Procedure for approaching a Court for Bail in case of Non Bailable Offense.
1. Write an application for Bail. Bail application is usually accompanied with a Vakalatnama signed by the accused/under trial and in case the under trial is in Jail then it is also attested by the Jail Superintendent/concerned Police authority. An affidavit is also required to be filed along with the bail application especially if the Bail application is being filed in the Delhi High Court.
2, Submit Application to the appropriate Court / i.e. at the Filing Counter. Usually the bail application is submitted with two copies along with original. Many courts require a Bail proforma to be filled and submitted, this proforma is attached on top of the file. These proforma are usually available with the stationery shops situated in the Court premises. Some of the formats and procedures are court specific and information for the same can be sought from the Filing Counter(1st search for an Enquiry Counter and if no such counter is there then approach the Filing Counter.)
3. If the Court admits the Bail application it will issue notice to the State/Police/PP/IO. Usually in the district courts, the IO is given notice at the stage of filing and he is present at the first hearing, so the Counsel/Party seeking bail should be ready for arguments at the first hearing itself.
4. Court hears both the sides, the Investigating Officer/Public Prosecutor and the accused/ Counsel.
5. Either the Court grants or refuses bail., usually the Courts grant a conditional bail with surety.
6. Once bail is granted then the Bail bond is submitted, with details of surety and the appropriate Court sends the Release Orders to the Jail Authorities or Police Custody where the under trial or prisoner is held.
7. Where the person is indigent the Court may do away with the need for any surety.
Surety is a person who takes the guarantee that the person shall appear before the Court and if he fails to do so then the surety shall be bound to pay X amount to the Court i.e. the amount he had stood guarantee for.
The application should contain
- The section under which bail is sought depending upon whether anticipatory or regular bail, and depending upon the offence/court in which bail is sought.
- The grounds of Bail, i.e. why bail should be granted.
- An undertaking that the Accused will be available and shall cooperate with the investigation authorities and attend the court hearings etc etc.
On grant of bail by the Court, the Bail bond is filled with details of surety and submitted to the Court.
The main issue in grant or non granting of bail is
- Whether an under trial can influence the investigation of a case, i.e. intimidate, influence or coerce the witness,complainant and/or the Investigation Officers, etc.
- Whether the under trial is likely to repeat the offence or commit a greater offence.
- Whether the accused/under trial is likely to evade or flee the procedure of the court/investigation.
The general meaning of bail is "temporary release of an accused awaiting trial subject to fulfillment of certain conditions". Conditions here may (and usually )mean a certain sum of money is either deposited or promised to be promised, in order to guarantee the appearance of the accused in Court and/or for investigation.
The Code of Criminal Procedure as such does not define the term bail, it only defines the terms bailable offence and non-bailable offence under Section 2(a) of the Code of Criminal Procedure, 1973.
In Siddharam Satlingappa Mhetre vs State Of Maharashtra & Ors (Crl Appeal No. 2271 of 2010), it was observed inter alia by the Supreme Court that :-
"The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."
