when is bail allowed as a matter of discretion

 Bail and its Types 

Bail is the temporary release of a defendant from jail pending trial in exchange for their promise to appear as needed by the court. A judge or magistrate's court (among other judicial authorities) issues bail orders. In India, the Code of Criminal Procedure (CrPC) outlines the steps to take in order to secure bail in certain scenarios. The Criminal Procedure Code provides for two different types of bail:

Regular Bail:

Regular bail is the release of an accused person from imprisonment after they have been arrested and presented before a court. The basic legislation guiding the criminal justice system in India is called the Code of Criminal Procedure (CrPC), and it contains regulations addressing regular bail.

Under the Criminal Procedure Code, a judge may release an accused individual on bond if they find probable cause. The court takes into account a number of variables, including the seriousness of the crime, the strength of the evidence against the defendant, the defendant's prior criminal record, and the possibility of his or her evading capture or interfering with the investigation.

For bailable offences, defined as those with a maximum sentence of less than three years, bail is typically given automatically. In cases of more serious crimes, such as those with a possible term of three years or more, the court will not issue bail unless it is convinced that the accused's freedom is imperilled.

In some situations, the court may additionally set conditions for the grant of bail, such as the deposit of a bond, limits on the accused's movements, or the surrender of the accused's passport. These provisions are meant to guarantee the defendant's presence in court and silence throughout the inquiry.

Keep in mind that the court has the authority to deny bail if it finds that releasing the accused would be detrimental to the interests of justice.

Anticipatory Bail

When an individual expects or has probable cause to think that he will be arrested for an offence for which bail is not normally allowed, the court may grant him anticipatory bail prior to his arrest. Section 438 of the Code of Criminal Procedure (CrPC), India's principal legislation governing the criminal justice system, includes the country's procedures for anticipatory bail.

Section 438 of the Criminal Procedure Code states that if a person has probable cause to think that he will be arrested for an offence that is not bailable, then he may apply to the High Court or the Court of Session for a directive that in the event of such arrest, he shall be released on bail. The court has some leeway in deciding whether or not to grant anticipatory bail and will take into account a number of considerations, including the seriousness of the allegations against the applicant, the risk that they would flee or tamper with evidence, and whether or not the allegations are true. Section 438 of the Criminal Procedure Code does not apply if the perpetrator faces the death penalty, life in prison, or a ten-year jail sentence. After an arrest and court appearance, the accused may apply for standard bail.

Anticipatory bail is meant to shield an individual from an unlawful detention. If the person is later arrested, he or she can apply for standard bail through the court. Individuals who are threatened with arrest for a non-bailable offence and wish to guarantee their rights are preserved may seek anticipatory bail as a legal remedy.

 In both cases, the grant of bail is subject to the discretion of the court, which considers several factors, such as the nature and gravity of the offence, the evidence against the accused, the accused's criminal history, and the likelihood of the accused absconding or interfering with the investigation.

Section 438 of CrPC for Bail

Section 438 of the Code of Criminal Procedure (CrPC) deals with the grant of anticipatory bail. According to this section, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction that in the event of such arrest, he shall be released on bail.

In other words, anticipatory bail is a pre-arrest bail granted by the court to an individual who anticipates or has reason to believe that he may be arrested for a non-bailable offence. The grant of anticipatory bail is discretionary and the court considers several factors, such as the nature and gravity of the accusation, the probability of the applicant absconding or tampering with evidence, and the likelihood of the accusation being false or baseless.  

It is important to note that the provisions of Section 438 of the CrPC are not applicable in cases where the offence is an offence punishable with death, imprisonment for life or imprisonment for ten years or more. In such cases, the accused can seek regular bail after being arrested and produced before the court.