How to bail out of jail in India?
This topic talks about the procedure to bail out someone as per the criminal procedure code,1973. For this instances section 436 to 439 of the criminal procedure code,1973 deals with the procedural rights and obligation that are available to a person in case arrest i.e., how that person can bail out.
The offences and their punishments have been given under Indian Penal Code, 1860 (hereinafter referred as IPC) and the procedure for the same has been given in the Code of Criminal Procedure, 1973 (hereinafter referred as CrPC). Under CrPC, the offences have been mainly classified under two heads- bailable and non-bailable offences.
Section 2(a) of CrPC defines bailable offences as “the offence that has shown in the First Schedule as bailable or which made bailable by any other law for the time being in force.”
Thus first schedule of the CrPC is divided into two parts wherein:
- First part deals with the offences given under IPC.
- Second part deals with the offences under other laws.
As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only.
Some of the common bailable offences are:
- Simple Hurt (Section 337; IPC)
- Bribery (Section 171E; IPC)
- Public Nuisance (Section 290; IPC)
- Death by Rash or Negligent Act (Section 304A; IPC).
Right to release on bail
As per Section 50 of CrPC Whenever a person arrest without warrant, it the duty of the police officer to communicate the full detail of the offence for which the person arrest.
Also, if the offence for which the person arrest a bailable one, it is the duty of the police to inform that he entitle to release on bail after giving surety.
As per Section 436 of CrPC, whenever a person accused of a bailable offence is arrested without warrant and is prepared to give bail, such person shall be released on bail. The discretion to decide the bail amount is with the Court or with the officer, as the case may be.
In the case of Rasik Lal v Kishore (2009) 4 SCC 446, Supreme Court held that, in case a person is arrested for any bailable offence, his right to claim bail is absolute and indefeasible and if the person accused is prepared, the court or the police as the case may be will be bound to release him on bail.
In order to apply for a bail in the case of a bailable offence, the person needs to fill a form of bail i.e. Form No.45 which given in the first schedule and apply for bail and the Court will have to grant bail.
As per Section 2(a) of CrPC, non-bailable offence includes all those offences which not include in bailable offence in the First Schedule.
Further, the First Schedule in its Second part at its end has defined non-bailable offence as the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years.
Right to release on Bail
A person accused of a non-bailable offence doesn’t have right to release on bail but the bail can grant at the discretion of the court, subject to certain conditions given in Section 437 of CrPC.
If a person arrest on accusation of commission of any non-bailable offence, then the person will not release on bail if there appears a reasonable ground that the person guilty of an offence punishable with death or imprisonment of life.
A person accused with an offence punishable with death or imprisonment of life can be released on bail if the person :
- Below the age of sixteen years
- A woman
Further, if at any stage of investigation it appears to the Court that there reasonable grounds for believing that the person has not committed a non-bailable offence, the person may release on bail at the discretion of Court on execution of a bond.
In a case a person accuse with commission or abatement or conspiracy or attempt to commit any offence against state or with offences affecting human body or with offences against property may release on bail but the Court may impose conditions that it deems necessary in order to ensure that the person shall:
- Attend the Court in accordance with the conditions of the bond executed.
- Not commit any offence similar to the offence of which he accuse or suspect.
Thus. if case triable by Magistrate then person accused with a non-bailable offence not conclude within a period of sixty days, such person will release on bail.
The condition for granting the bail that the person needs to be in custody during whole period.
If the bail not grant to such a person, the reason for not granting the bail will recorded in writing by the Magistrate.
Further, if the person accused of non bailable offence grant bail because of any of the conditions mentioned above, the authority granting the bail will have to record the reason in writing.
In case a person of the apprehension that he might arrest on the accusation of a non-bailable offence, he can apply to High Court or Court of Session for bail under Section 438 of CrPC.
The grant of bail will be on the discretion of the Court subject to certain conditions, including conditions that the person shall:
- Make himself available for interrogation by Police Officer as and when required.
- Not make any inducement, threat or promise to any person so as to deter him from disclosing any material facts to the Court or any police officer.
- Not leave India without prior permission of the Court.
In order to apply for Bail under Section 437 or Section 438 of CrPC, the accused is required to fill the Form No. 45 given in the First Schedule and apply for bail. After that, it will be the discretion of the Court whether it grants or rejects the application for bail.
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