Bail is the release of an accused or a person who is awaiting trial from prison, after having deposited the security amount. The deposition of the security amount ensures the accused’s submission at the required time to legal authority. The monetary value of the security, known as the bail bond, is set by the court having jurisdiction over the prisoner. Therefore, it’s elements are:
- Provisional release
- of a person who is accused in a criminal matter
- for a security amount
- before the Court has announced its verdict
It can therefore, be called a conditional liberty to the accused.
In India, there are three kinds of bail that may be granted to the accused:
- Regular Bail
- Interim Bail
- Anticipatory Bail
- REGULAR BAIL: It is generally granted to a person who has been arrested and is in police custody. It is basically the release of an accused from custody to ensure his presence at trial. For a regular bail, the application can be filed under Section 437 and Section 439 of the Code of Criminal Procedure. (Hereinafter referred to as CrPC)
- INTERIM BAIL: As the term suggests, Interim Bail is granted for a short period of time. It can be granted when there is a pending application for anticipatory or regular bail before the Court, or before the hearing. It is always conditional in nature. There are two conditions where an interim bail expires: (I) If the accused fails to pay the deposit required for continuing the bail, and. (II) If the pending application for regular bail or anticipatory bail is heard by the Court, and they have given their decision.
- ANTICIPATORY BAIL: Under Section 438 of the CrPC, a person cannot be arrested if they have been grated anticipatory bail. It is therefore, an advance bail. This bail is granted to the accused before arrest, unlike in the other kinds of bail. The power to grant anticipatory bail rests with the Sessions Court as well as the High Court. When any person believes that they might be arrested in relation to a non bailable offence, they may apply for anticipatory bail. Therefore, a person may apply for an anticipatory bail in anticipation of his arrest by the police for a non-bailable offence. This bail is subject to the condition that they are innocent and are applying for the said bail due to reasons of enmity with someone, which might lead to false charges against them. While granting Anticipatory bail, the Court might also include conditions for the accused to follow. The difference between regular bail and anticipatory bail, as was observed by the Hon’ble Supreme Court of India in Gurbaksh Singh Sibbia v. State of Punjab, is as follows: “The distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest”.
Apart from the three kinds of bail discussed above, we also have the mandatory bail, which is granted to the accused in case the investigation cannot be completed within 24 hours; and Bail after Conviction.
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