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 To a common man “liberty” is a very revered virtue. However the criminal mechanism set up by the state in the form of arrest and detention may probably set you to have a glance of remedy. The purpose of arrest is to secure appearance of a person. When someone is arrested for a crime, s/he is typically held in jail until the date s/he is meant to appear in court or until s/he is released on bail. Bail is set by a judge during a bail hearing, and is the amount of money that serves as insurance between the court and the person in jail Bail can be granted at 3 stages; at investigation or inquiry stage, during trial and after conviction.

For the purpose of bail offences have been divided into 2 categories. Bailable offences and non-bailable offences in schedule I. Bailable offences are less serious and here the accused gets bail as a matter of right. Sec 436 of CrPC deals with bail in cases of bailable offences. Here getting bail is not much of a problem as you are entitled to it. Court exercises no discretion of its own, however this must be understood along with Sec 167 of CrPC which provides a time limit for which a person can be arrested for the purpose of investigation, which is 60/90 days. At the end of this time period a person is not released automatically. A person has to present his bail application and in case of his inability to procure the same he is presumed to be an indigent person. Ideally u/d sec 436 court grants bail along with sureties, however if court is satisfied that the person is indigent, it may provide for bail without sureties also.

Sec 437 CrPC provides for Bail in cases of Non- bailable offences. Here the accused doesn’t get bail as a matter of right. A wide amplitude of judicial discretion governs this provision. Whereas it is almost impossible to get bail in cases of rape, murder, and in case of repeated offender, court considers various parameters in granting bail. Usually the conditions of bail bond are onerous in case court feels that the person should not be released. Thus, it is the discretion of the court to put a monetary cap on the bond.

An amendment in 2005 post the case of Hussainara Khatoon brought some relief to the plight of several under trials in Indian Jails.  Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials. Sec 436 A CrPC provides that a person who is being tried for an offence and has spent ½ of the period of imprisonment specified for that offence as an under trial he shall be released by the court on his personal bond with or without sureties.

Anticipatory Bail as provided under sec 438 is another unique feature of bail law where a person apprehending arrest may apply to Sessions court or High court for anticipatory bail the effect of which would be that in the event of such arrest he shall be released on bail. The court while granting the same may look into the nature and gravity offence, influence of the person, chances of tempering of evidence on release etc. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail:

  1. The nature of the offence committed by the accused.
  2. The length of his residence in the community.
  3. His employment status history and his financial condition.
  4. His family ties and relationships.
  5. His reputation character and monetary conditions.
  6. His prior criminal records, including any record or prior release on recognizance or on bail.
  7. Identity of responsible members of the community who would vouch for his reliability.
  8. The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance.
  9. Any other factors indicating the ties of the accused to the community or barring on the risk of wilful failure to appear.


Written By:
Rashmi Pandey
IV Year

Disclaimer: The views and opinions expressed in the article are those of the author and do not necessarily reflect the views and opinions of the Blog.


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