Nov 27,2020 | 5 min read

"Bail Jurisdiction Suitable For Current Indian Position In Comparison To Other Countries"

“Granting bail is the rule, and jail is an exception.”

Author - Dilraj Senquiera and Sonali Sinha

Every citizen of India has a fundamental right to life and personal liberty guaranteed under article 21 of the Indian constitution. Article 21 of the Indian constitution mentions “no person shall be deprived of his life or personal liberty except the procedure established by law”. So basically this article talks about every citizen that means an accused, being a citizen of India, has the same fundamental right. In, State of Rajasthan v. Balchand alias baliay (1997), J. Vaidyanathapuram Rama Krishna Iyer held that “the basic rule may be concise to put bail and not jail”. Further, Krishna Iyer, while pronouncing judgment relied upon various rights to the accused provided under the constitution of India and the most notable is the article 21. 

An accused, against whom any insubstantial allegation of a non-bailable offence has been made, is not entitled to get bail. However, while granting bail, the court looks upon various factors such as the nature and seriousness of the offence, the essence of the evidence, circumstances, public as well as state interest, and several other factors. 

What is Bail?

The black’s law dictionary defines bail as, “procuring the release of a person from any legal custody with an undertaking that he/she shall appear on time at the prescribed place and submit himself/herself to the court.

In the case of Sunil Tulchand v. Union of India, Supreme Court has defined bail in the exact form that “bail is security produced from an accused arrested for an offence committed by him to secure his presence during the course of the trial”.

Section 41 talks about the ground under such circumstances; the arrest of a person can be made. On the other hand, the code also provides statutory rights to individuals detained or apprehending detention which can be known as “bail”. In broader terms, bail is the form of sureties to release a person from custody or detention.

Classification of bail:

  1. Regular bail- when a person has been arrested or is already in custody than in that case regular bail is granted. Application for regular bail can be made under section 437 and 439 of the CrPC. 

  2. Anticipatory bail- if a person is under the apprehension that he may be arrested by the police for a non-bailable offence, in that case, he can file an anticipatory bail application. Provision related to anticipatory bail is mentioned under section 438 of the Code.

  3. Interim bail- a short term bail granted to accused before hearing for the grant of regular or anticipatory bail.

  4. Default bail/ statutory bail/ compulsory bail- kind of bail where accused has the right to be released on bail if the investigation is not completed within the prescribed time period, i.e. 90 days or 60 days as the case may be, mentioned under section 167(2) of the Code.

Legal position of Bail in India

The term bail does not specifically define under CrPC,1973, whereas the term bailable offence and non-bailable has been defined under section 2(a) of this Code. The provisions related to grant bail and bail bond enumerated under the sections from 436 to 450 in the criminal cases under CrPC.

Bail Jurisdiction in England

The bail provision in England is given by the Bail Act 1976. It sets out that bail is the universal right of a person except as given in the 1st schedule of the act. In England law of bail stipulates several grounds of denial of bail depending upon the type of offence. One of the grounds is that if the court has any substantial ground that if the defendant is released on bail will commit the crime again on bail, the bail may be refused.

Section 5(3) of the Bails Act 1976 provides that the Court that has denied bail has to give reasons for such refusal so that it becomes easy for the defendant to mail an application for bail in appeal. The Courts have to give the reason in a variety of standard forms, and the reasons are kept short and are not based on facts of the case.

English Administrative Law provided that the reason provided must be clear, sufficient, and shall deal with the significant issue in the case.

The tick boxes in the form are used in English Courts wherein it provides the reason for not granting bail. The form has two columns wherein one column mentions the grounds for refusing bail and in other the reasons for finding such grounds established are mentioned. They tick in each box to record the reasons.

Bail Jurisdiction in America 

The Bail Act, 1976 is applicable in the USA also. The defendant has the right to bail unless there is a presence of sufficient reason. There are three substantial reasons provided for the denial of bail: 

  • Reason to speculate the defendant will abscond,

  • Reason to suspect that he will commit another offence even on bail,

  • Chances that the defendant will intimidate witnesses.

There are five different types of bail in the American Bail Jurisdiction:

  1. Cash Bail: Here, the accused has to pay the amount of bail in cash. The Court even takes cheques or credit cards.

  2. Surety Bond: It is even called a bail bond. The surety bond is paid when the accused is not in a position to pay his bail amount. This is done through a bail agent called a bail bondsman. Generally, the family or relative contacts such agents. Such agents are backed by an insurance company (surety company) and promise to pay the bond money if the accused is absent in the court. Here the bail agent in return charges the client a 10% premium and some collateral. 

  3. Release on Citation: This involves a police officer issuing a citation to the suspect that the accused shall appear in court rather than booking him for the offence. This is an effective way where a police officer can focus on other heinous crimes.

  4. Property Bond: Here, the defendant provides his property to act as a bail bond. When the defendant does not appear in the court on the due date, then the court can foreclose the property if it thinks so, to recoup forfeited bail.

  5. Release on Own Personal Recognizance: It is allowed only for minors, non-violent offence, the defendant is not a harm to society or any individual, and that the defendant would flee and would be absent on his court dates. So, in this case, he only has to come to the court on due dates and does not have to pay for bail.

Conclusion

The difference in the bail system of different countries has a significant role to play in their socio-economic condition. In every country, Bail is considered a fundamental right of an individual. The real player is the Court here, which has to ascertain all the facts, compositions, laws, etc.

Webliography:

  1. Justice, as we know, was a right fundamental to all, but its fallacy is evident, as money now results in its fall, Retrieved from http://www.legalserviceindia.com/articles/bail_poor.htm

  2. How does bail work? Retrieved from: https://money.howstuffworks.com/bail.htm

  3. An overview of the Criminal Law system in India, Retrieved from https://travel.gc.ca/travelling/advisories/overview-of-the-criminal-law-system-in-india


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ABOUT THE AUTHOR


Dilraj Rohit Sequiera

Law degree from the esteemed Shri Dharmasthala Manjunatheshwara Law College Mangalore.Experience of 18 years in the court proceedings on Criminal, Civil in the sessions courts as well as in the High Court of Karnataka at Bangalore as well as Dharwad.Have secured anticipatory and regular bail for the clients in various cases in more than 10,000 cases.Have a good team of junior advocates who assist me to take out take out the precedents and help me to argue on legal issues as well as on facts.

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