CHAPTER-II

THE LAW RELATING TO BAIL

The code has classified all offences into “bailable” and “non-

bailable” offences. Under Section 2(a) “bailable offence” means an

offence which is listed as bailable in the First Schedule or which is made

bailable by any other law for the time being in force. Non-bailable

offence’ means any other offence. The code has not provided any criteria

to determine whether any particular offence is bailable or non-bailable in

the First Schedule. The gravity of the offences, namely, offences

punishable with imprisonment for three years or more have been treated

as non-bailable offences. But, this is not a hard and fast rule. There are

exceptions to the same.

However, in case of “bailable offences” granting of bail is

mandatory and in case of “non-bailable offences” granting of bail is

discretionary, which are discussed under this chapter II in three sub-heads

in relevant to those sections of Criminal Procedure Code, 1973.

2.1 BAILABLE OFFENCES:

Section 436 of Criminal Procedure Code, 1973 deals with bailable

offences. This section provides that when a person not accused of a non-

bailable offence is arrested or detained, he can, as of right of claim to be

20
released on bail, and such a right is available to all those arrested under

different categories of bailable offences, except in cases of accused

against whom security proceedings have been initiated.

Section 436 laysdown in what cases bail to be taken: -

(1) when any person other than a person accused of a non-

bailable offence is arrested or detained without warrant by an

officer in charge of a Police Station, or appears or is brought

before a court, and is prepared at any time while in the

custody of such officer or at any stage of the proceeding

before such court to give bail, such person shall be released

on bail.

Provided that such officer or court, of he or it thinks

fit, may, instead of taking bail from such person, discharge

him on his executing a bond without sureties for his

appearance as here in after provided.

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 conditions of the bail

bond as regards the time and place of attendants the court

21
 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 such refusal shall be without

prejudice to the powers of the court to call upon any person

bound by such bond to pay the penalty thereof under section

446.

Scope of the Section:

In granting bail in a bailable offence the Magistrate should

discharge his functions with judicious objectivity and detachment,

scrupulously keeping away form all extra-judicial considerations as an

accused person can claim bail in a bailable offence as of right. When an

accused person is arrested for a bailable offence and he is prepared to

give bail, he shall be released on bail. Mere seriousness of the offence is

not sufficient to refuse bail.

In a bailable offence the only choice for the court is as between

taking a simple recognizance of the principle offender or demanding

security with surety. Ordinarily the word ‘bail’ applies to the second kind

of security according to the practice and procedure of courts. The

criminal court has no discretion in bailable offence while granting bail

under section 436 to impose any condition except the demanding of

security with sureties. Thus, where a Magistrate while granting bail in

respect of a bailable offence, imposes a condition that the accused should

22
appear before the police, such a condition is improper and there is no

jurisdiction in the Magistrate to pass such an order. Even the Magistrate

has no power, in such a case, to ask the accused to furnish cash bail as

there is no provision for such cash bail. For every bailable offence, bail

being a right and not a favour and in demanding bail from accused

person, the social status of the accused should be considered taking care

that the amount fixed is not excessive. Detention of the accused entitled

to be released on bail, tends to prejudice their means of defence and if the

accused are respectable and innocent, they are exposed to the indignity of

imprisonment for which no subsequent order of discharge or acquittal can

alone be sufficient.

Section 436 of Criminal Procedure Code is meant for any person

who is arrested or brought before the court except a person accused of a

non-bailable offence. The section is not limited to persons accused of a

bailable offence and is applicable to Chapter VII except to provisions

specially excluded. Thus, a Magistrate holding on inquiry under section

110 can under section 436 compel the person proceeded against to

execute a bond for his appearance during the inquiry. The absence of a

specific form for the purpose is no ground to hold otherwise in the case of

bailable offences, to which section 436 applies. A police officer has no

discretion at all to refuse to release the accused on bail, so long as the

accused is'prepared to furnish surety and the police officer also can’t

23
refuse the bail on the ground that the person arrested may be granted bail

by a court and the same was held in Dharma V.Rabindranath.1 The same

way refusal of grant of bail in contravention of section 436 will make the

detention illegal and the police officer causing such detention may be

held guilty of wrongful confinement under section 342 of the Indian

Penal Code was held in Dharma V.Rabindranath.

Principle underlying in Section 436 of Criminal Procedure Code:

The principle underlying the grant of bail as envisaged in the

Section is that an accused person is presumed in law to be innocent unless

he is proved to be guilty. So, as a presumably innocent person, he is

entitled, to freedom. He must be given all possible opportunities to look

after his case. The granting of bail will facilitate him to defend himself

properly better than he could if he were kept in custody. Though the

stage for raising the presumption of innocence in favour of the accused

does not arise till the conclusion of the trial and the appreciation of the

entire evidence on the second, yet the matter of granting bail has to be
rv
considered in the background of the fact that in the criminal

jurisprudence, which guides the courts there is a presumption of

innocence in favour of the accused.

1978 Cr. LJ 864 (Ori).

24
Conditions precedent and considerations for grant of bail under the
section:

The section lays down three conditions that a person must satisfy

before the question of granting bail to him. They are:

(1) He has been acused of a bailable offence;

(2) He has been arrested or detained without warrant by an officer-

in-charge of a Police Station or appears or is brought before a

court and;

(3) He is prepared to give bail at any time while in the custody of

such officer or at any stage of the proceedings before such

court.

The above three conditions are also laid down as in State vs

Baswanath Rao.2

Provisions of the Section are mandatory:

A mere perusal of the Section will make it abundantly clear that

when a person acused of a bailable offence is arrested or detained without

a warrant by the Officer-in-charge of the Police Station or appears or is

brought before the court and he is prepared at any time while in the

custody of such officer or at any stage of the proceedings before such

court to give bail such person shall be released on bail. These provisions

2 State vs Baswanath, AIR 1966 Mys 71; 1966 Cr. LJ 267.

25
are mandatory and the Police Officer or court has no discretion in the

matter at all.

So, when a person other than a person accused of a non-bailable

offence is arrested and if he is prepared to give bail, he shall be released

on bail as this provision is mandatory. The Police Officer has no

discretion at all to refuse to release the accused on bail so long as he is

prepared to furnish surety.

When a person is arrested by the Police for a bailable offence he

has to be produced before the Magistrate having jurisdiction on the case

subject to the provisions as to bail. But before he is produced before a

Magistrate, if the acused is prepared to give bail, the Police Officer

concerned has to release him on bail.

Where, however, at the stage while the accused is in police custody

he is not prepared to give bail, he has to be produced before the

Magistrate within 24 hours as provided in Section 57 of Criminal

Procedure Code. When he is produced before the Magistrate and is

prepared to give bail, he shall be released on bail. The Magistrate can

authorize his detention in the police custody for the purpose of

investigation and he is competent in respect of bailable offences to

impose a condition that the accused should appear before the police.

A person arrested without a warrant could not be detained by the

police for more than 24 hours. If the Police Officer considers it necessary

26
to detain such person for a longer period for the purposes of investigation,

he can do so only after obtaining a special order of Magistrate under

section 167.3

According to section 167(2), the total period of detention of a

acused which a Magistrate can authorize shall not exceed:

(i) Ninety days, where the investigation relates to an offence

punishable with death, imprisonment for life or imprisonment

for a term not less than ten years and

(ii) Sixty days where the investigation relates to any other offence.

On the expiry of the said period of ninety days or sixty days, as the

case may be, the accused person shall be released on bail if he is prepared

to and does furnish bail.

This, however, does not mean that detention of the accused beyond

the period of 60 or 90 days as the case may be, is illegal and therefore a

ground for bail. The Magistrate can authorize detention beyond the

above mentioned maxima: but if the accused during this period furnishes

bail he has to be released on bail. There is however no scope for the

inference that the accused shall be deemed to have been released on bail

on the expiry of the above maxima making further detention

automatically illegal.

3 Sec. 167: Procedure where investigation can not be completed in twenty four hours.

27
 While Section 436 gives an arrested person a right to bail, Section

50(2) makes it obligatory for a Police Officer arresting such a person

without a warrant to inform him of his right to be released on bail.

He is bound to be released on bail immediately when he was

prepared to give bail.

2.2 NON-BAILABLE OFFENCES:

Section 437 of the Code of Criminal Procedure deals with the

aspect of Non-Bailable Offences. Subject to these cases, granting of bail

is essentially discretionary in all cases of non-bailable offences. It is

important to mention here that discretion, when applied to a court of

justice, means sound discretion guided by law. It must be governed by

rule, not by humour; it must not be arbitrary, vague and fanciful. But

legal and regular. The discretion to grant bail in cases of non-bailable

offences has to be exercised according to certain rules and principles as

laid down by the Code and Judicial decisions.

Generally while matking a decision regarding grant of bail, the

following circumstances are taken into considerations:

(i) The enormity of charge;

(ii) The nature of the accusation;

(iii) The security of the punishment which the conviction will entail;

(iv) The nature of the evidence in support of the accusation;

28
 (v) The nature and gravity of the circumstances in which the

offence is committed;

(vi) The position and status of the accused with reference to the

victim and the witnesses;

(vii) The danger of witness being transferred with;

(viii) The livelihood of accused fleeing from justice;

(ix) Probability of the accused committing more offences;

(x) The protracted nature of the trial;

(xi) Opportunity to the applicant for preparation of his defence and

access to his counsel.

(xii) The health, age and sex of the accused person etc.;

Section 437 when bail may be taken in case of non-bailable

offence:

1. When any person accused of, or suspected, or the commission of

any non-bailable offence is arrested or detained without warrant by

an officer-in-charge of a Police Station or appears or is brought

befdre a court other than the High Court or Court of Session, he

may be released on bail, but -

(a) Such person shall not be so released if there appears

reasonable grounds for believing that he has been guilty of

an offence punishable within death or imprisonment for life;

29
 (b) Such persons shall not be so released if such offence is a

cognizable offence and he had been previously convicted of

an offence punishable with death, imprisonment for life or

imprisonment for seven years or more, or he bad been

previously convicted on two or more occasions of (a4

cognizable offence punishable with imprisonment for three

years or more but not less than seven years).

Provided that the court may direct that a person referred to in

clause (i) or clause (ii) be released on bail if such person is under the age

of sixteen years or is a woman or is sick or infirm;

Provided further that the court may also direct that a person refused

to in clause (ii) be released on bail if it is satisfied that it is just and proper

so to do for any special reason; provided also that the mere fact that an

accused person may be required for being identified by witnesses dying

investigation shall not be sufficient ground for refusing to grant bail if he

is otherwise entitled to be released on bail and gives an undertaking that

he shall comply with such directions as may be given by the court.

Provided also that no person shall, if the offence alleged to have

been committed by him is punishable with death, imprisonment for life,

or imprisonment for seven years or more be released on bail by the court

4 Subs, by Act 25 of 2005.

30
under this sub-section without giving an opportunity of hearing to the

Public Prosecutor.5

2. If it appears to such officer or court at any stage of the

investigation, inquiry or trial as the case may be, that there are no

reasonable grounds for believing that the accused has committed a

non-bailable offence, but that there are sufficient grounds for

$

further inquiry into his guilt, the accused shall, subject to the

provisions of Section 446A and pending such inquiry, be released

on bail) or, at the discretion of such officer or court, on the

•^
execution by him of a bond without sureties for his appearance as

hereinafter provided.6 7

3. When a person accused or suspected of the commission of an

offence punishable with imprisonment which may extend to seven

years of more or of an offence under Chapter VI, Chapter XVI, or

Chapter XVII of the Indian Penal Code (45 of 1860), or abetment

of, or conspiracy or attempt to commit, any such offence, is

released on bail under sub-section (1),

( the court shall impose the conditions, -

(a) that such person shall attend in accordance with the conditions of

the bond executed under this chapter,

5 Ins. by Act 25 of2005.

6 Subs. By Act 63 of 1980.
7 Subs, by Act 25 of 2005.

31
 (b)that such person shall not commit an offence similar to the offence

of which he is accused, or suspected, of the commission of which

he is suspected, and

(c) that such person shall not directly or indirectly make any

inducement, treat or promise to any person acquainted with the

facts of the case so as to dissuade him from disclosing such facts to

the court or to any Police Officer or tamper with evidence,

may also impose, in the interest of justice, such other conditions as

it considers necessary)

4. An Officer or a court releasing any person on bail under sub-

O

section (1)] or sub-section (2), shall record in writing his or its [

reasons or special reasons] for so doing.

5. Any court which has released a person on bail under sub-section

(1) or sub-section (2) may, if it considers it necessary so to do,

direct that such person be arrested and commit him to custody.

6. If, in any case triable by a Magistrate, the trial of a person accused

of any non-bailable offence is not concluded within a period of

sixty days from the first date fixed for taking evidence in the case,

such person shall, if he is in custody during the whole of the said

period be released on bail to the satisfaction of the Magistrate,

8 Sub. by Act 63 of 1980 w.e.f. 23-9-1980.

32
 unless for reasons to be recorded in writing, the Magistrate

otherwise effects.

7. If, at any time after the conclusion of the trial of a person accused

of a non-bailable offence and before judgement is delivered, the

court is of opinion that there are reasonable grounds for believing

that the accused is not guilty of any such offence, it shall release

the accused, if he is in custody, on the execution by him of a bond

without sureties for his appearance to hear judgement delivered.

The words “appears or is brought before other than High Court or

court of Sessions” in Section 437(1) make it clear that this section does

not apply to the High Court or to a court of session and the word

‘Appears’ of this clause was interpreted that includes voluntary surrender

before court without intervention of any agency.9

In Section 437 (1) the word ‘may’ used therein, was of

controversy. The word ‘may’ has been interpreted by the Hon’ble

Supreme Court10 as follows:

There is no doubt that the word ‘may’ generally does not mean

‘must’ or shall but it is cell settled that world ‘may’ is capable of meaning

of ‘must’ or ‘shall’ in the light of the context which denotes direction

should be construed to mean a command. Sometimes a legislature uses

9 1982 Cri.LJ 1816.

10 State of U.P. vs Joginder Singh, AIR 1963 SC 1628.

33
that word ‘may’ out of reference to the high status of authority on whom

power and obligation are intended to be conferred’.

According to Section 437(1) the word ‘may’ directed that a person

referred to in clause (i) or clause (ii) be released on bail if such person is

under the age of sixteen years or is a woman or is sick or infirm.

As per Section 437 l(i) A person who is guilty of an offence

punishable with death or imprisonment for life shall not be released on

bail if there appears reasonable grounds that, he is involved in such an

offence. But, while considering the question of bail in non-bailable

offences not punishable with death or imprisonment for life the court

should take into account the various considerations. For example:

(i) nature and seriousness of the offence,

(ii) the nature of circumstances in which the offence was

committed,

(iii) the prima-facie character of the evidence,

(iv) the circumstances which are peculiar to the accused,

(v) position and status of accused with reference to victim and

witnesses,

(vi) reasonable possibility of presence of accused not being secured

at the trial,

(vii) history of the case as well as investigation,

34
 (viii) reasonable apprehension of witnesses being tampered with on

jeopardizing his own life,

(ix) larger interest of public or the state of repeating the offences

and similar other considerations which arise when a court is

approached for bail in non-bailable offence.11

A person covered by sub-section (i) clause (ii) may be released on

bail if such person is under the age of sixteen years or is a woman or sick

or infirm. The court may also release such person on bail if it satisfied

that it is just and proper to do so for any other reasons and this is

explained in the detailed way in the following manner:

a. Under the age of sixteen years:

According to Section (2k) of the Juvenile Justice (Care and

protection of children) Act, 2000 a person who has not completed the age

of eighteenth year is called a juvenile.

The first provision in Section 437 has almost become redundant for

the courts created under the Criminal Procedure Court because the

juvenile has to be produced before the juvenile court and their bail and

custody will be governed by section 12 .of this Act.

11 Gurucharan Singh vs State of Delhi (Administration), AIR 1978 SC 179.

35
Section 12: Bail of Juvenile:

1. When any person accused of a bailable or non-bailable offence,

and apparently a juvenile, is arrested or detained or appears or is

brought before a Board, such person shall, not withstanding

anything contained in the Code of Criminal Procedure, 1973 (2 of

1974) or in any other law for the time taking in force, be released

on with or without surety but he shall not be so released if there

appear reasonable grounds for believing that the release is likely to

bring him into association with any known criminal or expose him

to normal, physical or psychological damages or that his release

would defeat the ends of justice.

2. When such person having been arrested is not released on bail

under sub-section (1) by the Officer-in-Charge of the Police Station

such officer shall keep him to be only in an observation home in

the prescribed manner until he can be brought before a Board.

3. When such person is not released on bail under sub-section (1) by

the Board it shall, instead of committing him to prison, make an

order sending him to an observation home or a place of safety for

such period during the pendency of the inquiry regarding him as

may be specified in the order.

36
 In case Armit Das vs State of Bihar12 the Supreme Court held that

the determination of the age of the accused will be taken on the date of

his appearance or production before the Juvenile Court.

In case Sheela Barse vs Union of India13 the Supreme Court of

India observed that if a child is a national assert, it is the duty of every

state to look after the child to ensure full development of its personality.

That is why, all the statutes dealing with children provide that a child

should not be kept in jail. Even apart from the statutory prescription it is

elementary that a jail is hardly a place where a child should be kept.

There can be no doubt that incarceration in jail would have the effect of

drafting the development of the child exposing him to baneful influences,

coarsening his conscience and alienating him from society.

b. Woman;

According to the interpretation of Supreme Court14 and same of the

High Courts especially Rajasthan High Court the word “may” in proviso

first of section 437 Criminal Procedure Code has to be read as “must” or

“shall”. Thus, this proviso being mandatory, the court is under obligation

to release the accused persons including women on bail.

12 1975 Cri. LJ 1348.

13 AIR 1986 SC 1773.
14 State of U.P. vs Joginder Singh, AIR 1963 SC 1618.

37
 Keeping in view the status of women in India, this proviso was

inserted under Section 437 to avoid women being kept in custody as far

as possible.

It is an obligation on the part of court to interpret the law as it is

and release the women accused on bail liberally even if there are

“reasonable grounds” to believe that she has been guilty of an offence

punishable with death or imprisonment for life.

In case Smt. Sundar vs State of Rajasthan,15 the main ground on

which bail application is stressed is that the petitioner is a young woman

and under Section 437, there is a provision for taking sympathetic view

for the release of a woman on bail.

In the case State vs Harbansal16 the expression “reasonable grounds

for believing” means such grounds as are based on reason and logic. The

grounds should be such as much lead on to believe that the accused is

guilty of such an offence. It is not only the probability of the ground

being creative of a believe but even the possibility of such a belief which

is sufficient to give rise to the interdiction referred to in the sub-section.

It is an established and cardinal principle of criminal jurisprudence

that in all criminal proceeding, the evidence against the accused should be

recorded in his/her presence and in open court so that the accused will

15 1990 Cri. LJ (Rajasthan) 92.

16 1975 Cri. LJ 1705 (JK).

38
have an opportunity to challenge the evidence and can defend their case.

But in certain cases, the court may dispense with the personal attendance

of the accused and him or her to appear by pleader.

Sections 205 and 273 of the Criminal Procedure Code provide for

exemption of all accused from personal attendance before the court. Both

sections provide for the exemption of the accused from personal

attendance, but they refer to different stages of the proceedings. Thus,

section 205(1) deals with the initial appearance of the accused person

before the Magistrate who issues summons, while Section 273 deals with

the presence of the accused person at the trial and empowers the presiding

officer, whether he is a Magistrate, Sessions Judge or Judge of the High

Court to dispense with the personal attendance of the accused at the

trial.17

In 1951, the Calcutta High Court expressed its views that a

Purdanashin woman18 has to be exempted from personal attendance in

cases involving no moral turpitude.

Other. High Courts have also taken similar view19 in dispensing

with the personal appearance of Purdanashin women. They further

exempted accused who are highly placed public functionaries and persons

rendering public service.

17 Zain Yar Jung vs Raghotam, AIR 1957 Andhra Pradesh, 468.
18 Rajyalakshmi vs State (1951) 46 C.W.N. 221 Ref. in SC Sarkar, or “Criminal
Procedure” Edi 8th, 2004, Indian Law House, Delhi, p.735.
19 Sushila Devi vs Sharada Devi, 1961, Cri. LJ 819.

39
 The High Court of Gauhati in M.J. Marjina Begum and others vs.

Matakhal Ali20 while dealing with the necessity of seeking attendance of

the women accused in a criminal trial by the learned Magistrate, held

that:

“Women should not be asked to appear in person in court unless

there are some strong reasons for insisting upon their personal presence in

court. Discretion in their favour ought to be liberally exercised in view of

social conditions that exist today”.

If a woman sentenced to death is found to be pregnant, the High

Court shall order the execution of the sentence to be postponed and may,

if it thinks fit, committee the sentence to imprisonment for life.21

c. Sickness:

In the case of State vs Sardool Singh22 has interpreted the word

“Sick”. The sickness contemplated by proviso is a sickness which

involves a risk or danger to the life of the accused person.

In the case State vs Gadadhar Baral23 sickness is ground to release

the accused in a non-bailable offence on bail as provided in Section

437(1) proviso. However, any nature of sickness would not entitle an

accused for release on bail. It should be of such nature and that unless the

20 1978 Cri.LJ No. C 292 (Gan).

21 Section 416 of Cr.PC, 1973.
22 1975 Cri.LJ 1348.
23 1989 Cri.LJ.627 (Ori).

40
accused is released, he cannot get proper treatment for his cure from the

ailment unless, this interpretation 's given, the legislative purpose beind a

non-bailable offence shall be frustrated.

The proviso is based on humanitarian grounds merely because a

person is detained in custody being accused of a non-bailable office, the

same should not be a ground for his physical suffering in our

jurisprudence an accused is presumed to be innocent until proved to be

guilty. Therefore, the severing power shall have to make all

arrangements for medical treatment of an accused in custody.

d. Infirm:

In case K.N. Bayan vs State of Gujarat24 the word “infirm”

interpreted as inform means according the same as the meaning of

concise dictionary that is, ‘physically weak specially through age’.

According to Websters New Twentieth Century dictionary means

weak, not though, not firm, or sound, and physically feeble.

Courts should be liberal in releasing the accused on bail on their

own personal bonds, when the accused are poor men, young men and

inform weak and women, court cannot reject surety because his asserts

24 1982 Cri.LJ 2109 para 12.

41
are situated in a different district or state. This Geographical

discrimination was illegal.

The provisions of sub-section (2) of section 437 of the code

empower the court to grant interim bail pending further enquiry into the

matter where the court finds that there are no reasonable grounds for

believing that the accused had committed a non-bailable offence but there
. t
<y/r

are sufficient grounds for further enquiry into his guilt.

Sub-section (2) of this section says that if bail to an accused person

is not granted at the initial stage-when he is brought before the Magistrate

the bail can be granted at a subsequent stage during investigation inquiry

or trial. There is nothing in the code of criminal procedure which debars

a Magistrate before whom the inquiry is pending from granting bail even

though bail had been refused at an earlier stage of the enquiry by the

Sessions Judge. 27 If after remand the prosecution does not adduce

evidence of an incriminating nature, it must be presumed that there is no

such evidence and the accused should be released on bail under section
*JQ

297(2) though the preliminary enquiry should proceed.

Sub-section (2) of section 437 also provides that, if the

investigating officer or the court at any stage of the investigation, enquiry

or trial, as the case may be, is of opinion that there are no reasonable

25 AIR 1978 SC 1594.

26 State of Kerala vs M.K. Pyloth, 1973 Ker LJ 88.
27 Bohra Singh vs State AIR 1956 All 671.
28 Jamini Maffick vs Emperor 1LR 36 Cal 174.

42
grounds for believing that the accused has committed a non-bailable

offence, but there are sufficient grounds for further inquiry into his guilt,

pending such inquiry the accused shall be released on bail. At the same

time under section 437(2) when a person is released pending inquiry on

the ground that there are no sufficient grounds to believe that he had

committed a non-bailable offence may be committed to custody by court

which released him on bail if it is . satisfied that there are sufficient

grounds for so doing after inquiry is completed.29

(a) Investigation:

The word ‘investigation’ has been defined in Section 2(h) Criminal

Procedure Code to include all the proceedings under the code of criminal

procedure for the collection of evidence for the collection of evidence

conducted by a Police Officer or by any person (other than a Magistrate)

who is authorized by a Magistrate on this behalf.

Investigation consists of a series of steps namely, (i) proceedings to

the spot; (ii) ascertainment of the facts and circumstances of the case; (iii)

discovery and arrest of the suspected offender; (iv) collection of evidence

relating to the commission of the offence which may comprise.

The main object of investigation being to bring home the offence to

the offender the essential part of the duties of an investigating officer in

29 Bashir vs State of Haryana, AIR 1978 SC 55(58).

43
this connection, apart from arresting the offender, to collect all materials

necessary for establishing the accusation against the offender. Merely

making some preliminary enquiries upon receipt of information from an

anonymous a source of doubtful reliability for checking up the

correctness of the information does not amount to collect of evidence and

so cannot be regarded as investigation.30

Formation of opinion as to whether on the evidence collected, there

is a case to place accused before a court for trial and if so, taking

necessary steps for the same filing a charge sheet are part of the process

of investigation.

(b) Inquiry:

The expression ‘inquiry’ is defined in section 2(g) of the Criminal

Procedure Code as meaning “every enquiry” other than trial conducted

under the said code by.a Magistrate or court. The expression ‘enquiry’

this is of wide import and takes in every proceedings other than trial.

(c) Trial:

The word ‘trial’ has not been defined in the Code of Criminal

Procedure. “Trial under the code means only the proceeding taken in

court after a charge has been drawn up but an enquiry does not include a

trial. The meaning of the word ‘trial’ differs in different forms of cases.

30 State of UP vs Bhagwant Kishore Joshi, AIR 1964 SC 221; (1964), 1 CrLJ 140.

44
Thus, in a Session case, the trial begins only after the commitment and

the charge is framed and the accused appears at the trial. In a warrant

case, it is more reasonable to treat the proceedings after the framing of the

charge as the trial. In a Summons case, the trial really begins when the

accused is brought before the Magistrate, the particulars of the offence

stated to him and Magistrate proceeds to hear the complaint and takes the

prosecution evidence. The trial must end in conviction or acquittal, there

is no discharge.

Sub-section(3) of Section 437 Criminal Procedure Code confers

discretion on the court releasing a person on bail under sub-section(l) of

Section 437 to impose any condition when the court considers necessary.

Such conditional bail may be granted to a person accused or suspected of

the commission of an offence punishable with imprisonment which may

extend to seven years or more or of an offence under Chapter VI, Chapter

XVI or Chapter XVII of the Indian Penal Code, 1860, or abetment of, or

conspiracy or attempt to commit any such offence. Those conditions are

imposed by court should be with a view:

(a) To ensure that such person shall attend the court in accordance

with the conditions of the bond executed under Chapter

XXXHI, Criminal Procedure Code or '

45
 (b) To ensure that such person shall not commit an offence similar

to the offence of which he is accused or of the commission of

which he is suspected or

(c) Otherwise in the interests ofjustice.

The provision in sub-section (3) of Section 437 has been newly

introduced in the present section 437 of the present code which

corresponds to Section 497 of the previous code where there was no

provision for releasing a person on bail accused of non-bailable offence.

In the case of Hazari Lai Gupta vs Rameshwar Prasad31 it was urged

before the Supreme Court that Sections 496, 497 and 498

(Corresponding to sections 436, 437 and 439 of the present code) did

not confer any powers on the court when granting bail to restrict the

departure of the accused on bail from India by requiring him to surrender

his passport. The Supreme Court has held that these sections are not

exhaustive of the powers of the court in respect of the terms and

conditions of bail particularly when the High Court under section 561-A

(present section 482) deals with cases of this type. The apprehension of

the appellant jumping bail could not be brushed aside. If the appellant

wanted to retain the passport the court might not have granted the

31 (1972) 1 SC J 523 : AIR 1972 SC 484.

46
appellant any bail. The grant of bail with conditions was as such not

assailable.

“Offences punishable with imprisonment which may extend to seven

years or more”:

The offences punishable with imprisonment which may extend to

seven years or more are offences enumerated in various sections of the

Indian Penal Code, 1860. They are mentioned below excluding those

mentioned in Chapters VI and XVI of the said code:

S.No. Sections Offences under Indian Penal Code

01 118 Concealing a design to commit an offence punishable
with death or imprisonment for life, if the offence be
committed.
02 119 A public servant concealing a design to commit an
offence which it is his duty to prevent, if the offence
be committed and if the offence is punishable with
death or imprisonment for life.
03 131 A betting mutiny or attempting to seduce an officer,
soldier, sailor or airman his allegiance or duty.
04 132 Abetment of mutiny, if mutiny is committed is
consequence thereof.
05 134 Abetment of an assault by an officer, soldier, sailor or
airman or his superior officer, when in the execution of
his office, if the assault is committed.
06 193 Giving or fabricating false evidence in a judicial
proceeding.
07 194 Giving or fabricating false evidence with intent to
cause any person to be convicted of a capital offence.
08 195 Giving or fabricating false evidence with intent to
procure conviction of an offence punishable with
imprisonment for life or with imprisonment for 7 years
or upwards.
09 201 Causing disappearance of evidence of an offence
committed, or giving false information touching it to
screen the offender if a capital offence._____________

47
S.No. Sections Offences under Indian Penal Code
10 211 False charge of offence with intent to injure, if the
offence charged be capital or punishable with
imprisonment for life or for 7 years or upwards.
11 213 Taking gift etc. to screen an offender from punishment
if the offence be capital.
12 214 Offering gift or restoration of property in consideration
of screening offender, if the offence be capital.
13 216 Harbowing an offender who has escaped from custody,
or whose apprehension has been ordered if the offence
be capital.
14 216-A Harbouring robbers or dacoits.
15 219 Public servant in a judicial proceeding corruptly
making and pronouncing an order, report, verdict or
decision which he knows to be contrary to law.
16 220 Commitment for trial or confinement by a person
having authority who knows that he is acting contrary
to law.
17 221 Intentional omission to apprehend on the part of a
public servant bound by law to apprehend an offender,
if the offence be capital.
18 222 Intentional omission to apprehend on the part of a
public servant bound by law to apprehend person
under sentence of death or imprisonment for life or
imprisonment for 10 years or upwards.
19 225 Resistance or obstruction to the lawful apprehension of
any person or rescuing him from lawful custody, if
charged with a capital offence or under sentence of
death or imprisonment for life or imprisonment for 10
years or upwards.
20 231 Counterfeiting or performing any part of the process of
counterfeiting coin.
21 232 Counterfeiting or performing any part of the process of
counterfeiting Indian coin.
22 234 Making, buying or selling instrument for the purpose
of counterfeiting Indian coin.
23 235 Possession of instrument or materials for the purpose
of using the same for counterfeiting coin, of Indian
coin.
24 238 Import or export of counterfeits of Indian coin
knowing the same to be counterfeit.

48
S.No. Sections Offences under Indian Penal Code
25 240 Having any counterfeit Indian coin known to be such
when it came into possession, and delivering etc, the
same to any person.
26 243 Possession of Indian coin by a person who knows it to
be counterfeit when became possessed thereof.
27 244 Person employed in a mint causing coin to be of a
different weight or composition from that fixed by
law.
28 245 Unlawfully taking from a mint any coining instrument.
29 247 Fraudulently diminishing the weight or altering the
composition of Indian coin.
30 249 Altering appearance of Indian coin with intent that it
shall pass as a coin of different description.
31 251 Delivery of Indian coin possessed with the knowledge
that it is altered.
32 255 Counterfeiting a Government Stamp.
33 256 Having possession of the instrument or material for the
purpose of counterfeiting a Government Stamp.
34 257 Making, buying or selling instrument for the purpose
of counterfeiting a Government Stamp.
35 258 Sale of counterfeit Government Stamp.
36 259 Having possession of a counterfeit Government
Stamp.
37 260 Using as genuine a Government Stamp known to be
counterfeit.
38 28,1 Exhibition of false light, mark or buoy.
39 293 Sale etc. of obscene object to young persons when
second or subsequent conviction is made.
40 466 Forgery of a record of a court justice or of a Register
of Births etc., kept by a public servant.
41 467 Forgery of a valuable security, will or authority to
make or transfer any valuable security or to receive
any money, etc., including when the valuable security
is a promissory note of the Central Government.
42 468 Forgery for the purpose of cheating.
43 471 Using as genuine a forged document which is known
to be forged including when the forged document is a
promissory note of the Central government.

49
S.No. Sections Offences under Indian Penal Code
44 472 Making or counterfeiting a seal, plate etc., with intent
to commit a forgery punishable under Section 467
Indian Penal Code or possessing with like intent any
such seal, plate, etc., knowing the same to be
counterfeit.
45 473 Making or counterfeiting a seal, plate etc., with intent
to commit a forgery punishable otherwise than under
section 467 Indian Penal Code or possessing with like
intent any such seal, plat etc., knowing the same to be
counterfeit.
46 474 Having possession of a document, knowing it be
forged, with intent to use it as genuine, if the document
is one of the description mentioned in section 466
Indian Penal Code or Section 467 Indian Penal Code.
47 475 Counterfeiting a device or mark used for
authenticating documents described in Section 467
Indian Penal Code or possessing counterfeit marked
material.
48 476 Counterfeiting device or mark used for authenticating
documents other than those described in Section 467,
Indian Penal Code or possessing counterfeit marked
material.
49 477 Fraudulently destroying or defacing or attempting to
destroy or deface or secreting a will etc.
50 477-A Falsification of accounts.
51 489-A Counterfeiting currency notes or bank notes.
52 489-B Using genuine forged or counterfeit currency notes or
bank notes.
53 489-C Possession of forged or counterfeit currency notes or
bank notes.
54 489-D Making or possessing machinery, instrument or
material for forging or counterfeiting currency notes or
bank notes.
55 493 A man by deceit causing a woman not lawfully
married to him to believe that she is lawfully married
to him and to co-habit with him in that belief.
56 494 Marrying again during the life-time of husband or
wife.

50
S.No. Sections Offences under Indian Penal Code
57 495 Marrying again concealing the former marriage from
the person with whom subsequent marriage is
contracted.
58 496 A person with fraudulent intention going through the
ceremony of becoming married, knowing that he is not
thereby lawfully married.
59 506 Criminal intimidation if threat be to cause death or
grievous hurt etc.

Sub-section (4) of Section 437 Criminal Procedure Code enjoins on

the Officer-in-charge of a Police Station or a court, as the case may be, to

record in writing his or its reasons for releasing any person on bail under

sub-section(l) or sub-section(2) of Section 437 Criminal Procedure Code.

It has been observed by the Supreme Court that under sub­

section^) of Section 437, Criminal Procedure Code an officer or a court

releasing any person on bail under sub-section(l) or sub-section(2) of that

section is required to record in writing his or its reasons for so doing.

That is to say, law requires that in non-bailable offences punishable with

death or imprisonment for life, reasons have to be recorded for releasing a

person on bail, clearly disclosing how discretion has been exercised on

that behalf. Section 437 Criminal Procedure Code deals, inter alia with

two stages during the initial period of investigation of a non-bailable

offence. Even the Officer-in-charge of the Police Station may, by

recording his reasons in writing, release a person accused of or suspected

51
of the commission of any non-bailable offence provided there are no

reasonable grounds for believing that the accused has committed a non-

bailable offence. Quick arrests by the police may be necessary when

there are sufficient materials for the accusation or even for suspicion

when such an accused is produced before the court, the court has a

discretion to grant bail in all non-bailable cases except those punishable

with death or imprisonment for life if there appear to be reasons to

believe that he has been guilty of such offence. The court oversees the

action of police and exercise judicial discretion in granting bail always

bearing in. mind that the liberty of an individual is not unnecessarily and

unduly abridged and at the same time the cause of justice does not suffer.

Courts and judicial discretion has to be exercised on valid grounds.32

Sub-section (5) of Section 437 of Criminal Procedure Code confers

discretion on any court which has released a person on bail under sub­

section (1) or sub-section (2) to direct that such person be arrested and

commit him to custody, if it considers it necessary so to do. This sub­

section empowers a Magistrate to cancel the bail granted to a person, but

that power is strictly limited to a case where the bail is granted by the

Magistrate himself. So in a case being tried by a Magistrate if bail has

been granted by the High Court or the court of Session the bail may be

cancelled by the High Court or the Court of Session, as the case may be.

32 Gurucharan Singh vs State (Delhi Administration) AIR 1978 SC 179 (184).

52
The reason-is that the Magistrate has no power to cancel the bail granted

by a Superior Court.33

Similarly, the committing Magistrate in a case triable exclusively

by the court of session does not have the power to cancel the bail granted

by the High Court.34 This provision i.e., 437(5) is explained in a detailed

way in a next Chapter El - Law as a procedure for cancellation of bails

and granting of bail under Special Acts.

Sub-section(6) of Section 437 Criminal Procedure Code provides,

that if in any case triable by a Magistrate, the trial of a person acused of

any non-bailable offence is not concluded within a period of sixty days

from the first date fixed for taking evidence in the case, such person shall,

if he is in custody during the whole of the said period, be released on bail

to the satisfaction of the Magistrate, unless for reasons to be recorded in

writing the Magistrate otherwise directs.

This sub-section has to be read along with Section 167(2) Criminal

Procedure Code which explains “procedure when investigation cannot be

completed in twenty four hours” and has also to be read along with

Section 309 Criminal Procedure Code which explains “power to postpone

or adjourn proceedings”.

33 Emperor vs Mirza Mohd. Ibrahim, AIR 1932 All 534.

34 Jarmail Singh vs. State of Haryana, 1976 Punj LR 757.

53
 Section 167 Criminal Procedure Code operates at a stage when a

person is arrested and either an investigation has started or is yet to start,

but it such that it cannot be completed within 24 hours as envisaged under

section 57 of the code, Section 309 on the other hand, indicates that

investigation has already begun and sufficient evidence has been

collected raising a suspicion that the accused person may have committed

the offence and further evidence may be obtained, to enable the police to

do which a remand to jail custody is necessary. The fact that Section 309

occurs in the Chapter dealing with enquiries and trials does not mean that

it does not apply to cases in which the process of investigation and

collection of evidence is still going on. If a challan is filed before the

expiry of the maximum period for which an accused can be detained in

custody under section 167, Criminal Procedure Code further remand to

custody can be detained in custody under section 167 Criminal Procedure

Code further remand to custody can be ordered under Section 309. The

Magistrate, however, cannot postpone the release of an accused under

proviso (a) to Section 167(2) after the expiry of 90 days or 60 days, as the

case may be, just to enable the police to file the challan and to alter the

detention under section 167 to one under section 309, Criminal Procedure

Code. If the accused of his own or on being told of his right by the

Magistrate is prepared to furnish bail, the Magistrate must order the

54
accused to be released on bail without waiting for the challan and must
A 35
release him,when bail is furnished.

Sub-section(2) of Section 167; Criminal Procedure Code makes it

obligatory on the Magistrate to release the accused on bail if he is

prepared to and furnish bail after the period of 90 days, when the

investigation relates to an offence punishable with death, imprisonment

for life or imprisonment for a term not less than ten years and 60 days,

where the investigation relates to any other offence. Sub-section(6) of

Section 437 Criminal Procedure Code on the other hand, operates at a

stage when the trial has already committed and it is apprehended that the

trial may not be concluded within a period of 60 days from the first date

fixed for taking evidence in the case and in that event the accused if he is

in custody, during the whole of the said period, shall be released on bail

but the Magistrate has power to direct otherwise from which he shall have

to record his reasons in writing.

In a case Satyanarayana vs State36 expressed the view that right of

bail for default of investigation agency the accused in connection with

non-bailable offence has the right to be released on bail under the

following circumstances:

35 Uma Shanker vs State of Madhya Pradesh (1983) 1 Crimes 453 (M.P.).

36 1986 S.C.C. 141.

55
 (i) If the offence is punishable with imprisonment for a term of 10

years or more and the investigation by the police is not

completed within 90 days; or

(ii) If the offence is punishable with punishment for a term of less

than ten years and the investigation is not completed within 60

days.

The period of 90 days or 60 days shall be counted not from the date

of arrest, but from the date of first production of the accused before the

Magistrate, i.e. from the date of remand order passed by the Magistrate.

So the initial period of 24 hours in police custody after arrest of the

person shall be excluded whole computing the total period of 90 days or

60 days for. the purpose of grant of bail as per legislative mandate under

section 167 Criminal Procedure Code.

Sub-section (7) of Section 437 Criminal Procedure Code lays down

that if it appears to the court after the conclusion of the trial that there are

no reasonable grounds for believing that the accused is not guilty of a

non-bailable offence the accused shall be released, if he is in custody, on

the execution of a bond by him, for his appearance before the court to

hear the judgment. Under this sub-section, it is enough if the accused

executes a bond without sureties. Even when the court is not going to

acquit the accused, but the court is of opinion that a minor offence which

56
is bailable is proved, the accused, may be released on personal

recognizance before a judgment is pronounced.

Section 439 deals deals special powers of High Court or court of

Session s regarding bail:

(1) A High Court or court of session may direct -

(a) that nay person accused of an offence and in custody be

released on bail, and if the offence is of the nature specified in

sub-section(3) of Section 437, may impose any condition which

it considers necessary for the purposes, mentioned in that sub­

section;

(b)that any condition imposed by a Magistrate when releasing any

person on bail be get aside or modified;

provided that the High Court or the court of Session shall, before granting

bail to a person who is accused of an offence which is triable exclusively

by the court of session or which, though not so triable, is punishable with

imprisonment for life, give notice, of the application for bail to the Public

Prosecutor unless it is, for reasons to be recorded in writing, of opinion

that it is not practicable to give such offence.

Section 439(1) is a new provision making it more stringent to get

bail in capital offence.

57
 The restrictions under section 437(1) Criminal Procedure Code has

no application to Sessions Court acting under section 439. Sessions

Court can release an bail an accused even with reasonable belief of his

being guilty of offence power under section 439 is exclusive and

independent of Section 437. But considerations for grant of bail in both

are one and the same.37

2.3 ANTICIPATORY BAIL:

Section 438 of Criminal Procedure Code provides for conditions

under which a person apprehending arrest on an accusation of having

committed a non-bailable offence may apply for bail. The order of

Anticipatory bail is the grant of bail in anticipation of arrest and is,

therefore, effective at the very moment of arrest. It is different from an

ordinary order of bail. This section provides for an Anticipatory bail is an

extraordinary remedy and should be reported to only in special cases.

In the old code of 1898 Criminal Procedure Code there was no

provision for granting of Anticipatory Bail. It was included in the code in

1973 only after the Law Commission of India in its 41st Report,

recommended that there was a need for such a provision. Before such a

provision was in corporated there were a lot of discrepancies as regards

37 AIR 1978 SC 179.

58
the power- of the courts in the absence of an express provision to grant

Bail when an application of such nature was made.

The Law Commission report observed “the necessity for granting

Anticipatory bail arises mainly because sometimes influential persons try

to implicate their rivals into false cases for the purposes of disgracing

them. Apart from false cases, where there are reasonable grounds for

holding that a person accused of an offence is not likely to abscond, or

otherwise misuse his liberty while on bail, there seems to be no

justification to require him to first submit to custody, remain in prison for

some days and then apply for bail.38

Therefore, pursuant to this recommendation, Section 438 was put

into the code in order to ensure that the life and liberty of an innocent

person was not jeopardized on flimsy and frivolous grounds at the

instance of an irresponsible and unscrupulous person or an officer who

may be in charge of the prosecution.

Age old controversy over the grant of Anticipatory bail with

conflicting judicial pronouncements has been set at rest. But in its

enactment, the parliament seems to have had in its view capital offences

triable by Sessions Court and the High Court, while conferring

38 Law Commission of India, 41st Report 1969.

59
jurisdiction on those courts only.. But, the majority of offences under

various enactments are cognizable and dealt with by the lower courts,

which should have been made forum for seeking Anticipatory bail in the

interests of convenience financial and otherwise capacity of the litigant.

Section 438 deals with grant of bail to person apprehending arrest:

(1) Whether any person has reason to believe that he may be arrested

on an accusation of having committed a non-bailable offence, he

may apply to the High Court or the Court of Session for 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.

(2) When the High Court or the court of session makes a direction

under sub-section(l) it may include such conditions in such

direction in the light of the facts of the particular case, as it may

think fit, including:

(i) A condition that the person shall make himself available for

interrogation by a Police Officer as and when required.

(ii) A condition that the person shall not, directly or indirectly,

make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade him

from disclosing such facts to the court or to any Police

Officer;

60
 (iii) A condition that the person shall not leave India without the

previous permission of the court;

(iv) Such other condition as may be imposed under sub-

. section(3) of Section 437, as if the bail were granted under

that section.

(3) If such person is thereafter arrested without warrant by an Officer-

in-charge of a Police Station on such accusation and is prepared

either at the time of arrest or at any time While in the custody of

such officer to give bail, he shall be released on bail; and if a

Magistrate talcing cognizance of such offence decides that a

warrant should issue in the first instance against that person, he

shall issue a bailable warrant in conformity with the direction of

the court under sub-section(l).

Thus, there are only two questions that the court needs to consider

while passing an order of Anticipatory Bail:

(1) Where there is reason to believe that the petitioner may be

arrested, on an accusation of having committed to non-bailable

offence;

(2) And whether it thinks fit that in the event of such arrest, he will

be released on bail and also it can impose such conditions on

the order, as it may think fit, in the light of the particular case.

61
 A blanket order of Anticipatory Bail, which serves as a blanket to

cover and protect any or every kind of alleged unlawful activity, in fact or

any eventually, likely or unlikely, regarding which no concrete

information can possibly be had, cannot be passed because such a blanket

order is bound to cause serious interference with the function of the

police power under section 438 is not to be exercised in a Vaccuum, but

only on satisfaction of the condition mentioned in the section, and the

section contemplates the exercise of power with regard to specified

accusation against the petitioner and cannot be extended in a blanket

fashion. Therefore, no Anticipatory bail can be granted with regard to an

accusation not yet leveled against the petitioner and in respect of an

offence not yet committed.

If a person has committed offence punishable with death sentence

or transportation of life, in such cases anticipatory bail cannot be

granted.39

Only when the offence is a non-bailable offence, the applicant

apprehending arrest may apply for Anticipatory bail. Therefore, where

39 Shrimant Appaji vs State, 1978 Cri.LJ 491.

62
the offence is bailable, Section 438 Criminal Procedure Code cannot be

invoked was held in Muthu Swami vs State of Kerala.40

The expression ‘Anticipatory Bail’, is not used in Section 438. It is

not understood as granting bail in Anticipation of arrest. But, Bail is

granted directing his release in the event of his arrest. There is no release

on bail until he is arrested. Anticipatory Bail comes into operation only

on the arrest of the accused. ‘Anticipatory Bail’ is a mismanner in law.

The object of Section 438 is to avoid the rigours of jail of innocent person

and thereby the personal liberty of the individual part in jeopardy on

flimsy and frivolous ground by unscrupulous persons was held in

Balchand Jain vs State of M.P.41

In Gurubaksh Singh Sibha vs State of Punjab42 following

guidelines, axe laid down:

(a) The distinction between an ordinary bail and anticipatory bail in

that the former being after the arrest means release from

custody of police, the latter being in Anticipation of arrest in

effective at the very moment of arrest.

40 1980 Cri.LJ 1021.

41 AIR 1977 SC 366.
42 AIR 1980 SC 1632.

63
(b) The High Court and the Session Court have been given vide

rulers, discretionary - left free in the use of their judicial

discretion to grant bail on the facts and circumstances of the

case.

(c) The court must apply its own mind to decide the question

without learning it to be decided by the Magistrate under

Section 437 as and when occasion arises.

(d) Apprehension of arrest should not be vogue. The applicant

must show by disclosing specific facts and events that he has

reasons to believe, the existence of power by the court and not

vogue apprehension that he may be arrested for a non-bailable

offence to that the court may take care to specify the offence or

offences in respect of which alone the order will be effective

and not a blanket order.

(e) An order of bail can be passed confirming to the requirements

of the section and imposing suitable condition without notice to

the Public Prosecutor but notice to him should be issued

forthwith and the question of bail be examined in light of

respective contentions of the parties.

(f) The operation of the order should not be limited to a period of

time.

64
 (g)If the proposed accusation appears from some ulterior motive to

injure and humiliate the applicant the order for Anticipatory bail

would generally made. If it appears likely that he will free from

justice, order would not be made.

(h) Filing of FIR is not a condition precedent to the exercise of

power under section 438 which can however, be exercised even

after filing of the FIR so long applicant is not arrested.

(i) An order of Anticipatory Bail does not in any way directly or

indirectly take away from the police that right to investigate.

One of the usual condition imposed in that the applicant shall

make himself available for interrogation by a Police Officer.

Anticipatory bail is of two types - Firstly, immediate release on

bail in the vent of arrest, secondly, to fix a date or limited period when

the applicant makes an application to a competent court for grant of

regular bail.43

As, Anticipatory bail does not ensure till the end of trial but it must

be limited duration since the regular court cannot be by passed.44

In case K.L. Verma vs State45, i.e. the same case mentioned as

supra the Chief Judicial Magistrate, Delhi issued non-bailable warrant of

43 1999(1) CCR 386. •

44 1998 SCC (Cr) 1031; 1996 SCC (Cr) 198.

65
arrest against one K.L. Verma who raised the plea what he could not be

prosecuted without sanction under section 197 Criminal Procedure Code

Verma was granted Anticipatory Bail by Delhi High Court. However,

Delhi High Court refused to grant stay of further proceeding of the case

on the court of Magistrate on the basis of application filed by Verma on

the ground that Magistrate has no authority to take cognizance of the

offence without proper sanction under section 197. The matter went up

to the Supreme Court by way of Special Leave Petition.

It is held by the Supreme Court that in the instant case the proper

course for the High Court was to decide on the question of requirement of

sanction under section 197 Criminal Procedure Code and if the High

Court could not do so, to have stayed further proceedings of the case in

the court of Magistrate till that vital question is answered. The principle

of law enunciated by the Supreme Court is that an order of anticipatory

bail does not ensure till the end of trial but it must be of limited duration

as the regular court dealing with the case cannot be by passed. The

limited duration must be determined having regard to the facts of the case

and the need to give accused sufficient time to make the regular court for

bail and to give the regular court sufficient time to determine the bail

application. In other wards, till the regular bail application is disposed of

45 1998 SCC (Cr) 1031.

66
one way or the other the court may allow the accused to remain an

anticipatory. To put it differently, anticipatory bail may be granted for a

duration which may extend to the date on which the bail application is

disposed of or even a few days thereafter to enable the accused person to

move to the Higher Court, if he desires.

In Shaik Layak vs State,46 Andhra Pradesh High Court laid certain

conditions shat can be imposed in an order of anticipatory bail and those

which cannot be imposed. They are:

Conditions that can be imposed in an order of Anticipatory bail,

some instances:

(i) The applicant should surrender himself to the police for a brief

period if a discovery is to be made under section 27 of the

Evidence Act, or

(ii) the order Anticipatory bail will remain in operation only for a week

or so until after the filing of the FIR in respect of matters covered

by the order; or

(iii) conditions for securing the attendance of the accused as and when

required either by the Investigating Officer or by the Court; or

NOT FOR LOAN

46 1981 Cr.LJ 954 (958) (AP).

136201
67
(iv) for securing the right of the Investigating Agency to proceed with

the investigation fairly and properly; or

(v) for securing a fair trial by the witnesses who may be examined

during the trial, being free and not interfered with by the accused.

Conditions that cannot be imposed in an order of Anticipatory bail,

v

some instances:

(i) Conditions that the applicant should aid the Investigating Officers

* by accompanying them to any particular place; or

(ii) that he should make himself available for interrogation by the

police as and when required; or

(iii) that he should truly answer all the questions that may be put to him

by the police, even if the answers should incriminate him; or

(iv) that he should not be directed to show the place or places where

from the police recover the properties concerned in the case; or

(v) that he should not be directed to make a confession before a

Magistrate as from the remand report it is disclosed that the

applicant had already confessed before the police.47

Wherein, Gurbaksh Singh Sibbia vs State of Punjab48 the Hon’ble

Supreme Court has given guidelines for granting of Anticipatory bail. It

47
Ibid.
48
AIR 1980 SC 1632.

68
also held that, mere fear that he is going to be arrested is not equivalent to

belief and the reasons on which such belief is based should be such that

the court can examine them objectively. The applicant must disclose

specific events and facts in order to enable the court to judge the

reasonableness of his belief. It is to be noted that it is not necessary that

the case should have been registered or FIR is lodged before Anticipatory

Bail can be availed of. Mere imminence of a likely arrest on a reasonable

belief on an accusation having committed a non-bailable offence is

enough.

The court while granting Anticipatory Bail is supposed to strike a

balance so that the individual may be protected from unnecessary

humiliation and that the faith of public in administration of justice is not

likely to be considerably shaken was held in Md. Muzaffar Hussain Khan

vs State of Orissa,49

Though the section does not require that a notice be given to the

Public Prosecutor before such an application is considered, it is a matter

of practice that the court makes it a point to ensure the same. The Law

Commission in para 31 of its 48th report observed that: “we are further of

the view that in order to ensure that the provision is not to put to abuse at

the instance of an unscrupulous petitioner, the final order should be made

49 1990 Cri.LJ 1024 (Orissa).

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only after notice to the Public Prosecutor”. The initial order should only

be an interim order.50

“The rule of prudence is that notice should be given to the other

side before passing a final order under section 438 so that wrong order of

anticipatory bail is not obtained by a party by placing wrong in correct or

misleading facts or suppressing material fact” was held in Balchand Jan

vs Sate of M.P.51

50 Law Commission of India, 48th Report 19xx.

51 AIR 1977 SC 366; 1977 Cri.LJ 225.

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