What is Law of Arrest and Bail under Criminal Procedure Code, 1973

Law of Arrest and BailLAW ON ARREST AND BAIL 

The legal system of India is based on a very important concept, that is “Innocent until proven guilty” which means that ‘no accused can be called or termed as a criminal until there is sufficient evidence against him to prove him guilty or till the time a trial is on, he can be called or termed as under trial.’

Arrested person get some rights which cannot be taken away from him under any circumstances. The Indian Constitution and the Code of Criminal Procedure (CrPC) gives the arrested person certain rights. Now, we will discuss what all rights does the arrested person get from the Constitution of India and the Code of Criminal Procedure (CrPC), we will also discuss about what happens when a Police Officer comes to your door suddenly to arrest you and what all rights do you have at that moment before being arrested and what are the duties of a Police Officer which he has to be kept in mind before arresting someone.

If a Police Officer has arrested a person without an arrest warrant, he now has the complete right to know why he has been arrested. That is ‘The Right to know the grounds of arrest’ which has been given under Section 50(1) of the Code of Criminal Procedure (CrPC).

If he has been arrested by a Subordinate Officer under Section 55 of the Code of Criminal Procedure (CrPC) which states the Procedure when Police Officer deputes Subordinate to arrest without Warrant. Before arresting the person, the Subordinate Officer has to show a written Order in which it has been written that his Senior Officer has designated him to arrest that person and if the Subordinate Officer fails to show the Order, then the arrest will be called illegal.

Now understand this, if the arrest would have taken place after the issuance of the warrant, then under Section 75 of the Code of Criminal Procedure (CrPC) which states the Notification of Substance of warrant, the grounds of arrest have to be told to the arrested person compulsorily and if needed then the arrest warrant also has to be shown. After he has been arrested, the Police Officer or the Court will ask him questions and answering those questions depends on the Arrested person, he has the complete Right to silence/ Against self-incrimination which has been stated under Article 20(3) of the Constitution of India. The Prosecution or the Police Officer cannot use this Silence that he is Guilty.

If the person arrested has been arrested in an offence which is Bailable, then the Police Officer has to inform him that he can apply for Bail, because the accused might not even know that the offence for which he has been arrested is Bailable. Section 50(2) of the Code of Criminal Procedure (CrPC) talks about ‘the Information regarding the Right to be released on Bail.

After arrest It is the duty of the Police Officer to take the arrested person without any unnecessary delay to the Judicial Officer. This has been given under Section 56 and Section 76 of the Code of Criminal Procedure (CrPC) which talks about the Right to be taken before a Magistrate without delay.

Section 70 of the Code of Criminal Procedure (CrPC) states the Form of arrest and Duration. No Police Officer can keep any arrested person in the lockup for more than 24 Hour without Judicial Scrutiny. Every accused has to be produced before the Magistrate within 24 hours. This has been mentioned under Section 57 of the Code of Criminal Procedure (CrPC) which talks about Right not to be detained for more than 24 hours.

You will be wondering why the time period has been set to only 24 hours? This is to prevent unlawful arrest or detention and the accused can be saved. We have generally seen that the Police Officers try to keep the arrested person behind bars or in the lockup to get the confession or the truth out. The time period has been kept for proper Judicial scrutiny also and if the arrested person is innocent then he can apply for Bail in the Court as soon as possible and get out of the Police lockup.

After he has been presented before the Magistrate, it is the time for Trial. Now before the Trial begins, he needs a lawyer to fight his case. The Indian Constitution and the Code of Criminal Procedure (CrPC) gives him the Right to choose his own legal practitioner. This has been mentioned under Article 22(1) of the Constitution of India and under Section 50(3) of the Code of Criminal Procedure (CrPC). If the arrested person or the accused is poor and has no money to hire a legal practitioner, how will he fight his case? For such people, Free legal aid is provided to them by the Legal Services Authority, but this aid can be provided only before the Trial has begun. This has been mentioned under Section 41D and Section 303 of the Code of Criminal Procedure (CrPC).

A very important Right has been given to the arrested person or the accused under Article 21 of the Constitution of India which talks about the Right to Fair and Speedy Trial. This provision has been inserted in the Constitution of India so that no Conviction Order can be given secretly. But there are cases where In-camera proceedings take place, which means that no outsider can see or attend the proceedings like Rape case proceedings. Speedy trial proceedings means that the Police Officer has to complete the investigation quickly. For example, if the accused has committed a crime where the

Punishment is maximum 2 years, then the Police Officer has to complete the investigation within 6 months, this is known as a speedy trial.

If the arrested person or the accused has requested that he should be examined medically, then he has to be examined under Section 54(1) of the Code of Criminal Procedure (CrPC). Further, the arrested person or the accused even has the right to call any Witness after the Chief examination and the Cross examination by the Prosecution.

A woman cannot be arrested before sunrises and after sunsets. There must be a woman Police Officer while arresting a woman. The woman Police Officer shall by making a report obtain the prior permission of the Judicial Magistrate First Class (JMFC) within whose local jurisdiction the offence is committed.

Have you noticed this fact, the Police Officer generally makes the arrest on Fridays that is because generally the Courts are on a leave on Saturday and Sunday and thus the accused or the arrested person will spend two days behind bars or in the lockup.

LAW OF BAIL

First of all, what is Bail?

(a)       Release from Police Custody

(b)       Grant of release by Police Station or Court

(c)        A document that has to be signed by the accused before release

(d)       All of the above.

We will discuss what is Bail, what are the types of Bail, when is a Bail approved and when is it rejected and some important case laws. There are several personalities against whom an F.I.R. is lodged on pretext of a comment or a statement. The first thing they all do to save themselves from arrest is to take a Bail. So now what is Bail? It means the temporary release of a person from the Police Custody. The accused on Bail will be available at all times during the investigation of the case. When the Police arrests you or is about to arrest you, at that time you give an Application in the police Station or the Court and then you can be released from the Police Custody.

The next question that pops up in our mind is how do you take Bail? You have to sign on the Bail Bond which is a document, you have to pay the specified amount in the Court and you need two sureties who take the guarantee that you would not run away or leave the country. All the provisions of the Bail are given under Section 436-439 of the Code of Criminal Procedure (CrPC).

The next question which comes up in our mind is that can Bail be granted in any case? To understand the answer of this question, we first need to understand the types of offences.  There are two types of offences: Bailable Offence and Non-Bailable Offence.

In the case of a Bailable offence, if the Police arrests you and you have committed a Bailable offence, then you can be granted Bail easily through the Police Station or the Court. One can apply under Section 436 of the Code of Criminal Procedure (CrPC) for the Application of Bail to the Court or the Police Station. As the nature of this crime is less serious, it is very easy for an accused to get Bail. The rationale behind this is that the accused person if acquitted in future will have his/her personal life affected. During that time period when he is in Custody, his personal rights and personal liberty get curtailed. Due to this reason only the Court said that we will not keep him in Custody but whenever we need him/her during the investigation of the case, he has to be present.

Section 436(A) of the Code of Criminal Procedure (CrPC) was added to the Code of Criminal Procedure (CrPC) after the 2005 amendment. In this Section they have given the conditions specifying one’s length of Custody. So they have explained that the criminal who has spent half of his/her sentence in the Jail or Prison can be released on Bail. For example, there is a criminal who has committed a crime whose punishment is for 3 years, and he has spent 1.5 years in the Custody when the case was on and the investigation is also on. The Bail is granted to such an accused so that he can be released from Custody. It will be a temporary release and Cooperation of the accused is a must in the case, he has to come whenever called by the Court.

The word Non-Bailable Offence itself says that Bail is not considered as an right of the accused. It is not even said that you cannot be granted Bail in such cases, but you can be granted Bail under section 437 of the Code of Criminal Procedure (CrPC) submitting an application to the Magistrate.

Whether the accused will get Bail or not depends on the discretion of the Magistrate. Before granting Bail, there are several conditions which the Magistrate has to follow and reject. The conditions of Bail Rejection are:

  • Sentences of more than seven years.
  • Death Penalty.
  • Treason.
  • Crime against human body like murder/rape.
  • Crime against Property.
  • Conspiracy
  • Abetment

Section 439 of the Code of Criminal Procedure (CrPC) states that the Sessions Court and the High Court both have the power to grant Bail in any matter. As both the Courts are involved, their power is very wide. For Bailable offences you apply under Section 436 of the Code of Criminal Procedure (CrPC), for Non-Bailable offences you apply under Section 437 of the Code of Criminal Procedure (CrPC) to the Magistrate where there are several restrictions, but when you apply under Section 439 of the Code of Criminal Procedure (CrPC) to the Sessions Court and the High Court, there is no such restrictions, they can grant Bail in any case. The Conditions for Grant of Bail are:

  • The accused is below 16.
  • The accused is a woman.
  • The accused is an ill or infirm person.
  • The accused is a habitual offender (only under special circumstances or reasons).

Let’s understand the Procedure of getting a Bail. Let’s assume that a person has committed a crime, he is arrested and then he applies for Bail. So here we consider two things- he has committed a Bailable Offence or a Non-Bailable offence. If he has committed a Bailable Offence then he can file an application for Bail under Section 436 of the Code of Criminal Procedure (CrPC) to the Police Station or the Court. If he has committed a Non-Bailable Offence then he can file an application for Bail under Section 437 of the Code of Criminal Procedure (CrPC) to the Magistrate or under Section 439 of the Code of Criminal Procedure (CrPC) to the Sessions Court or the High Court. If the Bail is granted then he has to sign a Bail Bond and pay the amount mentioned in the Bail Bond and along with this he will need two sureties who will sign on the Bail bond and take the guarantee that he will not run. Now, we have understood what happens when you are arrested and you get Bail, but what about those cases when you make a Bail application before you are arrested. So the concept of Anticipatory Bail is included over here. It is covered under section 438 of the Code of Criminal Procedure (CrPC).

When an individual thinks that he can be arrested for crime then he can apply for Anticipatory Bail to the Court. After the Bail is granted, the Police Officer cannot arrest that person. Such cases usually take place during Election, when one Political party puts allegations on the other Political party. The Political party takes an Anticipatory Bail before he is arrested. An Anticipatory Bail is always taken before the person is arrested whereas the regular Bail is taken after he has been arrested and is under police Custody.

There are several conditions which the Court has to keep in mind whie granting an Anticipatory Bail, they are:

  • Nature or the gravity of the case.
  • Shouldn’t be a habitual offender.
  • Shouldn’t leave the country.

There are several conditions which have to be followed even after the anticipatory Bail has been granted, they are:

  • Has to be present during investigation.
  • He cannot influence the witness.
  • He cannot tamper with the witness.
  • He cannot leave the country.
  • Any other condition which the Court thinks is necessary.

There is an exception in the Code of Criminal Procedure (CrPC) for cancellation of Bail. It has been given under Section 167 of the Code of Criminal Procedure (CrPC). If 60-90 days have passed by and the investigation is still incomplete and the charge sheet has not been filed then the accused who is in detention, then the Court has to release him on Bail. Even if the charge sheet has been filed then the Court cannot reject the Bail straightaway until and unless there are certain circumstances.

The following are important case laws :

  • Vaman Narain Ghiya vs State of Rajasthan (2007) :- The Supreme Court has discussed the philosophy and rationale behind Bail.
  • Moti Ram vs State of Madhya Pradesh (1978) :- In this case, the Supreme Court has criticised the unreasonable restrictions imposed by the Magistrate before granting Bail.
  • State Delhi Administration vs Sanjay Gandhi (1978) :- In this case, the Supreme Court has said that although the Court of Session and the High Court have to power to cancel the Bail only when they think that there are some special and extraordinary circumstances.

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