Q. What is bail
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 of Moti 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 compitent |
|
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
Q. 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 Secretory, 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 Cr.p.c. 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 judgement 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
Ø Such officer or court
shall discharge him
Ø Or his executing a
bond without surety
Indigent
person
Where
a person is unable to give bail
ü 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 apprance (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 furnishe 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
canot 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 punishiable
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
ü by an
officer-in-charge of a police station
ü or appears or is brought before a Court
ü other than the High
Court or Court of session,
he may be released on bail. but
(i ) such person shall not be released
ü If there are
reasonable grounds for believing that
ü He has been guilty of
an ofence punishable with death or
imprisonment for life
(ii)such person shall not be so released
ü If such ofence is a
cognizable offence
ü And he had been
previously convicted of an offence
Punishable
with death or imprisonment for seven year and more
ü Or had been previously
convicted
On two or more
occasion
Of a
cognizable offence punishable with 3-yeras and more
Court may direct that
ü A person in clause (i)
and clause (ii) be release on bail
ü 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
ü that a person referred to in clause (ii) be
released on bail
ü if It is just and proper so to do for any other
special reason
mere fact that an
accused may be required
ü for being identified by witnesses during investigation
shall not be sufficient ground for refusing to grant bail
ü if he is
otherwise entitled to be released on bail
ü 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
ü there are not reasonable grounds for believing
that
ü the
accused has committed a non- bailable offence,
ü but that
there are sufficient grounds for further inquiry into his 1 guilt
accuse
shall be release
ü on bail or
ü , 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
ü an offence punishable with imprisonment for seven
years or more
ü 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
ü to any person acquainted with the facts of the
case
ü so as to dissuade him from disclosing such facts
to the Court or to any police officer
ü 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.
Sec-437(6)
If, in any case triable by a
Magistrate,
if trial in case of any non-bailable offence
ü is not concluded within a period of sixty days
from the first date fixed for taking evidence
the accused shall be released on bail
ü if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate,
ü unless for reasons to be recorded in writing, the
Magistrate otherwise directs.
Sec-437(7)
In case of a
non bailable offence
ü at any time after the conclusion of the trial
ü but before
judgment is delivered
if the
Court has reasonable grounds for believing that the accused is not guilty
ü it shall release the accused, if he is in
custody,
ü 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 -
- the nature of the crime
- the nature of the charge, the
evidence, and possible punishment
- the possibility of interference
with justice
- the antecedents of the
applicant
- furtherance of the interest of
justice
- the intermediate acquittal of
the accused
- socio-geographical
circumstances
- prospective misconduct of the
accused
- the period already spent in
prison
- 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 relising any person on bail
·
be setaside 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 437 disallows 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.
3. Persons accused of Dowry Death -
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 of Surendra 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
Appeal Provision for Bail
It has been held that an order granting bail is an interlocutory order and so
it cannot be challenged under the revisional jurisdiction of the Session Court
or High Court. In general, there is no right of appeal against the decision of
refusing the bail. However, a person can alway file for Special Leave Petition
to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision
of refusal of bail to special courts.
Q. What do you understand by Anticipatory bail? When is it granted and when
it may be refused? What is the difference between the general provisions of
anticipatory bail and regular 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 surrendere
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.
