Bail Lawyer in Mumbai/India

The principle that “No person shall be deprived of his life or personal liberty except according to the procedure established by law” underpins the bail process in India. While the Criminal Procedure Code (CrPC), 1973, extensively outlines the procedures for obtaining bail, it does not explicitly define the term. Bail refers to the process of securing the release of an accused individual by ensuring their presence at future court proceedings and requiring them to remain under the court’s jurisdiction.

Types of Bail

Bail can be broadly categorized into four types:

1. Bail in bailable offenses (Section 436)
2. Bail in non-bailable offenses (Sections 437 and 439)
3. Anticipatory bail (Section 438)
4. Default bail (Section 167(2))

Section 436: Bail in Bailable Offenses

Under Section 436 of the CrPC, individuals accused of bailable offenses have the right to bail. This provision mandates the police and courts to release the accused on bail if the offense is categorized as bailable.

Section 437: Bail in Non-Bailable Offenses

Section 437 governs bail for non-bailable offenses. It allows the release of an accused unless the offense is punishable by death or life imprisonment, or if the individual has prior convictions for serious crimes. However, exceptions apply for minors, women, or those who are sick or infirm, provided the court deems it just and appropriate.

Key considerations for granting bail under this section include:

• The strength of evidence against the accused.
• The nature and seriousness of the accusation.
• The severity of potential punishment.
• Risk of the accused absconding or influencing witnesses.
• The character and background of the accused.
• Likelihood of the offense being repeated.
• Ensuring justice is not obstructed.

Anticipatory Bail: Section 438

Anticipatory bail, governed by Section 438, provides protection to individuals apprehending arrest for non-bailable offenses. This provision empowers the Sessions Court or High Court to grant bail in such circumstances.

Conditions for Anticipatory Bail:

• The offense must be non-bailable and cognizable.
• There must be reasonable grounds to believe that the applicant may face arrest.

The provision was introduced to safeguard personal liberty and prevent misuse of legal provisions by influential individuals to harass others. As emphasized in the landmark case of Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565], anticipatory bail reflects the principle that a person is presumed innocent until proven guilty.

Key Principles from the Sibbia Case:

1. Section 438(1) must align with Article 21 of the Constitution.
2. Filing of an FIR is not a prerequisite for seeking anticipatory bail.
3. An order under Section 438 does not obstruct police investigations.
4. Conditions under Section 437 cannot be directly applied to Section 438.
5. Anticipatory bail is discretionary and not limited to exceptional cases.
6. Courts can issue interim orders without prior notice to the public prosecutor.

In Siddharam Satlingappa Mhetre v. State of Maharashtra, additional factors were outlined, such as:

• The nature and gravity of the offense.
  • The accused’s prior criminal record.Possibility of fleeing justice or repeating the offense.
  • Protection against frivolous accusations intended to harass or humiliate.

When granting anticipatory bail, courts strive to balance the integrity of the investigation and the accused’s protection from undue harassment.