person committed a cognizable offence and he has been previosuly convicted of an offence punishable with:
- Death or imprisonment for life, or
- Imprisonment for 7 years or more, or
- Has been previosuly been convicted on two or more occasions of a non-bailable and cognizable offence.
Bail by Police
The power to given to the Police to grant bail is conferred under Sections 42, 43, 56, 59, 169, 170, 436, 437, and Schedule 1 Column 5 of Cr.P.C. Section 81 provides the Police, the power to grant bail when the person arrested or produced before it has been accused of the commission of a bailable offence even when no direction to such effect has been given in the warrant. Section 71 of the Code controls the power of the Police to grant bail.
Bail by Courts
Anticipatory bail may be granted only by the Hon’ble High Court or Courts of Session under Section 438 of the Cr.P.C.
Whereas, Section 439 also grants power to the Hon’ble High Court and the Courts of Session to cancel the bail and put the person into custody.
The Cr.P.C. does not define the words anticipatory bail. If person believes or aprihends that he may get arrested for a non-bailable offence, then that person may apply to the either the High Court or the Court of Sessions in order to get a direction for grant of anticipatory bail under section 438 of Code of Criminal Procedure. This entitles him to be released on bail in case he is arrested. There is no provision regarding time limitation on the orders passed under the anticipatory bail. The provisions for anticipatory bail in India can only be invoked if a person is apprehending an arrest for a non-bailable offence.
The following factors have to be considered by the court while granting an anticipatory bail:
- The gravity and the nature of the accusations
- The applicant’s possibility of fleeing from justice
Anticipatory Bail When FIR is Filed
In a situation wherein a First Information Report (FIR) has been filed, a notice of arrest will be sent by an investigating officer. As soon as the notice of arrest is served on the person, he shall file an application for an anticipatory bail.
Anticipatory Bail When FIR is Not Filed
In this case, the public prosecutor is required to talk to the concerned police officer. Since there is no filing of an FIR it may be presumed by the public prosecutor and the court that there are no available grounds for filing an anticipatory bail.
Cancellation of Bail
Under Cr.P.C., Section 439 deals with cancellation of an anticipatory bail. Though there is a specific provision in the code for the cancellation, it is hence an implied matter that a court that has the power to grant an anticipatory bail is also empowered to cancel bail or recall the order related to bail upon appropriate consideration of facts.
Section 439 also grants power to the High Court and the Courts of session to cancel the bail and put the person into custody. This inherit power to cancel anticipatory bail can be invoked only when court opines that this is a crucial step to meet the ends of justice.