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Overview: When a person accused of a certain offence is arrested but is awaiting trial to arrive at the final outcome of the case against him, he/she has the legal right to be allowed to be released temporarily on certain terms. This right accrues to them under bail.
Purpose: To allow the person to be released temporarily until the final charges against him are proved by a court of law.
Areas of Application of Law: A person may apply for bail in the magistrates court under Section 437 or the Code of Criminal Procedure, 1973 and at the sessions court or any high court under Section 439 of the Code of Criminal Procedure Code, 1973.
Process: Below is the step by step recourse for a person seeking to apply for bail:
- To begin with, the accused should engage a lawyer who would assist in assessing if the offence is bailable or non-bailable.
- If the offence is bailable, depending on the facts and circumstances it is possible to get bail from the police itself. In case of the offence being non- bailable, the lawyer will have to approach the court through a petition for bail.
- The accused seeking bail will have to submit the below mentioned documents to his lawyer after which he will file a petition for bail in either the magistrate court, the sessions court or the high court depending on the nature of the offence.
- The accused should ensure that he has read and understood the bail petition prepared by the lawyer before he files it and thereafter make sure that all affidavits and Vakalatnama are signed by him.
- On the first day of hearing, if the court is satisfied of merits in the case, a notice will be issued to the opposite parties and date for the next hearing will be given. Court will also ask the investigating officer of the case to file a status report before the next date of hearing.
- Within a few days from the first hearing, the accused has to file requisite amount of process fee with the court registry. After this the notice will be prepared by the court authorities and this along with a copy of the plaint will be served upon the respondent either by the court through speed post/courier/ordinary post/email. If the process fee is not paid, notice will not be issued to the opposite party and in extreme cases the court may even dismiss the petition for failure to comply.
- It is a possibility that notice could be accepted by the respondent (public prosecutor) in court itself on the first hearing.
- In case of the bail suit being filed in the high court, there is a provision for serving an advance copy to the respondent (public prosecutor) at the time of filing.
- Upon receipt of notice, if that is the chosen option, the respondent (public prosecutor) has to appear in court.
- On the next date of hearing, the public prosecutor will appear in court along with a reply to the anticipatory bail petition and demonstrate as to why bail should not be granted.
- After a reply from the respondent (public prosecutor) and the status report of the investigating officer have been filed before the court, it will hear arguments and make necessary inquisitions from the person anticipating arrest/his lawyer regarding such mitigating circumstances on which bail is.
- After completion of arguments, the court will arrive at its decision of whether anticipatory bail is to be granted or not.
- In case bail is granted, the court may put the accused to such terms and conditions as it sees fit.
- These could include depositing of some money, surrendering of passport, not leaving the state/country without courts’ permission, not to influence witnesses, not to interfere in investigation process and make themselves available before the investigating agency, as and when directed.
- Apart from the above, the accused would be required to furnish an assurance in the form of bail bond/surety bond, as directed by the court. The amount of the bail bond will depend on circumstances of the case.
- After submitting the bail bond/surety bond and having fulfilled the other terms as set out by the court, the accused will be given a order intimating the jail authorities/police authorities of the grant if bail to the accused.
- On showing such order to the concerned authorities, the accused would be released on bail.
Documents required to be submitted in the court: Copy of first information report (FIR), warrants of arrest (if issued), documents on which the person will rely to secure bail (ex: medical reports, medical bills, family obligations, ailing mother, documents contradicting prima facie allegations made in the FIR such as plane tickets, passport copy etc)
Punishment/Expected Relief: Release of the accused person.
1. Sanjay Chandra v Central Bureau of Investigation
2. Vaman Narain Ghiya v State of Rajasthan