Bail in Bailable Offence
The author of this blog is Amulya Anand, a 2nd-year student at National University of Study & Research in Law, Ranchi.
As laid down in our Constitution
that no individual shall be depressed of his or her personal independence
except as per the rules formed by the law. The idea of bail is closely linked
to Article 21 of our Indian constitution. It protects a person’s freedom from
getting detained. The concept of bail is nearly linked with the terms
detention, custody and arrest as in all these three situations there is
deprivation of independence of an individual. The problem ascends when an
individual is detained or kept in custody or being arrested.
The term bail means the safeguard of
a culprit’s presence for trial. The individual who is liable for a bailable
offence has the advantage of getting acquitted on bail as bail in the cases of
bailable offences are mandatory. The allotment of a bail to an individual who
has a charge of non-bailable offence is self- voluntarily. But a person on whom
the charge is of bailable offence can any time while being detained without a
license at any stage of the criminal procedure has the advantage of getting
acquitted on bail with regards to Cr. P.C section 436 1973.[1]
When the offence being committed is
bailable then the accused has the power to take bail and in doing so even the
police authority cannot stop him from granting bail.[2]Also when
an individual is being inspected of committing a bailable offence is presented
before a magistrate, the accused has the benefit of issuance of bail. The
Magistrate has no way either than acquitting the culprit on a proper bail.[3]
Magistrate cannot neglect to accept the capitulation and bail out the person
accused with regards to whom a complaint has been filed.
The foremost
work of the court of law in issuing bail would be to see whether there is a
possibility of the person being accused presentable to trial and also whether
there is any possibility of the person being accused to escape out of the bail.[4]When
a person being accused is issued bail in a case under police authority,
simultaneously a complaint with certain allegations is filed then the individual
may be approached for capitulation and further may apply for bail in respect of
the charges being applied on him.[5]Once
an individual being accused has entered into the liability of loss of property
or earlier bonds, he may not be eligible for bail even in bailable cases.[6]
As per section 436 (2) which gives
the power to the court to dismiss the bail of an individual being accused even
when it is the case of bailable offence, where the accused is not able to
satisfy with the policies of the bail bond. Even in the case of bailable
offence the court of law has the authority to dismiss a person’s liberty of
issuance of bail in certain cases. The accused person is subjected to custody
as per the decisions of the court of law and also not eligible to pray for his
release under this section, the total discretion lies with the court of law to
grant him bail again.[7]The
order refusing or issuing bail is advocacy. The order neglecting bail is not
considered as a final order. When a bail is being neglected at a prior stage,
it can also be accepted in the final stage of the procedure. Also, it can be
cancelled at any stage. Since it does not affect the procedure, therefore it’s
not considered as a final order.[8]
Whenever an application is sent back
to a subordinate court for further action of the person who is accused on
behalf of the prosecutor, it has to be arranged in the same manner for the
opposition to keep his point of view for the release on bail. The application
of bail and remand should be taken together at the same time, there should not
be any delay for the proceeding of either of them. There is no need for a bail
application in such a mandatory situation.[9]
The person who has been accused for
a bailable offence would be eligible for bail under this section only if[10], he
fulfils the following criteria which are Firstly, he should be accused of a
bailable offence. Secondly, he would have been arrested or detained without a
warrant by any police authority or is presented before a court of law. Thirdly,
a police report or a complaint of a bailable offence must be made against him
or he would have been a suspect of committing such an offence. But even if it
is the case of bailable offence, bail will not be granted if the person being
accused impairs the process of the court.[11]
The court has to issue bail to a
person accused in a case linking to commencement of bailable offence. Bail has
to be issued in such cases and the condition in which the order issuing the
bail other than the one for appearance of the accused would be considered as
illegal.[12]In
the case of bailable offences, a magistrate cannot imply a condition that the
person being accused should be presented before the police.[13]
The Supreme Court[14] has
administered the power to annihilate the bail issued under section 436 in
accordance of the inborn powers of the High court. The Supreme Court also
observed that this implied provision does not make any express statutes for the
cancellation of the bail issued under Section 436 of the Cr.P.C, Now if it
happens that at any subordinate stage of the hearing, an individual accused of
a bailable offence is tampering or bribing or intimidating with the witnesses
of the prosecution then the High Court should have the jurisdiction to issue
him a warrant of arrest and take him into custody as it deems fit.
In the case of Panna Lal vs. R.K. Sinha, [15]it was
being contended that the petitioner was charged with a bailable offence for
which he was already been granted bail under the provisions of Section 496 of
Cr.P.C, which was being considered as a fundamental right, Henceforth the
session judge has no authority to cancel his bail and order him arrest despite
of the fact that he had absented himself and failed in giving his presence in
the proceedings of the court.
Now in the case of Talab Haji Hussain vs. Madhukar Purshottam
Mondkar,[16] It
has been laid down by the Allahabad High Court that if an individual being
accused fails to be present at the court or otherwise his liability to custody
is not by any reason arrives within the criteria of a bailable offence. On the
other hand, it was held that the person accused could not rely upon his
absolute right as mentioned under section 496 of the Cr.P.C which was
considered to be applicable in this case.
[1]Ratilal Bhanji Mithani v. Asstt. Collector of
Customs, AIR 1967 SC 1939.
[2]Dharmu Naik v. Rabindranath Acharya 1978 CrLJ
864: Kanu Bhai v. State of Gujarat 1972 (B) Guj LR 748.
[4]Sukar Narayan Bakhia vs. Rajnikant R.Shah, 1982
Cr.LJ 2148 (Guj).
[5]Kalyan vs. State of U.P. 1990 Cr.LJ 1658 (All).
[7] Rati Pal Bhanji Mithani vs. Asst. Collector of
Customs, AIR 1967 SC 1639: 1967 CrLJ 1576.
[9] K.K.Girdhar vs. MS. Kathuria, 1989 Cr.LJ 1094
(Delhi).
[10]State of Mysore vs. Biswanath Rao, 1966 Cr.LJ
267 (1965) 1 Mys. LJ 365; 1965 Mad. LJ (Cr.) 849: AIR 1966 Mys. 71.
[11] Joseph D. Kattampilly vs. State of Kerala, 1970
Kerala 521.
[12] Sardamma In re (1965) 2. Andh W.R. 289, AIR
1965 AP 444 at 446,447.
[13]Paulose vs. State, 1978 Ker. LT 337.
[14] Ratilal Bhanji Mithani vs. Asstt. Collector of
Customs, Bombay, AIR 1967 SC 1939.
[15] 1967 Cri LJ 980 at p. 983 (All): AIR 1967 All
304.
[16] AIR 1958 SC 376 at pp. 379-80: 1958 SCR 1226:
1958 Cri LJ 701.
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