SYNOPS SYNOPS IS ON THE SUBJECT SUBJ ECT TOPIC TOPIC OF THE LAW OF BAIL PRACTICE AND PROCEDURE
SYNOPSIS FOR THE SUBJECT CRIMINAL CRIMINA L PROCEDURE PROCEDURE CODE CO DE
Submitted To:
Submitted By:
Dr. Vij Vi jay Kumar Kuma r Him Hi manshu
Anklesh Kumar Galgotias Galgotias University University B.A.LLB(H)
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INTRODUCTION MEANING OF BAIL:
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of sec urity to ensure his submission at the required t ime to legal authority.
According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal c ustody, by undertaking that he/she sha ll appear at the time and place designated a nd submit him/herself to the jurisdiction and judgment of the court.".
BAIL UNDER CRIMINAL PROCEDURE CODE:
Section 436 of the Code provides for release on ba il in cases of bailable offenses. Section 436 provides that when person not accused o f a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail.
This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his r ight to be released on bail.
Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued b y the court. The surrender and t he p hysical presence o f the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be gra nted bail and released from such custody.
The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too
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high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the a mount of every bond executed under this c hapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.
Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released o n ba il is a ba ilable case o n a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subseq uent date even though the offense ma y be bailable.
Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances o f the offense, there may be a s ubstantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possib le, be preferred. But e ven while releasing the acc used o n personal bond it is necessary to caution the court that the amount of the bond which it.
REVIEW OF LITERATURE The word “Bail” mea ns the security of a pr isoner’s appearance for trial. The effect of gra nting bail is, accordingly not to get the p risoner free from jail or custody, but to release him from the custody of Law and to entrust him to the custody of his sureties who are bond to produce him at his trial at a specified time and place. Grant of bail is a rule a nd refusal is an e xception. A person accused of a bailable offence has the right to be released on bail. Bail in case of bailable offences is compulsory. In the matter of admiss ion to bail the Code of Criminal Procedure makes a distinction between bailable & non-bailable offences. The grant of bail to a person accused of non-bailable offence is discretionary. But a person accused of bailable 3
offence at any time while under detention without a warrant at any stage of the proceedings has the right to be released on bail in view of section 436 Cr. P.C. 1973.1 When the offence is bailable and accused is prepared to furnish bail, police officer has no discretion to refuse bail.2 Even when a person suspected of committing a ba ilable offence is produced before a magistrate and he is prepared to give bail, Magistrate has no option but to release him on appropriate bail.3 Magistrate cannot refuse to accept surrender and to bail out an accused against whom a petition or complaint of bailable offence has been filed.4 The offence whe n is bailable, bail has to be gra nted. If the offence is non-bailable further considerat ions arise.5 While adjudicating a bail application detailed examination of evidence and elaborate documentation of the merits of the case is however to be avoided
STATEMENT OF THE PROBLEM The main objective behind such a provision is to prevent those falsely implicated in criminal cases to be subject to jail-time. The main factors considered while granting prayers for a nticipatory bail are that:
The full and free investigation of the offence should not be hampered.
The accused must not be subject to harassment and unjustified detention.
HYPOTHESIS
‘Bail’ connotes t he process of procuring the re lease o f an accused c harged with certain offence by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.
RESEARCH QUESTIONS
Who may be Released on Bail
Maximum period for which an under t rial prisoner can be detained ?
What is the due process of Law for obtaining Bail. 4
RESEARCH METHODOLOGY The study involves all the three categories of research methodologies including analytical, descriptive as well as historical. It will involve secondary data such as various Acts, Rules and regulations, Judgements, Articles, Published Reports, Books and Jo urnals.
TENTATIVE CHAPTERS 1. Introduction 2. Bail under Criminal Procedure Code 3. Maximum period for which an under trial prisoner can be detained 4. Right to bail and right to free legal aid - : articles 21 a nd 22 read with article 39a 5. Case laws 6.
Conclusion
BIBLIOGRAPHY
A. FOR AN AUTHORED BOOK -:
1. Law lexicon by Ramanth Iyer, (3rd ed). 2. Black's Law Dictionary 177 (4th ed.) 3- Criminal Procedure by C.K. Takwani 4-The Code O f Criminal Procedure by Ratan Lal and Dheerajlal.
B- WEBSITES
http://www.biharpolice.info/Right_To_Bail_in_india.html
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http://www.vera.org/content/manhattan-bail-project-official-court-transcripts-october-1961 june-1962
C- CASE LAWS
State of Rajasthan v. Balchand, AIR 1977 SC 2447 Sandeep Jian v. State NCT of Delhi, ( 2000 ) 2 SCC 66 Maneka Gandhi v. Union of India [1978] 2 SCR 621 Moti Ram & Others. v. State of M.P [1978] 4 SCC 47 In Public Prosec utor v. George Williams1951 Mad 1042 Gurbakh singh sibba v. state o f Punjab AIR 1980 Adri dharan Das v. State of West Bengal AIR 2005
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