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Advocate Friend (Assistant Manager - Legal)     24 June 2017

Is it mandatory for court to take bail in cognizable cases

Dear Sir,

Is it mandatory for Court to ask the accused in a Cognizable case (filed under a private complaint) to furnish bail on first appearence.?

Can the Court continue proceedings without asking the accused to furnish bail.

Under what provision of law can the Complainant move an application asking Court to seek bail from accused.




 9 Replies

Advocate Friend (Assistant Manager - Legal)     24 June 2017

The accused had cheated the complainant by encashing the cheques issued by the complaiant. 

The complaiant had instructed Bank to stop payment. However with some high handed actions the accused managed to clear the funds from account of Complaiant.

the case is filed u/s 406 and 420 of IPC for cheating. Case is pending since 10 years.



Arjun Kohli   24 June 2017

Bail is a matter of right, however, it is never mandatory for court to ask the accused to furnish bail, unless the offence concerned is a bailable offence, where it has to be granted as a matter of procedure.

In the offences you mentioned, being non-bailable, it is a matter of discretion of the court to grant bail to the accused or not, but the accused has to apply for it. The court can, probably, in good faith, make the accused aware. Also, when the accused files a bail, it is done so by furnishing a bail bond, so in that sense, whenever the accused applies for bail, the court shall ask for furnishing a bail bond.

Also, indeed the court can continue without asking for furnishing bail, only in that case, the accused will probably be staying in judicial custody, etc.

Moreover, I fail to get your question as to why the complainant would want to move an application for the bail of the accused?

Arjun Kohli   24 June 2017

Advocate Friend (Assistant Manager - Legal)     25 June 2017

Dear Mr. Kohli,

I appreciate your sharing of views,

the concern is that till date the Accused is roaming free without any bail from the Court.

Being a non bailable offence, and when charge sheet is filed it is difficult to digest why Court would continue proceedings without arresting the accused or without accused seeking bail.

In your comment there is a mention of etc. "Also, indeed the court can continue without asking for furnishing bail, only in that case, the accused will probably be staying in judicial custody, etc." 

What are the possible circumstances where accuses in non bailable offence can stay free without a bail from court and treat it just like a civil case.



Arjun Kohli   25 June 2017

As far as my knowledge is concerned, u/s 41(1)(b) of CrPC, the Police is supposed to arrest the accused and present him before the Magistrate. The offence being non-bailable, it is quite suspicious as to how the magistrate would allow such an accused to be free without seeking a bail bond because it is clearly laid out. 

Further, the question that charge-sheet has been filed and despite that warrant of arrest has not been issued by the Court? It all points out to something that looks like a collusion. 

There is always an option of RTI application seeking as to why the accused has not been arrested because logically, in the case of such offences being non-bailable/cognizable, the chargesheet having been filed, either the police is at fault for not arresting the accused in the first place, or there is some other larger issue at hand. I suggest you file an application to find out why such accused is free without a bail.

I welcome the view of other learned members to suggest any measure to the best of their knowledge.


Sudhir Kumar, Advocate (Advocate)     26 June 2017

better give facts of the case.

Advocate Friend (Assistant Manager - Legal)     26 June 2017

A (the Complaiant) approached B (Accused) for consultancy service for admission in University and Student Visa to USA. 

B Agreed for consultancy fees advance of Rs. 16000/- Rest to pay later.

Towards College Fees B asked A to issue cheques for amount of 3.5 Lac and 1.5 Lac seperately.

A took visa appointment.

At the time of Visa preperation B said to A that without Tax docs B will not continue the case and asked A to not go for the visa appointment.

A refused to agree with B's Advice asked him to stop his services from now on and attended the VISA appointment and successfully got the VISA.

A sent a notice to B stating not to draw the cheque and return the same forthwith.

A sent notice to bank to freeze the account along instructions for stop payment.

B somehow with highhandedness encashed the cheque.

A approached Consumer forum against Bank and got the money. A also filed criminal complaint case agaisnt B.

Pre Charge evidence of A completed, Summons issued, Adv for accused also made pre charge Cross of Complainant.

Charge Framed u/s 406 and 420of IPC. Accused pleaded not guilty.

Now the case is at the stage of further cross of Complainant.


Arjun Kohli   06 July 2017

It is very strange as to why the accused is out free without furnishing any bail bond or security. Being a cognizable offense, the Police, especially after filing the chargesheet, should've been directed to arrest the accused, in my opinion, especially when the trial has already begun.

I suggest you could move an RTI application or move an application before the Magistrate asking as to why the accused has not been arrested or on what grounds is the accused roaming free!

Advocate Friend (Assistant Manager - Legal)     14 September 2017

SO far as what i understand bail if for the one who has been arrested.

In private complaint there is no arrest (unless the accused is absent and court issues a NBW) so no question of bail.

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