Criminal Procedure (Bail / Arrest / Summons)
XIIA – BAIL
1. What is bail?
Answer: Bail means an order of release of a person from prison and forms an integral part of our criminal justice system which assumes every man innocent until (conclusively) proven guilty. Bail is granted during the pendency of the trial or an appeal. Before bail is granted to the accused, a surety gives a guarantee to the Court that the accused will appear in the Court as and when required. Moreover, a sum of money is to be deposited to ensure his appearance before the Court, which otherwise stands forfeit.
2. Do I have the right to be granted bail under all circumstances?
Answer: The granting of bail is usually considered to be an inherent right. However, there are certain circumstances where bail may be refused. In bailable offences, it is a right of the accused to be released on bail. But in non bailable offences, the accused can be refused bail by the competent authority if the authority deems it fit. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person.
Reasoning: A court is bound to presume a person innocent till the trial is complete. A bail hearing is not a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused. If there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life then the person shall not be granted bail. Moreover if the offence is a cognizable offence and the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence then the person will not be realized on bail. In non bailable offences, it is not the right but the discretion of the Court to grant or refuse the bail.
Effect: The effect of the above provisions is that for minor offences the offender is given a right to bail. Whereas for serious and grave offences the offender is not given a right to bail. In such cases, it is the discretion of the court to grant bail or not.
3. What are bailable/non-bailable offences?
Answer: Section 2 of the Code of Criminal Procedure, 1973 defines bailable and non bailable offences. Bailable offence is an offence which is shown as bailable in the First Schedule and it is right of the accused to be released on bail on giving required security.
An offence which is not a bailable offence is a non-bailable offence. In a non bailable offence, the accused does not have a right to be released on bail. In these offences, the discretion is with the Court. The Court may release the person and may impose conditions on him.
4. Is criminal defamation a bailable offence?
Answer: Yes, Criminal defamation is a bailable offence. This implies that if a person has committed an offence of criminal defamation and has been arrested by the police he can apply to the concerned authorities for grant of bail. It is his right to be realised on bail.
5. What is anticipatory bail and when can one apply for it?
Answer: Anticipatory bail is bail that is applied for prior to ones arrest or detention by an authority, but in anticipation of the same. Section 438 of the Criminal Procedure Code prescribes that a person may apply to an appropriate High Court or Court of Sessions for anticipatory bail when he has reason to believe that he may be arrested on accusation of having committed a non-bailable offence (note that this provision does not apply in every state in India). The filing of an FIR is not a mandatory pre-condition for the filing of an application for anticipatory bail. When directing the grant of anticipatory bail, the Court may set such conditions as it deems fit. Anticipatory bail orders are usually time-bound and are not granted as a matter of right – they court must be satisfied that the person will not interfere with the investigation or hamper the inquiry into the crime and that the accused would be subjected to undue harassment or unjustified detention if the order were not to be granted. Anticipatory bail is usually not granted for heinous crimes (rape, murder etc) or for certain specific offences under special statutes (such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Defence of India Rules, 1971, etc)
Pursuant to granting of anticipatory bail and the arrest of the person the person must be released upon fulfilling the conditions of the bail (depositing the mentioned surety).
XIIB – ARREST
1. How is it determined whether a policeperson needs a warrant to arrest me or not?
Answer: The First Schedule to the Code of Criminal Procedure classifies the various offences under the Indian Penal Code. The Schedule provides the offence and its punishment. It further provides the nature of the offence i.e. whether the offence is cognizable or not, bailable or not. Thus, if an offence is non-cognizable then the police officer cannot arrest a person unless a warrant has been issued by the competent authority.
2. Can I be arrested without a warrant for defamation?
Answer: No, you cannot be arrested without warrant for defamation. Defamation is a non-cognisable, bailable offence. Non cognisable offence implies that the person cannot be arrested without the warrant issued by the Court. Thus, if a person is alleged to have committed defamation and police intends to arrest him, then the police have to get a warrant of arrest from the competent Court.
3. Can I be arrested without a warrant for copyright violations?
Answer: The Code of Criminal Procedure, 1973 provides that if any offence is punishable with imprisonment of less than 6 months then it is a non cognizable offence. Copyright Violations are dealt with by the Copyright Act, 1957. Section 63 of the Copyright Act, 1973 provides for punishment for an offence of infringement of a copyright or any other right conferred by the Act. The punishment under this Section cannot be less than 6 months and cannot be more than 3 years.
Section 63 of the Copyright Act does not explicitly mention whether it is a cognizable offence or not. However, under Section 64 any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work.
Effect: The question whether offence of copyright violation is cognizable or not has not been clearly decided by the Courts. The Andhra Court in Amarnath Vyas v. State of Andhra Pradesh [2007 CRI LJ 2025 (AP)] opined that the offence of copyright infringement is bailable and non cognizable. On the contrary, the Kerala High Court in Suresh Kumar S/O Kumara v. The Sub Inspector of Police [2007 3 KLT 363] held that the offence is cognizable and non bailable.
XIIC - SUMMONS
1. What are the different reasons why I could be served with a summons?
Answer: Summons can be issued by a competent court for two reasons. Firstly, so that the person appears before the Court as and when required. This person refers to the defendant or any other witness required in the proceedings. The second situation where summons can be issued is to compel a person to produce documents in his possession before the Court.
2. What am I expected to do if a court summons is served to me?
Answer: When a summons is served on a person he has to accept the same. On the stipulated date, he has to appear before the designated court. If a person refuses to accept a summons issued to him by the Court then the summons is deemed to be served. If the person does not appear before the court on the required date then it is considered as contempt of court. Thus, he can be punished under the Contempt of Court Act, 1971 for civil contempt.
3. Can I be arrested for not responding to a summons that was served to me?
Answer: When a person does not respond to a summons served on him, it amounts to contempt of the Court. In such circumstances, the Court can issue arrest warrant for contempt i.e. Non Bailable Warrant. The Court can also impose fine on the person who has not responded to the summons that was served on him.
4. What do I do if I am served with a summons that is meant for the accused instead of a summons for a witness?
Answer: In such a situation you have two options – you can either appear before the court and then inform the court that wrong summon has been sent to you (As there is a possibility of non-appearance amounting to contempt) or in the alternative return the summons when served with a noting that it is wrongly served.