How to get Bail in India | Bail Procedure

हिंदी में पढ़ें
August 14, 2022
By Advocate Chikirsha Mohanty

What is Bail?

In general terms, bail means the temporary release of a suspect in any criminal offense who is awaiting court trial after paying the bail bond. It becomes applicable after arrest and becomes effective from the moment of the arrest. An offense is any act or omission made punishable by law for the time being in force. When a suspect is arrested, his statement is taken on record and personal information such as his name, birthplace, present residential address, date of birth, profession, address of the family, mobile number, and charges filed against him are noted. The police officer may also review the past criminal record if any in the police station and ask for his fingerprints to file a case against the accused.

Consult:Top Criminal Lawyers in India

Bail can beof2 types-
1.Regular bail- applied under Section- 437 and Section 439 of theCode of Criminal Procedure.
Regular bail is granted to a person who is already in the police custody of an offense or when there are allegations against him of committing the same.

2.Anticipatory bail- applied under Section- 438 of theCode of Criminal Procedure.
Anticipatory bailis applied in a condition where there is fear of arrest of the person by the police.

3. Interim bail-It is provided before the regular or anticipatory bail procedure. This is because granting of bail by the High Court or Court of Sessions requires documents that are to be sent by lower courts which may take time. For this time period, interim bail can be provided. It can also be extended if it expires.

How to apply for Bail?

When a person is arrested, he is taken to the police station to file the case. The police station where the suspect is taken is the one that exercises jurisdiction over the area where the suspect resides. You musttake the help of a criminal lawyer for your bail matter.

Bail in case of a bailable offense
In order to get bail in a bailable offense, the suspect has to submit Form- 45 given in the Second Schedule to the court in which his case is being heard. The bail cannot be granted without the court’s approval.

Bail in case of a non-bailable offense
When the suspect is accused of committing a non-bailable offense, he has to submit the same form as above before the Court in which his case is being heard, but, granting of bail is at the discretion of the court only.

Payment of Bail Amount
The bail amount that the accused has to deposit is also based on the discretion of the court. However, in criminal cases with lower gravity, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.

Related Post:How to file an FIR

Bail Application

When a person has been convicted for an alleged crime, he/she can apply for bail. In case of a bailable offense, as has been stated above, the accused will have to file an application as Form - 45 provided in the second schedule. This application will be filed with the help of your lawyer in the court where the case proceedings are to be heard. The court will approve the bail only if it thinks fit to do so. Without an Application for Bail, it is not possible to get Bail.When an individual is already convicted and applies for an appeal in the higher court, he can apply for bail during this time.

Hearing for Bail

The judge hears all the reasons to grant bail and on this basis decides whether bail should be granted or not. Evidence and facts for seeking bail are presented before the Court. Before granting or rejecting a bail, the Court considers certain factors like the character of the accused, the nature of the crime, the employment and financial condition of the accused, whether the accused has a history of convictions, etc. When Bail is granted, the Court may also impose certain conditions

Types of offenses and scope of Bail in them

Bailable Offence

In the case of a bailable offense, a grant of bail is a right available to the accused. It may be either given by a police officer who is having the custody of the accused or by the court under whose jurisdiction the offense falls. The accused may be released on bail, on executing a “bail bond", with or without furnishing sureties. The "Bail Bond" may consist of certain terms and conditions, for instance:
The accused cannot leave the territorial jurisdiction of the state without the permission of the court or the police officer. The Accused shall give his presence before the police officer every time he is required to do so. The Accused cannot tamper with the evidence whatsoever, considered by the police in the investigation. Moreover, the court also has the power to refuse bail to an accused person even if the offense is bailable, where the person granted bail fails to comply with the conditions of the bail bond.

Related Post:What is Bailable and Non-Bailable Offence

Examplesof Bailable Offence:

  • Participating in an Unlawful Assembly.

  • Participating in riots and armed with a deadly weapon.

  • When a public servant disobeys a direction of the law to cause injury to another person.

  • If a person wears a Garb or carries a token used by a public servant with a fraudulent intention.

  • If a person is found bribing during election campaigns.

  • If a person is found to give false statements in connection with elections.

  • If a public servant refuses to take an oath when he is duly required to take one.

  • If a person obstructs a public servant in discharge of his public functions.

  • If a person gives or fabricates false evidence in any kind of judicial proceedings.

  • If a vendor/ seller is selling any food or drink as food and drink, knowing the same to be poisonous.

  • If any person causes disturbance/ nuisance in a peaceful assembly engaged in religious worship.

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Non Bailable Offence

A non-bailable offense is a crime in which the grant of Bail is not a matter of right but, the accused has to seek the permission of the court, and upon the discretion of the court based on the facts, bail is granted.
However, the court may generally refuse the Bail, if the "Bail Bond" has not been duly executed, or if the offense committed is of a grave nature, which imposes death punishment or life imprisonment, such as murder, rape, etc. or in cases where the accused has attempted to abscond, prevent his arrest by hiding and also, when his credentials are doubtful.
The application for bail shall be filed before the Magistrate, who is conducting the trial. The application after being filed is usually listed the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.

Examplesof Non-Bailable Offence

When can bail be denied/ granted

  1. Bail cannot be denied unless the offense charged is of the highest magnitude and the punishment of committing it is passed by laws of extreme gravity.

  2. Bail can be denied if there is a chance of the applicant obstructing the witnesses for the prosecution or otherwise polluting the process of justice.

  3. Bail can be denied if the record of the accused who is applying for bail has a particularly bad record which suggests that he is likely to commit another serious offense while on bail.

  4. Bail can be denied if the course of justice would be prevented by the person who seeks bail for the time being.

  5. Bail can be denied to an accused if he has been previously convicted of an offense punishable with at least 7 years imprisonment, life imprisonment, and the death penalty and/ or has been previously convicted on 2 or more occasions in cognizable offenses.

    Consult:Top Criminal Lawyers in India

Why do you need a lawyer?

Obtaining bail is an extremelyimportant step for an accused in the criminal justice system and has to be approached with utmost care. Upon arrest, the first step for any person should be to hire the services of anexpert criminal lawyerwho can help advise and guide the accused through the process of obtaining a bail. Only a trained legal mind can advise the best, based upon theexact nature of the offense and the special circumstances of each case that might affect the arrested person's chances of being granted bail. Since a lawyer has the knowledge of the law related to each offense, the precedents operating in the field, and anunderstanding of the surrounding circumstances of the case, hiring alawyer becomes essential to the process of obtaining bail.You can alsoask a lawyer onlinea free legal question using LawRato's Ask a Free Question service.


Comments by Users

Ambour Surendranath
If the arrested person is mentally ill and undergoing treatment in the mental hospital please tell us the procedure for getting bail.

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