Saturday 5 November 2011

Law on bail in India and factors which the courts keep in mind while considering bail

By Sumit Nagpal

Law on bail

Before we get to know what is law on bail we must also know what are bailable offence and what are non bailable offences.
Bailable offence : A bailable offence is one in which an accused is entitled to bail as a matter of right. Generally offence which have a punishment of less than three years are said to be bailable offences.

Non-bailable offence : A non bailable offence is one in which a person can not ask for bail as a matter of right. In fact, in such cases, it is the discretion of the court whether to release an accused on bail or not. Generally offences in which the punishment is more than three years are termed as non bailable offences.

Why bail?
Indian law is based on the principle that a person is presumed innocent till he is proven guilty. This principle governs the entire legal system of the country with few exceptions. Our entire legal history tought us ''Bail and NOT Jail'' shall be governing principle when it come to adjudication of the criminal cases in the country.

Factors which are considered by the courts which granting or denying bail to an accused

*Whether there is a likelyhood that if the accused is released on bail, he will abuse the process of law?

This simply means the court would see that if a person is released on bail, is there a possibility that he may try to tamper with the evidence or try to influence the witnesses. And if there is a likely possibility that a person can do this, the accused may be denied bail. In such cases, the courts may also look into the economic status of the accused.

The court will also consider, if a person is released on bail, whether there is an apprehension that he might flee the country? Generally the court considers this factor while granting bail to NRIs, foreign national etc. And in such cases an accused might be denied bail.

*Nature of the offence : While in bailable offences, a person can ask for a bail as a matter of right, in non bailable offences, generally the courts refuse bail in henious offences, or offences in which which are generally punishable with death or life imprisonment. For example in cases of attacks the sovreignity of India, terror attacs, henious murders bail will not be granted to an accused.

*Whether prosecution has any objection to the grant of bail to an accused : If the prosecution in the case is satisfied that the investigation in the case is over and the evidence of the case is documentary which can not be tampered with the prosecution may not object to the grant of bail to an accused.

*Past Record : If the accused is a first time offender, this is a factor which goes in favour of the accused, The idea is to give him a chance to stay away from the company of criminals which might influence his mind and he may also turn into a hardcore criminal in future.

*Health of the accused : In many a cases, where health of an accused might be so bad that keeping him in jail might be detrimental to his life. In such cases, the courts generally seek opinion of the doctors and grant bail to an accused.


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