Introduction
The object behind arrest and detention is to secure the appearance of the accused at the time of trial and to ensure that in case he is found guilty, he is available to receive the sentence. However, if his presence at the trial can be reasonably ensured otherwise than by his arrest, it would be unjust and unfair to deprive the accused of his liberty during the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the release of accused person on bail are all aimed at ensuring the presence of the accused at his trial but without unreasonably and unjustifiably interfering with is liberty. The fundamental principle of our system of justice is that a person should not be deprived of his liberty except on distinct beach of law.
Provisions as regard bail can be broadly classified into two categories : bailable cases and non-bailable cases. In the former case, bail is obtained as a right and in the latter it is upon the court’s discretion. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to bail and bonds from sections 436 to 450.
Bailable & Non-bailable Offences
The Code has classified the offences into “bailable” and “non-bailable” offences. Section 2(a) defines “bailable offences” as an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for time being in force; and “non-bailable offence” means any other offence.
It is generally states that all serious offences, i.e., offence punishable with imprisonment of three years or more, have been considered as “non-bailable offences.” However, there are exceptions to this as well.
The classification of offences into bailable and non-bailable has been devised for making a threshold decision as to whether the accused person should be released on bail. If this threshold decision is not in his favor, further probing is necessitated before making a decision as to his release on bail.
Bail in Bailable Offences
Section 436 of the Code lays down the provision of bail in bailable offences.
The section reads as follows:
IN WHAT CAEES BAIL TO BE TAKEN-
(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail;
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided;
Provided further that nothing in this section shall be deemed to affect the provisions of Sub-Section (3) of section 116 or section 446A.
(2) Notwithstanding anything contained in Sub-Section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.
Understanding the provision
When a person who is arrested is not accused of a non-bailable offence, no needles impediments should be placed in a way of his being admitted to bail. In such case, a man is ordinarily at liberty, and it only of he is unable to furnish security as is required for the purpose of securing his appearance before the Court pending inquiry, that he should be remain in detention. The basic rule is to release such a person on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting from the course of justice. When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Article 21 of Constitution and therefore such refusals are rare.
Further, the section also enacts provisions in case the arrested or detained person is indigent. This section defines indigent person as a person who is unable to provide surety within a week from the date of his arrest. In such a case, the indigent person shall be discharged by executing a bond without securities. This provision obligates the Court or police officer to release a person on his own surety if he is really indigent. However, if a person thus released doesn’t turn up in the court he may be punished with imprisonment for a term which may extend to one year or with for or with both under section 229-A IPC inserted in 2006.
The second provision to section 436 saves section 116(3) and section 446-A. According to section 116(3) a person against whom security proceedings for keeping peace or maintaining good behavior have been started may be detained in custody of he fails to furnish an interim bond as required by the Court in such proceedings. This section has been given an overriding effect and the general rule regarding bail will not affect it. Similarly, the provision contained in section 446-A regarding the forfeiture and cancellation of the bond on beach of any condition and consequent constraint imposed on fresh release on bail in the same case, will remain unaffected by the general rule as to release on bail.
Sub- section (2) of section 436 makes a provision for a prison who absconds or has broken the condition of his bail- bond when he was released on bail in the case of bailable offence on a previous occasion. Such a person shall not as a right be entitled to bail when brought to court on any subsequent date even though the offence may be bailable. Moreover, according to section 446-A, the bond executed by such person as well as the bond (if any) executed by his surety shall stand cancelled; and thereafter such a person in that case shall not be released only on his own bond if it is found that there was no sufficient cause for the failure of the person bound by the bond to comply with such conditions. Further, if a person released on bail under this section indulges in acts which are entirely subversive of fair trial in the Court, the High Court or the Court of Sessions may cancel his bail and commit him to custody.
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