CHAPTER-IV

RIGHT TO BAIL IN BAILABLE OFFENCE UNDER SECTION 436

Cr. P.C.The word “Bail” means the security of a prisoner’s appearance for trial.

The effect of granting bail is, accordingly not to get the prisoner free from jail or

custody, but to release him from the custody of Law and to entrust him to the

custody of his sureties who are bond to produce him at his trial at a specified time

and place. Grant of bail is a rule and refusal is an exception. A person accused of

a bailable offence has the right to be released on bail. Bail in case of bailable

offences is compulsory. In the matter of admission to bail the Code of Criminal

Procedure makes a distinction between bailable & non-bailable offences. The

grant of bail to a person accused of non-bailable offence is discretionary. But a

person accused of bailable offence at any time while under detention without a

warrant at any stage of the proceedings has the right to be released on bail in view

of section 436 Cr. P.C. 1973.1 When the offence is bailable and accused is

prepared to furnish bail, police officer has no discretion to refuse bail.2 Even

when a person suspected of committing a bailable offence is produced before a

magistrate and he is prepared to give bail, Magistrate has no option but to release

him on appropriate bail.3 Magistrate cannot refuse to accept surrender and to bail

out an accused against whom a petition or complaint of bailable offence has been

filed.4 The offence when is bailable, bail has to be granted. If the offence is

non-bailable further considerations arise.5 While adjudicating a bail application

detailed examination of evidence and elaborate documentation of the merits of the

case is however to be avoided.6

1 Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939.2 Dharmu Naik v. Rabindranath Acharya 1978 CrLJ 864 : Kanu Bhai v. State of Gujarat

1972 (B) Guj LR 748.3 Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864 : Union of India v. S. Bhagwandas

1969 Mad. LW (Cri) 88.4 K.K. Rao v. State 1982 Mad LJ (Cr). 330 : (1981)2 Andh LT 461.5 State of Punjab v. Jagjit Singh, AIR 1962 SC 253 : (1962)3 SCR 622 : (1962)1 Cr. LJ

215.6 Niranjan Singh v. Prabhakar (1980)2 SCC 559 : 1980 SCC (Cri) 508 : AIR 1980 SC

785.

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4.1 Section 436 Cr. P.C.

(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 ay time while in the

custody of such person shall be released on bail:

Provided that such officer or court if he or it thinks fit may (may and shall if such

person is indigent and is unable to furnish surety instead of taking bail) from such

person discharge him on his executing a bond without sureties for his appearances

as hereinafter provided:

(Explanation – where a person is unable to give bail within a week of the date of

his arrest it shall be sufficient ground for the officer or the court to presume that

he is an indigent person for the purpose of this proviso.)

Provided further that nothing in this section shall be deemed to affect the

provisions of sub-section (3) of section 116 [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 bond by such bound to pay the penalty thereof under section 446.

In Morit Malhotra v. State of Rajasthan,7 the accused was granted bail

under section 436 by the police. But when he appeared before the court he was

advised to take bail from the court. He challenged the orders in the Rajasthan

High Court which ruled that it is not necessary for an accused to get bail granted

by the court if he has already been granted bail by the police. The court drew

support from the Supreme Court decision in Free Legal Aid Committee,

Jamshedpur Vs. State of Bihar,8 wherein it was ruled that in a sessions case if the

magistrate has granted bail, the accused need not seek bail from the court of

sessions.

7 1991 Cri. LJ 806 (Raj).8 AIR 1982 SC 1463.

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Having regard to the nature of relationship of the person on bond with the

court and the powers conferred on the court under section 436, it appears that the

above ruling may not be generally followed by the courts.

An interesting question arose in Haji Mohamed Wasim vs. State of U. P.9

before the Allahabad High Court as to the validity of bail granted by police

officers. In this case the accused who was on bail granted by police preferred nor

to appear before the court. The trial court issued a non bailable warrant which

came to be challenged by the accused under section 482. The court ruled that he

has to take fresh bail from trial court. It reasoned:

The power of a police officer in-charge of a police station to grant

bail and the bail granted by him comes to an end with the

conclusion of the investigation except incases where the sufficient

evidence is only that of a bailable offence, in which eventuality he

can take security for appearance of the accused Before the

magistrate on a day fixed or from day to day until otherwise

directed. No parity can be claimed with an order passed by

magistrate in view of enabling provision contained in clause (b) of

section 209….under which the committal Magistrate has been

empowered to grant bail until conclusion of trial, which power was

otherwise restricted to grant of bail by him during pendency of

committal proceedings under clause (a) of section 209.10

The real situation, as it obtains today in the society, is amply clear that

police discretion is not always being properly exercised in the matter of arrest.

The citizens are being deprived of their liberty and the police have become a kind

of terror for the citizens because of their undue harshness with the public in

general and the suspects in particular. The newspapers are replete with examples

of police high-handedness. It is a matter of common knowledge that in order to

extract information from a suspect, the police beat a person in the course of

investigation, in custody to the extent that sometime an accused person even

9 1992 Cr. LJ 1299.10 Id. at 1302; see also Morti Malhotra v. State of Rajasthan 1991 Cr. LJ 806.

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succumbs to injuries. On many occasions departmental inquiries have been

conducted; but these have been used mainly to cover up the taint. Furthermore,

instances are known where in order to secure conviction of an accused; the police

have concocted the whole prosecution story and have tutored the witnesses to

implicate innocent persons. Such police activities once led a high court judge to

form an opinion that police is itself an organization of goondas,11 although the

remarks were expunged later by the Supreme Court. Even then no echo of these

remarks continues to be heard till today.

4.2 Scope and Application

‘Bail’ connotes the process of procuring the release of an accused charged

with certain offence by ensuring his future attendance in the court for trial and

compelling him to remain within the jurisdiction of the court.12 Where a person

who is arrested is not accused of a non-bailable offences no needless impediments

should be placed in the way of his being admitted to bail. In such cases the man is

ordinarily to be at liberty and it is only if he is unable to furnish such moderate

security, if any as is required that he should remain in detention.13 The section is

imperative and under its provision the magistrate is bound to release the person on

bail or recognizance.14

But bail means release of a person from legal custody; it presupposes that

he is in custody. Person who is under no such restraint cannot be granted bail.15

The fundamental principal of our system of justice is that a person should not be

deprived of his liberty except for a distinct breach of law. If there is no substantial

risk of the accused fleeing there is no reason why he should be imprisoned during

the period of his trial. The basis rule is to release him on bail unless there are

circumstances suggesting the possibility of his fleeing from justice or thwarting

11 Amin v. State, AIR 1958 All. 293.12 Nathurasu v. State, 1998 Cri LJ 1762 (Mad).13 Mir Hashamali (1917)20 Bom. LR 121 ; Kaubhai Chhaganlal, 1973 Cr LJ.14 Praghunandan Pershad (1904)32 Cal 80, 83.15 Varkey Paily Madthikudiyil, AIR 1967 Ker. 189; Narayen Prasad, AIR 1963 MP 276;

Bhramar Vs. State of Orissa, 1981 CrLJ 1057.

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the course of justice.16 When bail is refused it is a restriction on personal liberty of

the individual guaranteed by Article 21 of the Constitution and therefore, such

refusal must be rare.17 Where delay take place in the disposal of criminal

proceedings the accused ought not to be kept in custody for an inordinately long

time and must be released on bail except when under extremely rare

circumstances it is not possible to do so.18

Appearance under this section includes voluntary appearance.19 When he

so surrenders is in judicial custody of the court and the magistrate cannot reject

the bail on the ground that the person was neither arrested nor had been

summoned by court order of Magistrate has granted interim bail the interim

bail would subsist so long as the fresh bail application is not decided by the

Magistrate.20 As offence under sections 8/21 NDPS Act is bailable offence.21

Where inspite of bail granted the accused is not released on bail

immediately due to procedural formalities held the delay in releasing the accused

on bail, stood explained.22

The power to grant bail given by sections 436 and 437 of the Code vests in

the Court before whom an accused appears and is brought. The expression

“Court” means the Court which has power to take cognizance of the case. A Court

which has only the power to remand under section 107 is not a competent Court

for granting bail. Similarly as Executive Magistrate has no jurisdiction to grant

bail except in respect of offences punishable with fine and or imprisonment up to

three months. In relation to a person not accused of such offences the Magistrate,

who has jurisdiction to take cognizance has power to grant bail even when the

16 State of Rajasthan Vs. Baichand, 1978 CrLJ 195 (SC): AIR 1977 SC 2447; GudikantiNarasimhulu Vs. Public Prosecutor, A.P. 1978 CrLJ 502 AIR 1978 SC 429 (1978) 1SCC 240.

17 Babu Singh Vs. State of U. P. 1978 CrLJ 651: AIR 1978 SC 527; (1978) 1 SCC 579.18 Hussainara Khatoon v. State of Bihar, 1979 CrLJ 1036: AIR 1979 SC 1360: (1980) 1

SCC 81.19 Kali Dass Vs. SHO, Police Station Reasi, 1979 CrLJ 345 (J&K).20 Hari Kishan Das Vs. Union Territory of Chandigarh, 1983 Cri App. R.(SC) 28: 1983 UJ

(SC) 61.21 Hari Kishan Das Vs. Union Territory of Chandigarh, 1983 Cri App. R.(SC) 28: 1983 UJ

(SC) 61.22 Pusai Vs. State (NCT) of Delhi, AIR 2004 SC 1184: (2004) 9SCC 81: 2004 SCC (Cri)

1416 2004 Cr. LJ 923 (924) (SC).

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accused is in custody on the basis of an order of remand passed by an Executive

Magistrate.23

4.3 Bail is a Security for Appearance

Bail in its fundamental concept is a security for the prisoner’s

appearance to answer the charge at a specified time and place. It is natural and

relevant for any Court to consider such security in relation to and in the light of

the nature of the crime charged and the likelihood or otherwise of the guilt of the

accused there under. At any early stage when accused asks for bail, the Court has

necessarily to act on a reasonable and intelligent anticipation which ex-hypothesis

must, to a certain extent, be problematical because the trial has not run its course.

In matters of bail the test to be applied is the test of reasonable belief as opposed

to decision and conclusion which marks the ends of the trial. The available

materials for the Court in considering the question of granting bail are the charge

made, the attendant facts including the police report, facts stated in the petition for

bail and the grounds of opposition to the granting of that petition.24

The release on bail does not change the reality and from that fact alone, it

cannot be said that he is not a person arrested for an offence. A person released on

bail is still considered to be detained in the constructive custody of the Court

through his surety. He has to appear before the Court whenever required or

directed. Therefore, to that extent, his liberty is subjected to restraint. He is

notionally in the custody of the Court and hence continues to be a person arrested.

Even in spite of the fact that the accused had been released on bail, he continues

to be a person arrested on a charge of commission of an offence.25

4.4 Considerations for Grant of Bail

The first duty of the Court in granting or refusing bail would be to see

whether there is possibility of the accused being available to trial and also

whether there is any possibility of accused jumping out the bail.26 Where an

accused was granted bail in a case arising out of police report and subsequently a

23 Singeshwar Singh Vs. Bihar, 1976 Cr.LJ 1511 (Pat).24 Badru Parshad Misser(1953) 1 Cal 280.25 Thaniel Victor Vs. State, 1991 (1) Crimes 354, 362 (Mad).26 Sukar Narayan Bakhia Vs. Rajnikant R.Shah, 1982 Cr.LJ 2148 (Guj).

97

complaint with additional charges have been filed, accused may be directed to

surrender and then apply for bail in respect of additional charges.27 Once the

accused had incurred the liability of the forfeiture of the earlier bonds, he is not

entitled to bail as a matter of right, even in bailable cases.28 Where after the grant

of bail in bailable offence, subsequently non-bailable offence is added the accused

would not be allowed to remain on the same bail bonds, fresh bail application

would be referred for non-bailable offence.

4.5 Power to Refuse Bail

Sub Section (2) of section 436 empowers the Court to refuse bail to an

accused person even if the offence is bailable, where the person granted bail fails

to comply with the conditions of the bail bond. Such refusal will not affect the

powers of the Court to forfeit the bond and recover penalty from the surety as laid

down by section 446.

Even in bailable offence the Court has power to refuse to release a

person on bail. The person committed to custody under the order of the High

Court cannot ask for his release on bail under this section, but the High Court may

by subsequent order admit him to bail again.29

An order granting or refusing bail is interlocutory. Order refusing bail is

not a final order. Bail may be refused at one stage but may be granted at a later

stage in the same proceedings. It can be even rescinded or modified or cancelled

at any stage. It does not terminate the proceedings or decides a point for decision

in the case and therefore is not a final order.30

4.6 Notice on Bail Application

Whenever an application for remand of accused is moved on behalf of

prosecution, it has to be prepared for the opposition to the same and for a prayer

for the release of the accused on bail. The application for the remand and the bail

application are bound to be taken together at one and the same time without

27 Kalyan Vs. State of U.P. 1990 Cr.LJ 1658 (All).28 Johny Wilson Vs. State of Rajasthan, 1986 CrLJ 1235: 1985 (2) Crimes 938 (Raj.).29 Rati Pal Bhanji Mithani Vs. Asst.Collector of Customs, AIR 1967 SC 1639: 1967 CrLJ

1576.30 K.P. Vasu Vs. State, AIR 1975 Ker. 15.

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further postponement of the hearing of either of them. No notice on bail

application in such a case is necessary.31

4.7 Who may be Released on Bail

A person who is accused of a bailable offence will be entitled to a bail

under this section. He will be entitled to bail if:32

a. he is accused of a bailable offence;

b. he is arrested or detained without warrant by an officer-in-charge of

a police station or appears or is brought before a court;

c. a complaint or a police report of a bailable offence is made against

him, or he is suspected of having committed such an offence.

But even though the offence is bailable, bail will not be granted if the

accused stultifies the process of the court or breaks his bond of appearance.33

When a bail application is moved before the subordinate Courts, the same

shall be disposed of the same day.34 Power under Section 436 should be exercised

sparingly by the High Court.35

Instructions were issued by the High Court in regard to disposal of

application for bail by the subordinate Courts.36

Bail can be taken by the police officer who has arrested or detained the

person concerned or by the Court before whom the person appears or is brought.

Under Section 440, the High Court or the Court of Session may in any case direct

that the bail required by a police Officer or Magistrate be reduced.37 When a

police officer makes an arrest under Section 41 he is bound to give the person

arrested the option of the bail and bail bond should be not excessive but in

31 K.K.Girdhar Vs. MS. Kathuria, 1989 Cr.LJ 1094 (Delhi).32 State of Mysore Vs.Biswanath Rao, 1966 Cr.LJ 267 (1965) 1 Mys. LJ 365; 1965 Mad. LJ

(Cr.) 849: AIR 1966 Mys. 71.33 Joseph D. Kattampilly Vs. State of Kerala, 1970 Kerala 521.34 Babu Ram Vs. State, 1988 A Cr. R. 464.35 Kedar Nath Tiwari Vs. State of U. P., (1987) 1 Crimes 641; 1987 All. LJ 572; 1987

All.Cr. R. 289; 1988 (25) ACC 2.36 Mahendra Pal Singh Vs. State of U. P. 1989 A.W.C. 1406; Rajendra Vs. State, 1989

A.Cr.R.96; 1989 All. LJ 223 Talab Haji Hussain Vs. Madhukar Purshottam Mondkar,AIR 1958 SC 376 at 380.

37 Talab Haji Husaain Vs. Madhukar Purshottam Mondkar AIR 1958 SC 376.

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accordance with position in life occupied by the person arrested.38 In

Superintendent and Remembrancer of Legal Affairs, Bengal Vs. Jairali,39 the

decision in the matter of the petition of Daulat Singh,40 was doubted and it was

held that there was no indication in that section that the police are bound, after

arrest, to inform the persons arrested that they are entitled to be released on bail.

But Section 56 lays down that a police officer making an arrest shall, without

unnecessary delay and “subject to the provisions herein contained as to bail”, take

or send the person arrested before Magistrate having jurisdiction in the case or

before the officer-in-charge of a police station. From the words “italicsed” it is

clear that if the police officer effecting an arrest is an officer-in-charge of a police

station and if the offence is bailable, such officer shall release the arrested person

on bail when the arrested person is prepared to give bail. If, however, the police

officer arresting a person is not an officer-in-charge of a police station, then the

arrested person has to be produced before the officer-in-charge of a police station,

as required under this section. In all cases in which the offence as alleged

against the person arrested is non-bailable, such person shall be produced before a

Magistrate under Section 167. Provision for bail in such a case is made in Section

437.

Under old Section 93-A an internal Court receiving a warrant from an

external Court could execute it only within the limits of its jurisdiction. It could

not forward the warrant to another Court for execution beyond the local limits of

its jurisdiction.41 When therefore the Chief Presidency Magistrate of Calcutta who

received a warrant from an external Court in Srinagar for execution sent it to the

Commissioner of Police for execution beyond the local limits of his jurisdiction

and ordered the accused to furnish bail for appearance before the Srinagar Court,

it was held that since the Chief Presidency Magistrate had no jurisdiction to get

38 In the matter of the petition of Daulat Singh, ILR 14 All. 45 at 47; see also WadhawaSingh Vs. Emperor, AIR 1928 Lah. 318.

39 ILR 63 Cal. 189: 37 CrLJ 1070.40 ILR 14 ALL 45.41 P.K.Roy Vs. State, AIR 1955 Cal. 277 at 278.

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the warrant executed outside the limits of his jurisdiction his order for bail was

bad.42

1. See Sections 42 (2) 43 (3), 56, 59, 169, 170, 436 and 437 for powers

of police officers to release on bail;

2. Sections 71, 81, 88, 167, 187, 389, 390, 330, 339, 340, 436 and 437

for the general powers of Court to release on bail

3. Section 395 for bail by a Metropolitan Magistrate on making a

reference;

4. Sections 397, 400, 439, 440 for powers of Session Judge to release

on bail; and

5. Sections 389, 439 and 440 for powers of the High Court.

It is largely the facts of a case that incline a Court to grant bail.43

4.8 Leaving Decision as to Sufficiency of Bail to Police Illegal

The practice of leaving to the police the decision as to the sufficiency of

bail, when bail has been ordered by the Court, is contrary to law. The duty of

deciding as to its sufficiency or otherwise is with the Court itself and not with the

police,44 though the Court may call for a report from the police.

4.9 Bail Bond Without Sureties: Need for a Clear Provision:

Where a person at the time of his arrest, holds a very high position under

the Government of India, it is a fit case in which a personal bond would be

deemed enough.45

4.10 Heavy Amount not to be Demanded

Bail covers both release on one’s own bond and one’s bond with surety or

sureties. What surety amount should be demanded is dependent on several

variable factors. Heavy amount should not be demanded as surety amount. There

is no provision in law to insist that surety must hail from within the district where

42 P.K.Roy Vs. State, AIR 1955 Cal. 277 at 278.43 Jawahar Singh Vs. State (1986) 29 DLT 144; Om Parkash Vs. State (1986) 30 DLT 311;

Gordhan vs. State of Rajasthan (1986) 2 Crimes 630: 1986 RLW 540: 1986 Cr.L.R. 42.44 Queen Empress Vs. Gayitri Prosunno Ghosal, ILR 15 Cal. 455 at 457.45 Crown Vs. Makhan Lal (1947) 48 Cr. LJ 656 at 659.

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the Court is situate.46 When the accused is not likely to abscond and has his roots

in the community, he can be safely released on personal bond. Enquiry into

solvency of the accused can become a source of harassment and often result in

deprivation of liberty and should not be insisted upon as a condition of acceptance

of the personal bond.47

Where sureties are insisted on, ordinarily due weight should be given to

the affidavits produced by the surety and an inquiry or insistence on a solvency

certificate must be the exception rather than the rule.48

In the under noted case49 the Supreme Court has laid down the guiding

principles when accused can be released on personal bond without sureties. The

observations may be perused with advantage:

“If the Court is satisfied, after taking into account, on the basis of information

placed before it, that the accused has his roots in the community and is not

likely to abscond it can safely release the accused on his personal bond. To

determine whether the accused has his roots in the community which would deter

him from fleeing, the Court should take into account the following factors

concerning the accused:

1. the length of his residence in the community;

2. his employment status, history and his financial condition;

3. his family ties and relationships;

4. his reputation, character and monetary condition;

5. his prior criminal record including any record of prior release on

recognizance or on bail;

6. the identity of responsible members of the community who would

vouch for his reliability;

46 Moti Ram Vs. State of Madhya Pradesh AIR 1978 SC 1594;1978 Cr.LJ 1703.47 Hussainara Khatoon Vs. Home Secretary, state of Bihar, AIR 1979 SC 1360: 1979 Cr.

LJ 1036.48 Valson Vs. State of Kerala (1984) 2 Crimes 503.49 Hussainara Khatoon Vs. Home Secretary State of Bihar, AIR 1979 SC 1360: Cr.LJ 1036.

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7. the nature of the offence charged and the apparent probability of

conviction and the likely sentence in so far as these factors are relevant

to the risk of non-appearance; and

8. any other factors, indicating the ties of the accused to the community

bearing on the risk and willful failure to appear.

“If the Court is satisfied on a consideration of the relevant factors that the accused

has his ties in the community and there is no substantial risk of a non appearance,

the accused may as far as possible be released on his personal bond. Of course, if

facts are brought to the notice of the court which go to show that having regard to

the condition and background of the accused his previous record and the nature

and circumstances of the offence, there may be a substantial risk of his non-

appearance at the trial, as for example, where the accused is a notorious bad

character or a confirmed criminal or the offence is serious (these examples are

only by way of illustration), the court may not release the accused on his personal

bond and may insist on bail with sureties. But in the majority of cases,

considerations like family ties and relationship, roots in the community,

employment, status, etc. may prevail with the court in releasing the accused on his

personal bond and particularly in cases where the offence is not grave and the

accused is poor or belongs to a weaker section of the community, release on

personal bond could, as far as possible, be preferred. But even while releasing the

accused on personal bond it is necessary to caution the Court that the amount of

the bond which it fixes should not be based merely on the nature of the charge.

The decision as regard the amount of the bond should be an individualized

decision depending on the individual financial circumstances of the accused and

the probability of his absconding. The amount of the bond should be determined

having regard to these relevant factors and should not be fixed mechanically

according to a Schedule keyed to the nature of the charge. Otherwise, it would be

difficult for the accused to secure his release even by executing a personal bond.

The inquiry into the solvency of the accused can become a source of great

harassment to him and often result in denial of bail and deprivation of liberty and

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should not, therefore, be insisted upon as condition of acceptance of the personal

bond. We have no doubt that if the system of bail, even under the existing law, is

administered in the manner we have indicated in this judgment, it would go a long

way towards relieving hardship of the poor and help them to secure pretrial

release from incarceration.

“There is an urgent need for a clear provision undeniably. The thousands of

under trial prisoners lodged in Indian prisons today include many who are unable

to secure their release before trial because of their inability to produce sufficient

financial guarantee for their appearance. Where that is the only reason for their

continued incarceration there may be good ground for complaining of individual’s

discrimination. The more so under a constitutional system which promises social

equality and social justice to all of its citizens.”

4.11 Bail and Detention in Custody in Cases under Chapter VIII

Section 436 does not merely refer to an accused person but generally to

“any person other than a person accused of a non-bailable offence who appears or

is brought before a court”. The proviso to section makes it clear that the

substantive part of the section applies to section 116 (3). Section 116 has to be

read with section 111 which in turn refers to Sections 107, 108, 109 and 110. The

order contemplated by Section 111 is a preliminary order which is followed by an

enquiry under Section 116. That section directs that when the order under Section

111 requires security for good behaviour, the procedure prescribed for conducting

trials in the warrant case should be followed save that no charge need be framed.

Pending the completion of the enquiry, the Magistrate is invested with power to

direct the person concerned to execute a bond forthwith with or without sureties,

for maintaining good behaviour until the completion of the enquiry. The proviso

to section 436 (1) refers to this power of the Magistrate and leaves if unaffected

by anything that is said in that section. There is therefore no doubt at all that this

section authorizes the Magistrate conducting an enquiry under Section 116, to

release the person concerned in the enquiry on bail with or without surety or

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ensure his attendance in Court.50 The proviso to this section excludes the

operation of its substantive part and empowers the Magistrate in his discretion to

detain a person who is sent to him under Section 107 by a Magistrate not

empowered to proceed under sub-section (1) of that section. This section,

however, can have application only during the pendency of criminal proceedings

whether in regard to an offence or under Chapter VIII of the Code, and it has no

application once a person has been convicted of a substantive offence or has been

ordered under Section 118 to furnish security.51

Where the police reported to the joint Magistrate that a person was a bad

character and a champion of thieves and receiver of stolen property, the

Magistrate directed evidence to be adduced as to such person’s general character

and summoned him to show cause why he should not be required to give security

for good behaviour for one year. On the same day the person appeared in answer

to the summons and several witnesses were examined by the prosecution who

gave evidence as to his general bad character by repute and of specific acts of bad

livelihood. The case was then adjourned to the following day in order to allow the

accused person to produce his witnesses to character and he entered into a

personal recognizance of Rs.500/- to appear on the adjourned date. It was held

that the Magistrate was empowered to take a personal recognizance from the

accused person for his appearance at the adjourned hearing.52

Where a person was neither arrested under Section 107 Cr. P.C., nor sent

up to the sub-Divisional Magistrate but was arrested under the proviso to Section

113, it was held that the Magistrate had no jurisdiction to refuse bail.53

Since the Magistrate is responsible for the maintenance of public peace

within his jurisdiction, when he has made an interim order against a person

committed by him to custody on the ground that such an order is necessary for

preserving the public peace, it should not be lightly interfered with by a higher

authority like the Court of Session. No doubt, if there is anything irregular or

50 Emperor Vs. Karbalai Hussain Ali Husain Rizir, AIR 1940 Nag.85.51 Emperor Vs. Rasulbux AIR 1942 Sind 132 at 133; LLR 1942 Kar. 278.52 Queen Vs. Chocha Rai, 7 NWP HCR 366 at 371.53 Faiz Mohd. Vs. Emperor 17 CrLJ (1).

105

illegal in the order it is the bounden duty of the Sessions Court to give relief to a

private citizen who is injuriously affected by the order.54

The provision to sub-section (1) of this section deals with the power of a

court when a person appears or is brought before it and is prepared at any time to

give bail. Where the offence is a non-bailable one, the proviso certainly cannot

control the provision of Section 439.55

The discretion of the Court in granting bail to the petitioners was disputed

on the premises that security proceedings had been initiated against the

petitioners. It would be difficult at pretrial stage to determine whether those

proceedings are well measured or is a mere measure to influence the Court to

withdraw the concession of bail. Adequate safeguards otherwise in the form of

interim security under Section 116 of the Code of Criminal Procedure could be

asked for at the pain of which the petitioners could be confined. In the

circumstances, the concession of the bail should not have been withdrawn

abruptly after the grant of bail within a span of just ten days.56

4.12 Conditional Bail

The Court or the police officer has to grant bail to an accused in a case

relating to a bailable offence. Bail has, therefore, to be granted to the accused in

such cases, and any condition in the order granting the bail, other than the one for

attendance of the accused, would, therefore, be illegal.57In respect of bailable

offences, a Magistrate cannot impose a condition that the accused should appear

before the police.58

The Rajasthan High Court while rejecting the prayer for cancellation of

bail however imposed condition for a short period of one week that the non-

petitioner Nos. 1 and 2 should appear before the Investigating Officer for further

interrogation. The said non-petitioners were not to leave the town during the week

and were to present themselves for interrogation before the Investigating Officer

54 Lakshmanan Velayudhan vs. State, AIR 1952 TC 182 at 183.55 Ibid. 182 at 183.56 Lakhmir Singh Vs. State of Punjab 1981 CrLJ 258 at 259 (P&H).57 Sardamma In re (1965) 2. Andh W.R. 289, AIR 1965 AP 444 at 446,447.58 Paulose Vs. State, 1978 Ker. LT 337.

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or such Police Officer and at such time during the week, as they may be directed

by the Investigating Officer. Non-petitioner Nos. 1 and 2 could leave after seeking

permission of the Investigating Officer. With these conditions the application for

cancellation of bail was rejected.59

The condition that a person accused of a bailable offence has to surrender

his pass-port is not a term as to bail and therefore cannot be imposed by a

Magistrate under Section 436.60

But the High Court can restrict the appellant’s departure from India. These

terms and conditions do not fetter inherent powers of the High Court.61

4.13 Money may be Deposited Instead of Executing Bond

The law does not contemplate or authorize a Magistrate to demand a cash

deposit as a condition precedent to the release of the prisoners or accused persons

on bail. The provisions of Section 441 of the Code prescribe that the amount of

every bond should be fixed with due regard to the circumstances of the case and

should not be excessive.62 But Section 445 permits of a deposit of a sum of money

or Government Promissory Notes, except in the case of a bond for good

behaviour, in lieu of executing a bond.

There is no provision for asking the accused to furnish cash bail and such

an order was set aside.63

4.14 Bond should be by Accused and not by Agent when Personal Attendance

of Accused Dispensed with

Where the personal attendance of an accused person is dispensed with a

recognizance bond, if deemed necessary, should be taken from him and not from

his agent though he may appear by agent and if the agent neglected to attend

when the case was called on, the recognizance bond might be held forfeited and

the accused made liable for the payment of the penalty.64

59 Mool Chand Vs. Bulaki Das, 1981 Raj. Cr.C. 255.60 Azeez Vs. State of Kerala (1984) 2 Crimes 413.61 Hazari Lal Gupta Vs. Rameshwar Prasad, AIR 1972 SC 484 at 486.62 Rajballam Singh Vs. Emperor, AIR 1943 Pat. 375 at 376 (1).63 Surindra Lal Das Vs. Lalika Das (1976-77) 81 CWN 77; 1977 Cr.LJ 405.64 Reg. Vs. Lallubhai Jasubhai, 5 BHCR Cr. Cas. 64 ad 65.

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4.15 Bail Bond Executed Before Police Officer

A bail bond executed before a Police Officer on account of the fact that

the person, involved in a bailable offence, should be released as his detention in

custody, if he is prepared to offer bail, will be contrary to law. So a bail bond

executed before a police officer is not for the appearance before the police

because a person accused is an offence, during investigation, is made an

obligation to make himself available before the police officer for investigation

and for that, strictly speaking, no bail bond is required to be furnished and that

being so, the bail bond so furnished before the police officer, in such

circumstances, is definitely for appearance before a court where definitely such

person involved in a bailable offence, is required to appear if and when charge-

sheet is submitted and the process of trial takes place. Primarily, power for

forfeiture of the bail amount and its realization falls within the jurisdiction of a

Court and on that basis also the bail bond, so furnished before the police officer,

is meant for appearance before a Court and any action for the breach of conditions

of the bail bond is to be taken by the concerned Court in which the bail or

undertakes to produce the accused when required.65

The police have no power to require an accused person released on bail to

appear before them. They can only require the accused person to appear before

the Magistrate at the time and place mentioned in the bond.66 Once police has

released an accused on bail after taking bonds for appearance before the Court, on

the submission of charge-sheet, the accused need not be asked to file fresh bail

bonds.67

4.16 Order on Bail Application, Effect of

An order on a bail application does not finally determine the guilt or

innocence of a person accused or convicted of an offence. All that such an order

postulates is that pending an enquiry or trial, and in the case of a convicted

person, pending an appeal by him, it is not absolutely necessary that his liberty

65 Rambalak Pandit Vs. State of Bihar, 1984 Pat. LJR 150 at 152.66 Jayantilal Purshottamdas Vs. State of Gujarat, 1966 Cr.LJ 209 at 210 (Guj).67 Mohit Malhotra Vs. State of Rajasthan, 1990 Raj. Cri. Cas. 68.

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should be curtailed. Such an order is not a judgment. An order refusing to release

the petitioner on bail will not prevent the hearing of a fresh application for bail.68

When a rule is issued by the High Court and proceedings stayed and,

therefore, a fortiori, when there is an order for bail, the Magistrate on receiving

reliable information therefore should stay his hands then and there.69

The power conferred by Section 437(5) Cr.P.C. to cancel bail and re-arrest

accused is expressly limited to cases in which the accused has been released under

section 437 Cr.P.C. and the provisions of Clause(5) of this section have no

application to an accused person who has been released on bail under Section

439.70

4.17 Cancellation of Bail, Granted under this Section

Section 436 (2) of the Cr. P.C. lays down that where a person had 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 subsequent

occasion in the same case he appears before the Court or is brought in custody.

Therefore, it cannot be said that orders passed by the Judicial Magistrate, for

further remand to custody is in any away without jurisdiction. In such

circumstances, it cannot be held that the custody of the accused is illegal.71

The Supreme Court72 has recognized the power to cancel the bail granted

under section 436 in exercise of the inherent powers of the High Court. The

Supreme Court has observed that the Code makes no express provision for the

cancellation of a bail granted under Section 436. Nevertheless, if at any

subsequent stage of the proceedings, it is found that any person accused of a

bailable offence is intimidating, bribing or tampering with the prosecution

witnesses or is attempting to abscond, the High Court has the power to cause him

to be arrested and to commit him to custody for such period as it thinks fit. This

68 In re Balasundra Pavalar, AIR 1951 Mad. 7 at 9.69 Lal Mohan Mandal Vs. Kali Kishore Bhuymah (1911)12 CrLJ 179 at 170 (Cat.).70 Crown Prosecutor, Madras Vs. N.S.Krishnan, AIR 1945 Mad. 250 at 251, 252.71 Sohan Singh Social Worker etc. Vs. Mr. S.S. Sohal Adl. CJM, Amritsar, 1983 Cr.LT 467

at 489 (P&H)72 Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939

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jurisdiction springs from the overriding inherent powers of the High Court and

can be invoked in exceptional cases only when the High Court is satisfied that the

ends of justice will be defeated unless the accused is committed to custody. This

inherent power of the High Court exists and is preserved by Section 482 of the

Code. The person committed to custody under sub section (2) of section 439

confers upon the High Court or the Court of Session power to cancel bail in

regard to cases of persons accused of any offences where such persons were

admitted to bail under this chapter,73 though ordinarily a Magistrate has no power

under the Code to cancel the bail of the accused persons who are on bail in

bailable offences.74

When an accused has been released under section 436 and later a non

bailable offence is added, even then the bail granted cannot be cancelled. Bail can

be cancelled only either under section 439 (2) or Section 437 (5).75

Once bail is granted under Section 436 and a charge-sheet for a non

bailable offence also is filed, bail cannot be cancelled unless there is misuse of the

liberty granted.76

When bail has been granted in a case instituted by the police, on a

complaint case being filed in regard to certain other offences alleged to have been

committed in the course of the same transaction, the accused has to apply and get

bail in regard to the later also.77

But in case an order has been made for releasing a person on bail and it is

later found that such order is either based on some misapprehension or being

otherwise infirm, is likely to prejudice the interest of administration of justice,

then this provision of law seems to amply empower the Courts mentioned therein

to make a suitable order canceling the order of release on bail so as to protect and

safeguard the cause of justice. This provision necessarily implies jurisdiction in

73 Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939.74 Janardhan Yadav Vs. State of Bihar, 1978 BLJ 42: 1978 Pat. LJR 361.75 Vijendra Vs. State of Rajasthan, 1988 R.Cr.C. 431.76 Inder Pal Singh Vs. State, 1988 A. Cr.R.72277 Kalyan Vs. State of U.P. 1990 Cr LJ 1658 (ALL).

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the Court concerned to cancel an order even before the person in question has

been actually released, and it is not intended to prohibit the court from canceling

the order of release on bail before it is executed.78

The accused was on bail in a case pending against him under section

376/511 Penal Code and it was fixed for evidence of prosecution on 8th August

1974. He had gone out to meet his relative and fell ill there and was under the

treatment of the Officer-in-charge of the Civil Hospital. He sent a telegram on 7th

August 1974 to the court informing about his illness. The Court on 7th August

1974 issued non-bailable warrant for arrest of the accused and on 8th August the

bail bond of the accused and surety bond of the surety were cancelled. It was held

that there was no justification for the Sessions Judge to issue non bailable

warrants against the accused on the 7th August 1974. In his order, dated 7th August

1974 it was mentioned that no medical certificate has been forwarded. A medical

certificate could not be sent along with the telegram. The accused fell sick on the

7th August, 1974 and therefore, the medical certificate could not reach the Court

on the same day. No opportunity was given to the accused to show cause why his

bail bond should not be cancelled. The Sessions Judge had already issued non

bailable warrant of arrest against the accused on the 7th August; therefore there

was no justification for him to forfeit the bail bond and the surety bond on 7 th

August before hearing the accused. The order of the Sessions Judge was

accordingly set aside.79 When an accused on bail absconds he forfeits the

concession to remain on bail.80

Where the applicant in revision is on bail, on the dismissal of the revision

application it is not necessary to pass a specific order that he should surrender

to his bail because bail is itself only granted till such time as orders are passed

on the revision application.81

78 Bakshi Sardari Lal Vs. Superintendent Tihar Central Jail, Delhi 1968 Cr. LR 675 at 680(Del.).

79 Uttam Singh Vs. State of Punjab (1973) 76 PLR 699.80 Johny Wilson Vs. State Of Rajasthan 1986 CrLJ 1235 Raj.81 Lachman Prasad Vs. Emperor, AIR 1943 All. 23 at 24.

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4.18 Disposal of Bail Application Same Day

When the offences are bailable there is no reason why the bail application

should not be disposed by the Special Judge same day and it is expected that the

bail application filed by the accused shall be disposed of the same day.82 The

distinction between bailable and non-bailable offence is that in respect of the

former there is a right to be released and in respect of the latter it is discretion of

the Court (J & K Criminal Procedure Code).83 The bail application of the accused

should be disposed of the same day when the accused surrenders and applies for

bail. Till the disposal of the bail application, the Court can grant interim bail for a

short period.84

Where an accused person surrenders before the Court for the purpose of

bail, the Court should not delay the disposal of the application on frivolous

grounds.85

If the State cannot provide for adequate machinery for dispensing justice

quickly, the State cannot be heard to say that the applicants should be kept in

custody without trial up to such a long time.86

4.19 Power of Magistrate

The powers of the Magistrate in granting bail are not governed by the

Court which has jurisdiction to try the case; rather are governed by the

punishment prescribed for commission of the crime. A Magistrate has no

jurisdiction to grant bail only in such case where the prescribed punishment is

imprisonment for life or death penalty. The Magistrate is empowered to grant bail

in the case of an offence under section 366 IPC, where the punishment is that of

10 years.87

The Court has discretion in the matter; it may release accused by taking

only a personal bond without insisting surety for the appearance. The insistence of

82 Kedar Nath Tiwari Vs. State of U. P. 1987 (1) Crimes 641 (All).83 Kali Dass Vs. SHO, Police Station Reasi, 1979 CrLJ 345 (J&K).84 Jssma Vs. State of U.P. 1993 Cr.LJ 2432 (All).85 Devendra Singh Negi Vs. State of U.P. 1994 Cr. LJ 1783 (All).86 Babu Mida Vs. State of M.P. 1978 Cr.LJ 1846 (MP).87 Aftab Ahmed Vs. State of U.P. 1990 Cr. LJ 1636 (All-DB).

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the personal bond and surety is essentially a matter of discretion and within the

jurisdiction of the Court.88

In regard to a bailable offence Magistrate is not competent to impose

condition. The accused has a right to be enlarged on bail.89 The imposition of

condition in bail order that accused shall appear before the investigating officer

once in three days was held unsustainable and hence set aside.90 The condition

that a person accused of bailable offence has to surrender his passport in Court is

not a term as to bail and therefore cannot be imposed by a Magistrate.91 The

Supreme Court has held that unnecessarily inhibitive condition ought not to be

imposed while granting bail. An order rejecting surety because he or his estate

was situated in a different district was held to be discriminatory and violate of

Article 14 of the Constitution.92

4.20 Effect of Execution of Bail Bonds Before Police

There is no provision in the Code for asking an accused already released

on bail by the police officer to furnish fresh bail and bonds. Where bail bonds

submitted before the police officer for purposes of appearing before the Court

have already been given, fresh undertaking for the same effect is not to be asked

for. Bail and bonds should ordinarily be for appearance not only before the Court

of Magistrate but also if the case is triable by the Court of Session before the

Court of Session unless there are particular reasons for not doing so.93

4.21 Cancellation of Bail by Magistrate

In an Orissa case94 it has been held that Magistrate has power to cancel

bail, be the offence bailable or not, the deciding factor being whether the accused

88 Chowriappa Constructions Vs. Embassy Constructions Devpt. P. Ltd. (2002) 4 All. Cri R654 2002 Cr.LJ 3863 (3865) (Kant.

89 Talab Haji Husain Vs. Madhukar. AIR 1958 SC 376.90 Hanumanthegowda Vs. State of Karnataka. 1997 (1) Crimes 303 (Kant).91 Azeez Vs. State of Kerala, 1984 Cr.LJ 1059: 1984 (2) Crimes 413.92 Moti Ram Vs. State of MP, 1978 Cr.LJ 1703:AIR 1978 SC 1594: (1978) 4 SCC 47: Linga

Raju Vs. The State of Chattisgarh, 2002 (1) Crimes 474 (Chatt.).93 Monit Malhotra Vs. State of Rajasthan 1991 Cr.LJ 806, 808 (Raj.)94 AIR 1962 SC 253: (1962) 3 SCR 622: (1962) 1 CrLJ 215.

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by his behaviour and conduct forfeited the concession shown to him.95 Affirming

the decision it was held the power to forfeit bail bond is inherent in any court and

when circumstances justify the court is competent to cancel the bail which was

granted earlier. The question is not whether the offence is bailable or non-

bailable. The determining feature is whether the accused by his behaviour and

conduct has forfeited the concession shown to him.96 It has been held, however, in

a Patna case that Magistrate has no power to cancel bail in bailable offence. High

Court or Sessions Court may so cancel.97 A person accused of bailable offence

when is committed to custody by reason of his bond being forfeited cannot claim

to be released on the ground of the bailability of the offence, for his commitment

to custody is not for reason of the fact that he is alleged to have committed a

bailable offence but by reason of a judicial order forfeiting his bond is a

consequence of the conduct of the accused showing pending trial be should not be

at large.98 As to forfeiture of bond when the bond is for appearance, the fact of

accused’s failure to appear on the date fixed operates to the bond being forfeited

forthwith.99

That on such forfeiture the accused bailed out even in bailable offences

entails the risk of the bail bond of surety cancelled gets statutory affirmation by

the insertion of section 446-A, Cr. P.C. by section 6, Cr. P.C. (Amendment) Act,

1980 coming into force with effect from September 23, 1980.Section 446-A, Cr.

P.C. 1973 prevails over the compulsory bail provision in section 436 Cr. P.C.,

1973. Section 446-A provides that for breach of a condition a bond furnished for

release on bail in bailable offence may stand forfeited and cancelled. And once

this is done no such person shall be released only on his own bond, in that case, if

the police officer or the court, as the case may be, for appearance before whom

95 Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ (NOC) 104(Ori.): (1977)44 Cut LT466.

96 Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ 45 Cut LT 11 AIR 1940 Bom 40.97 Janardhan Sadh Vs. State Of Bihar 1978 CrLT 1318 (Pat).98 T. H. Hussain Vs. M.P.Mondkar, AIR 1958 SC 376: 1958 SCR 1226: 1958 Mad LJ (Cr)

512: 1958 All Cr.391: 1958 CrLJ 701: 1958 SCJ 672: (1958) 2 Mad LJ (SC) 37: (1958) 2Andh WR (SC) 37: 1958 All WR (SC) 591: 60 BLR 937.

99 Ramananda Chowdhary Vs. State of Orissa, 1978 CrLJ 597: 1977 Cut LR (Cr) 452: RamChander Vs. State of U.P. (1981) All Cr C 217.

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the bond was executed, is satisfied that there was no sufficient cause for the

failure of the person bound by the bond to comply with its condition. Subject to

other provisions of the Code of Criminal Procedure the accused may be released

in that case upon execution of fresh personal bond for such sum of money and

bond by one or more of such sureties as the police officer or the court, as the case

may be, thinks sufficient.

4.22 Power to Cancel Bail in Bailable Offences must be Used Sparingly

While holding that the High Court in exercise of its inherent powers under

S. 561-A of Cr. P.C. (of 1898) could cancel bail granted to an accused in a

bailable offence, the Supreme Court held that this inherent power has to be

exercised sparingly, carefully and with caution and only such exercise is justified

by the tests specifically laid down in the section itself. The Supreme Court further

observed that after all, procedure, whether criminal or civil, must serve the higher

purpose of justice; and it was only when the ends of justice were put in jeopardy

by the conduct of the accused that the inherent power could and should be

exercised in cases as in the instant case.100

4.23 Cancellation of Bail where Accused Absent Himself

In Panna Lal v. R.K. Sinha,101 it was contended that the applicant was

accused of a bailable offence for which he had already been granted bail under the

provisions of Section 496 Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of

1973], which was an absolute and indefeasible right; therefore the Sessions Judge

had no jurisdiction to cancel his bail and order his arrest in spite of the fact that he

had absented himself and had failed to attend the court. Relying upon the decision

of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam

Mondkar,102 it was held by the Allahabad High Court that in the said case the

Supreme Court had made it abundantly clear that if an accused has abused his bail

(by not attending the Court or otherwise ) his commitment to custody thereafter is

not by reason of the fact that he was charged of a bailable offence; on the other

100 Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at p. 381 :1958 SCR 1226 : 1958 Cri LJ 701.

101 1967 Cri LJ 980 at p. 983 (All) : AIR 1967 All 304.102 AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.

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hand, his subsequent commitment to the custody is on the ground that he has

forfeited his bail. It was held that in such a case the accused could not fall back

upon his original right under Section 496 Cr. P. C. (of 1898) [equivalent to S. 436

of Cr. P. C. of 1973] which had ceased to be applicable to his case, because of his

default.

It was further held by the Allahabad High Court that it was true that the

Supreme Court in the said Talab Haji Hussain case had also remarked that there

was no specific provision for the cancellation of the bond and re-arrest of a person

accused of a bailable offence; but this remark was evidently with reference to the

powers of an appellate or revisional authority, like the High Court, and that it was

not meant to cover the case of first instance which had initially granted bail as

there was a specific provision in Section 92, of Cr. P. C. (of 1898), conferring a

right of cancellation of bond and re-arrest of the offender. It was also observed by

the High Court that it appeared that in said Talab Haji Hussain case, the

provisions of Section 92 of Cr. P. C. (of 1898) had not been brought to the notice

of the Supreme Court. Accordingly, the High Court held that, in the instant case,

on failure of the application to appear before the Session Judge, the latter who had

initially granted bail, was fully competent to issue warrants against the applicant

to enforce his attendance before him, irrespective of the fact that the applicant was

originally charged of a bailable offence. It was held that in such a case the

accused was ordered to be arrested because of his default and forfeiture of the

personal and surety bonds, by failing to attend the court on the date fixed in the

case. Accordingly, it was held that the Sessions Judge had full jurisdiction not

only to issues warrants for the arrest of the defaulting applicant but also to commit

him to custody.103

4.24 After Cancellation, can Accused Demand Bail Again as of Right?

In Talab Haji Hussain v. Madhukar Purshottam Mondkar,104 where the

High Court in exercise of its inherent powers had cancelled bail granted to the

accused in a bailable offence, it was contended that the provisions of S. 496 of

103 Panna Lal v. R.K. Sinha, 1967 Cri LJ 980 at p. 983 (All) ; AIR 1967 All 304.104 AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.

116

Cr. P.C. (18980 [ equivalent to S. 436 of Cr. P.C. of 1973] were plainly

inconsistent with the exercise of inherent power by the High Court under S. 561-

A of Cr. P. C. (of 1898) [ equivalent to S. 436 of Cr. P.C. of 1973] against the

instant case, that despite the order of cancellation of bail passed by the High

Court, the accused would be entitled to move the trial Court for bail again and the

trial Court would be bound to release him on bail because the right to be released

on bail recognized by S. 496 of Cr. P.C. (of 1898) was an absolute and an

indefeasible right; that despite the order of the High Court, that right would still

be available to the accused; and that in such a scenario, the order passed for

cancellation of bail using inherent powers would be rendered ineffective and that

itself would show that there was a conflict between the exercise of the said power

and the provisions of S. 496 of Cr. P.C. (of 1898). Terming the said argument

attractive, the Supreme Court held that a close examination of the provisions of S.

496 of Cr. P. C. (of 1898) {equivalent to S. 436 of Cr. P.C. of 1973] would show

that there was no conflict between its provisions and the exercise of the inherent

jurisdiction under S. 561-A of Cr. P. C. (of 18980 [equivalent to S. 436 of Cr.

P.C. of 1973]. The Supreme Court further observed as under (sections mentioned

in the following para are from the old Cr. P. C. of 1898) :

“In dealing with this argument it is necessary to remember that, if

the power under S. 561-A is exercised by the High Court, the bail

offered by the accused and accepted by the trail Court would be

cancelled and the accused would be ordered to be arrested

forthwith and committed to custody. In other words, the effect of

the order passed under S. 561-A, just like the effect of an order

passed under S. 497(5) and S. 498(2),would be not only that the

bail is cancelled but that the accused is ordered to be arrested and

committed to custody. The order committing the accused to

custody is a judicial order passed by a criminal Court of competent

jurisdiction. His commitment to custody thereafter is not by reason

of the fact that he us alleged to have committed a bailable offence

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at all; his commitment to custody is the result of a judicial order

passed on the ground that the he has forfeited his bail and that his

subsequent conduct showed that, pending the trial, he cannot be

allowed to be at large, Now, where a person is committed to

custody under such an order, it would not be open to him to fall

back upon his rights under S. 496, for S. 496 would in such

circumstances be inapplicable to his case. It may be that there is no

specific provision for the cancellation of the bond and the re-arrest

of a person accused of a bailable offence; but the does not mean

that S. 496 entitles such an accused person to be released on bail,

even though it may be shown that he us guilty of conduct entirely

subversive of a fair trial in the Court. We do not read S. 496 as

conferring on person accused of a bailable offence such an

unqualified, absolute and an indefeasible right to be released on

bail.”

In this regard, the Supreme Court further held that under S. 498(1) of Cr.

P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973], the High Court or the

Court of Session may, even in the case of persons accused of bailable offences,

admit such accused persons to bail; and that if a person accused of a bailable

offence is admitted to bail by an order passed be the High Court or the Court of

session, the provisions of sub-section (2) become applicable to his case; and under

these provisions the High Court or the Court of Session is expressly empowered

to cancel the bail granted by it and to arrest the accused and commit him to

custody. The Supreme Court thus held that the result was that with regard to a

class of cases of bailable offences falling under S. 498(1) of Cr. P.C. (of 1898),

even after the accused person are admitted to bail, express power had been

conferred on the High Court or the Court of Session to arrest them and commit

them to custody; that clearly then it could not be said that the right of a person

accused of bailable offence to be released on bail could not be forfeited even it his

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conduct subsequent to the grant of bail was found to be prejudicial to a fair

trial.105

4.25 Release on Bail on Later Date in Challenge to Cancellation of Bail

In a case, the accused was being tried for a bailable offence. The High

court, in the exercise of the inherent jurisdiction, cancelled the bail granted to him

earlier by the Magistrate. On appeal, the Supreme Court held that the High Court

had cancelled the previous bail orders, as it found that the accused was

intimidating and tampering with certain German citizen whom the prosecution

intended to examine as witnesses. In view of the normal practice of the Supreme

Court not to re-examine findings of fact in a appeal under Article 136 of the

Constitution, the Supreme Court hearing full arguments declined to interfere with

the findings of the High Court. However, as the High Court had given liberty to

the accused to move the High Court on or after a particular date for a fresh order a

bail, and as the delay in the examination of the witnesses was being caused

entirely by the laches of the prosecution, the supreme Court directed that the

accused be released on bail on the said particular date, whether or not the

prosecution witnesses were examined by that date.106

4.26 Conversion of Case from Bailable to Non-Bailable Offence

In the case of Hamida v. Rashid,107 bail had been granted to the accused

for offences under Ss. 324,352 and 506 IPC ( which were bailable offences) on

the day of their arrest itself. Subsequently, the victim succumbed to the injuries

and died after which the offence was converted into S. 304 IPC. The accused filed

a petition under S. 482 before the High Court seeking a direction to allow them to

continue on same bail even after the conversion of the offence into S, 304 IPC.

The High Court accepted their prayer. On appeal, the Supreme court held that the

accused could have applied for bail afresh after the offence had been converted

into one under Section 304 IPC. They deliberately did not do so and filed a

petition under section 482 Cr. P. C. in order to circumvent the procedure where

105 Talab Haji Hussian v. Madhukar Purshottam Mondkar, AIR 1958 Sc 376 at p. 380.106 Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ.107 (2008) I SCC 474 at pp. 479-80.

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under they would have been required to surrender as the bail application could be

entertained and heard only if the accused were in custody. It was held that as no

order adverse to the accused had been passed by any court nor was there any

miscarriage of justice or any illegality, in such circumstances, the High Court

committed manifest error of law in entertaining a petition under Section 482 Cr.

P. C. and issuing a direction to the subordinate court to accept the sureties and

bail bonds for the offence under Section 304 IPC. It was observed that the effect

of the order passed by the High Court was that the accused after getting bail in an

offence under Sections 324,352 and 506 IPC on the very day on which they were

taken into custody, got an order of bail in their favour even after the injured had

succumbed to his injuries and the case had been converted into one under Section

304 IPC without any court examining the case on merits, as it stood after

conversion of the offence. The procedure laid down for grant of bail under

Section 439 Cr. P. C., though available to the accused, having not been availed of,

the exercise of power by the High Court under Section 482 Cr. P.C. was clearly

illegal. Accordingly, the aforesaid order passed by the High Court was set aside.

In the aforesaid case of Hamida v. Rashid,108 in a petition under S. 482 Cr.

P. C., the High Court had allowed the continuation of the same bail which was

granted to accused in a bailable offence even after its conversion into an offence

under S. 304 IPC. While setting aside the said order, the Supreme Court held that

in spite of its repeated pronouncements that inherent power under Section 482 Cr.

P. C. should be exercise sparingly with circumspection in rare cases and that too

when miscarriage of justice is done, the High Court entertained the petition under

Section 482 Cr. P. C., the ultimate result where of was that the order of bank

granted in favour of the accused for an offence under sections 324,352 and 506

IPC ensured to their benefit even after the offence had been converted into one

under section 304 IPC and also subsequently when charge had been framed

against them under section 302 read with Section 34 IPC. The accused did not

remain in custody even for a single day nor did they approach the Court of Chief

108 (2008) I SCC 474 at p. 480.

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Judicial Magistrate or sessions Judge for being granted bail under section 304 or

302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue

of the said order passed by the High Court. Highlighting that the dockets of the

High Court are full and there is a long pendency of murder appeals in the High

Court from which the instant case had arisen, the Supreme court held that ends of

justice would be better served if valuable time of the High Court is spent in

hearing those appeals rather than entertaining petitions under Section 482 Cr. P.

C. at an interlocutory stage which are often filed with some oblique motive in

order to circumvent the prescribed procedure, as was the case in the instant case,

or to delay the trial which would enable the accused to win over the witnesses by

money or muscle power or they may become disinterested in giving evidence,

ultimately resulting in miscarriage of justice.

In a case, the accused were arrested for the commission of bailable offence

and accordingly they were released on bail by the Magistrate. Subsequently, the

charge was altered and S. 307 IPC was included which is non-bailable and

exclusively triable by the Court of Session. Only on that ground the police

arrested the accused without the bail being cancelled by the Court. In other words,

the police did not move the Court to cancel the bail, making out a case that they

are required for an offence under S.307, IPC. Therefore, the arrest by the police

itself was illegal. Subsequently when the accused were produced before the

Magistrate, the Magistrate also did not look into the fact that they were released

by the same Court on earlier occasion in the same crime number. Therefore,

before remanding the accused, the Magistrate ought to have considered whether

their bail application should be cancelled or not. Without cancelling the bail

which was granted by the same Court and remanding the accused without

assigning any reasons, the said order was illegal. If the police is allowed to arrest

the accused who has been released on bail by the Court, it will lead to disastrous

consequences as the police will be able to arrest the same accused under the same

crime number by altering the section, making it a non-bailable offence. Therefore,

it is absolutely necessary that before the accused is re-arresting in the same crime

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number, if he is released on bail, the prosecution has to seek cancellation of bail

making out prima facie case for non-bailable offences or for arresting him in view

of the serious nature of the offence, etc. In the event the bail is cancelled by the

Court either under S. 437(5) or S. 439(2), Cr. P.C., as the case may be, the

accused can be arrested. In the event the accused is re-arrested and produced

before the Magistrate, it is incumbent on the Magistrate to look into all the

material particular and after being satisfied only, he may pass orders according to

law.109

In Nathuram v. State of Rajasthan,110 initially a case under ss. 447, 323

IPC was registered against the petitioners. However, subsequently, Ss. 307 and

325 IPC were also added to the case. They approached the High Court under S.

482 Cr. P. C. alleging that by addition of these section, the bailable offence was

converted into an non-bailable offence and their right to bail had been divested by

the police due to that reason. The High Court refused to intervene in the matter on

the ground that so long as the investigation proceeds in conformity with the

mandates of the Cr. P. C., the domain of investigation circumscribed by the

provisions of the Cr. P. C., on attempt should be made by the Court to stifle or

impinge upon the progress of the progress of the investigation unless the salient

features of illegality, irregularity, or mala fide, misuse of power by the police

conscientiously persuades the Court to believe that personal liberty of the citizen

is at stake at the hands of arbitrary exercise of power by the State machinery.

Moreover, it was clarified that on the apprehension of arrest by the police, the

citizens have the right to move for anticipatory bail for the reasons available to

them in the facts and circumstances.

4.27 Under-Trial Prisoners Languishing in Jail in Bailable Offences

In Hussainara Khatoon (IV) v. Home Secy., State of Bihar,111 the Supreme

Court noticed that there were several under-trial prisoners who were charged with

bailable offences but who were still in jail presumably because no application for

109 Ataulla v. State of Karnataka, 1998 Cri LJ 913 at p. 914 (Kant).110 2007 Cri LJ 2533 at p. 2537(Raj).111 (1980)1 SCC 98 at pp. 101-2 : AIR 1979 SC 1369 : 1979 Cri LJ 1045 : 1980 SCC (Cri)

40.

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bail had been made on their behalf or being too poor they were unable to furnish

bail. The Supreme Court observed as under in this regard:

“It is not uncommon to find that under-trial prisoners who are

produced before the Magistrate are unaware of their right to obtain

release on bail and on account of their poverty, they are unable to

engage a lawyer who would apprise them of their right to apply for

bail and help them to secure release on bail by making a proper

application to the Magistrate in that behalf. Sometimes the

Magistrates also refuse to release the under-trial prisoners

produced before them on their personal bond but insist on

monetary bail with sureties, which by reason of their poverty the

under-trial prisoners are unable to furnish and which, therefore,

effectively shuts out for them any possibility of release from

pretrial detention. This unfortunate situation cries aloud for

introduction of an adequate and comprehensive legal service

programme, but so far, these cries do not seem to have revoked any

response.”

Calling for the setting up of a nationwide legal service programme to

provide free legal services to the poor, the make it possible to reach the benefits of

the legal process to them, to protect them against injustice and to secure to them

their constitutional and statutory rights, the Supreme Court held that when Article

21 provides that no person shall be deprived of his life or liberty except in

accordance with the procedure established by law, it is not enough that there

should be some semblance of procedure provided by law, but the procedure under

which a person may be deprived of his life or liberty should be “reasonable, fair

and just”. The Supreme Court further observed that a procedure which does not

make available legal services to an accused person who is too poor to afford a

lawyer and who would, therefore, have to go through the trial without legal

assistance, cannot possibly be regarded as “reasonable, fair and just”. The

Supreme Court held that the right to free legal services is an essential ingredient

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of “reasonable, fair and just” procedure for a person accused of an offence and is

implicit in the guarantee of Article 21. This is a constitutional right of every

accused person who is unable to engage a lawyer and secure legal services on

account of reasons such as poverty, indigence or incommunicado situation and the

State is under a mandate to provide a lawyer to an accused person if the

circumstances of the case and the needs of justice so required, provided of course

the accused person does not object to the provision of such lawyer. Accordingly,

in the instant case, the Supreme Court directed the State to provide lawyer as its

cost to the under-trial prisoners, charged with bailable offences, when they were

to be produced before the Magistrates on the next remand dates, for the purpose

of making an application for bail.112

As mentioned earlier, it may be pointed out that S. 436 of Cr. P.C. has

been amended subsequently by Act No. 25 of 2005 to ensure that a poor person

does not have to remain in custody in a bailable offence due to not being able to

furnish sufficient sureties. This offers a solution at least for a part of the problem

highlighted in the aforesaid Supreme Court judgment. It is also pertinent to

mention that “legal aid”, a free legal service to poor persons, has also become

quite established by now.

4.28 Issuance of Non-Bailable Warrant in a Bailable Offence

In a case, the offence alleged against the accused were under Sections

341, 323 and 506, IPC which were all bailable. They were released on bail

accepting cash surety offered by them. While granting bail the Magistrate had not

imposed any conditions nor he had given any date for the accused to appear

before the Court. However, subsequently, even before the charge-sheet was filed,

the Magistrate took up the case and directed to issue non-bailable warrant against

the accused. It was held that the Magistrate cannot issue non-bailable warrant

according to his whims and fancies without assigning any specific reason for

doing so. It is incumbent on the Magistrate to satisfy himself as to whether non-

bailable warrant will have to be issued under the compelling circumstances. If the

112 Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980)1 SCC 98 at pp. 103-5.

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accused failed to appear before the Court on the date fixed by the Court for his

appearance be one of the reasons for the Magistrate to issue non-bailable warrant.

Accordingly, the said order of the Magistrate directing issuance of a non-bailable

warrant was set aside.

4.29 Section 436-A: Maximum Period for which an Under-trial Prisoner can

be Detained:

Where a person has, during the period of investigation, inquiry or trial

under this Code of an offence under any law (not being an offence for which the

punishment of death has been specified as one of the punishments under that law)

undergone detention for a period extending up to one-half of the maximum period

of imprisonment specified for that offence under that law, he shall be released by

the Court on his personal bond with or without sureties;

Provided that the court may, after hearing the Public Prosecutor and for

reasons to be recorded by it in writing, order the continued detention of such

person for a period longer that one half of said period or release him on bail

instead of the personal bond with or without sureties.

Provided further that no such person shall in any case be detained during

the period of investigation, inquiry or trial for more than the minimum period of

punishment.

Provided for the said offence under that law.

“Explanation – In computing the period of detention under this section for grant

of bail the period of detention passed due to delay in proceedings caused by the

accused side be excluded.

New section 436A inserted by the Cr.P.C. (Amendment) Act 2005 (25 of

2005) enforces w.e.f. 23.6.2006 vide Notification No. S.). 923 (E) dated

21.6.2006.

There had been instances, where under-trial prisoners were detained in jail

for periods beyond the maximum period of imprisonment provided for the alleged

offence. The new Section 436A inserted in the Code by Cr.P.C. (Amendment)

Act, 2005 (25 of 2005) provides that where an under-trial prisoner other than the

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one accused of an offence for which death has been prescribed as one of the

punishments, has been under detention for a period extending to one-half of the

maximum period of imprisonment provided for the alleged offence, he shall be

released on his personal bond, with or without sureties.

It is also proposed to provide that in no case will an under trial prisoner be

detained beyond the maximum period of imprisonment for which he can be

convicted for the alleged offence.

The Court may, after hearing the Public Prosecutor and for reasons to be

recorded by it in writing, order the continued detention of such person for a period

longer than one-half of the said period or release him on bail instead of the

personal bond with or without sureties.

No such person shall in any case be detained during the period of

investigation, inquiry or bail for more than the maximum period of imprisonment

provided for the said offence under that law.

Bail is a right and refusal is an exception. However, the courts can impose

the conditions while granting bail. But the conditions should not be unreasonable.

Courts have also power to cancel bail. But power to cancel bail in non-bailable

offences must be used sparingly. It is the duty of the Magistrate to dispose of the

bail application as early as possible.

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