Dr. Janak Raj Rana
Common law procedure to get the bail in INDIA
After filing, a bail must be approved by a court in a trial. The court may cancel bail granted by the Court and issue directions to the arrest the person while he is being held in police custody. The Court has power to revoke a bail granted at later stages as well. A bail under section 438 is bail prior to arrest, and an individual cannot be arrested by police if the courts has granted an advance bail.
If any person has any reason to believe that he/she might be arrested for an offense which is not subject to the requirement for a bail, he/she can approach a Sessions Court or High Court to seek an anticipatory bail, praying that in case of arrest, he/she should be released on bail. Bail can be obtained either by the Sessions Court or High court, depending upon the gravity of offence charged by the accused, and discretion of the courts. An accused released on bail must file weekly reports to the police station in question, once a month in the Bombay High Court.
Whenever an accused is arrested again after his or her escape, or whenever an accused is arrested following the issuance of warrants for failure to appear pursuant to a summons, they should not be released on bail, except for exceptional reasons recorded by a court empowered to issue bail. The court awarding anticipatory bail cannot make the condition that the order for bail will apply for a certain number of days after the arrest, for the effect of such an order would be to prevent the applicant from applying immediately for ordinary bail under section 437 of the Criminal Procedure Code, immediately upon arrest, until the time mentioned in the order has expired.
Where an allegation has been made with the intent of damaging the applicants character, the court may dismiss the application forthwith, or make a provisional order for granting of anticipatory bail. Under the provisions on anticipatory bail, if the nature of the charge and the evidence, potential penalties, and the unlikelihood of escape or the commission of further offences renders that action permissible, a high court or a Court of Session may discharge an individual expected to be arrested without warrant on a nonbailable offence.
When a person has reasons to believe he or she might be arrested for the charge of having committed a non-bailable offense, then they may approach a High Court or a Court of Session under Section 438 of the Code of Criminal Procedure to seek anticipatory bail. After being arrested, an accused can obtain immediate bail by paying a sum specified in a schedule after the bail is granted.
In cases of crimes which do not require bail, the accused has to fill up the same form and submit it in the court in which their case is expected to appear, with the only difference being that here, the court has discretion in awarding bail. Once the bail is denied, he may file an appeal with the High Court to challenge the rejection of the bail order, or alternatively, he may seek bail again with fresh application.