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Prakash Yedhula (Lawyer)     28 November 2008

 One has to file application in court for seeking bail in the crime. Bail in bailable offence is a right . However, in the cases arising out of non bailable offence, court has got discretion either to grant or refuse bail. For detailed clarification, you may refer provisions of section 436 to 439 of Criminal procedure code. 



436. In what cases bail to be taken.



(1) When any person other than a person 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 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:





Provided that such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:





Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 1[or section 446A].





(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under section 446.


437. When bail may be taken in case of non-bailable offence.



(1) 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 so released if there appear 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, 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:


Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:





Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:





Provided also that the mere fact that an accused person 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 the shall comply with such directions as may be given by the court.]





(2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that 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 his guilt, [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 on the execution by him of a bond without sureties for his appearance as hereinafter provided.





(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary-





(a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or





(b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or





(c) Otherwise in the interests of justice.


(4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its [reasons or special reasons] for so doing.





(5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody.





(6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for - taking evidence in the case, such person shall, 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.





(7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.



438. Direction for grant of bail to person apprehending arrest.



(1) 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 direction under this section; and that court may, if it thinks fit, direct that in the even of such arrest, he shall be released on bail.





(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -


(i) A condition that the person shall make himself available for interrogation by a police officer and when required; 





(ii) A condition that the person shall not, 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,





(iii) A condition that the person shall not leave India without the previous permission of the court;





(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.


(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).


438. Direction for grant of bail to person apprehending arrest.



(1) 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 direction under this section; and that court may, if it thinks fit, direct that in the even of such arrest, he shall be released on bail.





(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -


(i) A condition that the person shall make himself available for interrogation by a police officer and when required; 





(ii) A condition that the person shall not, 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,





(iii) A condition that the person shall not leave India without the previous permission of the court;





(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.


(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).


 






 

Tribhuwan Pandey (Advocate)     28 November 2008

Very detail study has been given by Mr. Y.Prakash Nothing is required more

Srinivas.B.S.S.T ( Advocate)     29 November 2008

 A simple and vague question and detailed reply by Prakash sir. Try to be specific while posting your doubt from the next time. 

K.C.Suresh (Advocate)     29 November 2008

Beautiful Mr. Prakash, done a good home work. Thanks. The question is general and a sea type one. But Prakash has taken the querry in that sense. Good response from Praksh.

suryagaurav (manager)     13 December 2008

grt reply ,hats off

Shree. ( Advocate.)     13 December 2008

Yes, Prakash Sir, is really a great person with a great mind .He also helped everyone by making this website and clear their doubts and confusions related to Law.May be in context to hosting this forum and helping many people to benefit through the same.

prof s c pratihar (medical practitioner &legal studies)     13 December 2008

thanks prakash sir.bail chapter concluded by you.for grant of bail in nonbailable sections personal attendence is mandatory.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     21 December 2008

Thanx to Mr. Y.Prakash , done gud work.


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