How to get bail in India

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How to get Bail in 498A Case?
Procedure to get bail in India
When a person commits an offence and is arrested by the police, he is produced before the magistrate having jurisdiction within 24-hours of his arrest.  The magistrate then decides whether to grant bail or not based on the facts and circumstances of the case.
Now in order to get bail, the following procedure must be followed:
 
  • Filing of Bail: The accused person or his/her advocate must file a bail application in the court  having jurisdiction over the matter. The bail application must contain all the relevant facts and circumstances of the case, including the nature of the offence, the evidence against the accused, and the grounds for seeking bail.
  • Notice to the Public Prosecutor: Once the bail application is filed, a copy of the same must be served on the public prosecutor who represents the State in the case. The public prosecutor is given an opportunity to oppose the bail application and present his/her arguments before the court.
  • Hearing of Bail Application: The court then hears the bail application and considers all the relevant facts and circumstances of the case. The court may also consider the antecedents of the accused, the seriousness of the offence, and the likelihood of the accused absconding or tampering with evidence.
  • Grant or Rejection of Bail: Based on the facts and circumstances of the case, the court may either grant bail or reject the bail application. If bail is granted, the accused person is released from custody on certain conditions, such as furnishing a bail bond, providing sureties, or surrendering his/her passport or appearing before the police station regularly.
  • The bail amount that the accused has to deposit is also based on the discretion of the court. However, in criminal cases with lower gravity, a standard amount is set by convention and practice which needs to be deposited for awarding the bail. 
It is important to note that in bailable offences, grant of bail is a matter of right and not a favor whereas in non-bailable offences, grant of bail is not a matter of right but the discretion of the court which depends upon the gravity of an offence, character of the evidence, participation of the accused in the offence, the possibility of the accused influencing the witnesses and so on. Apart from these a lot also depends upon age, sex, and sickness factors as well. 
 
The main objective of granting bail to an accused in detention or jail is to ensure that while the trial continues if the accused is not a threat to society or going to tamper with the evidence and coerce the witnesses, he should not be deprived of his freedom. Thus bail is a rule and jail is an exception.
 
Different types of Bail:
Conditions for grant of Bail in a bailable offence:
  • There are sufficient reasons to believe that the accused has not committed the offence.
  • There is sufficient reason to conduct a further enquiry in the matter.
  • The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.
Conditions for grant of bail in a non-bailable offence:
  • If the accused is a woman or a child, bail can be granted in a non-bailable offence.
  • If there is a lack of evidence and further inquiry is warranted then bail in non-Bailable offences can be granted.
  • If the accused is gravely sick.
  • FIR has not been lodged promptly and the accused is seriously indisposed or infirm.
Important Provisions of Bail in Code of Criminal Procedure:

Chapter XXXIII of Cr.P.C. from Sections 436-450 talks about provisions as to bail and bonds.                   

Sections

Particulars           

436

In what cases bail to be taken 

436A

The maximum period for the detention of under trials
prisoners 

437

Bail in case of non-bailable offences

438

Grant of bail to person apprehending arrest (anticipatory bail)

439

Special power of High Court or Court of Session regarding bail

446A

Cancellation of bond and bail bond

Cancellation of Bail:

Sections 437(5) and 439(2) CrPC talks about the cancellation of bail. Before the cancellation of bail, the following conditions must meet:

  • Where the accused misuses his liberty by indulging in a similar activity
  • Where there is a new development in investigation or recovery of cogent material prima facie involving the accused with heinous crime
  • Interferes with the course of the investigation
  • Attempts to tamper with evidence of witnesses
  • Threatens witnesses or indulges in similar activities which would hamper the smooth investigation
  • Attempts to flee to another country or goes underground or beyond the control of sureties
  • When on bail, he forcibly prevents the search of places under his control for the detection of the corpus or other incriminating things;
  • If he commits acts of violence, in revenge, against the police and the prosecuting witnesses of those who have booked him or are trying to book him.
  • If he has been granted bail on suppression of facts 

 

It is be noted here that the powers of Cancellation of Bail vested in the High Court or the Court of Session under section 439(2) CrPC are very wide vis-vis the powers of the Magistrate Court under section 437(5) CrPC. The power to cancel an order of bail passed by the High Court or the Court of Sessions can be exercised only where the person released on bail is guilty of misuse of the liberty granted by the court or there is a substantial change in the facts of a case. 

 

However, so far as cancellation of bail order passed by a subordinate court, no such restricted interpretation is justified. So a High Court or Court of Sessions may review and examine an order of bail passed by a subordinate court on merits and decide whether such order is legally sustainable or not. It is now a settled law that the prosecutrix or complainant can always question the order granting bail if the said order is not validly passed and the bail order can be tested on merits.  

 

Case Laws:

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