Bail and bond- criminal procedure code-lawnn.com
Bail and bond- criminal procedure code-lawnn.com

Bail And Bonds: A Procedural Concept- Criminal Procedure Code

 

SYNOPSIS  

  • Introduction
  • What is the meaning of bail
  • What is anticipatory bail
  • Types of bail and bonds
  • Sections describing the procedure for bail and bonds
  • Conclusion

 

FOR LAW STUDENTS: REPEATED EXAM QUESTIONS RELATING TO BAIL & BONDS! 

  1. What are the various types of bail and bonds and explain them
  2. What are the special powers of high court and session courts regarding bail
  3. What is the procedure of bond in case of minor

 

INTRODUCTION

When a person is accused of committing a crime and is arrested he/ she has a legal right to file for bail. A bail can be applied through a bail application which has a specific format to it.

In actual, bail is a type of security for giving assurance that the accused will be brought to the court whenever required. Bonds are also a type security that is given as an assurance for taking away the accused from the jail.

 

What is the meaning of bail?

Bail is an essential part of criminal law. Whether a bail can be given or not is decided on the type of crime committed by a person. If a person commits a heinous crime then he/she wouldn’t be granted bail whereas the person can be granted bail for crime that are not so heinous in nature and as per the law.

A Bail signifies releasing a person from the custody of police, but not forever.

Bail is filled for the accused by those who give his surety that he will be brought to the court whenever required. The concept of bail was basically brought to protect the public from people who create ill effects.

The court plays a very important role in granting bail. Bail is a concept that was introduced in regard to Human Rights.

In case of bailable offenses, bail becomes a right of the person, but in case of non-bailable offenses granting bail is a judicial discretion.

Here the judiciary plays an important role in those offenses which are non-bailable in nature. Concerning non-bailable offenses, there is no hard and fast rule for granting bail, it’s purely the decision of the judiciary.

Supreme Court has given provisions for dealing with offenses that are non-bailable offenses and high court and sessions courts have a special provision regarding granting bail.

The following are principles to be adhered while granting or refusing bail under section 437 of Crpc and were stated in the case Sidharth Vashishht  v. State of Delhi 2004 CrLJ 684(Del). They are as follows:-

  1. The granting of bail should not be refused unless the person accused has been convicted of a heinous crime and the punishment given in the law is severe.
  2. Bail can be refused when the court has reasonable grounds or evidence that any type of bail will not secure the person who is convicted at the stage of judgment.
  3. Bail can be refused if the course of justice would be thwarted by the person who is seeking benignant jurisdiction of the court to be freed for the time being.
  4. Bail should not be refused unless there is likeliness that the person who has filed for bail application will be interfering with the witness of the prosecution or otherwise pulling out the process of justice.
  5. Bail should be refused if it seems that the person who has applied for bail has a bad record particularly for committing heinous offenses.

The provisions of bail are stated under the Criminal Procedural Code and are applicable after the accused has been arrested.

There is no specific provision given in the code that deals with canceling the bail grant but if the person doesn’t comply with the conditions that are stated in the bail-bond, such as time and place of attendance, misusing the liberty granted, interfering with the investigation process, etc, the bail can be canceled.

 

What is anticipatory bail?  

Anticipatory bail is a special kind of bail granted to a person. Section 438 of Criminal Procedural Code governs the provisions of an anticipatory bail.

This bail is granted to a person who is under an anticipation that he/she will be arrested on the accusation of committing a non-bailable offense.

When the anticipatory bail is granted the opposite party gets notified regarding the bail application and the opposite party can then contest the bail application in the court.

The high court or the sessions court may include certain conditions such as follows:-

  • That the person shall make himself available when the police officer is going to interrogate him whenever required.
  • That the person shall not directly or indirectly bring any threat to the witnesses or those who are having facts related to the case.
  • That the person shall not leave India without taking permission from the court.

 

Qualifications for anticipatory bail

The applicant of the anticipatory bail must disclose special facts and events that make him believe, that he may be arrested for a non-bailable offense so that the court can specify against what offense is the anticipatory bail been granted for, so that it is not covering all the offenses.

 

Cancellation  

An accused person is free on bail as long as it is not canceled. The high court or sessions court may give directions that any person who has been released on bail can be arrested and brought in to the custody when an application is received by the complainant or the prosecution.

 

Types of Bail in Indian Law

  1. Cash Bond: It is a type of bail bond in which cash is paid for the full amount of bail and cash can be paid for any bail. A cash bond is paid when the defendant fails to appear in the court. There is no specific provision for refund of the cash.

 

  1. Surety Bond: It is often used when the defendant cannot pay their total bail in cash. Surety bonds are issued by Bail bondsmen.Generally, the bondsmen will charge a small portion as a token for their service.A third can pay the token to the bondsmen and then he will post the bail. In case the defendant doesn’t appear in the court then the bondsmen will be forced to pay the entire bond money in cash.

 

 

  1. Federal Bail Bonds: These bonds are issued when federal crimes are committed out of the boundaries of the state. These transactions are directly done with the court without bondsmen.Both cash and property can be used for such bonds.  For these kinds of bonds, valid assets are required.

 

  1. Immigration bail bonds: These bonds are used only for non-citizens and non- residents present in the United States. The processing of an immigration bond is very complex. It is the most expensive type of bond.

                                               

  1. Property Bond: In this type of bond the defendant offers a property in the form of bail bond. Any type of property can be used until the time the defendant has full rights on the property. The court has authority on the property and it can take ownership if required.

 

Sections describing bail bonds:-

Section 436 In what cases bail is granted
Section 436A of CrPC Maximum period for which an undertrial can be detained.
Section 437of Crpc When bail can be granted for non-bailable offenses
Section 437Aof CrPC Bail to require accused person next appellate court
Section 438 of CrPC Directions for grant of bail to person apprehending arrest
Section 439 of Crpc Special powers of the high court or sessions court regarding bail
Section 440 of CrPC Amount of bond and reduction thereof
Section 441   of CrPC Bond of accused and sureties

 

Section 442 of CrPC Discharge from Custody
Section 443CrPC Power to order sufficient bail when the first taken is insufficient
Section 444 of CrPC Discharge of Sureties
Section 445 of CrPC Deposit instead of recognizance
Section 446 of CrPC Procedure when the bond is fortified
Section 447 of CrPC Procedure in case of insolvency or death of surety or when the bond is fortified.
Section 448 of CrPC Bond Required for minor
Section 449 Of CrPC Appeal from orders under section 446

 

 

Section 450  of CrPC Power to direct levy of amount due on certain recognizance

 

Conclusion 

Bails and bonds are an integral part of the criminal law. Whether a bail can be granted or not defines the heinousness of the crime. Courts have special powers for granting bail in non-bailable offenses So, courts play a very important part in it.

 Photo by niu niu

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