Author : Geet Jain from a final year Law student from Indore Institute of Law
Bail bond is actually jotting the cash amount with the court bail designate the momentary release of a person under indictment waiting for probationary, by posting a certain sum as collateral to ensure his/her future appearance at the court, before any person is discharged or on his own bond such a person must eliminate a connection for such amount as the police officer or court as the case may be thought sufficient. When the person is released on bail, a similar bond is also be executed by one or more parties guaranteeing that the person will attend at the time and place mentioned in the bond shall continue to do so until otherwise directed by the court or by the police officer.
Meaning of Bail
A surety used to obtain the release of a criminal defendant who has been required to give bail, bail is basically a financial arrangement that a bail bonding agency will make on behalf of criminal defendant.
Bail bond generally is a document in which a prisoner and one or more sureties guarantees to pay on amount fix by the court that the prisoners will attend the hearing of charges against him if he is released on bail.
Bail bond fee
The fee for the bail bond is always decided by the judges of the court it may be only 10%-20% is to be paid at the time of bail or the full bond payment may be demanded by the court. Bail depends on the following conditions by observing the seriousness of the crime in terms of injury to others, suspects criminal records, the danger that suspects release might pose to the community, suspects tie to the community, family, and employment.
History of bail
The concept of bail has started from ancient times in medieval period British rule over India the prisoners were bailed on the assurance of the third person who accepted responsibility for assuring their presence at trial, if accused did not appear, his bailer would stand trial in his place.
Objective of bail
The objective of bail is to arrest and detention of an accused person is primarily to secure his appearance at the time of trial and ensure that in case he is found guilty of which he is available to receive the sentence. Secure the presence of accused at the trial while allowing the accused his liberty and protecting him for unnecessary detention.
- To shield persons from misbehaviors person’s false complaint.
- To presume of innocence accused till he is found guilty.
2 Types of Bond are
A personal bond stating a criminal defendant will appear to the future court dates, the accused doesn’t have to post fail but fulfill the amount in the bond if the promise to appear is broken. It is also known as a release if the promise to appear is broken, it is also known as a release or recognize bond here no need to pay any amount for getting the bail.
A security bond treats like a payment bond or performance bond based on the financial standing of the underlying entity being bonded by him.
2 Types of offences under Bail are
- Section 2(a) of criminal procedure code defines the bailable offence.
- It is a punishable offence with imprisonment for less than 3 years or fine only.
Non Bailable offence
- Section 2(a) of criminal procedure code defines non bailable offence.
- It is punishable with death, imprisonment for life or imprisonment for more than seven years.
Steps for getting bail
- Arrest of persons
- Immediately contract friends and relatives.
- Contact bail agency near to jail for bail assistance.
- Bail bond real estate agency.
- Documents are to be reviewed and signed by friends and family.
- Defendant released.
Documents required for doing bail bond are
- Bail Indemnity contract.
- Bail bond application
- Deposit of money
- Surety requires 2 sealed and 2 passport sized photographs
- Id proof, Address proof of surety and financial statement of person surety.
Following factors court can take into consideration for granting bail to that person
- The ability of accused to give bail.
- Nature of offense.
- Penalty for the offence charged.
- Character and reputation of the accused.
- Health of accused.
- Character and strength of evidence.
- The probability of the accused appearing at the trial.
- Forfeiture of other bonds.
- Whether the accused was fugitive from justice when arrested.
- Determining the amount of bail, character and former criminal record of the defendant is also required.
Section 436 to 450 of c.r.p.c set out the provisions for the grant of bail bond and bond in circumstances.
Section 436 deals with bail in bailable offences.
Section 437 deals with bail in non-bailable offences.
Section 438 deals with anticipatory bail.
Section 439 deals with the special power of the high court and Court of Session regarding bail.
Section 44 deals with discharge of securities, provided that any securities can apply to the magistrate to discharge the bond either wholly or so far as it is complementary to him, as the case may be required by the person.
Section 445 deals with if a person is required to execute a bond with or without securities, except in case of a bond for good behavior the court permit him to deposit a sum of money or government promissory notes of such amount as the court may fix in lieu of executing the bond.
Section 446 deals with the court may also remit any portion of penalty and enforce payment in part only.
Section 446 deals with if a bond is for the appearance of a person it is forfeited for breach of condition.
Section 447 deals with if such a surety becomes insolvent or dies or when a bond is forfeited as above the court may order the person from whom such security was demanded to furnished fresh security, and if that is not furnished the court may further proceed concerned person as there was a default in complying with the original order in this respect.
A section 450 deal with Power to direct levy of amount due on certain recognizes.
Section 50 deals with information to arrested persons regarding bail.
- Power of police to grant bail
In case of bailable offence the police have the power to grant bail but after the challans are filed in court, the accused person has to fill the prescribed bail bond in order to get regular bail go to court. The police cannot keep any person arrested for any alleged offence for than 24 hours. When deciding to grant bail, any amount of bond the number of sureties or conditions imposed should only if sufficient to ensure that the accused attend the next hearing.
- Moti Ram V. State of M.P, 1978
A poor man was arrested and rupees 10,000 was fixed as surety and the further court refused to allow his brother to become a surety as his property was in adjoining village appeal was filed before the apex court.
- Rasik Lal V. Kishore, 2009
Supreme Court held that right to claim bail is absolute and indefeasible.
- Parvinderjit Singh V. State of Chandigarh, 2009
An order under section 438 is a device to secure the individual’s liberty it’s neither a passport to the commission of a crime nor a shield against any and all kinds of occupations likely or unlikely.
- Hussainara Khatoon V. State of Bihar, 1979
It is the travesty of justice that may poor accused little Indian or forced into longer cellular servitude for little offences because their bail procedure is beyond their meager means and trails don’t commence and even if they do they never conclude. The Apex court has suggested that instead of money factors other factors such as family ties, roots in the community, job security, membership for stable organizations etc, should determine the grant of bail and in appropriate cases the accused be released on his personal bond without monetary obligations.
According to my perspective while granting bail court may also look at the socio-economic factors flight of the accused and also have a compassionate attitude towards them, the court may take into consideration certain conditions before granting bail are the nature of offence committed by the accused, the nature of offence charged and the apparent probability of conviction and likely sentence in so far as these factors are relevant to the risk of non appearance any other factor indication the ties of accused are the community or barring on the risk of willful failure to appear, determining the amount of bail in a current matter is the character and former criminal record of the defendant. At the time of bail person has no right to live outside the jurisdiction of the court he/ she does not have the power to go foreign and in other states without permission of court because you have to present in court and police station anytime, and you have a pay a fixed deposit amount in court.