Bail: Essential If You're Arrested जमानत: यदि आप गिरफ्तार हैं तो अनिवार्य गाइड यहाँ है

"A person is innocent unless proven guilty”

Indian criminal justice system is based on the presumptions of innocence. Presumption of innocence refers to the belief that a person is innocent until convicted or proven guilty. Hence, if a person is accused of committing a crime or other conduct contrary to the law and is arrested for trial, he has the right to be released on the condition that he would follow the court's instructions. Bail is the legal term for conditional release. It can be described as the conditional release of a criminal suspect from police or judicial custody in lieu of his appearance in court when needed or his continued presence within the jurisdiction of said court. Black’s Law Dictionary defines Bail as “the security required by a court for the release of a prisoner who must appear at a future time.”  

The provision of conditional release is also a fundamental right provided in the Universal declaration of human rights, under article 11 which says that Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense. In Indian Constitution also under Article 21 right to life and personal liberty is a fundamental right which also includes the right to a fair trial.

Legal proposition related to bail

The legislation or provisions governing bail are found in sections 436 to 450 of the Cr.P.C.  Despite the fact that the term "bail" is not stated in the Cr.P.C. it can be understood in relation to offenses such as bailable and non-bailable offenses as specified in section 2 clause (a) of the Cr.P.C. 

Bail Case References  

• Bail for Bailable offenses: An accused is entitled to bail as a matter of right for bailable offenses. There is no dispute about bail being granted with discretion. Bail is a right of the accused under section 436 of the Criminal Procedure Code, and the police or the court is mandatorily required to give it. In the right circumstances, such a person can be freed on his own bond. The accused should only be remanded in custody if he is unable to post bail. In that case, according to section 57 of the Cr.P.C., the police officer must present the accused person before the Magistrate within 24 hours of arrest.

Case law: Rasiklal v. Kishore Khanchand Wadhwani, It was held by the Supreme Court that as soon as the accused person is willing to give bail, the police officer or the court before which he offers bail is required to release him on such bail terms. However, if the offense has both bailable and non-bailable elements, it will be tried as non-bailable. The advantage of section 436 (right to bail) will not be available in this case.

• Bail for non-bailable offense: Bail cannot be obtained as a matter of right for offenses that are non-bailable. Although, bail in such cases is not impossible to obtain. Section 437 of the Criminal Procedure Code allows the court to give bail to an individual even though the offense is not bailable. Bail may not be granted under the following criteria:

1. If there are reasonable grounds to believe he committed an offense punishable by death or life imprisonment.
2. That the accused committed a cognizable offense and had previously been convicted of an offense punishable with:

• Death or life imprisonment, or
• Imprisonment for seven years or more, or
• If the accused had been convicted on two or more occasions of a cognizable and non-bailable offense.

Case law: Kalyan Chandra Sarkar v. Rajesh Ranjan the court held that under the criminal laws of our nation, a person accused of non-bailable offenses is liable to be retained in custody until the pendency of his trial unless he is released on bail in accordance with the law. Because such detention is legal, it cannot be argued that it is in violation of Article 21 of the Constitution. Even individuals accused of non-bailable offenses may be granted bail if the court determines that the prosecution has failed to establish a prima facie case against them and/or if the court determines, based on reasons to be recorded, that, despite the existence of a prima facie case, it is necessary to release such accused on bail, where factual circumstances require it. 

Black & White Law Media’s Advisory

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The nature of criminal offenses makes it nearly impossible for suspects to offer a complete answer and defense on their own in most cases. In such cases, it is necessary to retain the services of a well-qualified, results-oriented, and highly skilled professional defense lawyer who can assist you in communicating with law enforcement agencies, understanding your legal rights, comprehending the trial process and related legal actions from the state, and developing the best strategy to defend themselves, as well as determining the suspect's rights in a fair process and ensuring that they have access to legal representation.

Contact us to know the best bail processes for offenses you have been charged with. To get the facts right, for making the judiciary decide and you may get a positive outcome, our team of experts is available 24/7 to help you find the best bail processes for your case. We provide the best in the legal advice on bail so that you make an informed decision

References:

United Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights#:~:text=Article%2011,guarantees%20necessary%20for%20his%20defence.  

INDIA CONST. art. 21

THE CODE OF CRIMINAL PROCEDURE, 1973, § 2, No. 2, Acts of Parliament, 1973 (India).

THE CODE OF CRIMINAL PROCEDURE, 1973, § 436, No. 2, Acts of Parliament, 1973 (India).

THE CODE OF CRIMINAL PROCEDURE, 1973, § 57, No. 2, Acts of Parliament, 1973 (India).

Rasiklal v. Kishore Khanchand Wadhwani , AIR 2009 SC 1341

THE CODE OF CRIMINAL PROCEDURE, 1973, § 437, No. 2, Acts of Parliament, 1973 (India).

Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005, 2 SCC 42