11 Points Clarification Required Regarding Bail.
Querist :
Anonymous
(Querist) 03 July 2011
This query is : Resolved
With respect to the members of lawyersclubindia.com
I request personally to answer the below mentioned query along with the case law & OPINION is welcome.
1) Difference between interim bail & anticipatory bail.
2) we can file both the bail application together in the same court?
3) If the Interim bail is rejected can we file a Anticipatory bail. Or If Anticipatory bail is rejected can we file a interim bail.
4) Condition's can be imposed why granting the bail (Bail means interim & anticipatory both inclusive).
5)When a accused can file a interim bail.
6)Anticipatory bail can be granted by session court or HC ONLY?
7)Interim bail is granted by which court ONLY.
8) Along with the bail application or petition surrender application or petititon is complsuory. But section 436 to 438 has not mentioned about the surrender petition.
9) Difference between a person surrender before the court, police officer, SP or DGP.
10) Meaning of surrender petition.
11) THE INTERIUM BAIL ORDER IS IN FORCE TILL FINAL HEARING OF MAIN APPLICATION FOR ANTICIPATORY BAIL.BUT IF THE INTERIM BAIL IS REJECTED THAN WHAT ABOUT THE ANTICIPATORY BAIL. IF THE INTERIM BAIL IS REJECTED THAN CAN A ACCUSED CAN GET THE ANTICIPATORY BAIL OR THAT WILL ALSO BE REJECTED. So hand in hand interim bail & anticipatory bail application both can be filed in the same court at the same time.
Any apex court guidelines or granting, rejecting or filing a bail application or surrender application. Do post in this forum. or the link of it.
Also required every thing or more knowledge of all bail. Which site or book is more perferable.
thanks to the members who has taken there precuios time do give the answer.
Raj Kumar Makkad
(Expert) 03 July 2011
This forum is not meant for academic questions.
R.Ramachandran
(Expert) 03 July 2011
Dear Anonymous,
I am quite surprised. I am doing Ph.D on "Bails" in India. Exactly on these points (and additional points also) I am concentrating. I have collected many material on the subject. I am in the process of writing my thesis. It will take about an year or so. Afterwards, I will present it to my University. If accepted as it is, I will definitely make it available to you. But, surely it will take time. I am not in a position to make available to you right now. I am also not aware how immediate your requirement is.
Querist :
Anonymous
(Querist) 03 July 2011
Ramachandran Sir thanks U. But sir do post in this forum. Ur Notes after a year also.
Ravikant Soni
(Expert) 03 July 2011
After Amendment 2005 in Section 438 of the principal Act, for sub-section (1), the following subsections
are been substituted, namely:—
“(1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone
imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in
such application.
(1-A) Where the court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.”.
Ravikant Soni
(Expert) 03 July 2011
In sub section (1) last para consist of a word "Interim bail" and clearly defined that it is an interim order and court would follow further provisions as laid down in sub section (1A). And after herering both side this interim order is suject to final order of the court to grant anticipatory bail.
Ravikant Soni
(Expert) 03 July 2011
Now your questions:
1) Difference between interim bail & anticipatory bail.
Ans: Interim bail is subject to final order on an application of anticipatory bail.
2) we can file both the bail application together in the same court?
Ans: No need to file extra application.
3) If the Interim bail is rejected can we file a Anticipatory bail. Or If Anticipatory bail is rejected can we file a interim bail.
Ans: No need to file different applications for interim and final order for Anticipatory bail application.
4) Condition's can be imposed why granting the bail (Bail means interim & anticipatory both inclusive).
Ans: Yes an interim or final order for anticipatory bail can be conditional. Conditions are mentioned in sec- 438 and 437 as well.
5)When a accused can file a interim bail.
Ans: When an accused or suspected is under apprehension of arrest by police.
6)Anticipatory bail can be granted by session court or HC ONLY?
Ans: Yes only HC or Sessions court.
7)Interim bail is granted by which court ONLY.
Ans: Both HC or Sessions court.
8) Along with the bail application or petition surrender application or petititon is complsuory. But section 436 to 438 has not mentioned about the surrender petition.
>>
9) Difference between a person surrender before the court, police officer, SP or DGP.
Ans: If a person surrenders himself before a police officer and if non bailable cognizable charge against him then such officer can arrest him and he ll produce him befor magistrate concerned.
10) Meaning of surrender petition.
>>
Gulshan Tanwar
(Expert) 03 July 2011
Surrender Petition: When a person who do not want to hide himself more from the clutches of the Penal Authorities, then the person surrenders himself either before the penal authorities or if he wants to pursue his life in a better way by giving up his criminal fora then by the surrender petition he/ she can do. In other words the life and liberty of the person is being deprived due to his own action of waiving his liberty and puts himself before the authorities for the action for which there in law are the sentences.
You can take the example of Phoolan Devi and Gabbar Singh (2010)
Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially,with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Art. 21 are the life of that human right.
Apex Court in 1999 SCC (Cri) 1296 give the following directions to the Judicial Magistrates to follow while accepting sureties when anticipatory bail has been granted by the High Court or Sessions Court:
(i) Whenever an anticipatory bail order passed by the High Court or Sessions Court is produced for the purpose of acceptance of sureties or compliance, the Judicial Magistrate concerned, shall go through the order of anticipatory bail thoroughly and act in accordance with the directions made therein; (ii) Unless the anticipatory bail directs the accused to surrender or to file a surrender petition, it is not necessary for the Judicial Magistrate concerned to entertain surrender or pass orders on the surrender petition;
(iii) If for any reason, the Judicial Magistrate concerned entertains any doubt or suspicion over the sureties furnished, the Judicial Magistrate can postpone the acceptance of sureties, but the affidavit furnished by the sureties can be accepted in proof of the facts contained therein relating to the sufficiency or fitness of sureties and pass an order of interim bail and release the accused and on enquiry, if it is found by the Judicial Magistrate concerned that the sureties furnished are insufficient, then the Judicial Magistrate may order the accused to find sufficient sureties and on his failure to do so, may reject the sureties; (iv) The Judicial Magistrate concerned cannot pass an order of remand in cases where the High Court or the Sessions Court had granted anticipatory bail to the accused as long as the bail is in force;
(v) The aforesaid directions shall be followed by all the Judicial Magistrates scrupulously while discharging their duty of accepting sureties in case of anticipatory bail.
Kamrunnissa v. Union of India, 1991 SCC (Cri) 88
Querist :
Anonymous
(Querist) 04 July 2011
Thanks Sir Gulasnji & Kavikantji.
The answer's are allows appreciated.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 July 2011
