According to section 436 of CrPC, If the offence alleged is bailable, then, the Accused is entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to Magistrates Court, before Magistrates court. In bailable offences bail is a right and not a favour. In such offences there is no question of any discretion in granting bail. Bail can be claimed as of right and there is a statutory duty imposed upon the Police Officer as well as the Court to release a person on bail if he is prepared to give bail. Such a person can also be released on his own bond in a fit case. It is only where the accused is unable to furnish bail then he should be kept in detention.
Bail u/s 436-A:
There
had been instances where under trial prisoners were detained in jail
for
periods beyond the maximum period of imprisonment provided for the alleged
offence. A new section 436A is inserted
in the Code to provide that where an under trial prisoner other than the
offence for which death has been prescribed as one of the punishments, has been
under detention for a period extending to one half of the maximum period of
imprisonment provided for the alleged offence, he should be released on his
personal bond, with or without sureties. It is also provided that in no case
the under trial be detained beyond the maximum period for imprisonment for
which he can be convicted for the alleged offence,
he should be released
on his personal bond, with or without sureties. It is also provided that in no
case the under trial be detained beyond the maximum period of imprisonment for
which he can be convicted for the alleged offence.
Bail for non-Bailable offences:
The provisions of
section 437 empower two authorities to consider the question of bail, namely
(1) a court and (2) an officer-in-charge of the police station who has arrested
or detained without warrant a person accused or suspected of the commission of
a non-bailable offence. Although this section deals with the power or
discretion of a court as well as a police officer in charge of police station
to grant bail in non- bailable offences it has also laid down certain
restrictions on the power of a police officer to grant bail and certain rights
of an accused person to obtain bail when he is being tried by a Magistrate.
Section 437, Criminal Procedure Code, deals with the powers of the trial court
and of the Magistrate to whom the offender is produced by the police or the
accused surrenders or appears, to grant or refuse bail to person accused of, or
suspected of the commission of any non-bailable offence.
The power to release
on bail a person accused of a non-bailable offence is conferred upon only one
class of police officers, namely an officer-in-charge of the Police Station
under section 437 sub Section (I). Since the power to grant bail is permissive
and not obligatory, it has to be exercised with great caution
Section
437, Criminal Procedure Code, deals with the powers of the trial court and of
the Magistrate to whom the offender is produced by the police or the accused
surrenders or appears, to grant or refuse bail to person accused of, or
suspected of the commission of any non-bailable offence.
The
power to release on bail a person accused of a non-bailable offence is
conferred upon only one class of police officers, namely an officer-in-charge
of the Police Station under section 437 sub Section (I). Since the power to
grant bail is permissive and not obligatory, it has to be exercised with great
caution because of the risk and stakes involved. Before exercising his power, a
station officer ought to satisfy himself that the release on bail would not prejudice
the prosecution in bringing home the guilt of the accused. In case the officer
in charge admits an accused to bail, it is mandatory for him to record the
reasons or special reasons in the case diary and preserve the bail bonds until
they are discharged either by the appearance of the accused in court or by the
order of a competent court.
For the
purpose of bail in non-bailable offence, the Legislature has classified them
under two heads:
(1) those which are punishable with death or
imprisonment for life;
(2)those which are not so punishable.
In case
of an offence punishable with death or imprisonment for life a station officer(police
Officer) cannot enlarge a person on bail, if there appears reasonable grounds
for believing that he has been guilty of such offences.
For periods beyond the maximum period of
imprisonment provided for the alleged offence. A new section 436 A is inserted
in the Code to provide that where an under trial prisoner other than the
offence for which death has been prescribed as one of the punishments, has been
under detention for a period extending to one half of the maximum period of
imprisonment provided for the alleged offence, he should be released on his
personal bond, with or without sureties. It is also provided that in no case
the under trial be detained beyond the maximum period of imprisonment for which
he can be convicted for the alleged offence.
Finally:
The
Personal liberty is of utmost importance in our constitutional system
recognized under Article 21. Deprivation of personal liberty must be founded on
the most serious considerations relevant to welfare objectives of the society
as specified in the Constitution. Even though the law of the land and Hon'ble
Higher courts in various cases have tried to intervene and also have laid down
certain guidelines to be followed but unfortunately nothing has been done about
it. There is also a strong need felt for a complete review of the bail system
keeping in mind the socio-economic condition of the majority of our population.
While granting bail the court must also look at the socio-economic plight of
the accused and must also have a compassionate attitude towards them. A proper
scrutiny may be done to determine whether the accused has his roots in the
community which would deter him from fleeing from the court.
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