JUDICIAL DISTRICT BEED

FIRST WORKSHOP DATED 30/11/2014-."";i'.~

SUMMARY OF PAPERS

Law relating to bail with reference toprovisions of Sections 437, 438 and 439

of Cr.P.C.with reference to provisions ofI.P.C.and Special Laws.

ii) Parameters of granting, refusal andcancellation of bail.

be allowed to be trivialized. The life of an individual living in a sociery

05. The concept of bail is closely related to the Article 21 of the

Constitution. .It safeguards the personal liberty oLapersonfromhis

detention. The parameter for granting bail are described in the judgment of

Hussainara Khatoon VIs. State of Bihar. AIR 1979 Supreme Court 1360.

1) Length of residence in the community,

2) Employment, status, history and financial condition,

3) Family type and relationship,

4) Reputation and character,

5) Prior criminal record,

6) Identity by respectable member,

7) Nature of offence and probability of conviction,

8) Risk of non appearance during the trial.

be no doubt that delay in trial by itself constitutes denial of justice. Speedy

trial though not specifically enumerated. as a fundamental right, is implicit in

the broad sweep and content of Article 21 of the Constitution. The Hon'ble

Apex Court has held that, litigant has a fundamental right for speedy trial of

importance because it enshrines the fundamental right..!~ individual liberty,

but at the same time a balance has to be struck between the right to

individual liberty and the interest of the society. No right can be absolute

and reasonable restrictions can be placed on them. While it is true that one

of the considerations in deciding whether to grant bail to an accused or not.

Whether he has been in jail for a long time, the Court has also to take into

consideration other facts and circumstances such as the interest of the

society. Thus, grant of bail depends on facts and circumstances of each case

and it cannot be said that there is any absolute rule that because a long

period of imprisonment has expired bail must necessarily be .granted as held

in Rajesh Ranjan YadavV/s Pappu Yadav, 2007 Cri,L.J. 304 (S,C,):

MEANING OF BAIL:

08. Section 436 to 439 ofCr.P.C. deal with the Chapter of Bail. Bail

includes regular bail, anticipatory bail and default bail. The dictionary

meaning of "bail" is to release a person from custody or prison or detention

or under some kind of restraint and deliver him into the hands of sureties,

who bind themselves for his due appearance when required.

09. Section 436 of Cr.P.c. is in respect of bailable offence. It

contemplates that a person accused of bailable offence has a right to be

released on bail. Section 50(2) of Cr.P.C. makes it obligatory for a police

officer arresting such a person without a warra{lt to inform him his right to

be released on bail. As per section 436(2) of Cr.P.c.·if a person absconds or

breaches the condition of bail in bailable offence sh~n not be entitled to bail

when brought before the Court on any subsequent date even in bailable

offence ( Sultan Kamroddin Vis Union of India, 2008 All.M.R. (CrL)

3156). A new section 436-A of Cr.P.C. is introduced in the year 2005, to

Court in Cd .•Writ petiti()~ No.310/2005.(Hon'hleJustice Ruden Joseph- ~;;:;.• , ~

has lmdexgonedetention Jdr a period extending half:ill~rI1axin:nlm.d.et~l1tiQlJ

exclusively with a Court of Magistrate and not with the Court of Sessions or

High Court. There is an exception to this provision that even if the offence is

cognizable and punishable with death, imprisonment for life or

imprisonment for 07 years or more, then bail shall not be granted. Even if

the accused is convicted previously for any cognizable offence even then bail

shall not be granted. But if the accused is under 16 years of age or is a

woman or is a sick or infirm person then bail may be granted by the

Magistrate. It is necessary to hear the Public Prosecutor before granting bail

in cases of offences punishable with death, imprisonment for life or

imprisonment for 07 years or more.

ANTICIPATORY BAIL:

Section 438 of Cr.P.c. deals with anticipatory bail. The

anticipatory bail is nothing but a bail in the event of arrest. When any person

has an apprehension or reason to believe that he may be arrested of an

accusation of having committed a non bailable offence then he may apply

to High Court or Court of Sessions for direction that in the event of arrest he

shall be released on bail. Therefore, the said powers are exclusively vested

with the Court of Sessions and High Courts. For considering the application

for anticipatory bail the prerequisite condition is that the offence must be

non bailable. There muSt be a sufficient reason to believe that the applicant

may be arrested in said accusation. The Sessions C6Urt or the Hon'ble High

Court considering the nature and gravity of accusation, the antecedent of

applicant, the possibility to flee from justice and the accusation has been

made with object of injury or humiliating the applicant by having him

grant of anticipatory bail. When the respective court has. not passed any_;.;....: -0

interim order or has rejected the application then the officer-in-charge of

a) a condition that the person shall make himself availablefor the interrogation by police officer as and whenrequired;

b) a condition that the person shall not directly orindirectly make any inducement, threats or promise toany witness;

c) a condition that a person sheill not leave India withoutprevious permission of the Court.

14. If the application for anticipatory bail is granted then if the said

(a) Section 438(1) is to be interpreted in light ofArticle 21 of the Constitution of India.

(b) Filing of FIR is not a condition precedent toexercise of power under section 438.

(c) Order under section 438 would not affect theright of police to conduct iiwestigation.

(d) Conditions mentioned in section 437 cannot beread into section 438.

(e) Although the power to release on antlCIpatorybail can be described as of an extraordinary characterthis would not justify the conclusion that the powermust be exercised in exceptional cases only. Powersare discretionary to be exercised in light· of thecircumstances of each case.

1. The nature and gravity of accusation and the exact roleof accused must be properly comprehended beforearrest is m?-de;

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2. The antecedents of the applicant including the fact as towhether the accused has previously undergoneimprisonment on conviction by court in respect ofcognizable offences;

3. The possibility of accused to repeat the offence of samenature .or other offences; and

4. Impact of granting anticipatory bail particularly in casesof large magnitude affecting a very large number ofpeople.

person against whom non-bailable warrant is issued. The answer }s "yes" in

,It is easier to reject a bail application in a non-bailable

ext¢nds seven years ot@oteorof.anqffenceittud¢.t<£1J.apt¢r\lI?XW,

Indian· Penal Code, the Hoh'ble High COUltor Ses~idn'sCourt may impose-:~.' -.

accepted. the applicant came into custody of the court within the

contemplation of section 439 of Cr.P.c. The Sessions Court as well as High

Court both can exercise concurrent powers under section 439 of Cr.P.c.

BAlL IN DEFAULT(SECTION 167(2) OF Cr.P.C.

24. Bail under section 167(2) of Cr.P.c. is popularly known as

"default bail". The accused is entitled to be released on bail on account of

default on the part of the prosecution to file a charge-sheet under section 173

(2) within the prescribed period of 60 days or 90 days. The period of 60 days

or 90 days commences from the date on which the accused is remanded and

not from the date of arrest. (Chaganti Satyanarayana and others Vs. State

of Andhra Pradesh1986 S.C.C.(Cri.) 321, Central Bureau of Investiation,

Special Investigation, Special Investigation CeZU,New Delhi Vs. Anupam

25. Whether a person is entitled to be released on bail in view of

the provisions of Section 167(2) of the Cr.P.c. does not depend upon the

question whether there is a prima-facie case against the accused and whether

the offence is of a serious nature.

26. If the investigation into the offence. for-which the accused was

arrested initially reveals his involvement in some other offence associated

therewith, any further investigation would continue to relate to the same

initial arrest and as such the period envisaged in the proviso to sec. 167(2)

would not extended. (State of Maharashtra vs. Bharti Verma 2002 (2)

Where a charge-sheet was filed within·thestlpulated,p~ri()cl ()£-.- :~.

crime number then, different dates should be taken into consideration for

each separate crime to ascertain 60 days period. It is held in State of West

Bengal Vs.Dinesh Dalmiya 2007 Cri.L.J. 2757, G.B.I. Vs. Anupam

Kulkarni 1992 Cri.IJ.J. 2768, A.I.R.1992, 1768 that the counting of

mandatory should be· separately done in each particular case. The bail in

such cases is a bail granted under Chapter XXXIIIof Cr.P.c. i.e. to say under

Section 437 of Cr.P.C. and therefore, while releasing the accused under

Section 167[2] (a) of Cr.P.C. the Court is empowered to impose conditions at

the time of releasing him on bail.

31. The question now is whether the default bail granted can be

cancelled. If the accused was released after completion of. 60 days of

stipulated period and subsequently after filing of the charge sheet, it reveals

that some serious offence has been committed by him, then the bail earlier

granted can be cancelled. Reliance can be placed in the decision in

Rajnikant Patel Vs. Narcotic Control Bureau AIR 1990 Supreme Court 71.

32. Once the accused is released on bail under section 167(2) of

Cr.P.c. he cannot be taken in custody merely on filing of charge-sheet which

reveals the commission of noncbailable offence unless there are strong

grounds, held in Aslam B. Desai Vis State of Maharashtra, A.I.R. 1993

S.C. 1.

BAIL UNDER SPECIAL lAWS:

33. Now as far as grant of bail under Special Laws is concerned, if

the Special Act prescribes separate provision forbai )tfienthoseproVi,si<~h,s

will·'override •the provi,sib~s•of-Se~tion··437or438(iCr"R{J.,;InN~e.g$: ..;J\¢t'-;.:...

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there iSSpedalprovision,2tirider.Sedion .37 and' thete~puttiFfgJiItiitatiqn.';Qt{

. .'. .;th~power··Q£$~·q9,t,t~'ctO·•.graI1ttlte, bail""$qthes,e,:,lim ,~tiQns<ar~·.·,t(;x:P~c.,~@~I1.;\:x':.

Abuse Act and Electricity Act, grant of bail under these Acts shall be

gravity alone can not be a decisive ground to deny ~he bail. Protection ofi

personal liberty against securing attendance of ~ccused at trial canI

presumption of innocence. There should not be unn1cessary burden on the

, i

i

Magistrate can grant bail to' the accused in S.C.S.T. (Prevention of Atrocities