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How To Take Bail In India?

Bail is the conditional release of a person accused of a crime, for an amount, pledged for the appearance of the accused when the same is due in court. The person paying the money acts as the surety. Getting bail is one of the rights of the accused in a civil case while it is the discretion of the bail granting authority in a criminal case.

Bail is governed by the Code of Criminal Procedure, 1973. Bail is the tentative release of a person accused in a criminal case in a court where the trial is pending and the judgment is yet to be announced.

Bail is not explicitly defined in the Act but the terms bailable offence and non-bailable offenses are defined under Section 2(a). Section 436-450 governs the provisions relating to bail under the Act.

Types Of Bail:

A person accused in a criminal case can apply for the following types of bail:
  1. Regular bail:
    If a person who has committed a criminal offense or is alleged to have committed the same is in police custody, they can apply for regular bail.When a person commits a cognizable non-bailable offence (one that is so grave in nature that a police officer had to make the arrest of the accused without a predetermined warrant or begin an inquiry without the legal authorization of the court of law), the police has the right of taking him intocustody, and he must be sent to prison when the custody term ends.
  2. Interim Bail:
    An interim bail is granted before the trial for the grant of a regular or anticipatory bail takes place. It is granted for a short period of time.
  3. Anticipatory Bail:
    The term "anticipatory bail" is self-explanatory. It is a kind of bail that is granted to someone who is expecting to be arrested by the police for a non-bailable offence. In recent years, this has become a very crucial subject since economic rivals and other influential people often attempt to frame their opponents in trumped-up charges. This is a type of advanced bail specified under the Act's Section 438. The police will then be unable to arrest someone who has been granted anticipatory bail.

Procedure To Apply For Bail:

When a person accused of committing a criminal offense is arrested by the police, they have the legal right to file a bail application for a release from police custody. An accused person must contact a criminal lawyer in Delhi to assist them in filing a bail application.

Contents of Bail Application:
  • The name of the court under which the bail application is going to be filed
  • The section of CrPC
  • The name of the parties
  • The FIR number
  • The name of the police station in which the accused is in custody
  • The date and day on which the arrest of the accused was made
  • The ground on which the accused should be granted bail
  • The surety of the accused not absconding if bail is granted
  • The signature of the applicant
  • Prayer

When a person seeks bail for the crimehe/she has been convicted of, the accused must submit an application in the form of Form-45, which may be found in the second schedule. This application will be submitted in court where the case procedures will be heard with the assistance of a lawyer. The court will only grant bail if it deems appropriate. Bail cannot be granted without an application seeking the same. When a person has already been convicted and is appealing to a higher court, he may seek bail at this period.
  • During the bail hearing, the District and Sessions Judge takes into account all reasons, evidence, and facts and decides whether it is appropriate to grant the bail or not.
  • The accused has to deposit a certain sum of money as the bail amount. The court has the discretion to set this amount. Factors such as a previous criminal record of the accused, employment status of the accused, and the gravity of the crime are used to determine the bail amount. An accused person need not file a regular bail if they have already been granted anticipatory bail.
Procedure to file Anticipatory Bail in Delhi :- A person may apply for anticipatory bail after they come to know that a criminal complaint has been filed against them.

Contact a Criminal Lawyer: A criminal lawyer will set an effective course of action if an FIR or Criminal Complaint is filed against the accused person in Delhi.

Drafting Anticipatory Bail Application: An anticipatory bail application must be drafted which includes the facts of the case along with reasons stating why bail should be granted.

Filing Anticipatory Bail Application: The application must be filed at the District and Sessions Court, Delhi.

Hearing Bail Application: The judge has the discretion to either grant or reject the bail. In case the Sessions Court rejects the bail application, an appeal may be filed in the High Court.

Sushila Agarwal v. State of Delhi 2020 SCC Online SC 98

The Hon'ble Supreme court framed two questions while deciding the landmark judgment:
  1. Whether the protection granted to a person under Section 438 of Cr. P.C should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail and
  2. Whether the life of Anticipatory Bail should end at the time and stage when the accused is summoned to court.

The Constitutional Bench of the Court answered the first question by stating that there can be no time limit set for the Anticipatory Bail by the court granting the same. It was held that "the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favor of the accused without any restriction on time."

The second question was answered by stating that "The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."

Written By: Adv Sparsh Karnwal
Ph no: +91-9717705300,

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