~Reinhard Collaco (@reinisintheclouds)
Although these are difficult times, the Indian Judiciary needs to run, irrespective of the situation, so that they can maintain a peaceful environment and avoid any criminal activities. Before the lockdown, there have been many cases which were under trial and those who had applied for bail. So what would the circular for bail be at the moment of lockdown?
Due to the outbreak of the virus which has affected over 3 million people and killed about thousands of individuals, it has created a lot of concerns for every nation to protect itself. One of the steps taken by the Indian Government is the implementation of a nationwide lockdown in order to stop the spread of the virus.
Now, let us know about bail, its types in details and also the directives during the lockdown period.
What is Bail?
In general terms, bail means the temporary release of a suspect in any criminal offence who is awaiting court trial after paying the bail bond. Offence is any act or omission made punishable by law. This offense is divided into bailable and non-bailable offence.
In case the suspect is accused of committing a non-bailable offence he has to submit a form before the court, but granting of bail is solely based on the discretion of the court. It is nowhere in the Indian Judicial System about the bail of a person during a lockdown but through various precedent cases, we can see how the court has handled the situation.
What are the types of bail?
1. Regular bail
Under sections 437 and 439 of code of criminal procedure, if a person is detained for the commission of a non-bailable offense, without a warrant or a reason to believe that there are no sufficient grounds to prove that the person has committed such an offense.
Section 473(3) of CrPC gives special powers to the High Court or Court of Sessions to release the people on bail for the offenses specified, the court can also impose a condition which it thinks is necessary.
2. Anticipatory bail
Under section 438 of the Code of Criminal Procedure any person who anticipates that he can be arrested in pursuance of any accusations of committing a non bailable offence can apply for the anticipatory bail.
3. Interim bail
How to apply for bail?
In a normal circumstances, a person can apply for bail when he is arrested and taken to the police station to file a case. The suspect is then taken to the police station which has jurisdiction over the area he resides in. He must then appoint a criminal lawyer to claim for a bail
Depending on the offense he can apply for bail. Then the person can be released on bail if it is a bailable offence and if the convict requests for bail because his presence is required in a particular matter. The court may then release him.
What is the circular for bail during lockdown?
The Supreme Court has passed an order to decongest jails in India and release incarcerated persons on bail or parole to contain the spread of the novel coronavirus. So that the police officers need not spend time at jails but instead be on duty trying to stop people from moving around and making sure that the situation is under control.
The High Court of Bombay says that it will not take any bail application until the lockdown ends. This is because the person will not be able to reach his desired destination because the state borders are closed. Secondly, he will endanger his life along with the life of many others.
Subsequently, many other courts in India have also taken up the same decision unless the issue has been deemed urgent. In that case, the court would hear the case.
But the Supreme Court has also extended bail till the end of the lockdown period for those who have obtained bail before the lockdown could start. This is done in view of the matter that the person does not become a burden. Moreover, the courts have bigger issues to deal with during this period and police officers do not have time to spend at the courts.
Each court is allowed to take their own decision as to whether they should grant bail to a person or not. This is solely based on their discretion and the prevailing circumstances. But the best decision taken by the High Courts is to not hear any bail application till the lockdown is over.
The court says that by processing a bail order and the consequent release of an accused/convict virtually amounts to breaching the order of a complete lockdown. This also puts the lives of many officers and employees at risk. Lastly, this is also done to avoid confusion and ensure the smooth flow of the economy during this time.
For a list of all Indian Courts, click here