bail application

 The Constitution of India guarantees the citizen's fundamental rights to participate in the political life of the country and to express themselves as political beings. But the freedom is hedged in by many legal restrictions by the politicians. Even legitimate activities of citizens may be considered as infringement of the law. The general ignorance of our legal rights is being exploited by law enforcing agents of the State and consequently violation of human rights is increasing day by day at an alarming proportion. The objective of this article on Arrest and Bail is to raise the legal consciousness of the citizens with regard to their rights when confronted by the police and agents of the judiciary.
Arrest of a person
A person is arrested when a police officer or a citizen takes him into custody or otherwise substantially deprives him of his freedom of action so that he may be held to answer for a crime or an offence. The police in India do not have any power to detain anybody for questioning unless he is arrested with or without warrant.
Warrant of Arrest
It is a written order issued by a Court to a police officer to arrest and produce an offender or to search his premises for a particular thing. A police officer who executes the warrant shall notify the substance thereof to the person to be arrested and if he demands, shall show him the warrant. He is expected to bring the required person before the Court without unnecessary delay.
Valid Warrant
A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court and (iii) should bear the seal of the Court. It should also contain the name of the accused, his address and indicate the offence with which he is charged. If any of these factors is absent, the warrant is not in order and an arrest made in execution of such a warrant is illegal. Warrants are of two kinds:
i) Bailable
ii) Non-Bailable
A bailable warrant is a Court's order which contains a direction that if the person arrested executes a bail with sufficient sureties for his attendance before the Court, he may be released from custody. In that case it shall further state the number of sureties, the amount of the bond, and the time for attending the Court. (Section 71 Cr.P.C.)
In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant.
Arrest without Warrant
A police officer has power to arrest a person without warrant if he is suspected of having committed a cognizable offence. Normally in non-cognizable offences a police officer cannot arrest a person without a warrant from a Magistrate.
In the first Schedule of the Criminal Procedure Code (Cr.P.C.) offences have been classified and enumerated as cognizable and non-cognizable. The more serious offences such as murder, rape, robbery, theft, waging war against the State etc. are cognizable.
When can a person be arrested without a warrant?
A person can be arrested without a warrant:
1. If he is concerned in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence;
2. If he possesses implements of house breaking;
3. If he possess stolen property;
4. If he is proclaimed an offender;
5. It he obstructs a police officer on duty'
6. If he escapes from a legal custody;
7. It he is a deserter from the army, navy or airforce;
8. Where he is out of India, if he commits an offence punishable under any extradition law or under the Fugitive Offenders Act;
9. If he is released convict who breaks the restrictions imposed by the Court on his movements;
10. If he is suspected of preparing to commit a cognizable offence;
11. If he is habitual criminal;
12. If he, after committing a non-cognizable offence in the presence of a police officer, refuses to give the police his name and address or has given him a false name and address;
13. If he is required by a police officer of another police station who suspects that he has committed a cognizable offence;

In non-bailable cases, only the Court can order release of the accused person on bail. However, if the police officer or the Magistrate is of the opinion that there is no sufficient material against the accused and that the complaint needs further investigation he may also release the accused on bail.(Sec.437 (2) Cr.P.C.)
Normally bail is not granted when the accused person appears, on reasonably grounds, to be guilty of an offence punishable with death or imprisonment for file. But women, children under 16, and sick people can be released on bail by a Magistrate even if charged with offences punishable with death or life-imprisonment.
An accused person is entitled to be released on bail as soon as reasonable grounds for guilt cease to appear, between the close of the case and the delivery of judgement. A person released on bail may be taken into custody by an order of the Court, if his conduct subsequent to release is found to be prejudicial to a fair trial Sec.48 Cr.P.C. or if he does not observe the conditions of the bail.
Power of the Court to grant bail:
The discretionary power of the Court to grant bail is judicial power and is given by established principles. Before granting bail the Court must consider the seriousness of the charge, the nature of the evidence, the severity of the punishment prescribed for the offences and in some cases the character, means and the status of the accused.
If you are arrested, how to get released immediately from police custody?
In warrant cases, find out the directions endorsed in the warrant and execute a bond with sureties (Sec.71):
• If the offence charges is bailable and the arrest is made without warrant, ask the police officer in charge of the police station to grant you bail after executing a bond.
• The police officer has the discretion to release a person on his executing a bond without sureties. (Sec. 436 of Cr.P.C.)
• If you are not granted bail immediately you have the right to telephone your advocate, a friend or a relative. Give your advocate the names and addressed of the possible sureties. If you don't have an advocate inform your friend or relative:
• The name of the Court where you will appear;
• The time the Court starts;
and request him:
• To take to the Court anyone else who is prepared to stand surety;
• To contact an advocate if possible.
If you can deal with these matters before you go to the Court, you may be saved an unnecessary remand in custody.
Granting of Bail by the Magistrate:
If a person is arrested for a non-bailable offence, and there exists a reasonable ground to believe the guilt of the person, he may not be granted bail by the police officer. In such cases the accused person must give a written application to the court to grant bail. The court must grant bail unless he is charged with a crime punishable with death or life-imprisonment. In such cases only the sessions or the High Court can grant bail.
Common police objections to bail:
• The accused will not appear at his trial;
• He will interfere with witnesses or material evidence;
• He will commit further offences while on bail;
• Police enquiries are not complete;
• Further charges might follow;
• Stolen properties have not been recovered;
• The co-accused are absconding;
• The weapons with which the crime was committed has not been recovered.
Normally the police make an application for the remand of the accused. In such an application they give their reasons for further detention of the accused in custody. The reasons given by the police must be refuted to the extent possible.
Application for Bail:
• If the accused can afford an advocate he can make an application and represent the accused before the judge;
• If the accused cannot afford an advocate he may make a written application to the judge. For this he must get an application form from the prison staff and complete it as fully as possible giving sufficient reasons to convince the judge of the need of granting bail.
The following special grounds for release must be mentioned in the application:
• Condition and state of accommodation; whether there is a possibility of eviction in case bail is not granted;
• Whether he is likely to lose his job;
• How refusal of bail would create hardship to the dependent members of the family;
• How keeping in custody would affect the poor state of health and treatment.
Refusal of Bail by the Magistrate:
If bail is refused, the Magistrate must record the reasons for the same. Such a record is necessary to make a proper appeal for bail in higher Courts.
Appeal:
If application for bail is rejected by the Magistrate, the accused person can appeal to a Sessions Court or High Court.
Disagreement with the objections raised by the police in granting bail or the fact of no objection raised in the Court must be incorporated in the application for bail. If one's application is rejected, one may try again in one's next Court appearance.