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Monday, 6 August 2012

About Bail



"The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State."        

                                                                      (The Hon'ble Supreme Court of India)



There are certain popular notions which I've heard from various quarters, concerning the granting or not granting of bail to arrested individuals. But before resorting to the legal phraseology for clearing those, let me just take a moment of your time in attempting to explain the concept of bail for persons who don't know it. Law provides for curtailment of liberty by way of arrest in certain prescribed scenarios. Bail is the security that a person is directed to give to the Court / releasing authority in lieu of the conditional freedom he is granted from such curtailment. Bail may be granted with or without surety. A surety is a person who provides security in lieu of the arrested person's release and undertakes before the authority to ensure that the latter abides by the conditions of his bail. In case of non abidance the surety as well as the accused may be proceeded against. Usually the surety may provide security in terms of his fixed assets or cash. Let's say that an arrested accused person's bail is fixed at Rs 20, 000 with one solvent surety for the like amount with the conditions that the accused shall co operate with the Police investigation and that he shall not tamper with the evidence in any manner and he shall not abscond or leave the jurisdiction of the Court without it's permission and that he shall appear on each date of his trial in Court. Then in order that the accused is actually released, he shall have to find a person who will stand surety for his bail and furnish security worth Rs 20, 000 which can be liquidated if there is non compliance with the conditions of bail. 

After the issue of jurisdiction of a particular Court to grant bail is determined, comes the question of consideration of the plea of bail. The Courts generally take the following factors into consideration while deciding whether or not to release an accused on bail:- 

  • the seriousness of the offence in terms of its gravity and the nature of punishment provided for it and 
  • whether the accused would be readily available for trial (Is he likely to abscond ?) and 
  • whether he is likely to use the discretion granted in his favour by tampering with evidence (threatening / intimidating / inducing witnesses). 
  • criminal antecedents of the accused 
  • whether there is a likelihood of the accused person's indulgence in any other offence (habitual offender) 
The fundamental idea always ought to be bail and not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences intimidating witnesses and the like, by the accused who seeks enlargement on bail from the Court. Bail should normally not be withheld as a punishment if, after taking into consideration other factors, the accused is entitled to the grant of it. At the stage of considering the application for the grant of bail, the Courts do not go into the detailed examination of evidence as that would end up being biased to the prosecution case alone. Since at this stage no witness has come forward and spoken against the accused. Therefore if Courts while considering bail plea of the accused, express their opinion on his guilt at that stage, it'd amount to pre- judging the case basing only on the Police side of the story. Since the only materials available with the Court then are the Police papers.

Myths of Bail 
It is more often than not, believed that when an accused especially one with a high profile, is released on bail after being charged with a grave crime, it signifies that the justice delivery system of this country has gone to dogs. Most of us live under this notion that an accused, if released on bail is actually freed forever. That is not the truth. One must always remember that every civilized nation thrives on the same fundamental principle of justice delivery which says that no one can be punished without a fair trial and proof of his guilt beyond every reasonable doubt. That being true, how can we claim that once somebody is charged with a crime he ought not be released on bail ? That would tantamount to punishing him before his guilt is proved. Moreover when someone is released on bail, he is so released under certain conditions which he has to abide by at every cost. If the bailed out person is a habitual offender and he ends up committing another offence or threatens the witnesses etc. then the victim can apply to the Court for cancelling his bail and he will be back in jail.

I wish to emphasize here upon a certain crucial point of law. To grant or to not grant bail is always a matter of discretion of the concerned Court. No one can claim bail as matter of right, in a non bailable case , even if all the considered factors are favourable to him. Still the Court may refuse to release him on bail. Of course the accused may then approach the higher Courts for that relief. Somebody once asked me as to why then hundreds of under - trial prisoners are languishing in jails without being released on bail. The problem in their cases, mostly, is their inability to furnish surety, security etc for being released on bail. Many of them do not have anyone to take care of their case due to lack of money. The State does provide a SDC (State Defence Counsel) for handling their cases. But even then they are unable to furnish bail bonds or surety as that fund must come from their own pockets. It is very unlikely that the Courts will release them on their personal surety since it would be very difficult to secure their presence in case they decide to abscond. However today there are laws in place, which mandate an under trial prisoner's release without any condition after the passage of a certain period of time which, not in any case, can be longer than the prescribed period of imprisonment for the offence he's being tried for.

I wish to end by quoting a landmark interpretation of the bail principles by the Hon'ble Supreme Court of India in the case of Siddharam Satlingappa Mhetre Vs State of Maharashtra and Others (decided on 2nd December, 2010) . It reads as thus

"The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely sanctity of individual liberty and the interest of society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."






(Readers are advised to carry out a further study on the issue for a detailed information on the subject of bails.)

34 comments:

  1. Interesting post Anupam, as always.... Yours is one of my favorite blogs. I see your point where you say that people cannot be kept imprisoned unless proven guilty. I used to think that only the rich and the powerful can get away on bail...

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    1. Thanks for so precisely getting the point.

      I'm glad to have you as one of my few dear regular readers.

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  2. nice one,Anupam ,i have a question,Who decides the amount of bail?Is it decided by the magistrate or it is in the law ...

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    1. It's decided absolutely by the Magistrate / Court, considering the circumstances of the case. Thanks for reading Gunjan

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    2. Sorry , a few questions sprouted in my mind again,
      Is their a minimum bailable amount and on what basis is this amount fixed by the magistrate?
      Has their been any changes in the recent times regarding the laws related to bail?
      What is the maximum extent (in terms of money )can this amount go?
      --Gunjan Sinha

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    3. No there is no minimum bailable amount.

      See the subject of bails is quite a vast one. So it isn't advisable to answer generally. But if you ask your question specifically then I can say whether that aspect has undergone any amendment or change.

      There is no upper limit as such. It's up to the Magistrate / Court to fix the amount, considering the gravity of the case. If the offence is heinous and the accused is a very rich person, it's likely that the amount will be high and the conditions will be stringent as otherwise he will have no fear or deterrence against flouting the conditions of his bail.

      But do not be under an impression that Courts fix the bail amounts arbitrarily. It is pointless since an unreasonable condition can always be modified by filing a revision application before the High Court showing that the lower Court fixed the condition unreasonably.

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  3. So does that mean its very easy for the rich to get bail because they can get the surety? Thats not fair eh Anupam?
    Also in movies they show that one needs a lawyer in order to get bail. Is that the case?

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    1. This comment has been removed by the author.

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    2. No not at all. Of course money makes it easier to furnish the surety. But how are you going to convince the Court to grant you bail in the first place. Since it's only when the Court has granted you bail then the question of furnishing surety comes. Unless your bail application is allowed by Court, no matter how rich you are or how many persons are ready to stand as your surety, it becomes pointless.

      However I agree that after bail has been granted, an impoverished accused is definitely in a disadvantageous position than a well off accused. Therefore one gets to see many poor persons inside the jail even though their bail applications have long been allowed by Courts, since they are unable to furnish surety. It's unfortunate but that's how it needs to be done otherwise the accused will have no fear of losing anything if he is let off just like that and he shall abscond leaving the victim of his crime remediless.

      As for the lawyer part. Yes it's necessary. If an accused cannot get a lawyer by any means then the Court will direct one of the designated SDCs (State Defence Counsels) to take up his case, including filing & arguing his bail application.

      Thanks for reading Jayashree.

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  4. This is an interesting blog, Anupam. But, I wonder, what happens when a man who has been arrested, what if he doesn't have the money to pay the bail amount !!
    So, bails are for rich and ugly people only...this is sad!No wonder specimens like Kalmadi thrive in our country..

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    1. No not at all. Of course money makes it easier to furnish the surety. But how are you going to convince the Court to grant you bail in the first place. Since it's only when the Court has granted you bail that the question of furnishing surety comes. Unless your bail application is allowed by a Court, no matter how rich you are and how many persons are ready to stand as your surety, it becomes pointless.

      If the offence is bailable and the accused is a poor person then Police is bound to release him on his own bond / undertaking without any surety or bail amount. But if the offence is non bailable then no such facility is available to any accused be he poor or rich. Since non bailable offences are far more serious offences.

      You must understand one thing Panchali that though it's unfortunate but that's how it needs to be done otherwise the accused will have no fear of losing anything if he is let off just like that and he shall abscond and no more attend the Court to face his trial leaving the victim of his crime remediless. And we see many vagabonds / impoverished persons committing serious crimes starting from house breaking, robbery, extortion, molestation etc. Now should we leave them without any security / surety just because they are poor. Will they have any fear or regard for law (whatever little is there) after that ? Won't that be an incentive for them to repeat their crimes ?

      Therefore taking surety / bail amount might just be a necessary evil.

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  5. Nice and informative post ... Law in our country is left on so much of interpretations that on certain occasion’s influential people are mending it their way... I still remember that in a high profile hit and run case the accused was released on a bial of a few hundreds only.

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    1. I understand. It's a little complex.

      A hit and run case is usually booked under Section 279, 336, 337 or 338 of IPC and if death has resulted then under Section 304 A of IPC. And unfortunately all these are BAILABLE offences. So a Court cannot impose a high sum as bail amount and thereby indirectly harass a person who is otherwise entitled to be released on bail as a matter of right. Moreover if he is unable to pay the bail amount then he has in any case to be released on his personal bond. So it is pointless to charge a high bail amount in any bailable offence.

      Thanks for reading.

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  6. It cannot be denied Anupam that a rich person may well satisfy all the requirements for granting bail like unlikeliness to abscond as well as being able to provide surety whereas a poor person in the identical circumstances will be unable to do so. But, then, this is only as unfair as the rest of Society - that a poor person will starve while a rich person can make merry etc. and, thus, it is more the Social order rather than Criminal Jurisprudence that is to blame. And, yes, I do take your point that all the rest of the requirements of granting bail kick in only when the court is convinced that the person concerned ought to be granted bail, otherwise.

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    1. Thanks for reading and sharing your viewpoint Suresh ji

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  7. Interesting post. Are there any laid down guidelines for fixing the quantum of bail?

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    1. No there aren't any that I know of. Just that the Court has to keep the gravity of the offence and the likelihood of the accused absconding in view, in deciding the quantum, of bail.

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  8. Very informative and interesting post. People should always know this and for those who do not know this is useful.

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  9. Very good post AP. Sometimes it makes people wonder if there is justice anywhere? Can anyone give or make judgement on anyone? Karma happens any which way. The truth is to find out how not to get trapped in the cycle of karma! God bless, keep on writing.

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  10. I notice that you are discussing many serious mainstream issues at this blog. I am sure it adds to the battle against all that's wrong in the system.

    Regards

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  11. great post ! one of the factors you've mentioned is 'seriousness of the offence'. Who decides the seriousness. You get to hear people who have committed heinous crime getting out on bail whereas some poor soul suffering inside the jail .

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    1. Thank You TTT

      Now coming to the point raised by you. I've explained that scenario in the post. See the seriousness of offence is more often than not decided by 1 ) the punishment prescribed by the offence (e.g. theft the punishment is 3 years (at max.) whereas for robbery it is ten years (max.). So you see the consideration for bail to a person accused of theft will always be less grave than for one accused of robbery.

      Let's not mix this issue with that of socio economic disparity.

      The fact that a poor person cannot go out on bail has more to do with the fact that he has no money to furnish the bail amount. It has nothing to do with the seriousness of offence.

      Let us for example suppose that a rich man accused of cheating and a poor man accused of cheating are both granted bail by a Court. Now the reason why the rich man will be able to go free is because he will be able to give the bail fixed by Court whereas the poor accused may not be able to do so.

      Please understand that this has more to do with social and economic inequality than with legal flaw.

      Thank you for reading the post TTT. I hope I've clarified the point that you've raised.

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  12. What is interim bail? How is payroll different from bail?

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    1. About interim bail, there is no statutory provision which envisages the term or the concept of an interim bail. It's a creative interpretation of the bail law. What it means is that an accused is granted bail for a specific purpose and he's deemed to be in custody during that period and he must return to jail after the interim bail period is over. It is granted when there is an unavoidable urgency but otherwise the Court thinks that the accused does not deserve to be granted bail. What is done is that he's allowed an interim bail for a specific (usually a very small duration) of time to meet the emergency requirement. But he has to come back to custody after that work is over. Normally bail is granted and it remains in effect till it is not cancelled or the trial is not over with the accused being sentenced to imprisonment.

      I haven't heard of the term 'payroll' in bail law. In general it means the list of salaries / paid persons in an organisation. What I think you wanted to ask is about 'Parole' and not 'Payroll'

      'Parole' is a conditional release of a prisoner for a specific period for a specific time, from his imprisonment. The term is found in Jail Manuals.

      The main difference between bail and parole is that while the former is mainly granted pending inquiry or trial, the latter is granted after a person is found guilty and is undergoing his punishment (imprisonment). While the former is a discretion of the Courts where the accused's trial is pending (or the one to where he goes in appeal), the latter is more an executive decision in the purview of the State Government. Courts have nothing to do in granting parole.

      Thanks for reading Shivendra. I hope I've clarified your query. You are always welcome to ask further.

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  14. Anupam
    I know two cases. In one the person was granted bail, then he arranged to kill the main witness. The main witness long before made a will in favor of that very person, the person became rich but was absconding. His lawyer made the appeal for probate.
    In another case Police wrongly suspected a person, could not produce a single witness or evidence. His wife appealed for the bail but could not arrange the surety of Fifty thousand. The wife had some evidence for this man's innocence. Now in open daylight the wife was killed. The man could never come out of Jail although innocent.

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    1. Very very sad. I hope that the ones responsible for such abhorrent crimes ultimately pay for their deeds before they die.

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  15. Prior to the posting of a bail, the individual (co-signer) contracting the bail bondsman (surety company) to post a bond must guarantee that he will pay the full amount of the bail if the defendant does not appear in court by signing a contract.

    Bail Agent in Aurora Colorado

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  16. Prior to the posting of a bail, the individual (co-signer) contracting the bail bondsman (surety company) to post a bond must guarantee that he will pay the full amount of the bail if the defendant does not appear in court by signing a contract.

    Bail Agent in Aurora Colorado

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  17. The payment system is also made extremely convenient by some bail bond firms. Less hassle on time and money.

    Bail Bonds Auburn

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