What is Bail| section 436-437 and 439 of crpc| by adv Moin😯

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What is Bail?

Bail is an instrument which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court to appear before it whenever required and comply with any conditions set out in the agreement. He/she also assures to forfeit a specified sum of money if the person fails to comply with any terms and conditions of the agreement.

Difference between bailable and non-bailable offence

In case of bailable offence, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of Accused or by the court. However, A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused will have to apply to the court, and it will be the discretion of the court to grant Bail or not.

Bailable Offences

Bailable offences are those offences or crimes that are not very serious in nature. In such cases bail is a right and the arrested person must be released after depositing the bail with the police. The police have the power to grant bail in these types of cases.The accused may be released on bail, on executing a “bail bond", with or without furnishing sureties.

The "Bail Bond" may contain certain terms and conditions, such as:
The accused will not leave the territorial jurisdiction of the state without the permission of the court or police officer. The Accused shall give his presence before police officer every time, he is required to do so. The Accused will not tamper with any evidence whatsoever, considered by police in the investigation.

The court is empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond.

Examples ofBailableOffence

The following are some examples from Bailable Offences under the Indian Penal Code.

Being a member of an unlawful Assembly

Rioting, armed with a deadly weapon

Public servant disobeying a direction of the law with intent to cause injury to any person.

Wearing Garb or carrying token used by public servant with fraudulent intents.

Bribery in relation to elections

False statement in connection with elections

Refusing oath when duly required to take an oath by a public servant
Obstructing public Servant in discharge of his public functions

Giving or fabricating false evidence in a judicial proceeding

Selling any food or drink as food and drink, knowing the same to be noxious

Causing a disturbance to an assembly engaged in religious worship
Non-BailableOffences

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

The court may generally refuse the Bail, if:
"Bail Bond" has not been duly executed, or if the offence committed is one, which imposes punishment of death or Life imprisonment, such as "Murder " or "Rape" or the accused has attempted to abscond, and his credentials are doubtful.

The application for bail shall be filed before the Magistrate with the help of a criminal lawyer, who is conducting the trial.The application after being filed is usually listed on the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.

ExamplesofNon-BailableOffence

The following are some examples from Non-bailable Offences under the Indian Penal Code.

Murder (S.302) IPC

Dowry Death (S.304-B) IPC

Attempt to murder (S.307) IPC

Voluntary causing grievous hurt. (S.326) IPC

Kidnapping (S. 363) IPC

Rape (S. 376) etc.

Right to be released on Bail in a Non-Bailable Offence

A person who has committed a non-bailable offence doesn’t have the right to be released on bail but bail can be granted to them at the discretion of the court although subject to certain conditions as laid down in Section 437 of CrPC.
If a person accused of committing a non-bailable offence is arrested, they are not entitled to be released on bail if there is reasonable ground to believe that the person is guilty of an offence that is punishable with death or imprisonment of life. If such person, however, is below the age of sixteen years they can be released on bail.

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