Bail (Part 2)

Keeping this whole matter in view, the court will decide on interim bail. In the end, within very narrow limits, the accused has to prove that the complainant is acting in bad faith, that the police have colluded with him, that the police are not listening to my position — the court will say, let me hear it, tell me — if you're entitled, you'll get relief. The complainant says, sir, the police have colluded with the accused, my witnesses are also being threatened and intimidated, attempts are being made to destroy my evidence too, I am also being threatened and intimidated, and here is my evidence showing that, on closer examination, it is established that he committed this offence — he is not entitled to any relief. If he is released, if he is granted interim bail, my case will collapse — recovery is involved in this, recovery has to be made from him, the weapon of the crime has to be recovered from him — keeping this in view he will argue, and the judge, keeping these circumstances in view, will decide whether to grant or dismiss bail.

Now the second kind — after arrest, a case happens, I am arrested — first comes the process of physical remand: the police will say we arrested him today, we produced him before the court within twenty-four hours. They will request the court that the investigation is still pending, that he be given physical remand. What is physical remand? Physical remand means: when the police arrest someone and the law says that if the investigation is not complete within twenty-four hours, then for further physical remand, within twenty-four hours you must produce him before a magistrate's court, or the first tier of court — in some laws that's a Sessions Judge, an Additional Sessions Judge, and in some cases it's a magistrate, depending on the tier of court. Now they will bring him for physical remand before the magistrate and say that the investigation was not completed within twenty-four hours, that such-and-such recovery has to be made from him, and they will bring this in writing and request remand.

Now when the magistrate examines the file, whether there's any weapon of the offence — the crime report specifies whether there is such a weapon of the crime, or such fruits of the crime, or such factors for which his body needs to be handed over to the police for the purpose of investigation — if the court is satisfied, it will grant him what's called 'productive remand' — two days, three days, four days, five days — under ordinary law remand of more than fourteen days is not granted; under special laws even remand of ninety days can be granted, if someone has committed an offence under a special law, like NAB, or previously under anti-terrorism proceedings.

Now once that investigation is complete, he will be sent to judicial lock-up — he will come out of police custody and go into judicial lock-up. As soon as he goes into judicial custody, his post-arrest bail application can be filed. When his post-arrest bail is filed, what do you have to prove? Now the matters for interim [pre-arrest] bail are somewhat different, and those for post-arrest are somewhat different. You say that you were accused of stealing these things — well, I remained in physical remand for seven, ten days, nothing was recovered from me.

If their case is that I stole this, and it never made it onto the record, those articles never came onto the record, then, sir, how will the prosecution prove the case against me? I remained in physical remand with them for this many days, nothing was recovered from me, I did not commit this theft at all, my further stay in jail is in no way harmful to the prosecution, the prosecution has no evidence against me on the basis of which they can say that if he is released on bail, he will destroy our evidence — or there is no evidence of that nature at all that could be destroyed. I have no risk of absconding. The complainant will argue that, sir, if he is released, he will abscond; if he is released, he will damage the prosecution evidence; if he is released, he will repeat this offence. This argument only has weight if the prosecution can prove that he has committed a similar offence before. If he has not committed such an offence before, the accused has crossed this hurdle — that I will not repeat it once I'm out, because no one has ever alleged such an offence against him before. I will not abscond — there can be many reasons for this — I will not abscond, I am a government employee, this offence is not of the nature that I would give up my government service for it, I am innocent in this offence, I cannot abscond anywhere, I have land and property here, I cannot leave it and abscond — there can be many factors that the accused has to prove — that I cannot abscond. All these things go into post-arrest bail — that I be released, I will not do this, that, this, release me, there is no concrete-level evidence against me that is necessary to prove this offence.

Keeping these things in view, any court grants post-arrest bail, and if these things are not present, it dismisses post-arrest bail. This is a summary I've given you of the concept of bail — let me also tell you two important kinds of bail so you don't get confused: there's suspension of sentence — when someone is convicted, that's done under Section 426 for suspension of sentence; or, for bailable offences, one can go under Section 496 instead of 498 to the magistrate — all these matters, if I go into more detail, you'll get confused — I've told you the important things.