Bail, Anticipatory Bail And Default Bail : Analysis

This article is written by Akansha Sharma, CCSU, Meerut.

Introduction

In the Indian legal system, Bail is the most rooted system which provides freedom from detention and ensures the Fundamental Right provided by the Constitution as per Article 21. The Bail is not a key from escaping the legal proceedings, but a way of right to not live in to the detention in between the proceedings going on. It means that a person can not be treated as a Criminal till it’s not proven , rather the person has to be assumed as Innocent. The course of law works in such a way that it shall not harass but rehabilitate the person to have a better state of welfare. Though, Crimes are such an act which harms the society, there is a necessity to understand all parameters before issuing Bail.

Contents

Introduction Bail Anticipatory Bail Default Bail Analysis References

Bail

As per Section 2 (b) of Bhartiya nagrik Suraksha Sanhita , 2023 : Bail means release of a person who is accused of or suspected of commision of an offence, from custody of law upon certain conditions imposed by an Court or an Officer on execution by such person of a Bond or a Bail Bond.

Now, as per the law, the person who is released on bail has to affirm with the conditions imposed by the Honourable court or Any officer who is granting the bail to that person or over execution of Bond or Bail Bond. Bail bonds are bonds in which a person needs to provide another person who can give assurance to court about the presentation of the Allegedly accused in terms of proceedings. On the other hand, Bond is an assurance in terms of an amount which is decided by the court, which a person provides on their own behalf.

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A person can be granted Bail in a Non bailable offence depending upon the greviosuity of offence which is alleged to have been committed by them. In such a case where a person alleged to have committed a non bailable offence is arrested by a officer without warrant and being presented to the court, a court other than High Court or Court of sessions, can be released on Bail. There are some conditions also, in which bail can NOT be granted mentioned under

S.480 of Bhartiya Nagrik Suraksha Sanhita,2023, such as –

i) if there is a strong ground about that person believed to be guilty of committing of that particular act which they are allegedly Allegedly accused of,

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ii) if the nature of the crime is an Cognizable Offence

And person Allegedly accused had already been convicted in the same kind of cognizable offence before which is punishable with death or life imprisonment or more iii) or previously convicted of more than two or more occasions of Cognizable offence in which Imprisonment was for 3 years but less than 7 years.

There are exceptions : the court may grant bail in the above mentioned scenarios if the Allegedly accused is Child, Women, Sick or infirm.

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The important thing to see in Case of Bail are majorly 3 things:

1) Nature of offence, whether Cognizable ( Punishable more than 3 years) or Non Cognizable ( Punishable for less than 3 years) exceptions are there

2) Whether arrest has been made, because a Bail can only be made after Arrest (except for Anticipatory Bail)

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3) Whether the Allegedly accused is required for any further investigation within detention? As provided in the S.480 that Merely Identification by witness can not lead to keep the alleged Allegedly accused in custody for more than 15 days, hence grant of bail can not be denied on that ground.

Now in the case of Bail, many conditions are out for the course of Justice. For instance , in the above mentioned 3) condition, the alleged Allegedly accused can be granted bail if he submits the undertaking to comply with instructions given by the Court . The bail is required for the process of trial or further proceedings in the case, so the release from the detention legally can be done via seeking bail from the Court where the matter is being taken up, or the High Court or the Court of sessions.

The conditions of granting bail shall not be as Arbitrary or unlawful .

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It is important to mention that There can be modifications in the bail conditions and can be done by the High court or Sessions Court . The section in which such powers are mentioned is Section.483(1)(b) of BNSS, 2023. The High court and Sessions Court can grant bail in the non bailable offences, but must hear the Public Prosecution by sending notice, and hear their side .

S. 484(2) A High Court and Sessions Court can reduce the Bail bond as well.

Anticipatory Bail

When a First information report under Section 173 ,BNSS,2023 has been registered against a person under commissions of an act which is non cognizable in nature, they can seek Anticipatory Bail . An anticipatory bail, as the name suggests, is a bail of anticipation of arrest. Anticipatory Bail allows that When a person thinks that they can be arrested and , to ensure their release upon arrest if the Bail is granted. The reasoning behind anticipatory bail is to prevent false accusatory arrest in non bailable offence. In the times where fake cases are rising , a detention in such an accusation leads to further difficulties, hence, a person can seek for the Shed of this provision of Anticipatory bail. An Anticipatory bail can be applied to HIGH COURT OR IN THE COURT OF SESSIONS .

Again , Anticipatory Bail is not a key to Escape from legal proceedings or Procedure of law. As Anticipatory bail is a Pre arrest bail, it is to be sought before arrest. An Anticipatory Bail can be Filed even before or after filing of chargesheet. It can be filed by the person whenever they have a strong ground to believe that they might be arrested in an accusation. When an anticipatory bail is granted then the health of the accused and Age of the accused shall be seen and taken view of.

A chargesheet is a document which is submitted with a summary of allegations which are allegedly committed by the Accused, such a chargesheet is submitted to the Court and then Magistrate or Judge takes cognizance of the same.

The Court grants Anticipatory Bail with conditions, which the seeking Appellant needs to undertake. Such as , to present oneself in front of Investigator and interrogation by police. In conditions it is to be concluded that the person on anticipatory bail shall not make any fear, threat or inducement to any complainant or witness in the case. The condition such as not to leave the territory of India which is mentioned under S.480(3) can be dependent on case to case.

Although, the Anticipatory bail can not be granted in case of Offence mentioned under 65 (2) of Bhartiya Nyaya Sanhita, 2023. To deliver such an order, the court shall mention the reasoning in detail.

Default Bail

There are two kinds of known Bails such as Anticipatory Bail and Bail. The Anticipatory bail is granted for arrest and bail is granted after arrest. The CRPC defines Default Bail under section 167 (2) . There is a default bail . The default bail is a bail which is compulsively to be granted . The reason behind the Bail by default is Not to put any person in unnecessary detention. It is a harsh truth about the investigating agency due to many reasons, including harassment , they delay the investigation and submission of reports. That leads to unnecessary detention and even at instances where the accused is not required to be in detention for investigation. The purpose of this bail is to ensure the safety guard of Article 21. For that, the BNSS introduced the option of Default bail.

Default bail is mentioned as compulsive bail , which has to be provided when A) accused is under Judicial custody

B) that the investigation has not been completed within prescribed period (within 60 -90 days)

C) The accused must apply for default bail and be able to furnish bail.

The motive behind default bail is to prevent undue advantage of detention and less crowd in jails. There are many people in jail due to investigation agencies asking for timing and then later they delay the same, due to which the accused suffer and their Article 21 gets violated. For the purpose to put safeguard measures against detention.

Analysis

In the previous Laws like Code of Criminal Procedure,1973 and Indian Penal Code , the provision of Bail, Anticipatory bail and Default bail were present. Now, with New laws, many things have been changed as the things such as anticipatory bail which were not established to be defined in law, are now defined. In CrPc the Anticipatory bail has not been defined, now the legislation has defined the anticipatory bail.

In Case of Sushila Aggarwal and others v State of NCT of Delhi and ANR ,2020, Justice Ravindra Bhat quoted the Report of 41st Law commision and stated that before the 41st report of Law Commission, there were no mentioning of Anticipatory Bail in the CRPC. > Honourable Justice also explained that Anticipatory Bail that the Anticipatory Bail application can be applied Before or after registration of FIR, even after submission of Chargesheet and after Issuing of summons by the court.

> Justice Bhat also stated that Anticipatory bail does not prevent arrest, police can arrest the person ,but they have to be released out of detention if they have order from High court or Court if sessions of the Anticipatory Bail.

In case of Default Bail, the Supreme court has Stated in the case of

Rakesh Kumar Paul v. State of Assam (2017) that the legislature has put the fundamental rights of liberty on premium and it is unfair to an accused to remain in custody for prolonged or indefinite period. Hence, there shall not be indefinite arrest of a person . The Supreme Court has clarified the section 167 (2) CrPc : Default Bail : This section stated that Anticipatory bail shall be granted if investigation cannot be completed within prescribed time limit , i.e : For Offences which are punishable for more than 7 years ( 90 Days) , offences which are punishable less than 7 years (60 days).

Along with that, the Bail and Anticipatory bail which are based on conditions relied by Courts, the conditions shall not be such as arbitrary practice or which violates the other laws. There are few judgments against the Arbitrary conditions

In the case of Talat Snavi v State of Jharkhand, 2023, the Supreme court quashed the arbitrary condition of anticipatory bail where the accused was asked to pay the compensation as a condition of Anticipatory bail. Court clarified that Anticipatory bail proceedings are not Money recovery proceedings, hence compensation can not be granted as a condition to grant anticipatory bail.

In special cases like UAPA, the Honourable Supreme Court has upheld the Right of Liberty and held ‘Bail is rule and Jail is Exception’ .

In the case of Jalaluddin khan v Union of India, bench of Honourable Justice Abhay S Oka and Honourable Justice Augustine George Masih stated that if conditions of bail by special statute are met, then bail shall be granted. The rule of Bail and jail as an exception is applied on the Cases of UAPA as well.

There is provision of noticing with that, to provide a relief from detention, a person may not be arrested instead, they are served with a notice of 41A CrPC or 35(3) of BNSS : Where a investigating officer send a notice to the person involved in case to enquire about the matter and asks him to visit the station. This provision is made to prevent unnecessary detention . A police officer should send a notice through prescribed mode and avoid arrest in the first place.