Provision of Bail in Non Bailable Offence under the Code of Criminal Procedure

Introduction

Bail is a familiar word and it is also very much used word in criminal court as well as civil court. Bail is to deliver, to release. Bail is delivering something in trust to somebody for a special purpose and for a limited purpose. Bail is right of the party. Anyone want a bail who is arrested living in jail means they wants a bail at any time. To set free, or deliver from arrest, or out of custody, on the undertaking of some other person or persons that he or they will be responsible for the appearance, at a certain day and place, of the person bailed. The person or persons who procure the release of a prisoner from the custody of the officer, or from imprisonment, by becoming surely for his appearance in court. 

Important Queries Relating to Bail

1. What is bail?

Bail is an alternative preventive measure to the preventive measure applied as detention against the defendant and it is applied only in case the court has made a decision about detaining the defendant.

By bail its recognize a sum of money, securities, other valuables or, if the court permits, also real estate, which is paid to the court’s deposit account to ensure that the accused is at the disposal of the body carrying out criminal proceedings.

Thus, bail is a guarantee for the defendant to be in freedom until a judgment is made against him.

2. When can a person be released on bail upon the moment he appeared in custody?

An arrested person can be kept under custody no more than 72 hours. During this time a charge shall be brought against him and if necessary the question of choosing detention as a preventive measure shall be determined in court. If a preventive measure is chosen regarding not keeping the person in detention or a preventive measure is not chosen at all, the latter is released. And if detention is chosen as a preventive measure, the defendant has the right to file a motion about being released on bail.

3. Who makes the decision about release on bail and when?

The court makes a verdict about releasing the defendant on bail. When discussing the motion made by the pre-investigation body, the investigator or the prosecutor about detention, the court discusses also the possibility of releasing the defendant on bail.

4. Can the defendant or his defense attorney file a motion later?

The defendant, at any investigation or trial stages the defendant or his defense attorney can file a motion to the court to release the defendant on bail, as well as to reduce the bail amount.

5. If bail has been refused, can the defendant or his defense attorney again apply to court later with a request to discuss the issue once more?

Despite the fact whether the motion about release on bail has once been rejected or not, sometime later the defendant has the right to file the same motion. It is prohibited to reject the motion with the reasoning that the previous court decision about rejecting bail has not been appealed to the Court of Appeals or to the Court of Cassation.

6. In the existence of which circumstances is bail applied?

Bail is an alternative preventive measure to detention. Like detention, it can only be applied to the defendant. Bail should be applied in all cases when the defendant has devoted a crime which is not grave or is of medium gravity and detention as a preventive measure has been undertaken against him. Only in the existence of certain circumstances the court can find the release on bail inadmissible by mentioning about the motives by all means. Such motives may include lack of knowledge about the defendant’s identity, not having a permanent place for living or if the defendant has made an attempt to hide from the body carrying out criminal proceedings.

The rejection of bail is impermissible when there are only reasonable doubts that a crime will be committed.

7. Who can file a motion about applying bail?

Detention and bail are applied only by the court’s decision upon the investigator’s or the prosecutor’s motion or on personal initiative while the case is being heard in the court. The court can also apply bail instead of detention upon the motion made by the defense party.

8. Where is bail paid at and how?

Bail is paid to the court’s deposit account in the form of money, securities and other valuables. With the court’s permission real estate can also be accepted as bail. In the event bail is made in the form of other valuables or real estate the pawnshop shall bear the burden of proof for the amount of the those valuables.

9. Who can pay the bail?

The defendant, his/her relatives and any person can pay the bail.

10. How and when is the defendant released from detention once the bail is paid?

Once the bail is paid the relevant document evidencing it shall be submitted to the body carrying out the proceedings, i.e. the court, the prosecutor, the investigator, the pre-investigation body. Shortly afterwards the body carrying out the proceedings shall give an assignment to the administration of the detention center, which in its turn is obliged to release the defendant promptly from detention.

11. Who determines the amount of the bail?

The court determines the amount of the bail by considering of the rules. Although the legislation does not provide the maximum amount of the bail, nevertheless the court, while determining the amount of the bail, should consider the financial state of the accused, his family conditions and the number of people who are under his care.

12. What kind of responsibilities does a person who has been released on bail have?

The defendant who has been released on bail is at the disposal of the body carrying out the proceedings. This means that he/she should not hide from the trial, must appear upon Summons and not to leave for another place without his permission.

13. What consequences can violation of the terms of the bail have?

If the terms of release on bail are violated, the prosecutor shall apply to court with a motion to take the bail as state income. The prosecutor can also file a motion on substituting bail with detention.

14. Can the decision on making the bail as state income and/or substituting it with detention be appealed?

If the court grants the prosecutor’s motion and makes a decision on making the bail as state income and substituting it with detention, these decisions can be appealed. The defendant or his/her defender can appeal such court decisions to the Court of Appeal and later to the Court of Cassation.

15. When is the bail returned?

In all cases the bail is returned, with the exception of cases when a decision has been made to make the bail as state income. If the defendant has not violated the terms of the bail, the bail is returned after the judgment has been made. Bail is returned in all cases irrespective of the fact whether the person is sentenced to imprisonment or not.

Section Relating to Bail

When any person other than a person accused of non bailable offence is arrested or detained without warrant by an officer in charge of police station or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any state of the proceedings before such court to give bail. Officer or Court if he or it thinks fit may instead of taking bail forms such person. Discharge him on his executing a bond thought sureties for his appearance as hereinafter provided-

Provided further, that nothing in this section shall be seemed to affect the provisions of section 107 sub section (4) section 117, sub section (3).

(1)   When any person accused of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before in Court, he may be released on bail but he shall not be so released if there appear reasonable ground for believing that he has been guilty or an offence punishable with death or imprisonment for life.

Provided that the court may defect that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be release on bail.

(2)   If it appears to such officer or Court at any stage of the investigation inquiry or trial as the case may be that there are not reasonable grounds for believing that the accused has committed a non bailable offence but that there are sufficient grounds for further inquiry into his guilt the accused shall pending such inquiry be released on bail or at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3)   An officer or a Court releasing any person on bail under sub section (1) or sub section (2) shall record in writing his or its reasons for so doing.

(4)    If at any time after the conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence it shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

(5)   The High Court Division or Court of Session and in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.

Application of These Sections

The basic conception of the word bail is release of a person from the custody of police and delivery into the hands of sureties who undertake to produce him in Court whenever required to do. For the purpose of bail. Offences are classified into two categories, bailable and non bailable. This section provides for the granting of bail in bailable case and section 497 in non bailable cases. Grand of bail in baliable offence is a right while in nonbailable offence the grant of bail is not a right but concession grace. Grant of bail in offence punishable with imprisonment for less than 10 years is a rule and refusal and exception in bailable offences, there is no question of discretion in granting bail as the word of the section are imperative. The only choice for the court is as between taking a simple recognizance of the principal offender or demanding security with surety. Ordinarily the world bail applies to the second kind of security to the practice and procedure to the court.

Section 496 CR P.C confers an absolute right on accused to be released on bail with no provision imposing any liability for his rear rest whilst section 497 Cr P.C confers no absolute right to bail. Which privilege is discretionary with provision imposing a liability for his re arrest and committal to binds him to the principles and limitations flowing from the grant of such a concession it being understood that but for the concession, he could be in custody concession, it being understood that but for the concession, he could be in custody. Even in case not falling from the grant of such a concession it being understood that but for the concession, he could be in custody. Even in case not falling within prohibitory clause, accused person cannot claim bail as a matter of right Grant of bail is not favor or concession but is a right of the detente regulated by law. Ball shall not be granted if the offence is punishable with death. or imprisonment for life if the court is of the view that there appear reasonable grounds for believing that the person concerned accused or suspected of the commission of the offence provided that he may in his discretion grant bail to a woman or a minor under the age of sixteen or a sick or infirm person. The power of release may be exercised by the Court when the accused appear or is brought before if whether during investigation or otherwise.

The basic essential governing the matter of granting bail is that bail should never be withheld as punishment. Grant of bail is a rule and same could not be withheld by way of punishment.

Bailable Offence

In bailable offences, there is no direction to the court in granting bail. The only choice given on the court is either to take a simple recognizance of the person released or to demand security. The court has not discretion in a bailable offences, while granting bail under section 496, Cr.P.C. to impose any condition expect the demand of security with sureties.

In the case of bailable offences, the accused had an indefeasible right to grant of irrespective of his conduct however, reprehensible it may be.

When bail may be refused, It cannot be said that section 497(1), Cr. P.C was applicable only where an offence was punishable exclusively with death or imprisonment  for life and by no other sentence in place of or in substitution of death or imprisonment for life

Non- bailable Offence

In the case of non –bailable offence, granting of bail is discretionary. In certain cases, bail cannot be granted, while in certain other cases, bail may be granted at the discretion of the court. When a discretion is vested in the court the discretion has to be exercised subject to such reasonable conditions as the court deems to fit. In non –bail able cases, grant of bail is only a concession allowed person. The court should see that the concession is not misused and so any reasonable condition can be imposed when granting bail in such cases.

Where the accused where charged under Section 452, 109 and 120B .Cr. P.C., for carrying on demonstrations with a view to bring pressure on the Government to give up its to impose grazing fees and the court in granting bail, imposed a condition, that the accused should execute bond not to abet to take part in such demonstration, it was held that conditions were not unreasonable . The only condition contemplated by Section 499, Cr.p.c. is the attendance of the accused in court on a fixed day and continue to attend court until otherwise directed. Any other condition such as undertaking not to deliver speeches until the disposal of the case is invalid and will not result in forfeiture of the bond.

Condition of Bail

The conditions for grant of bail to a person of bail offence should not be harsh, oppressive and virtually resulting in denial of bail. Sub-sec. (3) empowers the to impose two conditions in case mentioned in sub- clauses(a), (b) and (c). Under sec. (1) (a) the High Court or the Court of Session is also authorized to impose such conditions. But any condition, which has no reference to the fairness or propriety of investigation or trail, cannot be imposed in granting bail. The Bombay High Court has held that it was improper on the part of the court to impose the condition that he would pay the complainant the amount secured by him as a result of cheating and again to cancel the bail on his inability to return the amount in full.

Conclusion

From the discussion it is clear that bail matter plays a significant role in a criminal case, because it is the ultimate goal of the accused. The court makes a decision about releasing the defendant on bail. When discussing the motion made by the pre-investigation body, the investigator or the prosecutor about detention, the court discusses also the possibility of releasing the defendant on bail. If the terms of release on bail are violated, the prosecutor shall apply to court with a motion to take the bail as state income. The prosecutor can also file a motion on substituting bail with detention. Bail is very much important in a criminal case. So it must be delivered by the judge with due care and deliberation.