Civil Procedure Code (CPC)

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The basic rules for grant or denial of bail UNDER CR.P.C.

CrPC does not define the term Bail.

Bail is a security given by the accused that he will appear answer before the proper court the accusation brought against him and include personal bond and bail bond. Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court.

Two authorities that may grant bail are the police and the courts.

A person may be required to provide a security as well. But it is not necessary. A person may also be let off on his own bond. In the case ofMoti Ram vs State of MP, AIR 1978,SC held that a Bail covers both release on one's own bond with or without surety.

The object of the bail is to secure the attendance of the accuse at the trial

Section of law

Nature of bail

Nature of offence

Authority to competent

436

ordinary

bailable

Subordinate court/police

437

ordinary

Non bailable

do

438

Anticipatory

Non bailble

High court/court of session

439

ordinary

Bailable/non bailable

do

GURU CHARAN SINGH VS STATE OF DELHI ADMINISTRATION AIR 1978 SCC 118

PRINCIPLE REGARDING BAIL

Supreme court observed that

  • In a bailable offence bail is a matter of right
  • In a non bailable offence bail is a matter of discretion
  • Bail shall not be granted by a magistrate offence is punishable by death or imprisonment for life
  • High court and court of session has wider discretion about granting of bail

When and When not can Bail be granted?

The purpose of Bail is to ensure the appearance of an accused before the court whenever required. However, granting bail is not advisable in all cases.

The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretary, 1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties.

Chapter 33 of CrPC provided Provisions As To Bail And Bonds

The bail under CrPC is divided according to the types of offence alleged against the accused.

The basic rules for grant or denial of bail may simply be summarized as:

1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable offence.

2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.

4. The section 437 CrPC ( Code of Criminal Procedure 1973) lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors , women etc.

5. Section 438 CrPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The Hon'ble Supreme Court of India has mentioned several other criteria as factors to be taken into consideration when granting bail in non-bailable offences, these factors includes but not limited to probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released.

Landmark cases on the factors to be taken into consideration while hearing bail application are State through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. there are catena of judgment which specifically states that "bail is a rule and jail is the exception". That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.

Bail for Bailable offences –
A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for by Section 436.

Section 436 –

  • When any person not accused of a non-bailable offence
  • is arrested or detained without warrant
  • by an officer in charge of a police station,
  • or appears or is brought before a court,
  • and is prepared to give bail
  • at, any, time while-in the custody of such officer
  • or at any stage of the proceeding before such court
  • to give bail, such person shall be released on bail.
  • Such person shall be release on bail.
  •  instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.

If such person is indigent and unable to furnish surety

  • Such officer or court shall discharge him
  • Or his executing a bond without surety

Indigent person
Where a person is unable to give bail

Within a week of his arrest.
It shall be sufficient ground to presume that he is an indigent person.

Note:- Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.

CAN A BAIL IS REFUSE IN A BAILABLE OFFENCE

EVEN THOUGH the offence is bailable bail will not be granted if the accused stultifies the process of the court or break his bond of appearance (JOSAF D VS KERALA 1970)

SUB SEC-(2) OF THE SEC 436 EMPOWER THE COURT TO refuse bail to an accused person even the offence is bailable where the person granted bail fails to comply the condition of the bail bond.

But where the offence is bailable and accused is prepared for furnishing bail police/magistrate has no discretion to refuse bail.

Bail for Non-Bailable offences –

Offences has been classified under two heads bailable and non bailable. In case of non bailable offence as per sec-437 cr.p.c. the granting or refusal of bail is a matter of discretion of the court which means bail cannot be said as a matter of right

The principle underlying sec-437

Sec-437 provide as to when bail may be taken in case of non bailable offence. The principle underlying sec-437 is towards granting of bail except in case where there appear to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also where there other valid reason the justify the refusal of bail.

Applicability

The section is concern only with court of magistrate. It expressly excluded the high court and court of session.

When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right. He can, however, request the court to grant bail. The provisions in this case are governed by Section 437

When any person accused of, or suspected of, the commission of any non-bailable offence

  • is arrested or detained without warrant
  • by an officer-in-charge of a police station
  • or appears or is brought before a Court
  • other than the High Court or Court of session,
  • he may be released on bail. but

(i) Such person shall not be released

  • If there are reasonable grounds for believing that
  • He has been guilty of an offence punishable with death or imprisonment for life

(ii) Such person shall not be so released

  • If such offence is a cognizable offence
  • And he had been previously convicted of an offence

Punishable with death or imprisonment for seven year and more

  • Or had been previously convicted
  • On two or more occasion
  • Of a cognizable offence punishable with 3-yeras and more

Court may direct that

  • A person in clause (i) and clause (ii) be release on bail
  • If such person is

is under the age of sixteen years
or is a woman
or is sick or infirm

The Court may also direct that

  • that a person referred to in clause (ii) be released on bail
  • if It is just and proper so to do for any other special reason

Mere fact that an accused may be required

  • for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail
  • if he is otherwise entitled to be released on bail
  • and gives an undertaking that he shall comply with such directions as may be given by the Court.

Sec-437 (2)

If it appears to such officer or Court at any stage

  • there are not reasonable grounds for believing that
  • the accused has committed a non-bailable offence,
  • but that there are sufficient grounds for further inquiry into his1guilt

accuse shall be release

  • on bail or
  • , on the execution by him of a bond without sureties

the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court as hereinafter provided

sec-437 (3)

When a person accused or suspected of

  • an offence punishable with imprisonment for seven years or more
  • or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit,

is released on bail

Court shall imposed these conditions

a. such person shall attend in accordance with the conditions of the bond

b. such person shall not commit an offence similar to the offence

c. such person shall not be directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

and may also impose, in the interests of justice, such other conditions as it considers necessary.

Sec-437 (4)

An officer or a Court releasing any person on bail shall record in writing his or its reasons or special reasons for so doing.

Sec-437 (5)

Any Court which has released a person on bail may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

If, in any case triable by a Magistrate, if trial in case of any non-bailable offence

  • is not concluded within a period of sixty days from the first date fixed for taking evidence

The accused shall be released on bail

  • if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate,
  • unless for reasons to be recorded in writing, the Magistrate otherwise directs.

In case of a non bailable offence

  • at any time after the conclusion of the trial
  • but before judgment is delivered

if the Court has reasonable grounds for believing that the accused is not guilty

  • it shall release the accused, if he is in custody,
  • on the execution by him of a bond without sureties

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while giving bail in case of non-bailable offences. These are -

  1. the nature of the crime
  2. the nature of the charge, the evidence, and possible punishment
  3. the possibility of interference with justice
  4. the antecedents of the applicant
  5. furtherance of the interest of justice
  6. the intermediate acquittal of the accused
  7. socio-geographical circumstances
  8. prospective misconduct of the accused
  9. the period already spent in prison
  10. protective and curative conditions on which bail might be granted.

Bail power of high court, sessions court (sec-439 cr.p.c.)

Legal provisions regarding powers of the High Court or Court of Session in granting bail under section 439 of the Code of Criminal Procedure, 1973. According to Section 439(1) of the Code of Criminal Procedure, a High Court or Court of Session may direct

A High Court or Court of Session may direct-

  • that any person accused of an offence and in custody be released on bail,
  • and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in there

High court or court of sessions may direct that-

  • any condition imposed by magistrate when realizing any person on bail
  • be set-aside or modified

High court or court of session may direct-

  • that any person who has been released on bail
  • be arrested and commit him to custody

When can bail be denied -

1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court as per the conditions of the previous bail.

2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the police and and court. However, this power is not totally without any restraint.Section 437disallows bail to be given in the following conditions.

  • if there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life;
  • if such offence is a cognizable offence and the person has 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. The person may, however, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.

Cancellation of Bail

Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR 1958)held the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so the special power of High Court or Court of Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who has been released on bail be arrested and to commit him to custody.

The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that some new events should take place subsequent to the offender's release on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case ofSurendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

Anticipatory bail

In BALCHAND JAIN VS STATE OF MP

The anticipatory bail means bail in anticipation of arrest. So naturally issued even before the person is arrested .when the court grant anticipatory bail it make an order and direction to the appellant in the event of surrender shall be release on bail on certain condition.

It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.

Section 438-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 Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.

In granting such a direction the court takes into account the following considerations -

1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.

The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.

It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and High Court. Thus, a person can approach either of the courts to get this relief.

As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order.

A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are -

1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes

Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437.

Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail.

In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that it is not in the interest of justice.

Cancellation of Anticipatory Bail

There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases it has been held that when Section 438 permits granting anticipatory bail, it is implicit that the court making such order is entitled upon appropriate considerations to cancel or recall the order.


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