The term bail is derived from a French word bailler which means” to give”. According to legal dictionary, bail is the money or bond put up to secure the release of a person who has been charged with a crime. Where as according to Oxford dictionary bail means, “temporary release of an accused persons awaiting trial, sometimes on condition that a sum of money is lodged to guarantee his appearance in court”. Chapter 33 of Section 436to 450 of the Code of Civil Procedure deals with provisions relating to Bail and Bonds .
Bail is nothing but a procedure setup by Judge or magistrate to give liberty to a person arrested, with receipt of security with is to conform prisoners later appearance in court for further proceedings. Hence the basic rule which is enumerated under Article 21 of the Indian Constitution , ” No one shall deprive of his or her life and personal liberty , except according to procedure established by law” envisages bail.
Code with reference to bail
The code has not defined the term Bail, but the code classified offence into two categories bailable and non-bailable offence. According to Section 2(a) of the code, Bailable Offences means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force and Non- bailable offence means “any other offences”. Bail is mandatory for bailable offences, which is elaborated under section 436 of the Code of Criminal Procedure.
The accused persons who has not convinced for any non bailable offences, the accused persons shall be released from detention or arrest. But this not applicable when the person got arrested under section 116(3) and section 446 of the Code. Mandatory bail means court can not refuse to give bail and if the accused persons has failed to comply with the condition of bail or bond as regards the time and place of his attendance then the court may refuse him the bail.
Section 437 of the code deals with bailin case of Non bailable offences. The accused persons who got arrested for committing non bailable offences can also get bail if the offences committed by him is not punishable with life imprisonment or death. When there is no reasonable grounds to believe that the accused has committed that particular non bailable offence, then such situations the court may give him bail. When the competent court grants bail it must be recorded in written and at any situation if the court feels that it is necessary , court can cancel the bail and can direct the police to arrest the person .
Section 438 of Code of Criminal Procedure deals with Anticipatory Bail. Ehen ever the person has reason to believe that he might be arrested on accusation of having committed a non-bailable offence he may apply to the High Court or Sessions Court . In case Onkar Nath Agarwal v. State of Allahabad, in this case there was a presumption that the application for an Anticipatory Bail to be applied first in court of Sessions and only then in High Court, The Allahabad Highcourt highlights that there is no such sequence is required.
Also in K k Jerath v. Union Territory Chandigarh, an investigation by CBI was in progress under the prevention of Curruption Act , an Anticipatory Bail was applied by the person, but However Court declined as there was requirement of custody integration as well as to avoid the risk of tempering of evidence. The Court imposes certain conditions on the person who is seeking anticipatory bail , they are as follows;
- The person must be available when required by the police for investigation
- He shall not make any inducement , threat or promise to any person from disclosing facts of the case.
- He shall not leave India without prior permission of the court
- And all other conditions as the court may think fit.
All the above condition as given under section 438of the Code of Criminal Procedure. The theory of bail assure the presence of the accused in court when required. For minor offences the amount of bail is given as provided under schedule and for serious offences the amount is set by the judge at the suspectd first court appearance.
Their is a saying that , thousand culprits may escape but on innocent must be punished .Unless and until the trial is complet, we can not say that whether a accused persons is innocent or a culprit . therefore, everyone , is entitled to personal liberty and cannot be detained behind the bars unless he is found guilty by law .
- The Code of Criminal Procedure, 1973
- The Constitution of India ,1950
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