The term ‘bail’ is originated from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’. Bail refers to the provisional release of the accused in a criminal case in which the court is yet to announce the judgment. The term ‘bail’ means the security that is deposited in order to secure the release of the accused.
TYPES OF BAIL IN INDIA
Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
- Regular bail- A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
- Interim bail- This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
- Anticipatory bail- Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence.
RIGHTS OF AN ACCUSED PERSON
As Indian constitution is wedded to Democracy and Rule of Law, the concept of free and fair trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves around the Natural Justice wherein, even the accused or guilty person is treated with a human treatment. The law of the land requires the prosecution to stand at its own legs and to prove the guilt of the accused beyond the shadow of a reasonable doubt.
The accused persons are also granted certain rights, the most basic of which are found in the Indian Constitution. An accused has certain rights during the course of any investigation; enquiry or trial of offence with which he is charged, and he should be protected against arbitrary or illegal arrest.
UNDER CONSTITUTIONAL LAW
Our constitution is based on fundamental that Let Hundreds Go Unpunished, But Never Punish An Innocent Person Right to get a fair representation in a criminal procedure is a facet of Right to Equality (Article 14). Article 20 says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Thus, accused is given fair equality as par with other citizen.
Also by the judicial voice, a wider ambit has been given to right to life and liberty and thus accused are given a human treatment in jails fulfilling reformative approach (Article 21). Article 22 talks that No person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, legal practitioner of his choice. The exception to the right is that it is not to be applied on alien. Thereby, these rights under constitution are inherent rights and cannot be altered or changed.
UNDER CRIMINAL LAW
Presumption of Innocence:
- In Blackstone’s famous words, it is better that ten guilty persons escape than that one innocent suffer. The essence of criminal trial lies in that the accused is to be presume innocent until a charge is proved against him without any reasonable doubt.
Right To Know The Grounds of Arrest:
- As per Section 50(1) of Cr.P.C., where a person arrested without warrant is entitled to know the full particulars of offence for which he is being arrested and where a person is arrested with warrant, he must be notified the particulars of such warrant, or even show such warrant if needed. Sec. 75 of Cr.P.C.
Right to have Bail:
- Any person who is arrested without a warrant and is accused of a bailable offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.
Right to Be Taken before a Magistrate without Delay:
- Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. By Sec 56 and 76 of the code, an accused has to be produced before a magistrate within the 24 hrs.
Right to free, fair and speedy trial:
- As justice delayed is justice denied, the concept of speedy and expeditious trial was introduced by which the accused person is given fair and impartial justice quickly.
Right to Consult a Legal Practitioner:
- This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which cannot be denied in any case. Section 50(3) of the Code also lays down that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice.
Right of Free Legal Aid:
- A duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid. It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.
Right to Be Examined by a Medical Practitioner:
- Section 54 of Cr.P.C. enumerates this right. If requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.
Right to privacy and protection against unlawful searches:
- The police officials cannot violate the privacy of the accused on a mere presumption of an offence. The property of an accused cannot be searched by the police without a search warrant.
Right to be present during trial:
- Section 273 of the Code provides that all evidence and statements must be recorded in presence of the accused or his criminal lawyer.
Right to get Copies of Documents:
- The accused has the right to receive copies of all the documents filed by the prosecutor in relation to the case.
Right to be present at the trial:
- The accused person has the right to be present during his trial and have testimony presented in front of him.
Right to cross-examination:
- The accused has the right to be cross-examined by the prosecutor to prove his innocence.
Right to Appeal:
- The rights of arrested persons include the right to file an appeal against his conviction in a higher court.
Right to Humane Treatment in Prison:
- The accused has a right to have all his human rights when in prison and be subjected to humane treatment by the prison authorities.
In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608,wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation).
In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, in this case, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention which include, the arresting authority should bear accurate, visible, and clear identification along with their name tags with their designation, the memo be signed by the arrestee and family member, the family or the friend must be told about the arrest of the accused, The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation and many other.
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