Bail refers to the orders given by the magistrate to release an offender from the police custody on fulfillment of the conditions. Section 436 of Criminal Procedure Code, 1973 deals with the procedure of bail under bailable offences i.e. offences dealing with a punishment of less than 3 years. Under this section, one can claim bail as a matter of right and the court can’t deny this right of the person.
Whereas Section 437 and Section 439 deals with the procedure of bail in non-bailable offences under which there is no right to claim a bail and it is wholly the discretion of the court whether to give it or not.
Under Section 439 of Criminal Procedure Code, 1973, a regular bail can be claimed directly from the high court i.e. the person can directly approach the High Court and file an application for bail.
When an offender is arrested, it is firstly placed in the police custody and then after the specified time period of custody the person is moved to jail. So, a person while in police custody can claim a bail through an application himself or through his counsel. Then that application is presented before the magistrate. Then a notice of application is given to the Public Prosecutor and there is nothing presented by him to negate the bail application then the person is granted the bail.
The various factors to be considered while exercising this discretion are: that the person will not be absconding, gravity or seriousness of the offence, effect of offence and offender on society, nature of the offence etc.
After considering all these factors and the points of public prosecutor, the bail is granted. This bail is granted only upon the fulfillment of certain conditions:
1. That whenever the person will be called to appear before the court he will have to appear.
2. The person will not be tampering with the evidences.
3. That the person will not be harming any witnesses.
4. That the person will not try to abscond.
5. That there will be no repetition of the same offence on bail or committal of some other offence.
If any of the following conditions are not met by the person and the court finds that the person is misbehaving, the bail application can be cancelled and the person can again be put in police custody.
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