Chapter 1

Bail

CONCEPT OF BAIL

The concept of bail has a long history in English Common Law. As far back as 1689 in the Bill of Rights,
English Parliament held that a bail must be reasonable - A principle which was later incorporated into
the American 8th Amendment to the Constitution.

The concept of bail comes out into the view from the clash between the State's power to restrict and
deprive the liberty of a man who allegedly have committed a crime and the presumption of guileless or
deceitful in his favour.

The concept of bail was elaborated by Supreme Court in the year 2000 in case of Sunil Fulchand Shah
v. Union of India, MANU/SC/0109/2000 : AIR 2000 SC 1023:

"Bail is well understood in criminal jurisprudence and Chapter XXXIII of Code of Criminal
Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who
has been arrested in a non-bailable offence or has been convicted of an offence after trial. The
effect of granting bail is to release the accused from internment though the court would still
retain constructive contract could still be exercised through the conditions of the bond secured
from him. The literal meaning of the word "bail" is surety.

Supreme Court Guidelines for Bail Application

State of U.P. through C.B.I, v. Amarmani Tripathi, MANU/SC/0677/2005 : (2005) 8 SCC 21: AIR 2005
SC 3490

1. The matters to be considered in an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused
had committed an offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of accused absconding or fleeing if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(viii) danger, of course, of justice being thwarted by grant of bail [See Prahlad Singh
Bhati v. NCT, Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280 and Gurcharan Singh v.
State (Delhi Administration), AIR 1978 SC 179]. While a vague allegation that accused
may tamper with the evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large would intimidate the
 witnesses or if there is material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused.

Principles relating to grant or refusal to Bail in Kalyan Chandra Sarkar v. Rajesh

Ranjan, MANU/SC/0214/2004 : (2004) 7 SCC 528: 2004 SCC (Cri) 1977 it was held that: "The
law in regard to grant or refusal of bail is very well settled. The Court granting bail should
exercise its discretion in a judicious manner and not as a matter of course. Though at the stage
of granting bail a detailed examination of evidence and elaborate documentation of the merit of
the case need not be undertaken, there is a need to indicate in such orders reasons for prima
facie concluding why bail was being granted particularly where the accused is charged of having
committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the Court granting bail to consider among other
circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to

the complainant.

(c) Prima facie satisfaction of the court in support of the charge. [See Ram Govind
Upadhyay v. Sudarshan Singh, MANU/SC/0203/2002 : (2002) 3 SCC 598: 2002 SCC
(Cri) 688 and Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338: 2001 SCC
(Cri) 1124]."

Bail Systems: Need for Reforms

Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, MANU/SC/0119/1979 : AIR 1979

SC 1360: (1980) 1 SCC 81

The bail system, as it operates today, is a source of great hardship to the poor and if we really
want to eliminate the evil effects of poverty and assure a fair and just treatment to poor in the
administration of justice, it is imperative that the bail system should be thoroughly reformed so
that it should be possible for the poor, as easily as the rich, to obtain pretrial release without
jeopardizing the interest of justice.

It is high time that our Parliament realises that risk of monetary loss is not the only deterrent
against fleeing from justice, but there are also other factors which act as equal deterrents
against fleeing. Ours is a socialist republic with social justice as the signature tune of our
Constitution and Parliament would do well to consider whether it would not be more consonant
with the ethos of our Constitution that instead of risk of financial loss, other relevant
considerations such as family ties, roots in the community, job security, membership of stable
organisations etc., should be the determinative factors in grant of bail and the accused should
in appropriate cases be released on his personal bond without monetary obligation. Of course it
may be necessary in such a case to provide by an amendment of the penal law that if the
accused wilfully fails to appear in compliance with the promise contained in his personal bond,
he shall be liable to penal action. But even under the law as it stands today the courts must
abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties. That concept is outdated and experience has shown that it has done more harm than
good. The new insight into the subject of pre-trial release which has been developed in socially
advanced countries and particularly the United States should now inform the decisions of our
Courts in regard to pre-trial release. 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 or prior release on recognizance or on
bail;

6. the identity of responsible members of the community who would vouch for his
reliability;

7. the nature of the offence charged and the apparent probability of conviction and the
likely sentence insofar 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 or bearing on
the risk of wilful 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 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 had 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 regards the amount of the bond should be an
individualised 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. Moreover, when the accused is released on his personal
bond, it would be very harsh and oppressive if he is required to satisfy the Court - and what we
have said here in regard to the court must apply equally in relation to the police while granting
bail -that he is solvent enough to pay the amount of the bond if he fails to appear at the trial
 and in consequence the bond is forfeited. 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 should not, therefore, be insisted upon as a 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 to help them to secure pre-trial release from incarceration.

Definition

Wharton's Law Lexicon, 15th Edn., 2009, p. 161 defines "bail" as to set at liberty a person
arrested or imprisoned, on security being taken for his appearance on a day and at a place
certain, which security is called bail, because the party arrested or imprisoned is delivered into
the hands of those who bind themselves or become bail for his due appearance when required,
in order that he may be safely protected from prison, to which they have, if they fear his
escape, etc., the legal power to deliver him.

The Black's Law Dictionary, 7th Edn., p. 135 defines "bail" as a security such as cash or a bond,
especially security required by court for the release of a prisoner who must appear at a further
time.

Webster's Dictionary of Law, Indian Edn., 2005, p. 41 defines "bail" as a temporary release of a
prisoner in exchange for security given for the prisoner's appearance at a later hearing.

However, the bail is a generic term which means the judicial release from custody i.e.,
prevention of unnecessary deprivation of personal liberty. It signifies a security for the
appearance of a prisoner for his release.

It is a mode of release of a prisoner known as Zamanat and Muchalka. The former is a form of
judicial release for a security with sureties. The latter is a penal bond. It is the duty and
function of the community to secure the presence of the prisoner for incarceration. Thus the
State involves participation of the community in the administration of justice. Thus bail means
the accused is to be assured of the beneficial enjoyment of regulated freedom. The release of
an accused on bail in a criminal case after furnishing the required bond is recognised as the
fundamental aspect of human rights.

The Code of Criminal Procedure, 1973 lays down the norms of granting of bail and bonds in
sections 436 to 450. But there is no definition of the word 'bail' in the Code of Criminal
Procedure, 1973. The offences are however, classified as 'Bailable' and 'Non-bailable'.

Section 2(a) of the Code of Criminal Procedure, 1973, reads as under:

"bailable offence" means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force; and "non-bailable
offence" means any other offence.

The word "bail", as is commonly understood, is comprehensive enough to cover release on

one's own bond, with or without sureties.

Section 2(c) of the Code of Criminal Procedure, 1973 defines "cognizable offence"(where police
can arrest without warrant) and "cognizable case" as:
 'Cognizable offence' means an offence for which, and "cognizable case" means a case in
which, a police officer may, in accordance with the First Schedule (of Cr. P.C.) or under
any other law for the time being in force, arrest without warrant. Section 2(x) of the
same Code defines "warrant case" as:

"Warrant case" means a case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term exceeding two years.

The grant, refusal or cancellation of bail, is a judicial act and has to be performed with judicial
care after giving serious consideration to the interest of all the parties concerned.

An order under section 438 of Criminal Procedure Code is a device to secure the individual's
liberty. It is neither a passport to the commission of crimes nor a shield against any and all
kinds of accusations likely or unlikely. Normally a direction should issue to the effect that the
applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such
'blanket order" should not be passed as it would be served as a blanket to cover or protect any
and every kind of allegedly unlawful activity Parvinderjit Singh v. State (U.T. Chandigarh), 2008
AIR SCW 7611.

Repetition or perpetration of an offence and to secure the presence of the undertrial at the trial
are the essential ingredient to put an accused in detention but such noble concept and the
objective of law has to be accomplished subject to a man's right to liberty viz. freedom which
leads us to the consideration of fundamental rights which is the pulse of our heart. Article 21 of
the Constitution of India provides complete safeguard to every Indian Citizen, irrespective of
caste, colour, creed-the rich and the poor alike for the protection of life and personal liberty.
The said article reads as under:

"No person shall be deprived of his life and personal liberty except according to
procedure established by law."

The article 21 viz. right to life and personal liberty is most important than other rights
mentioned in articles 19-20 and 22 of the Constitution. The main interpretation of this article
infers that when the bail is denied then the personal liberty of an accused is refused. Hence,
when a large number of bail cases come to the higher court, the court interprets them in the
light of article 21.

The matter of bail is not merely a procedural right but a substantive fundamental right as
enshrined in article 21 of the Constitution of India.

The Supreme Court interpreted the provisions under article 21 of the Constitution in matter of
State of Kerala v. Raneef, MANU/SC/0001/2011 : AIR 2011 SC 340 in respect of bail:

"In deciding bail application an important factor which should certainly be taken into
consideration by the Court is the delay in concluding the trial. Often this takes several
years, and if the accused is denied bail but is ultimately acquitted, who will restore so
many years of his life spent in custody? Is article 21 of the Constitution, which is the
most basic of all the fundamental rights in our Constitution, not violated in such a case?
Of course, this is not the only factor, but it is certainly one of the important factors in
deciding whether to grant bail.
22. Protection against arrest and detention in certain cases.-

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive
detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a
longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said
period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any
person beyond the maximum period prescribed by any law made by Parliament
under subclause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest to
disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in accordance
with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a)
 of clause (4).

The article 22 reads the protection against arrest and detention in certain cases which
envisages the rights of the arrestee after he is being arrested. This article consists of two parts.
Clauses (1) and (2) apply to persons arrested or detained under a law otherwise than a
preventive detention law and the clauses (4) to (7) apply to persons arrested or detained under
a preventive detention law. The provisions of article 21 may also supplement the various
requirements laid down in article 22. The information about the grounds of arrest is mandatory
under clause (1) of article 22:

Hence any procedure dealing with bail is measured in the light of provisions of articles
21 and 22 of the Constitution of India. Therefore, the matter of bail is to be considered
in the light of right of accused but not as the totally discretion point.

In case of A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27 the

Supreme Court observed that articles 20, 21 and 22 of Constitution of India are primarily
connected with penal enactments or other law under which personal safety or liberty of person
would be taken away in the interests of the society and then set down the limits within which
State control should be exercised. Articles 20, 21 and 22 on the other hand do not make use of
the expression "freedom" and they lay down the restrictions that are to be placed on State
control where an individual is sought to be deprived of his life or personal liberty.

In case of Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : AIR 1994 SC

1349: (1994) 4 SCC 260: (1994) 3 SCR 661: 1994 Cr LJ 1981, the Supreme Court in the realm
of the articles 21 and 22 of the Constitution of India has given directions about the arrested
person in the light of his fundamental rights. For the effective enforcement of these
fundamental rights, the Supreme Court issued the following requirements:-

(1) An arrested person being held in custody is entitled, if he so requests to have one
friend, relative or other person who is known to him or likely to take an interest in his
welfare told as far as is practicable that he has been arrested and where is being
detained.

(2) The Police Officer shall inform the arrested person when he is brought to the police
station of this right.

(3) An entry shall be required to be made in the Diary as to who was informed of the
arrest. These protections from power must be held to flow from articles 21 and 22(1)
and enforced strictly.

Further the Court directed that it should be the duty of Magistrate, before whom the arrested
person is produced, to satisfy himself that these requirements have been complied with. The
above requirements shall be followed in all cases of arrest till legal provisions are made in this
behalf. These requirements shall be in addition to the rights of the arrested persons found in
the various police manuals.

Information about grounds of arrest to accused person is mandatory under clause (1) of article
22 of Constitution of India, A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950
SC 27; Hansmukh v. State of Gujarat, AIR 1981 SC 28.
 In Rupesh Kantilal Savla v. State of Gujarat, MANU/SC/2569/2000 : (2000) 9 SCC 201, the
right of a prisoner under article 22(5) was held to be infringed.

The facts were that there was an inexplicable delay when the person detained made a
representation. But it was not disposed of earlier. Therefore, the detention order was set aside.

Grant of Bail is a Rule

The Supreme Court of India observed that "grant of bail is a rule and refusal to bail is an
exception". In State of Rajasthan v. Bal Chand, MANU/SC/0152/1977 : AIR 1977 SC 2447:
(1977) 4 SCC 308: (1978) 1 SCR 535, the Supreme Court had observed that "the normal rule
is bail and not jail". The judicial discretion exercised in granting bail is neither perverse nor
erroneous rather they are based on relevant considerations supported by the reasons.

Purpose Behind Bail

The principal purpose of bail is to ensure that an accused person will return for trial if he is
released after arrest.

At the pre-trial stage, every accused person is presumed to be innocent until the matter is
finally disposed of by a competent Court. Simply because a person has been charged with an
alleged offence, he does not lose his right to protection of life and personal liberty. He has, till
the final disposal of the case against him, the same right as enjoyed by any other citizen under
the Constitution of India, and other provisions of the law of the land. That is why various High
Courts and the Supreme Court of India have held in their judgments that "grant of bail is a rule
and refusal is an exception".

The main purpose behind the grant of bail is that the consequences of long detention of the
pre-trial accused persons (who are presumed to be innocent as any other citizen) is very grave.

Provision for Bail: Section 438 of Criminal Procedure Code

The salutary provision contained in section 438 of Cr. P.C. was introduced to enable the court
to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on
technicalities such as "the challan having been presented anticipatory bail cannot be granted".
Ravindra Saxena v. State of Gujarat, MANU/SC/1902/2009 : AIR 2010 SC 1225.

Speedy Trial

In A.R. Antulay v. R.S. Nayak, MANU/SC/0326/1992 : (1992) 1 SCC 225: AIR 1992 SC 1701:
1992 Cr LJ 2717, the Supreme Court advocated for the speedy trial on the following lines:-

(a) the period of remand and pre-conviction detention should be as short as possible;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting
from an unduly prolonged investigation, inquiry or trial, should be minimised; and

(c) undue delay may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of witnesses or
otherwise.
Pre-trial Release

It was held in the case of Hussainara v. Home Secretary, State of Bihar, MANU/SC/0121/1979 :

AIR 1979 SC 1369: (1980) 1 SCC 98: (1979) 3 SCR 532, that the pre-trial release on personal
bond i.e., without surety should be allowed where the person to be released on bail is indigent
and there is no substantial risk of his absconding.

LIBERALISATION OF BAIL SYSTEM

For the Needy and Poor

Taking into consideration the conservative approach by the subordinate judiciary, the Supreme
Court in some of its judgments made a rigorous analysis and laid down guidelines, while
considering the grant of bail to the accused persons belonging to all walks of life. In Moti Ram
v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549: (1978) 4 SCC 47, the
Supreme Court subjected the relevant bail provisions to rigorous analysis, and by a process of
close legal reasoning, succeeded in expanding and liberalising the age-old concept of bail so as
to make them more responsive to the needy and the poor.

While coming to the conclusion in regard to grant of bail more meaningful, practical and more
useful for each and every citizen including the butcher, the baker, the candle stick maker, the
bonded labour and the pavement dweller, the Supreme Court addressed itself to three main
issues:-

(i) Whether a person charged with a bailable offence can be released on his own bond
without sureties.

(ii) In case the bail is granted with sureties, what should be the criteria for quantifying
the amount of bail ?

(iii) Whether a surety can be rejected simply because he or his estate is situated in a
different district or a State of the country.

In this case, the Magistrate directed the petitioner (Moti Ram) a poor mason to furnish sureties
for Rs. 10,000. Reacting on the arbitrary approach of the said Magistrate, the Supreme Court
observed "It shocks one's conscience to ask a mason like the petitioner to furnish sureties for
Rs. 10,000.

.....To add insult to the injury, the Magistrate has demanded sureties from his own district.
What is a Malayalee, Kannadiga, Tamilian or Telugu to do if arrested for alleged
misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni
Chowk?... Equality before the law implies that even a Vakalat or affirmation made in any State
language according to the law in that State must be accepted everywhere in the territory of
India save where a valid legislation to the contrary exists. We mandate the Magistrate to
release the petitioner on his own bond in a sum of Rs. 1000.

The Supreme Court ends this judgment with the following observations:-

"The best guarantee of presence in court is the reach of the law, not the money tag."

A parting thought:
 "If the indigents are not to be betrayed by the law including the Bail law, rewriting of
many processus laws is an urgent desideratum and the judiciary will do well to
remember that the geographical frontiers of the Central Codes cannot be disfigured by
cartographic dissection in the name of language or province."

Concluding Observations

The Supreme Court considered at length the legal literature, both Indian and Anglo-American,
and came to the conclusion that bail loosely used is comprehensive enough to cover release on
one's own bond with or without sureties. The following observations of the Supreme Court are
worth noting:

"Bearing in mind the need for liberal interpretation in areas of social justice, individual
freedom, and individual's rights, we hold that the bail covers both, release on one's own
bond with or without surety. When surety should be demanded and what sum should be
insisted on, are dependant on variables."

Why Bail should be Granted ?

As has already been discussed above, grant of bail is a rule and refusal to bail is an exception.
Moreover, every accused person is presumed to be innocent until the final decision of the Court
holding him guilty of the charge/charges made against him. There is no doubt that a person
accused of certain charges, if not released on bail, certainly faces many handicaps to prove his
innocence besides carrying a constant stigma in the society. Therefore, consequences of pre-
trial detention are grave and are in gross violation of articles 14 and 21 of the Constitution of
India and against all the principles of equity, fair play and natural justice.

The research and study by various agencies has shown that out of two thousand accused
persons released on bail, less than one per cent failed to appear before the Courts when
required.

If the accused person, who is presumed to be an innocent person at pre-trial stage, is not
granted bail, he would lose his goal if he has one. In that situation, his career will be in
jeopardy and all the members of his family will face starvation without any valid reason
whatsoever. Burden of detention, therefore, falls heavily on the innocent members of his
family.

The accused person under detention, will also not be able to prepare his defence against the
State or the complainant, who are his unequal adversaries. If he is released on bail, he would
be in a better position to prove his innocence.

Moreover, the public exchequer has to bear the cost of maintaining the accused person in jail.
All the accused persons while under detention, have to be provided with all the basic
'necessities' and facilities, e.g. food, clothing, shelter, medical treatment, etc., on government
expense.

Therefore, the accused persons who have deep roots in the society and are not likely to
abscond, should invariably be released on bail by the courts.

Factors to be considered in Grant of Bail

 Accused has committed heinous crime of killing an old helpless lady by strangulation. Bail could
not be granted. It was also held that factors are to be considered in granting the bail, Prasanta
Kumar Sarkar v. Ashis Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC 274.

In case of State of Maharashtra v. Dhanendra Shriram Bhurle, MANU/SC/0165/2009 : AIR 2009

SC 1706 it was held that it is necessary for the courts dealing with application for bail to
consider among other circumstances, the following factors also before granting bail viz:

(a) The nature of accusation and severity of punishment in case of conviction and the
nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witnesses or apprehension of threat to

the complainant;

(c) Prima facie satisfaction of the Court in support of the charge;

Bail in Bailable Offence: Principle

In Rasiklal v. Kishore Khanchand Wadhwani, MANU/SC/0255/2009 : AIR 2009 SC 1341 it was

observed that:

"In case of bailable offence there is no question of discretion in granting bail."

Delay in Conclusion of Trial

In case of State of Kerala v. Raneef MANU/SC/0001/2011 : AIR 2011 SC 340 it was observed

that in granting the bail the delay in conclusion of trial is an important factor to be considered.

In general practice the discretion in granting bail is exercised judicially and not arbitrarily and
the court avoids elaborate documentation of merits as well as the detailed examination of
evidence. On the other hand the court sees the prima facie of the case and it does not weigh
the evidence at this stage. At the instance of a private party where the lower court, particularly
the sessions judge in exercise of his discretion grants bail to an accused in a cognizable case,
the High Court does not interfere with that order in revision, unless the discretion is capriciously
or arbitrarily exercised and the state has not filed any revision against that order.

The High Court in normal practice exercises its jurisdiction and discretion under section 439 of
the Code of Criminal Procedure, 1973 and does not confine its attention only to the question
whether other circumstances affects the question of granting bail to the person having
committed crimes of grave and serious nature. But section 439 has given wide powers to the
High Court as well as to the Court of Session to grant bail. The jurisdiction of the High Court
under section 439, is not merely revisional but concurrent with that of subordinate Magistrate
trying the case. The bail being a matter of judicial discretion vested in court, no court is bound
by the decision of another court and the possibility of different conclusions being reached by
different court on the same facts in the same circumstances cannot be ruled out as the principle
analogous to res judicata is not applicable to bail applications. So far as the limitation of the
discretion of the court in granting the bail is concerned the Court of Session and High Court
have ample jurisdiction to entertain the bail application even if the offence is punishable with
death or imprisonment for life and in a fit case, subject to other governing factors and there is
no limitation in exercising the discretion in favour of granting the bail. But the general
prevailing rule in the matter of bailable and non-bailable offence is that a person accused of a
 bailable offence has a right to be released on bail and grant of bail in case of non-bailable
offence is the matter of discretion of Court.

Application for Bail: No Elaboration of Case

Though detailed examination of evidence and elaborate documentation of the merits of the case
is to be avoided by the court, while passing orders on bail applications, yet a court dealing with
the bail application should be satisfied as to whether there is a prima facie case, but exhaustive
exploration of the merits of the case is not necessary. The court dealing with the application for
bail is required to exercise its discretion in a judicious manner and not as a matter of course.
There is a need to indicate the order, reasons for prima facie concluding why bail being granted
particularly where an accused was charged of having committed a serious offence. The position
is not different when the application is made during pendency of an appeal after conviction has
been recorded. Bhuvaneshwar Yadav v. State of Bihar, MANU/SC/8329/2008 : AIR 2009 SC
1452.

In case of Lokesh Singh v. State of Uttar Pradesh, MANU/SC/8138/2008 : AIR 2009 SC 94 it

was observed that:

"While dealing with an application for bail there is a need to indicate in the order,
reasons for prima facie concluding why bail was being granted particularly where an
accused was charged of having committed a serious offence. Though a conclusive
finding in regard to the points urged by the parties is not expected of the Court
considering the bail application, yet giving reasons is different from discussing merits or
demerits".

Who Can Stand Surety and Quantum of the Surety

Any person who has the capacity, control and competence to produce the accused in case of
non-appearance or to pay the amount of the surety, can be accepted by the Court for the
purpose.

There is no specific provision which lays down the exact amount, which the surety is required to
pay, in case the Court decides to grant bail to the accused person. The courts are given
discretion to fix a reasonable amount judiciously. Whenever cases of unreasonable and
arbitrary amounts of surety fixed by the trial Court are brought to the notice of the higher
judiciary including the Supreme Court of India, these courts after examining the specific case
brought before them have not hesitated in laying down the norms in regard to the quantum of
the surety.

In the case of Moti Ram v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549:
(1978) 4 SCC 47 it was observed by the Hon'ble Supreme Court of India:

"It shocks one's conscience to ask a mason, like the petitioner to furnish sureties for Rs.
10,000. The Magistrate must be given benefit of doubt for not fully appreciating that our
Constitution by "WE THE PEOPLE OF INDIA" is meant for the butcher, the baker and the
candle stick maker........ shall we add the bonded labour and the pavement-dweller."

It was further observed that a surety may not be from his own district of an accused person. In
a difficult situation wherein a Telugu or Tamil speaking people is if arrested for an offence in
 Pahalgam or Bastar or Port Blair or Chandni Chowk he may or cannot have sureties owning
properties in these distant places since may not know any one there. Article 14 of the
Constitution of India protects all Indians qua.... Indian within the territory of India. Swaraj is
made of united stuff. In this case the Magistrate directed a poor person (a mason) to give
surety for Rs. 10,000 for a petty offence and that to a surety from his own district. The
Supreme Court passed the following order:

"We mandate the Magistrate to release the petitioner on his own bond in a sum of Rs.
1,000."

Liability of Surety

The most essential element of the bail order is for ensuring the attendance of the accused in
the court whenever required. In fact, that is the hub of the order and the other conditions are
only subsidiary thereto. So long as that core postulate remains unchanged a surety cannot take
advantage of any subsequent modification effected in respect of any other conditions. If a
surety is not agreeable to abide by the modified conditions he must apply to the court under
section 444(1) of the Code of Criminal Procedure, 1973 to discharge him. Until the surety is
discharged he is bound by the bond and any modification or even deletion of a condition of the
order cannot absolve him from his liability in respect of the unaltered conditions; Mohammad
Kanju v. State of Karnataka, MANU/SC/0696/1999 : AIR 2000 SC 6: (1999) 8 SCC 660: 2000
Cr LJ 165: (1999) 6 SCALE 693.

Purpose Behind Bonds taken from Sureties:

(a) Section 71 of the Code of Criminal Procedure, 1973: A person can be released from
custody only on executing the bond with adequate sureties after the arrest of a person
whenever a bailable warrant is issued by a court under this section. The words used in
this section are: "Any court issuing a warrant for the arrest of any person may in its
discretion direct by endorsement on the warrant. The endorsement shall state the
number of sureties, the amount in which they and the person for whose arrest the
warrant is issued, are to be respectively bound, and the time at which he is to attend
before the Court whenever security is taken, the officer to whom the warrant is directed
shall forward the bond to the Court.

(b) Sections 106, 108, 109, 110 of the Code of Criminal Procedure, 1973 to ensure good
behaviour and for keeping the peace from the respondent against whom the security
proceedings are instituted, a bond may be required to be executed by the sureties.

(c) Section 117(c): If, upon such inquiry, (as mentioned in section 116 of the Code of
Criminal Procedure, 1973), it is proved that it is necessary for keeping the peace or
maintaining good behaviour, as the case may be, that the person in respect of whom
the inquiry is made should execute a bond, with or without sureties, the Magistrate shall
make an order accordingly by providing that-

(a) ***

(b) ***

(c) when the person in respect of whom the inquiry is made is a minor, the bond
 shall be executed only by his sureties.

(d) Section 448 of the Code of Criminal Procedure, 1973; when the person required by
any court, or officer to execute a bond is a minor, such court or officer may accept, in
lieu thereof, a bond executed by a surety or sureties only.

(e) Section 169 of the Code of Criminal Procedure, 1973: If, upon an investigation under
this Chapter, it appears to the officer in charge of the police station that there is no
sufficient evidence or reasonable ground of suspicion to justify the forwarding of the
accused to a Magistrate, such officer shall, if such person is in custody, release him on
his executing a bond, with or without sureties, as such officer may direct, to appear, if
and when so required, before a Magistrate empowered to take cognizance of the offence
on a police report, and to try the accused or commit him for trial.

Case Law:(1) If at the stage of grant or refusal of anticipatory bail, certain aspects of the case are
considered but later if the investigative agency files a report under section 169, it is difficult to perceive
that such a step would amount to interference with the administration of justice. Satish Sharma v.
State of Gujarat, MANU/SC/1103/2002 : AIR 2003 SC 648: (2002) 10 SCC 323: (2003) SCC "(Cri)
1442.

In granting bail each case has to be considered on its own merits. No strait-jacket formula can be laid
down for universal application, Pravinbhai Kashirambhai Patel v. State of
Gujarat,MANU/SC/0460/2010 : AIR 2010 SC 3511.

(f) Section 424(1)(b) of the Code of Criminal Procedure, 1973: When an offender has
been sentenced to fine only and to imprisonment in default of payment of fine and the
fine is not paid forthwith, the court may suspend the execution of the sentence of
imprisonment and release the offender, on the execution by the offender, of a bond,
with or without sureties, as the court thinks fit, conditioned for his appearance before
the court on the date or dates on or before which payment of the fine or the installment
thereof, as the case may be, is to be made and if the amount of fine or of any
installment, as the case may be, is not realized on or before the latest date on which it
is payable under the order, the court may direct the sentence of imprisonment to be
carried into execution at once.

(g) Sections 436, 437, 438, 439 of the Code of Criminal Procedure, 1973: The court may
take a bond from one or more sureties to ensure that the released person attends and
appear before the court, whenever a bail is granted under these sections at the time and
place mentioned in the bond.

Chapter 2

Bail, Parole, Furlough

BAIL

Different concepts such as parole and furlough bail etc., are used in different states to denote grant of
leave or emergency release to a prisoner from prison. The word and its meaning is not uniform and is
thus confusing. There is also no uniformity with regard to either the grounds on which leave is
sanctioned or the level of authority empowered to sanction it. There is also a lot of diversity in the
procedure for grant of leave. The status at which these leaves are granted also differ from State to
State. In some States parole is granted for a period extending upto a fortnight while in other States it
is restricted to ten days only.

Sometimes, the word 'bail' is confused with the word 'parole'. Actually bail is entirely different from
parole. Both stand on different footing and thus are not synonymous to each other.

In this connection, the observations made in Halsbury's Laws of England (IV Edition, Vol. II para 166)
may be of great help:

"...the effect of granting bail is not to set the defendant (accused) free, but to release him from
the custody of law and to entrust him to the custody of his (sic) who are bound to produce him
to appear at his trial at a specified time and place. The sureties may seize their principal at any
time and may discharge themselves by handing him over to the custody of law and he will then
be imprisoned."

Though the word 'bail' has not been defined as such in the Code of Criminal Procedure, 1973, yet it
certainly needs to be explained for the sake of clarity and understanding. The explanation given in the
Halsbury's Laws of England as stated above, seems to be quite sufficient. Bail, therefore, does not
mean getting the accused at liberty but it is only a process to release him to the custody of his
sureties, who undertake to produce him whenever required by the court at the pre-trial stage.

Bail is not a guarantee of complete freedom. In certain circumstances, the court while granting the
bail, imposes certain conditions on the accused persons and in the event of violating those conditions,
the court is quite competent to cancel the bail and discharge the sureties.

PAROLE

The meaning and concept of parole has been changing from time to time. In its literal meaning, the
word "parole", means formal promise or a word of honour. Bail is generally granted at the pre-trial
stage, but parole is granted after the passing of sentence and while undergoing imprisonment in the
jail.

It, therefore, means a mere suspension of sentence for the time being.

Parole thus signifies the release of a prisoner from jail for a short period, and is granted on a promise
or undertaking given by the concerned prisoner that he will not escape after being released from the
jail. He is also duty bound to come back after the stipulated period to undergo the remaining sentence
again.

Parole may be granted by way of temporary release as contemplated by section 12(1) or section
12(1A) of COFEPOSA. The detenu has to approach to government for securing release on parole. And
the bar of judicial intervention does not affect jurisdiction of High Court under article 226 or of
Supreme Court under articles 32, 136, 142 of Constitution of India.

Difference between Release on Parole and Release on Furlough

In case of Avtar Singh v. State of Haryana, MANU/SC/0108/2002 : AIR 2002 SC 1109 the

 Court observed that a prisoner released on parole and prisoner released on furlough for
counting period of release towards total period of sentence of imprisonment are separately
categorized in separate laws. A prisoner released on furlough is more rigorous than release on
parole. A prisoner released on parole to meet his urgent pressing personal problem is not
entitled for counting period of release towards total period of sentence of imprisonment.

D.R. Tapt in his book Criminology (at pages 604-625) defines parole in the following words:-

"To all prisoners, parole means relative freedom from walls, commands and isolation
and monotonous routine and from association almost exclusively with a horde of other
moral outcasts.

Paroles can give a somewhat more normal life than they have lived in prison. They re-
achieve names instead of numbers........There is some sort of home without bars and a
family or restaurant meals which may be something of a social as well as gastronomical
event. ...The geographical horizon is no longer hemmed in by walls with armed guards
and the outlines of cell blocks. The parole may see a somewhat different scene every
day. There are probably better beds, fewer unpleasant odours, foodless nutritions,
perhaps but what the man likes within the restriction of his purse free access to
newspapers, and clothing which somewhat express the personality instead of slouchy
uniforms and caps. The ex-prisoner is free and that freedom is intoxicating." Sunil
Fulchand v. Union of India, (2005) 1 SCC 605 describes parole in a wider sense. The
Constitution Bench by a majority held that parole is essentially an executive function
and now it has become an integral part of our justice delivery system as has been
recognized by courts. It is a temporary arrangement by which a prisoner is released for
a temporary fixed period to meet certain situations, it does not interrupt the period of
detention and thus needs to be counted towards the total period of detention unless the
rules, instructions or terms of grant of parole, prescribe otherwise.

A strong case, therefore, exists to liberalize this provision not so much for the liberty from the
prison but for the greater social good. Reference may also be made in Suresh Chandra v. State
of Gujarat, (1976) SCC (Cri) 654: AIR 1976 SC 2462, and Krishan Lai v. State of Delhi, (1976)
SCC (Cri) 655: AIR 1976 SC 1139, in which the penological innovation in the shape of parole to
check recidivism, apart from it being connected with rehabilitation was taken note of and use
of the same was recommended.

FURLOUGH

Though Bail, Parole and Furlough are interlinked with each other, yet they have different meanings, in
the eyes of law. Bail is generally granted by a court whereas Parole and Furlough are granted by the
State as per rules and regulations or the guidelines laid down by the executive authority from time to
time. If there is any arbitrariness in the rules framed for the grant of parole or furlough, the said rules
can be challenged by the affected persons in a court of law.

Discretionary Powers of the State on Furlough

While using its discretionary powers, the State must act fairly, reasonably and uniformly. In
Charanjit Lal v. State, DLT 1985 (28) 92: 1985 Cr LJ 1541, the High Court of Delhi dealt with
this matter at length and made valuable observations. It was held that even though the
Government is the exclusive authority to grant remission yet its orders are liable to be
 challenged in a court of law if the orders are vitiated by the voice of arbitrariness or
discrimination and may be hit by Article 14 of the Constitution.

It was further observed by the Hon'ble High Court that it is basic to our Constitution that all
public powers including Constitutional powers should never be exercised arbitrarily or mala
fide. The discretionary powers used by the Government must, therefore, be in conformity with
the well-settled principles keeping in mind the letter and spirit of the law of the land.

In case of State of Maharashtra v. Suresh Pandurang Darvakar, MANU/SC/8099/2006 : AIR

2006 SC 2471 the release of respondent was objected by District Magistrate/Superintendent of
Police on ground of public peace and tranquility. Releasing him on furnishing surety amount
lying in deposit with jail authorities was held as improper.

Parole and Furlough Distinguished

While parole can be granted to the prisoner detained in a prison-house under any offence
whatsoever and irrespective of duration of the imprisonment, awarded to him, Furlough can be
granted only in those cases where a prisoner has been sentenced to long imprisonment, i.e.,
five years and more.

Here are some relevant portions of a letter No. F. 18/ (27)/55-Home, dated 7th March, 1958
as amended by letter No. F. 18/59/62-Home, dated 16th September, 1963 of the Delhi
Administration to the Inspector-General of Prisons, from which the learned readers will be able
to understand the distinction between Parole and Furlough more clearly.

Part I (Parole)

(i) A prisoner may be released on parole for such period as the Chief Commissioner of Delhi,
may order. Parole shall be admissible for:-

(a) seeing any sick or dying member of the family;

(b) any other sufficient cause, such as marriage of the prisoner, or any other member
of the family, i.e., son, daughter, sister, brother, etc. etc.;

(c) for construction of a house;

(d) for repairs to a badly damaged house.

(ii) The period spent on parole will not count as part of the sentence.

Part II (Furlough)

1.     (i) A prisoner who is sentenced for 5 years or more rigorous imprisonment and who has
actually undergone three years imprisonment excluding remission may be released on
furlough. The first spell may be of three weeks and subsequent of two weeks each per annum
provided that:

(a) his conduct in jail has been good, he has earned three good conduct
remissions, and provided further that he continues to earn good conduct
remissions or maintains good conduct;
 (b) he is not a habitual offender;

(c) he is not convicted of robbery with violence, dacoity and arson;

(d) he is not such a person whose presence is considered highly dangerous or

prejudicial to the public peace and tranquillity by the District Magistrate of his
home district.

(ii) The period of furlough will count as sentence undergone except any such period
during which the prisoner commits an offence outside.

2. [xxx]

3. [xxx]

4. The period of furlough will be treated as a part of the sentence undergone in jail.

From the above guidelines in regard to Parole and Furlough, it is now clear that they are quite
distinct in their nature, scope and content. While a prisoner can be released on parole when he
is undergoing a sentence or imprisonment for any offence whatsoever and irrespective of the
duration of imprisonment awarded to him, furlough can be granted only in those cases where a
prisoner has been sentenced for long imprisonment, i.e.,

five years or more......one of the postulates which must weigh with the authorities while
granting furlough is that the prisoner's release will not be hazardous or prejudicial to the public
peace and tranquillity, as observed by the High Court of Delhi in its judgment in Charanjit's
case mentioned above. It will be a fruitful exercise for the learned readers to go through this
judgment seriously.

The Concise Oxford Dictionary has defined the Parole as "the release of a prisoner temporarily
for a special purpose or completely before the expiry of sentence, on the promise of good
behaviour, such a promise, a word of honour."

Whereas according to the Concise Oxford Dictionary "furlough means a leave of absence
especially granted to a member of the services or to a missionary."

In case of State of Haryana v. Mohinder Singh, MANU/SC/0073/2000 : (2000) 3 SCC 394: AIR

2000 SC 890: (2000)1 SCR 698: 2000 Cr LJ 1408, the Supreme Court in comparing these two
terms observed that "furlough" and "parole" are two different terms now being used in the Jail
Manuals or laws relating to temporary release of prisoners. These two terms have acquired
different meanings in the statute with varied results. Dictionary meanings, therefore are not
quite helpful. In this respect it may be said that different States have their own Acts on the
issue viz., Good Conduct Prisoners (Temporary Release) Acts and the provisions are made
about the circumstances where the prisoners can be granted the parole or furlough. Furlough is
granted for no particular reason, it can be denied in the interest of the society whereas Parole
is to be granted only on sufficient cause being shown; State of Maharashtra v. Suresh
Pandurang Darvarkar, MANU/SC/8099/2006 : (2006) 4 SCC 776: MANU/SC/8099/2006 : AIR
2006 SC 2471: 2006 Cr LJ 3279: (2006) 4 SCALE 325.

Moreover the terms bail, furlough and parole have different connotations. Bail is well
understood in criminal jurisprudence. The provisions of bail are contained in Chapter XXXIII of
 the Code of Criminal Procedure, 1973. It is granted by the officer-in-charge of a police station
or by the court when a person is arrested and is accused of an offence other than a non-
bailable offence. The court grants bail when a person apprehends arrest in case of a non-
bailable offence or is arrested for a non-bailable offence after taking various factors viz.,
discretion of court, precedents, gravity of offence and the status of accused, etc. But the grant
of parole is essentially an executive function and instances of release of detenues on parole
were unknown until the Supreme Court and some of the High Courts in recent years made
orders of release on parole on humanitarian grounds. Release on parole is a wing of the
formative process and is expected to provide opportunity to the prisoner to transform himself
into a useful citizen. The term furlough is not wider as the term parole. Furlough is only a leave
of absence allowed to a prisoner or accused. Generally parole is allowed to a very long term
prisoner. The Supreme Court also interpreted the terms in State of Haryana v. Nauratta
Singh,MANU/SC/0176/2000 : (2000) 3 SCC 514: AIR 2000 SC 1179: (2000) 2 SCR 246: 2000
Cr LJ 1710.

Suspension of Sentence Pending Appeal

The power is to be exercised under section 389 of Cr. P.C. only after careful consideration of
relevant aspects. Mere fact of grant of bail during trial and absence of its misuse is not
sufficient to suspend sentence and grant bail; Anil Ari v. State of West
Bengal, MANU/SC/0148/2009 : AIR 2009 SC 1564.

In case of Kanaka Rekha Naik v. Manoj Kumar Pradhan, MANU/SC/0073/2011 : AIR 2011 SC

799 it was observed that the release of convict on bail is not matter of course. The Appellate
Court is required to record reasons in writing for suspending sentence and release of convict on
bail pending appeal. See also Dinesh Kumar Sinha v. State of Jharkhand, AIR 2009 SC (Supp)
1084.

Suspension of Sentence of Convict Pending Appeal

The appellants were on bail during pendency of case before trial court. The trial court acquitted
most of the accused persons charged for same offence except appellants. The appellants-
accused while on bail were not shown to have indulged themselves in any offence either under
provisions of Penal Code or any other statutes. They neither jumped the bail nor any way
responsible for prolonging proceedings before trial court. Hence it was held that in facts and
circumstances rejection of their application for bail and suspension of sentence by High Court
was not proper. Angana v. State of Rajasthan, MANU/SC/0133/2009 : AIR 2009 SC 1669;
Suzanne Louise Martin v. State of Rajasthan, MANU/SC/0045/2009 : AIR 2009 SC 1740; Ashok
Kumar v. State, AIR 2009 SC 1922.

Chapter 3

Competent Authorities to Grant Bail

Competent Authorities to Grant Bail 28

Competent Authorities to Grant Bail

Sections 41, 42, 43 or 151 of the Code of Criminal Procedure, 1973 empowers the police to grant bail
to persons arrested without a warrant or under a bailable warrant issued by a court or to appear
before the Court where required.

Sections 436, 437, 438 and 439 of the Code of Criminal Procedure, 1973 empowers the Magistrates
and Courts to grant bail to any person charged with a crime.

Section 339 of the Code of Criminal Procedure, 1973 gives the power to the State Government to
deliver any person, detained under section 330 or 335, to the care of any relative or friend, only upon
the application of such relative or friend and on his giving security to the satisfaction of such State
Government. Thus the person so delivered shall in the case of a person detained under sub-section (2)
of section 330 order such person to be delivered to such relative or friend, [section 339(1)(c)].
 Chapter 4

Bail and Security 29

Bail and Security

When one meanders across the Indian Legal System we find that there are twin principles, of social
interests and individual and personal liberty which breathes through the mechanism of bail. Bail may be
given to any person at any stage of trial. The following situations and circumstances would reveal as to
whom bail may be given and from whom security may be taken:

 A situation where person is under arrest.

 A situation where persons who are sureties.

 A situation where persons who are convicted by a court.

 A situation where persons who are found to be lunatic or of unsound mind by the court

 A situation where persons who are detained in private and police custody.

 A situation where persons move the court to transfer the case.

 A situation where persons against whom security proceedings are launched.

 A situation where persons who are, during the trial of a case, in judicial custody.

 A situation where persons move the court for anticipatory bail.

 A situation where persons who are witnesses.

 A situation where persons who are not accused.

 A situation where persons who go in appeal against their sentence or conviction.

 A situation where persons who are entrusted with custody of property.

The relevant sections in relation to the above mentioned points are:

 Who is under arrest [see sections 41, 42, 43, 44, 109, 110, 151, 178, 180, 228, 345, 346 of
the Code of Criminal Procedure, 1973].

 Who stand as sureties [see sections 71, 106, 107, 108, 109, 110, 117 of the Code of Criminal
Procedure, 1973].

 Who are found lunatic or of unsound mind by the court [see sections 330-333, 335, 337, 338
and 339 of the Code of Criminal Procedure, 1973].

 Who wants to transfer his Criminal case [see sections 406, 407, 408 of the Code of Criminal
Procedure, 1973].

 Who are entrusted with custody and disposal of property [see sections 451, 452 of the Code of
Criminal Procedure, 1973].
  Against whom security proceedings are launched [see sections 106 to 124].

Relevant cases pertaining to bail and security:

1. Kajal Dey v. State of Assam, 1989 Cr LJ 1209 (Gau) where there were no express allegations
nor any incriminating material of evidentiary value was found in a case diary against the
appellants in the First Information Report for which the police acted under section 41 of the Code
of Criminal Procedure, 1973, it was held that bail should have been granted. The said section
does not give powers to the police to act in arbitrary manner Only upon a sound suspicion, and
not a mere suspicion, police must arrest a person.

2. Shivraj Singh v. State, 1975 All Cr Cas 362 where the accused was carrying a pistol and
which was in a good condition at the time of his arrest, the arrest made by a private party was
held to be valid, as according to section 43(1) of the Code of Criminal Procedure, 1973 and it
was held that the trial cannot be contaminated or impaired on this count only.

3. Satish Chandra Ray v. Jadu Nandan Singh, ILR 26 Cal 748: A police officer must make a
person know about the substance of the warrant which thereby means that an opportunity must
be given to that person to read that warrant. Obviously, he must in possession of the warrant
while making an arrest. It may be taken note that mere showing the warrant is not sufficient.

4. Any Court issuing a warrant for the arrest of any person may in its discretion direct by
endorsement on the warrant that, if such person executes a bond with sufficient sureties for his
attendance before the Court at a specified time and thereafter until otherwise directed by the
Court the officer to whom the warrant is directed shall take such security and shall release such
person from custody.

Chotey Lal v. Emperor, (1948) All LJ 35: MANU/UP/0031/1947 : AIR 1948 All 72 (74) is a case
on the point as to where the power is conferred on the Court by the Code of Criminal Procedure,
1973 to take direct security from the person taken into custody.

5. Kadir Ali Dewan v. Wahab Ali, 1980 Cr LJ 507 (Gau).

A non-bailable warrant was issued by a Magistrate. There was non-compliance with the
requirements of sections 111, 114, 116 in a proceeding under section 107 of the Code of
Criminal Procedure, 1973. Besides there was an order of execution of interim bond without
meeting the requirements of section 116 of the Code of Criminal Procedure, 1973. Held, the
proceedings led to injustice and thus quashed.

6. Ambujuan v. State, 1973 Ker LT 23.

Although a police officer may of high rank, his report may not be equal to the judicial decisions.
If an accused was of unsound mind and was sent to mental asylum on the report of the police,
without a finding recorded by the Court as to his unsoundness of mind, it was held that an order
of a Court would be vividly without jurisdiction.

© Universal law Publishing Co.

    

Chapter 5

Bail in Non-Bailable Offence

 Bail not Jail 32

 Bail under section 437 of the Code of Criminal Procedure, 1973 is not a 33
Matter of Right

 Right to File Successive Bail Applications 39

 Bail Once Granted cannot be Reviewed, Revised or Set Aside by the Same 40
Court

 Grounds to be Kept in Mind while Granting/Refusing Bail in Non-bailable 40

Offence

 Offence Relating to Military Affairs 40

 Accused to be Granted Bail if in Custody for a Long Time 41

 Delay in Trial Entitles the Accused to be Released on Bail 41

 Merits of the Case not to be gone into while Granting/Refusing Bail 42

 Facts and Circumstances of each case 42

 Consideration and Interpretation of Bail Application 42

 Limitations for Grant of Bail 43

 Delay in Recovery of Weapon in Murder Charge 43

 Considerations: Prima facie case 43

 Ground of Arrest 44

 Statutory Obligation of the Court to Record Reasons for Granting/Refusing 45

Bail

 Exceptional circumstances 45

 Exceptional cases 45

 Propriety of Grant of Bail 46

 Detailed Examination of Evidence 46

 Cryptic Order 46

 Discretion of Court 46

 Bail Order is Final Order and Not an Interlocutory Order 47

 Bail Application to be Disposed of on the Same Day 47

 Offence under MCOCA 48

 Bail in NDPS case 48

  Fake Encounter Case 49

 Charge under Official Secrets Act 49

 Stamp Paper Scam Case 49

Chapter 5

Bail in Non-Bailable Offence

Grant or refusal of bail is a very delicate matter and certainly needs a serious examination when the
court decides against the accused person. Even the Code of Criminal Procedure 1973 speaks for the
grant of bail because the liberty of a person 'is of great importance and is a fundamental right of every
citizen guaranteed under the Constitution of India.

There is indeed no mathematical calculation by Which a judge, before whom the accused is produced,
is to be guided by the said principles of law. Bail in a bailable offence is, of course, a matter of right
and there is no difficulty for the police or the judicial officer to release the accused person on bail. It is
only in case of non-bailable offence where the judicial officer, keeping in view the provisions of law,
has to use his discretion judiciously and not arbitrarily while granting or refusing bail to the accused
person, Judges themselves have to decide on the basis of their, long experience, wisdom, and the
guidelines laid down by the Supreme Court of India keeping in view the facts and circumstances of
each and every case.

There is a distinction between rejection of bail in a non-bailable case at the initial stage and the
cancellation of bail already granted. Normally very cogent and overwhelming grounds or circumstances
are required to cancel the bail already granted; Mahant Chand Nath Yogi v. State of
Hnrymm, MANU/SC/0888/2002 : (2003) 1 SCC 326: AIR 2003 SC 18: 2003 Cr LJ 76.

BAIL NOT JAIL

From the provisions of law and the judgments delivered by various High Courts and also the Supreme
Court of India, the consensus arrived at is that in principle the inclination should be in favour of bail
and not jail. The law with regard to grant or refusal of bail has developed more by the courts than the
legislature. Article 21 of the Constitution of India fully guarantees every citizen a right to life and
liberty. That is why the Supreme Court in various judgments, time and again has sounded a word of
caution and the warning to the courts subordinate to it that the judges should be very cautious and
careful before they refuse the bail in non-bailable offences. The basic purpose of setting an accused
person at liberty is that his fundamental right to life and liberty  should not be curtailed unnecessarily. If
the courts are satisfied that the accused person will participate in the trial and will not abscond or
tamper with the evidence, the bail should invariably be granted.

Bail under section 437 of the Code of Criminal Procedure, 1973 is not a Matter of Right

The offences committed by the accused persons fall under two categories:--

(1) bailable offences, (2) non-bailable offences

Section 436 of the Criminal Procedure Code, 1973 deals with the offences which fall under the category
of bailable offences. Section 437 deals with the offences categorised as non-bailable offence. Bail is a
matter of right if offence falls under the provisions of section 436 but it is a matter of discretion of the
Court to grant or refuse bail if the offence committed by the accused falls under the category of non-
bailable offences and is covered by section 437 of the the Code of Criminal Procedure, 1973. But here
is a caution for all the courts that the discretion while granting or refusing the bail must be judiciously
exercised.

Section 437 and Section 439 of the Code of Criminal Procedure, 1973 are reproduced below: 

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

(1) When any person accused of, or suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer in charge of a police station or appear or is
brought before a Court other than the High Court or Court of Session, he may be released on
bail, but--

(i) such person shall not be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he
had been previously convicted of an offence punishable with death, imprisonment for life
or imprisonment for seven years or more, or he had been previously convicted on two or
more occasions of a 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 referred to in clause
(ii) be released on bail if it is satisfied that it is just and proper so to do for any
other special reason:

Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise entitled to be released on bail and
gives an undertaking that 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 under this sub-section without
giving an opportunity of hearing to the Public Prosecutor.

(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.

(3) When a person accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under Chapter VI,
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,

(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, 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 or tamper with the evidence,
and may also impose, in the interests of justice, such other conditions as it considers
necessary.

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

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

(6) If, 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, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

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

Section 437 of the Code of Criminal Procedure, 1973 has been amended to provide that if a person
commits a cognizable and non-bailable offence and he has previously been convicted on two or more
occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7
years, he shall not be released except in the circumstances specified in the provision.

It has further been provided that if an accused appears before the Court while in judicial custody and
prays, for bail or a prayer for bail is made on his behalf, the Court shall grant bail only after giving an
opportunity of hearing to the prosecution, if the offence alleged to have been committed by the
accused is punishable with death, imprisonment for life or imprisonment for not less than 7 years.

Under sub-section (3), the Court has got the discretion to impose certain conditions for the grant of
bail. Under section 441(2), where any condition is imposed for the release of a person on bail, the
bond shall contain that condition also. In order to make the provision stringent and to see that the
person on bail does not interfere or intimidate witnesses, sub-section (3) has been amended to specify
certain conditions, which are mandatory."
"439. Special powers of High Court or Court of Session regarding bail.--

(1) A High Court or Court of Session may direct--

(a) that any 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 set
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
notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail
under this Chapter be arrested and commit him to custody."

These two sections are distinguished from each other. Section 437 of the Code of Criminal Procedure,
1973 limits the jurisdiction of the Magistrate in the case of offences punishable with death or
imprisonment for life except in the case of children, women, sick and infirm persons. On the other
hand it will be observed that section 439 of the Code of Criminal Procedure, 1973 does not prescribe
any such limitation on powers of the Court of Session or High Court. As we have already discussed
above, the bails have to be granted by using the discretion judiciously and not indiscriminately or
arbitrarily.

It may be made very clear to the learned readers that principles governing the grant of bail under sub-
section (1) of sections 437 and 439 are different from the principles governing the cancellation of bail
under sub-section (5) of section 437 and sub-section (2) of section 439 of the Code of Criminal
Procedure, 1973.

The court has the discretion to grant bail subject to certain conditions imposed on the accused. In
granting bail to a former Chief Minister, in Jagannath Mishra v. State of Bihar, 1999 Cr LJ 3527, the
Supreme Court released him on bail subject to the conditions that:

(a) He Shall not directly or indirectly make any inducement, threat or promise to any person
acquainted with the facts of the case.....

(b) He shall remain present before the courts on the dates fixed for hearing of the case. If he
wants to remain absent, he shall take prior permission of the court.....He shall not insist upon
the proceedings being held up in view of his absence.

In this case the Supreme Court was satisfied that the accused had made out a case for .releasing him
on bail. And thus by Setting aside the impugned order passed by the High Court, the Supreme Court
granted him bail with certain conditions as mentioned above.

In Nirmal Jeet Kaur v. State of Madhya Pradesh, MANU/SC/0695/2004 : (2004) 7 SCC 558: (2004) 7
SCALE 324: JT 2004 (7) SC 161 it was held that an application under section 439 of the Code of
Criminal Procedure, 1973 must be in accordance with law and the accused seeking remedy thereunder
must ensure that it would be lawful for the court to deal with the application. Unless the applicant is in
custody his making application only under section 439 of the Code of Criminal Procedure, 1973 will not
confer jurisdiction on the court to which the application is made. The view regarding extension of time
to move the higher court shall have to be treated as having been rendered per incuriam as no
reference was made to the prescription in section 439 requiring the accused to be in custody.

In Sunita Devi v. State of Bihar, MANU/SC/1032/2004 : (2005) 1 SCC 608: AIR 2005 SC 498: (2004)
115 DLT 517, it was held that in view of the clear language of section 439 of the Code of Criminal
Procedure, 1973, there cannot be any doubt that unless a person is in custody, an application for bail
under section 439 of the Code of Criminal Procedure, 1973 would not be maintainable.

In Prahlad Singh Bhatoi v. NCT, Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280: AIR 2001 SC 1444:
(2001) 2 SCR 684, it was held that the Magistrate can grant bail only when there is no reasonable
ground to believe that the accused is guilty of offence punishable with sentence of death or life
imprisonment, unless accused is covered by the provisions to section 437(1) of the Code of Criminal
Procedure, 1973.

In R. Rathinam v. State by DSP, Crime Madurai, MANU/SC/0071/2000 : (2000) 2 SCC 391: (2000)

SCC (Cri) 958: (2000) 1 SCALE 458, it was observed that there is no barrier either in section 439 of
the Code of Criminal Procedure, 1973 or in any other law which inhibits a person from moving the High
Court to have such powers exercised suo motu. If the High Court considers that there is no need to
cancel the bail for the reasons stated in the petition, after making such consideration it is open to the
High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the
bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It
is therefore, improper to refuse to look into the matter that such a petition is not maintainable.

In Chenna Buyanna Krishna Yadav v. State of Maharashtra, MANU/SC/8749/2006 : (2007) 1 SCC 242:

2007 Cr LJ 782, it was observed that it is plain from a bare reading of the non-obstante clause in the
sub-section (4) of section 21 of MCOCA (Maharashtra Control of Organised Crime Act) that the power
to grant bail by the High Court or Court of Session is not only subject to the limitations imposed by
section 439 of the Code of Criminal Procedure, 1973 but it is also subject to the limitations placed by
section 21(4) of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin
conditions are: the satisfaction of the Court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not likely to commit any offence while on
bail.

In Union of India v. Rajesh Ranjan, (2004) 7 SCC 539: 2004 SCC (Cri) 1987 the High Court considered
only two grounds for granting bail i.e. one is that the respondent was in custody for more than one
year and the other is that the High Court made some order in the previous order. The previous order
referred to by the High Court only made a mention that respondent could renew the application after
framing of the charge against him. The observation is not a ground envisaged under section 437(1)(i)
of the Code of Criminal Procedure, 1973 for granting bail. Thus there was non-application of mind of
High Court from the angle provided in the aforesaid clause which is sine qua non for granting bail, in
the light of the specific prohibition contained in the subclause that such persons shall not be released,
if there appears a reasonable grounds for believing that he has been guilty of an offence punishable
with death or imprisonment for life.
Right to File Successive Bail Applications

You have no right to go on filing bail applications. This will amount to an abuse of the process of the
court and should be discouraged. Any fresh application for the grant of bail by an accused person
without any substantial change of the facts and circumstances of the case in no circumstances is
maintainable and must be dismissed; State of Maharashtra v. Capt. Buddhikota Subha
Rao, MANU/SC/0549/1989 : AIR 1989 SC 2292:1989 Supp (2) SCC 605: (1989) Supp 1 SCR 315.

Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0045/2005 : (2005) 2 SCC 42:
AIR 2005 SC 921: 2005 Cr LJ 944, it was observed that though principles of res judicata and principles
analogous thereto are not applicable in criminal proceedings, still the courts are bound by doctrine of
judicial discipline, having regard to the hierarchical system prevailing in the country. The findings of
higher courts or co-ordinate bench must receive serious consideration in hands of court entertaining a
bail application at a later stage when same had been rejected earlier. Due weight should be given to
grounds which weighed with the former or higher court in rejecting bail application.

Bail Once Granted cannot be Reviewed, Revised or Set Aside by the Same Court

The readers must know that once a court of competence passes an order Of grant of bail Under section
437(1) of the Code of Criminal Procedure, 1973 the said order cannot be reviewed, revised or set aside
by the same court. No provision of the Code provides any authority to the said Judge to do so. Bail,
therefore, can only be cancelled under section 437(5) of the Code of Criminal Procedure, 1973 but
such power can be exercised only in extraordinary circumstances; State through Delhi Administration
v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411:
(1978) 3 SCR 950, relied--Prashant Kumar v. Manohar Lal, 1988 Cr LJ 1463.

Grounds to be Kept in Mind while Granting/Refusing Bail in Non-bailable Offence

In State v. Jaspal Singh, 1984 Cr LJ 1211: MANU/SC/0128/1984 : (1984) 3 SCC 555: AIR 1984 SC
1503: (1984) 3 SCR 993, the Supreme Court has pointed out the following considerations to be kept in
mind while granting/refusing bail to the accused persons in non-bailable offences and before the
commencement of the trial:--

(i) the nature and seriousness of the offences;

(ii) the character of the evidence,

(iii) circumstanced which are peculiar to the accused;

(iv) reasonable possibility of the presence of the accused not being secured at the trail;

(v) reasonable apprehension of witness being tampered with;

(vi) the larger interest of the public or the State;

(vii) the interest of the society;

(viii) and other considerations which the judge may weigh from case to case.

Offence Relating to Military Affairs

Where there is a charge under the Official Secrets Act, the Courts have to be very cautious and strict
while dealing with the bail application.

In State v. Jagjit Singh, MANU/SC/0139/1961 : AIR 1962 SC 253: (1962) 3 SCR 622, the Supreme
Court had indicated that the court should exercise a greater degree of care in enlarging on bail to an
accused who is charged with the offence punishable under section 3 of the Official Secrets Act when it
relates to military affairs.

Accused to be Granted Bail if in Custody for a Long Time

There are many cases where the accused persons are made to languish in jail, and the trial continues
at a snail’s pace. In cases where the accused persons are detained unnecessarily for a long period and
the trial drags on, the Supreme Court has directed that in such cases the accused persons be released
on bail in non-bailable offences. In a case where the accused was in custody for over eight months,
and it was not known when the evidence to be taken, would be reviewed by the Sessions Judge, it was
held that the accused must be released on the same ground.

The Supreme Court in case of Shailendra kumar v. State of Delhi, MANU/SC/0886/2000 : AIR 2000 SC
3404: (2000) 4 SCC 178: 2000 Cr LJ 2452 held that where there is long pendency of trial with no
prospects of early hearing then the bail during the pendency of appeal is justified.

Long period of custody and no possibility of the trial concluding in the near future may be a good
ground for the grant of bail; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav,MANU/SC/0106/2005 : (2005) 3 SCC 284: AIR 2005 SC 972.

Delay in Trial Entitles the Accused to be Released on Bail

In considering the suffering of accused due to delay in trial the Supreme Court held that we are told
that the appellant is in jail from 4-4-1998 in connection with the offences under sections 394 and 395
read with section 149 of the Indian Penal Code (45 of 1860). It is quite a long period that he has been
in custody without commencing the trial. There is no need to detain him further in custody, and
therefore, we are inclined to release him on bail notwithstanding the suppression of certain factual
position when the bail application was filed. It would not have been done by the appellant. We feel that
the lapse on the part of the counsel should not in this case be allowed to prejudice the appellant who is
languishing in jail. Vide Vivek Kumar v. State of Uttar Pradesh, JT 2000 (1) SC 552: AIR 2000 SC
3406: (2000) 9 SCC 443.

Merits of the Case not to be gone into while Granting/Refusing Bail

At the time of granting or refusing bail in a non-bailable offence, the court has not to go into the merits
of the case. The court has only to keep in mind the visible gravity of the alleged offence, the deep
roots of the accused in the society, the possibility of his appearing in the court during trial, the control
of the surety over the accused and various other guidelines laid down by the Supreme Court in its
judgments delivered from time to time.

In one of its judgments, the Supreme Court held that while deciding the question whether bail is to be
granted or not detailed examination of the merits of the case is not to be considered. It is not at all
desirable that the court should appreciate the evidence at the pre-trial stage.

Facts and Circumstances of each case

In Rajesh Ranjan Yadav @ Pappu Yadav v. CBI, MANU/SC/5112/2006 : AIR 2007 SC 451: 2007 Cr LJ
304: (2006) 11 SCALE 551: MANU/SC/5112/2006 : (2007) 1 SCC 70: 2006 (2) UJ 1536 (SC), it was
held that grant of bail depends on facts and circumstances of each case and it cannot be said that
there is any absolute rule that since a long period of imprisonment has expired, bail must necessarily
be granted. It was observed that 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 and whether he has been in jail for a long time, the court has also to take into consideration
other facts and circumstances, such as interest of the society- Article 21 has been explained in detail.

Consideration and interpretation of Bail Application

Several considerations arise while granting bail or refusal to grant bail viz. (a) whether there is any
prima facie or reasonable ground to believe that the accused had committed the offence; (b) nature
and gravity of the charge; (c) severity of the punishment in the event of conviction; (d) danger of the
accused absconding or fleeing, if released on bail; (e) character, behaviour, means, position and
standing of the accused; (f) likelihood of the offence being repeated; (g) reasonable apprehension of
witnesses being tampered with; and (h) danger of justice being thwarted by grant of bail. State of
Uttar Pradesh v. Amarmani Tripathi, MANU/SC/0677/2005 : (2005) 8 SCC 21: AIR 2005 SC 3490:
2005 Cr LJ 4149: (2005) DLT 362 (SC).

In Kalyan Chandra Sarkar v. Rajesh Ranjan, MANU/SC/0214/2004 : (2004) 7 SCC 528: AIR 2004 SC
1866 it was observed that while a vague allegation that the accused may tamper with the evidence or
witnesses may not be a ground to refuse bail, if the accused is of such a character that his mere
presence at large would intimidate the witnesses or if there is material to show that he will use his
liberty to subvert justice or tamper with the evidence, then bail may be refused.

Limitations for Grant of Bail

In Narcotics Control Bureau v. Dilip Prahlad Namade, MANU/SC/0240/2004 : (2004) 3 SCC 619: 2004
Cr LJ 1815: (2004) 3 SCALE 474 it has been observed that the limitations on granting bail comes only
when the question of granting bail on merit arises. The limitations stipulated in the said provision are
cumulative and not alternative. The satisfaction contemplated, regarding innocence of the accused, is
to be based on reasonable grounds. It contemplates probable cause for believing that the accused is
not for guilty of the offence and is not likely to commit any offence while on bail. Such embargo has
been envisaged in view of the deleterious nature of the offence, public interest and tendencies of the
persons.

Delay in Recovery of Weapon in Murder Charge

In State, CBI/SPE, New Delhi v. Pal Singh, (2001) 1 SCC 247 it was observed that in a murder case,
bail should not be granted merely on the ground of delay in recovery of weapons used in the crime.
But where trial could not commence for long time for which accused was not responsible, it would be
traversity of justice to keep the accused under further detention as undertrial prisoners.

Considerations: Prima facie case

In Jayendra Saraswathi Swamingal v. State of Tamil Nadu, MANU/SC/0017/2005 : (2005) 2 SCC 13:

AIR 2005 SC 716 it was held that the considerations which normally weigh the court in granting bail in
non-bailable offences basically are: (i) the nature and seriousness of offence; (ii) character of
evidence; (iii) circumstances which are peculiar to the accused; (iv) a reasonable possibility of the
presence of the accused not being secured at the trials; (v) reasonable apprehension of witnesses
being tampered with; (vi) the larger interest of the public or the State and other similar factors which
may be relevant in the facts of the case.

Ground of Arrest

We have seen that the prosecution comes before the court to oppose every bail application which the
accused person moves for the grant of ball. Sometimes the prosecution opposes the bail application on
frivolous grounds.

In A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27, Supreme Court held that
the information about the grounds of arrest is mandatory.

In Harsh Sawhney v. Union Territory of Delhi, MANU/SC/0125/1978 : AIR 1978 SC 1016: (1978) 2

SCC 365: (1978) 2 SCR 129, the bail was refused to the applicant - the accused person only on the
plea that the police was to search the premises in her presence and that the applicant/accused was
required to be taken into custody for recovering some documents.

This case came up before the Supreme Court as the bail was refused upto the High Court level. After
hearing both the sides, the Supreme Court came to the conclusion that it was a fit case where the bail
should have been granted. The Supreme Court also referred to the guidelines already given in its
earlier judgment in Gurcharan Singh v. State (Delhi Administration), 1978 Cr LJ 129: AIR 1978 SC
179a: (1978) 1 SCC 118: (1978) 2 SCR 358.

"On the basis of that decision this is clearly a case where the applicant is entitled to bail .......
We do not think that the appellant has to be taken into custody for making a search of the
premises in her presence. This can be done without her being taken into custody."

The appeal of the appellant was thus allowed and she was directed to be enlarged on bail on the
condition that she will furnish two sureties, will enter into a bond in a sum of Rs. 5,000 and she will
subject herself to a condition for appearing before the police for interrogation if called upon to do so
subject to the condition under article 20(3) of the Constitution of India.

The Supreme Court in considering the fundamental rights of arrested person to have someone
informed about his arrest and to consult privately with lawyer and in fixing the duty of police issued
some directions on arrest of accused persons and in the same judgment that held:

"No arrest can be made because it is lawful for the police officers to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The police
officer must be able to justify the arrest apart from his power to do so. Arrest and detention in
police lockup of a person can cause incalculable harm to the reputation and self-esteem of a
person. No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person".

Statutory Obligation of the Court to Record Reasons for Granting/Refusing Bail

In Prashant Kumar v. Manohar Lal, 1988 Cr LJ 1463, the Supreme Court held that "it must be said that
the Magistrate as also the Sessions Judges while either granting or refusing bail must support their
order by cogent reason and that is all the more so required as their orders are frequently subjected to
scrutiny of the High Court. The reason when given either for granting or refusing bail go a long way in
assisting the High Court to arrive at a finding as to whether the impugned orders are justified or
otherwise." The Supreme Court further held that any order passed by the court without giving any
reason either for grant or refusal of bail could not sustain and had no force of law.

Exceptional circumstances

In State of Madhya Pradesh v. Kajad, MANU/SC/0541/2001 : (2001) 7 SCC 673: AIR 2001 SC 3317:
2001 Cr LJ 4240, section 34 of the NDPS Act, 1985 was in question. It was observed that a person
accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be
not released on bail. Negation of bail is the rule and its grant is an exception under section 37(1)(b)(ii)
of the NDPS Act, 1985. For granting the bail the court must, on the basis of the record produced before
it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the
offence with which he is charged and further that he is not likely to commit any offence while on bail.
It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-
section (1) of section 37 are in addition to the limitations provided under the Code of Criminal
Procedure, 1973 or any other law for the time being in force regulating the grant of bail. Liberal
approach in the matter of bail under the NDPS is uncalled for.

Exceptional cases

In Regina (O) v. Crown Court at Harrow, (2003) 1 WLR 2756 (QB): (2003) EWHC 868 (Admn) the
defendant was charged with rape. The bail application was made after expiration of custody time limit.
It was held that a defendant who falls within section 25 of the Criminal Justice and Public Order Act,
1994 (UK), is very unlikely to be granted bail and unless he can point to exceptional circumstances,
will almost certainly not be granted bail.

Propriety of Grant of Bail

In Narcotics Control Bureau v. Dilip Prahlad Namade, MANU/SC/0240/2004 : (2004) 3 SCC 619: 2004
Cr L] 1815, there was non-compliance with the order of the Court to supply certain documents to the
accused. It was held that the accused was not entitled to get bail. On facts of the case, the High Court
erred in transgressing the statutory limitations imposed and allowing bail

Detailed Examination of Evidence

In Chaman Lal v. State of Uttar Pradesh, MANU/SC/0631/2004 : (2004) 7 SCC 525: AIR 2004 SC 4267
it was observed that at the stage of granting bail, a detailed examination of evidence and elaborate
documentation of the merits of the case is not to be undertaken, but there is need to indicate in the
order the reasons for prima facie concluding why bail was being granted, particularly where an accused
was charged of having committed a serious offence. The court dealing with the application for bail is
required to exercise its discretion in a judicious manner and not as a matter of course.

Apropos the grant or refusal to grant of Bail, the detailed examination of evidence and elaborate
documentation of the merits of the case is to be avoided by the Court while passing orders on bail
applications yet a court dealing with a bail application should be satisfied as to whether there is a
prima facie case. Anwari Begam v. Sher Mohammad, MANU/SC/0571/2005 : (2005) 7 SCC 326:
AIR 2005 SC 3530: 2005 Cr LJ 4132.

Cryptic Order

In Ajay Kumar Sharma v. State of Uttar Pradesh, (2005) 7 SCC 507, it was observed that the grant of
bail by a cryptic order without taking into consideration the relevant circumstances is not proper.
Discretion of Court

In Surinder Sing @ Shingara Singh v. State of Punjab, MANU/SC/0541/2005 : (2005) 7 SCC 387: 2005
Cr LJ 4119 it has been held that indeed in a discretionary matter, like grant or refusal of bail, it would
be impossible to lay down any invariable rule or evolve a straight jacket formula. The court must
exercise its discretion having regard to all the relevant facts and circumstances.

Bail Order is Final Order and Not an Interlocutory Order

Sometimes there is a confusion, whether the bail order amounts to a final order or is an interlocutory
order. The simple answer to this question is 'a Bail order is a final order and not an interlocutory
order'.

In Prashant Kumar v. Manoharlal Bhagatram Bhatia, 1988 Cr LJ 1463, the Supreme Court pointed out
that the order granting bail under section 437(1) or under section 439(1) is a final order. The Supreme
Court further observed that if such an order was passed by a Magistrate, the same could be challenged
in the Sessions Court or High Court in their revisional powers and there could not be any bar in
entertaining a revision application under section 397(2) of the Code of Criminal Procedure, 1973.

We have earlier stated that grant of bail is a rule and refusal of bail is an exception. Justice Krishna
Iyer, the then Judge of the Supreme Court in one of his shortest judgments (one page judgment) in
State of Rajasthan v. Bal Chand, MANU/SC/0152/1977 : AIR 1977 SC 2447: (1977) 4 SCC 308:
(1978) 1 SCR 535, had rightly observed:

"the basic rule may perhaps be tersely put as bail not jail, except where there are
circumstances, suggestive of fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and the like by the
petitioner who seeks enlargement on bail from the court".

Bail Application to be Disposed of on the Same Day

The grant or refusal of bail is a pre-trial stage and merits of the case are not discussed in detail at the
time of the hearing the bail application. Every accused person is presumed to be an innocent person till
the final decision of the matter. Therefore, it is very essential that the hearing of the bail application
should not be delayed unless there are some compelling grounds. The courts have often made
observations in their judgments that normally the bail applications should be heard on the same day,
as it involves the life and liberty of a presumed innocent person.

In Mahender Pal Singh v. State of Uttar Pradesh, 1990 ACC 18, the Allahabad High Court made
observations, as to how the bail application should be dealt with.

Magistrate should dispose of the application the same day and in special cases the next day. Sessions
Court should also dispose of the application the same day if the application is preferred in the early
hours of the day, and if preferred in the late hours of the day, it should be disposed of the next day.
Courts should take into account the question of personal liberty of the accused which has been put at
the highest pedestal in our Constitution.

In yet another case of Latif v. State of Uttar Pradesh, 1990 ACC 440, the Allahabad High Court held
that application for bail of accused persons when they are produced before a court of law should be
disposed of the same day. In case the court finds it difficult, then the accused should be released at
once on his personal bond till the bail application is disposed off finally.

In the light of constitutional guarantee as envisaged in the article 21 of the Constitution the bail
application is disposed of as expeditiously as possible. Keeping this concept in mind the Allahabad High
Court in case of Hidavat Hussain Khan v. State of Uttar Pradesh, 1992 Cr LJ 3534 held that the High
Court has discretion to issue direction to Magistrate to dispose of the bail application on the same day,
if not he has to release the accused on personal bond or interim bail on the same day till the disposal
of bail application.

Offence under MCOCA

In State of Maharashtra v. Bharat Shanti Lal Shah, AIR 2009 SC (Supp) 1135 the Court observed that
the object of MCOCA is to prevent the organized crime and, therefore, there could be reason to deny
consideration of grant of bail if one has committed a similar offence once again after being released on
bail, but the same consideration cannot be extended to a person who commit an offence under some
other Act. That would not be in any case in consonance with the object of the Act.

Bail in NDPS case

In case of Sami Ullaha v. Superintendent, Narcotic Central Bureau, MANU/SC/4761/2008 : AIR 2009

SC 1357 it was observed that, the NDPS Act although is a self-contained Code, application of the
provisions of the Code of Criminal Procedure, 1973, however, either expressly or by necessary
implication, have not been excluded. There exists a distinction between an appeal from an order
granting bail and an order directing cancellation of bail. While entertaining an application for
cancellation of bail, it must be found that accused had misused the liberty granted to him as a result
whereof (a) he has attempted to tamper with evidence; (b) he has attempted to influence the
witnesses, (c) there is a possibility of the accused to abscond; and, therefore, there is a possibility that
the accused may not be available for trial. It is true that the general principles of grant of bail are not
applicable in a case involving the NDPS Act. The power of court in that behalf is limited".

Fake Encounter Case

Accused, a high ranking police officer was allegedly involved in fake encounter. The fact was that the
person whom he killed had shady reputation and criminal antecedents or was hardened criminal is not
a relevant factor. Bail granted by taking into account these irrelevant factors and keeping out relevant
matters was cancelled by Supreme Court. Dinesh M.N. (S.P.) v. State of
Gujarat, MANU/SC/7526/2008 : AIR 2008 SC 2318.

Charge under Official Secrets Act

The accused was charged inter alia under section 3 of Official Secrets Act, 1923. The grant of bail was
challenged on ground that the crime was of grave nature as National Security was jeopardized. The
trial of accused had not started. The accused person had already undergone pre-trial detention of 22
months without even a prima facie determination of seriousness of offence. The restrictions had
already imposed on travelling abroad in earlier matter and no allegation about misuse or abuse of
Liberty or violation of any condition was made. Hence it was held that there was no infirmity in grant of
bail. C.B.I., New Delhi v. Abhishek Verma, MANU/SC/0929/2009 : AIR 2009 SC 2399.

Stamp Paper Scam Case

The applicant was accused in Stamp Paper Scam case. He was not directly connected with printing and
selling of fake stamp but was associated with the prime accused. The prima facie evidence showed that
he had abetted and facilitated commission of organized crime. The material showed that the payment
for purchase of printing machine was routed through applicant. It was held that the rejection of bail
was proper. Manoj Ramesh Mehta v. State of Maharashtra, MANU/SC/8311/2008 : AIR 2009 SC 622.

© Universal law Publishing Co.

 Chapter 6

Anticipatory Bail

 Meaning of Anticipatory Bail 50

 Conditions While Granting Anticipatory Bail 53

 Guidelines for Granting Anticipatory Bail 53

 Not blanket order 54

 Notice to the prosecution 54

 Concurrent Jurisdiction 54

 Appropriate Court for Grant of Anticipatory Bail 56

 Whether an Anticipatory Bail can be Withheld as a Matter of Punishment 56

 Anticipatory Bail: Whether a Matter of Right 57

 Guiding Principles While Granting Anticipatory Bail 57

 Some Illustrations: Application of section 438 of the Code of Criminal 59

Procedure, 1973

 Latest Judgment in Anticipatory Bail 60

 Cancellation of Anticipatory Bail: Illegality 61

 Blanket Order of Anticipatory Bail 61

 Cancellation of Anticipatory Bail 62

 Condition Precedent for Grant of Anticipatory Bail 62

 Propriety of Anticipatory Bail 62

 Imposition of Conditions 63

 Condition of Making Huge Deposits 63

 Power of Court 63

 Factors to be Taken into Consideration 63

 Limited Duration of Bail 64

 Ground of Parity 64

 Absence of Adequate Opportunity to File Objection 64

 Publication of Article on Religious Feeling 64

 Territorial Jurisdiction to Hear Anticipatory Bail Application 65

 Pre-arrest Bail and Post-arrest Bail 65

 Pre-arrest Bail 68

 Interim Bail 68
  Supreme Court Guidelines on Anticipatory Bail 68

 Supreme Court Guidelines on Anticipatory Bail - Relevant factors 70

The necessity for granting the anticipatory bail arises mainly because sometimes influential persons try
to implicate their rivals in false case for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days. In recent times in the matter of political rivalry this
tendency is showing the signs of steady increase. 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 no justification to require him first to submit to custody, remain
in prison for some days and then apply for bail. Vide 41st Report of Law Commission for power of
Superior Court in granting anticipatory bail.

Meaning of Anticipatory Bail

This means grant of bail to a free person in anticipation of his possible arrest for some offence
and in the absence of any order of arrest against him. Grant of bail presupposes that the
person is in custody of police or court, and if not in custody, is required to surrender to such
custody. It is unreal talk to grant bail to a person not being under such arrest. Mere registration
of a case against a person and his apprehension of being arrested in relation thereto is not
enough for release on bail in anticipation.

The provision of grant of anticipatory bail to a person apprehending arrest, is covered under
section 438 of the Code of Criminal Procedure, 1973. Any person who apprehends that there is
a move to get him arrested on false or trump up charges, or due to enmity with some one, he
fears that a false case is likely to be built up against him, he has the right to (sic) the Court of
Sessions or the High Court under section 438 of the Code of Criminal Procedure, 1973 for the
grant of bail in the event of his arrest,

Section 438 of the Code of Criminal Procedure, 1973 is reproduced below:

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

(1) Where any person has reason to believe that he may be arrested on
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 that in the event
of such arrest he shall be released on bail; and that Court may, after taking into
consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he

has previously undergone imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, 

either reject the application forthwith or issue an interim order for the grant of
 anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has
rejected the application for grant of anticipatory bail, it shall be open to an
officer-in-charge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section

(1), it shall forthwith cause a notice being not less than seven days
notice, together with a copy of such order to be served on the
Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a reasonable opportunity of being heard
when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be

obligatory at the time of final hearing of the application and passing of
final order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest of
justice.

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

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

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

(iv) such other condition as may be imposed under sub-section (3) of

section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge

of a police station on such accusation, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give bail, he shall be
released on bail, and if a Magistrate taking cognizance of such offence decides
that a warrant should issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of the Court under sub-
section (1)."

Section 438 of the Code of Criminal Procedure, 1973 has been amended by the Code of
Criminal Procedure, (Amendment) Act, 2005. Section 438 has been amended to the effect that
(i) the power to grant anticipatory bail should be exercised by the Court of Session or High
 Court after taking into consideration certain circumstances; (ii) if the court does not reject the
application for the grant of anticipatory bail, and makes an interim order of bail, it should,
forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of
bail would be re-examined in the light of the respective contentions of the parties; and (in) the
presence of the person seeking anticipatory bail in the court should be made mandatory at the
time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

Section 438 of the Code of Criminal Procedure, 1973 also does not confer any absolute licence
to grant anticipatory bail to all and sundry and section 438(2) itself incorporates some
conditions which may be imposed when an order of anticipatory bail is passed.

In Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366: (1976) 4 SCC 572: (1977) 2
SCR 52: (1977) Cr LJ 225, Supreme Court has discussed the utility and significance of this new
provision. In paragraph 15 of the judgment the Supreme Court has also referred to the
Statement of Objects and Reasons published in Gazette of India, Extraordinary, Pt. II-Relevant
portion is reproduced below:

"As recommended by the Commission a new provision is being made enabling the
Supreme Court to grant anticipatory bail, i.e. a direction to release a person on bail,
issued even before the person is arrested-with a view to avoid the possibility of the
person hampering the investigation, special provision is being made that the court
granting anticipatory bail may impose such conditions as it thinks fit."

Conditions While Granting Anticipatory Bail

The condition imposed may be that a person shall make himself available to the investigating
officer as and when required and shall not do anything to hamper investigation.

The Supreme Court in many of its judgments has spelled out conditions to be imposed and has
laid down guidelines in detail while granting anticipatory bail to the person alleged to have been
involved in cases which fall under the category of non-bailable offence.

Guidelines for Granting Anticipatory Bail

The Supreme Court in Gurbaksh Singh Sibba v. State of Punjab, MANU/SC/0215/1980 : AIR

1980 SC 1632: (1980) 2 SCC 565: (1980) 3 SCR 383: 1980 Cr LJ 1125, laid down the following
guidelines/propositions:-

(1) The distinction between an ordinary bail and anticipatory bail is that the former
being after the arrest means release from custody of Police, the latter being in
anticipation of arrest is effective at the very moment of arrest.

(2) The High Court and the Sessions Court have been given wide powers-discretionary-
left free in the use of their judicial discretion to grant bail on the facts and circumstances
of the case.

(3) The court must apply its own mind and decide the question without leaving it to be
decided by the Magistrate under section 437 as and when occasion arises.

Not blanket order

 (4) The applicant must show by disclosing specific facts and events that he has reasons
to believe, the existence of which is sine qua non of the exercise of power by the court
and not vague apprehension that he may be arrested for a non-bailable offence so 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.

Notice to the prosecution

(5) An order of bail can be passed conforming 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 the light of respective
contentions of the parties.

(6) The operation of the order should not be limited to a period of time.

(7) If the proposed accusation appears stern from some ulterior motive to injure and
humiliate the applicant the order for anticipatory bail would generally be made. If it
appears likely that he will flee from justice, order would not be made.

(8) Filing of an F.I.R. is not a condition precedent to the exercise of power under section
438, which can however, be exercised even after filing of the F.I.R. so long applicant is
not arrested.

(9) An order of anticipatory bail does not in any way directly or indirectly take away
from the police the right to investigate. One of the usual conditions imposed is that the
applicant shall make himself available for interrogation by a police officer.

Concurrent Jurisdiction

Both the High Court as well as the Sessions Court have the competence and jurisdiction to
entertain the anticipatory bail application. It is for the applicant or the petitioner to choose
either of these; Onkar Nath Aggarwal v. State, 1976 Cr LJ 1142.

In Jagannath v. State of Maharashtra, 1981 Cr LJ 1808, the petitioner had applied to the
Session Judge, for grant of anticipatory bail. The application being rejected, he approached the
High Court of Bombay praying for anticipatory bail under section 438 of the Code of Criminal
Procedure. As a preliminary objection, it was contended by the complainant that according to
that section an application for anticipatory bail could be made "to the High Court or Court of
Session" and that it could not be made in both these courts, i.e. the petitioner would have a
choice of one out of the two courts.

In support of this contention reliance was placed on the decision of the judgment delivered by
the High Court of Calcutta in Amiya Kumar v. State of West Bengal 1979 Cr LJ 288.

In this matter the court observed:

"In the instant case, therefore, we find that section 438 has given a choice of selecting
the forum for filing the petition for anticipatory bail-to choose either the High Court or
the Court of Session, though both the courts have been made forum for the approach of
the applicant. This section gives right to the party with restricted choice."
 Section 438 does not require that the offence must have been registered. All that is
contemplated is that the applicant has reasonable belief that he apprehends to be arrested for
commission of non-bailable offence; Suresh Vasudev v. State (Delhi Administration), 1978 Cr LJ
677.

Application for anticipatory bail by a Minister for a charge under section 307 of the Indian Penal
Code can be rejected as there is likelihood of confidence of public being shaken if investigation
is interfered; Mohd. Mazaffar Hussain Khan v. State of Orissa, 1990 Cr LJ 1024.

Bail under section 438 of the Code of Criminal Procedure, 1973 will be valid and operative for
those offences only for which it is granted which would last till the conclusion of the trial unless
it is cancelled under section 437(5) of the Code of Criminal Procedure, 1973; Ram Sevak v.
State of Madhya Pradesh, 1979 Cr LJ 1485.

Anticipatory bail can be granted for alleged offences covered under rule 184 of Defence and
Internal Security of India Rules (sic) Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC
366.

Appropriate Court for Grant of Anticipatory Bail

As bails are against arrest and detention, an appropriate court within whose jurisdiction the
arrest takes place or is apprehended or is contemplated will also have the jurisdiction to grant
bail to the person concerned. If the Court of Session or the High Court has the jurisdiction to
grant interim bail, then the power to grant full anticipatory bail will emanate from the same
jurisdiction. The High Court further observed that in case it is desirable or so expedient to do,
the anticipatory bail may be granted for a specified period only. The case of Pritam Singh v.
State of Punjab, 1981 Cr LJ (NOC) 159 is on the point.

Whether an Anticipatory Bail can be Withheld as a Matter of Punishment

No. An anticipatory bail cannot be withheld by any court- Sessions Court or the High Court-as a
matter of punishment. The purpose of the grant of bail has been discussed in various
judgments of the Supreme Court. Nowhere it has been pointed out that the bail or for that
matter anticipatory bail may be withheld as a matter of punishment. The observations made by
the Supreme Court in Bhagrath Singh Judeja v. State of Gujarat, MANU/SC/0052/1983 : AIR
1984 SC 372: (1984) 1 SCC 284: (1984) 1 SCR 839: (1983) 2 SCALE 818, clinches the whole
matter. The relevant paragraph (5) at page 373 is reproduced below:

"We fail to understand what the Learned Judge of the High Court desires to convey when
he says that once a prima facie case is established, it is necessary for the court to
examine the nature and gravity of the circumstances in which the offence was
committed. If there is no prima facie case there is no question of considering other
circumstances. but even if a prima facie case is established, the approach of the court in
the matter of bail is not that the accused should be detained by way of punishment but
whether the presence of the accused would be readily available for trial or that he is
likely to abuse the discretion granted in his favour by tampering with evidence."

In the above case the bail was granted to the accused person which was cancelled by the High
Court and the matter went to the Supreme Court, where the observations were made in the
 aforesaid paragraph.

Anticipatory Bail: Whether a Matter of Right

No. It cannot be invoked as a matter of right. It cannot be used to frustrate investigation by the
police. Courts can exercise direction to issue a direction of anticipatory bail under section 438 of
the Code of Criminal Procedure, 1973 when the actions of the police is prejudicially inclined
against a party whose individual and personal liberty is likely to be in danger without any
justification of law. The discretion is not an exercise of independent jurisdiction but is
determined by seriousness and graveness of accusation. The court cannot show laxity in the
exercise of discretion for grant of bail in anticipation.

Guiding Principles While Granting Anticipatory Bail

It has been often noticed that due to political rivalries also false cases are made against each
other. After emergency many Congress leaders including Giani Zail Singh, Bansi Lal and others
moved the courts for anticipatory bails. Gurbaksh Singh Sibba v. State of
Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565: (1980) 3 SCR 383:
1980 Cr LJ 1125, is one of the most significant cases, wherein the Supreme Court has given a
detailed judgment and has also broadly laid down certain principles as guiding factor while
dealing with the application for anticipatory bail.

Though the Supreme Court had not been in favour of the blanket grant of anticipatory bail, yet
they laid down certain principles and guidelines to be kept in mind while deciding anticipatory
bail applications.

Broadly speaking the two basic principles, which must be kept in view while considering the
question of grant of anticipatory bail, are-

(i) that there should be no likelihood of the accused absconding, and

(ii) there should be no likelihood of the accused misusing his liberty.

For finding out the first part, it has to consider and see if the accused has deep links/roots in
community. While testing this fact, the following factors may be kept in mind:-

(1) the length of his residence in community;

(2) his employment, status, history and 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 re-cognizance or on
bail;

(6) the identity of the responsible members of the community who would vouch for his
reliability;

(7) the nature of the offence charged, and the apparent probability of conviction and the
likely sentence in so far as these facts are relevant to the risk of non-appearance; and
 (8) any other factor indicating the ties of the accused to the community or bearing the
risk of wilful failure to appear.

So the basic thing broadly to be kept in mind is whether the accused person, who is likely to be
granted anticipatory bail or for that matter any kind of bail, will or will not misuse his liberty
after the bail is granted to him. The paramount consideration in this behalf is "whether the
course of justice would be thwarted by him who seeks the benignant jurisdiction of the court to
be freed for the time being."

If the bail application was filed for grant of regular bail within protective umbrella period but not
decided within that period, the accused has to be in custody before such application is taken up
for hearing sections 438 and 439 of the Code of Criminal Procedure, 1973 [Pramod Kumar
Mehta v. State of Chhatisgarh, 2007 Cr LJ 2063, M. Cr. C. No. 3203 of 2006, Feb. 9, 2007,
(Vol. 58, July 2007, Para 7, Allahabad Criminal Cases]

* If there is a case of relaxation of conditions of anticipatory bail and regular bail was granted
by the Magistrate while anticipatory bail was in force, it was held that application for relaxation
of conditions imposed at the time of granting anticipatory bail was misconceived and thus
thereby rejected. [Moni Roy @ P.B. Roy v. State, C.R.M. 4019 of 2007, June 7, 2007.
(Chattisgarh HC)] [Allahabad Criminal Cases Vol. 58 August, 2007 Part 8]

* In Mannu Kaushik v. State of C.G., 2006 (2) MPHT 39 (CG): Misc. Criminal (Vol. 55, July
2006) Case No. 2019 of 2005, November 9, 2005, The sections 3(1)(x) and 18 of the SC and
ST (Prevention of Atrocities) Act, 1989 was in question. An application for anticipatory bail was
sought for alleged offence under SC/ST Act. It was observed that the bar of section 18 of the
Act was attracted only where the FIR prima facie shows the commission of offence under the
Act. In the facts of the instant case it was not prima facie established from the perusal of the
FIR that the accused-applicants knew the complainants who were from a different village.
Hence, prima facie not established that applicants knew the caste of the complainants. It is not
inferable that there was intention to abuse the complainants with case related words. The act
was not intentional and thus bar of section 18 of the Act not altercated. Anticipatory bail was
granted.

* In Sudama v. State of U.P. it was observed: [(2007) (57) ACC 79]

"Where a prima facie case for interim relief is disclosed, as the case appears to be a very
petty or frivolous matter, where arrest may not appear immediately necessary, or where
a person appears to have been implicated owing to political or other rivalry, the Sessions
Court may grant interim anticipatory bail for a week or so, and pass orders or final
orders on the application under section 438 after hearing the Public Prosecutor after
giving him time to obtain instructions from the I.O. The accused if he is aggrieved with
an order of a Sessions Court refusing to grant anticipatory bail has the further remedy of
approaching the High Court."

While granting bail, the courts have also to take into account:

(i) the nature and seriousness of the accusation;

(ii) the nature of prosecution evidence;

 (iii) the security of the likely punishment in case the prosecution succeeds;

(iv) the status of the accused.

It must be kept in mind that while examining the nature of prosecution evidence for this
purpose, detailed examination of evidence should be avoided, broad circumspection is
enough; Jagannath v. State of Maharashtra, 1982 LR 261.

Some Illustrations: Application of section 438 of the Code of Criminal Procedure, 1973

 Kusum Rani Bansal v. State of Punjab, 1978 Cur LJ (Cr) 235 (236) (P&H): The investigation
was on and over eight months had passed but nothing incriminating had been discovered. The
conditional pre-arrest bail to the petitioners was granted. The condition was that they
will/would be available for investigation as and when required.

 In Chand Mohd. v. State, Cr LR 507 (508) (Raj), it was observed that it would not be
unreasonable to enlarge the accused on bail where it appeared that the condition of the injured
had been improved and injuries caused by a sharp object were not sufficient to cause death.

 In Dilbag Singh Deleka v. State, 1977 Cur LJ 237 (247), it has been held that vague
allegations in the FIR and the same remained unsubstantiated up to the date of hearing of the
petition, is a fit case for the grant of anticipatory bail.

 In Jai Lal v. State of Himachal Pradesh, it was held that the fact that the petitioner would co-
operate with the investigation and interrogation and the other reason being that the other co-
accused have been granted bail cannot be sufficient ground to grant anticipatory bail under
section 438 of Cr. P.C. as it would be fatal in the interest of justice.

 In Pyarelal Pandey v. State of Madhya Pradesh, 1979 Cr LR (MP) 108 (112): 1980 Cr LJ 183 it
has been held that since the suspect died due to torture in the police lock up and the hurt
caused by the police officer in the investigation of crime is one of the most gravest offences
known to law, grant of anticipatory bail pending investigation of crime would be hazardous.

 The main consideration where anticipatory bail should not be refused are: the nature of the
accusation and the evidence besides the status of the accused. K.S. Mathur v. State of
Rajasthan, 1981 Cr Cas 281.

 Primarily the accused has to surrender before the Court. Then application for grant of bail
through an attorney will be considered. Kripa Shankar v. State of Uttar Pradesh, 1984 Cr LJ
(NOC) 137.

 It was held in Ram Gopal v. State of Rajasthan, 1983 Cr LR (Raj) 217 that if the first
application for bail was rejected then it would be impossible to grant the second application for
bail.

Latest judgment in Anticipatory Bail

Anticipatory Bail: Involvement of accused after 41/2 months from date of murder.

The judicial discretion exercised in granting anticipatory bail is neither perverse nor erroneous.
On the other hand, they are based on relevant considerations supported by the reasons.
 In case of Siddharam Satlingappa Mhetre v. State of Maharashtra, MANU/SC/1021/2010 : AIR
2011 SC 312 the Supreme Court in respect of grant of bail for limited period observed as
follows:

"Grant of bail for limited period is contrary to legislative intention. Section 438, Cr. P.C.
does not mention any thing about the duration to which the direction for release on bail
in the event of arrest can be granted. The order granting anticipatory bail is a direction
specifically to release the accused on bail in the event of his arrest. Once such a
direction of anticipatory bail is executed by the accused and he is released on bail, the
concerned court would be fully justified in imposing conditions including direction of
joining investigation. In pursuance to the order of the Court of Sessions or the High
Court, once the accused is released on bail by the trial court, then it would be
unreasonable to compel the accused to surrender before the trial court and again apply
for regular bail."

In Vaman Narain Ghiya v. State of Rajasthan, MANU/SC/8394/2008 : AIR 2009 SC 1362 it was

held that direction that applicant shall be released on bail "whenever arrested for whichever
offence whatsoever". Such blanket order should not be passed.

Cancellation of Anticipatory Bail: Illegality

The accused was charged of fraudulently opening of Bank Account to misappropriate school
funds. The bail granted, was cancelled even though bail was not abused. And no supervening
circumstance had surfaced justifying cancellation. It was held that cancellation of bail was
improper. Hazari Lal Das v. State of West Bengal AIR 2010 SC 91.

Blanket Order of Anticipatory Bail

Once the investigation makes out a case against the accused and he is included as an accused
in the charge-sheet, the accused has to surrender to the custody of the court and pray for
regular bail. On the strength of an order granting anticipatory bail, an accused against whom
charge has been framed, cannot avoid appearing before the trial court. A blanket order of
anticipatory bail would lead to an absurd situation that charge gets framed against the accused
in his absence. This would be violative of provisions of section 240 of Cr. P.C; HDFC Bank Ltd.
v.J.J. Mannan, MANU/SC/1923/2009 : AIR 2010 SC 618.

Cancellation of Anticipatory Bail

When different versions of incident are given in three different complaints, the anticipatory bail
granted to accused cannot be cancelled; Pravinbhai Kashirambhai Patel v. State of
Gujarat,MANU/SC/0460/2010 : AIR 2010 SC 3511.

Condition Precedent for Grant of Anticipatory Bail

In O.K. Ganesh Babu v. P.T. Manokaran, MANU/SC/1086/2007 : AIR 2007 SC 1450: 2007 Cr LJ

1827: (2007) 4 SCC 434 where anticipatory bail application was disposed of by the High Court
directing accused to execute a bond with two sureties, to appear before police for a period of
two weeks daily at 10 a.m., to surrender before court for executing bond and furnishing
sureties. The said directions were held to be outside the scope of section 438 and therefore
liable to be modified. The directions that a court can issue under section 438 of the Code of
 Criminal Procedure, 1973 is that in the event of arrest of an accused on an accusation of
committing a non-bailable offence, he shall be released on bail subject to such conditions as the
court may deem fit to impose. An application under section 438 of the Code of Criminal
Procedure, 1973 can be moved only by a person who has not already been arrested, Once he is
arrested, his remedy is to move the concerned court either under section 434 or section 439 of
the Code of Criminal Procedure, 1973. In the very nature of the direction which the court can
issue under section 438 of the Code of Criminal Procedure, 1973, it is clear that the direction
has to be issued only at the pre-arrest stage. The direction becomes operative only after arrest.
The condition precedent for the operation of the direction issued is arrest of accused. This being
so, the irresistible interference is that while dealing with an application under section 438 of the
Code of Criminal Procedure, 1973 the court cannot restrain arrest.

Propriety of Anticipatory Bail

In D.K. Ganesh Balm v. P.T. Manokaran, MANU/SC/1086/2007 : AIR 2007 SC 1450: (2007) 4

SCC 434: 2007 Cr LJ 1827 distinction between an ordinary order of bail and an order under
section 438 of the Code of Criminal Procedure, 1973 has been drawn. The former is granted
after arrest and therefore means release from custody of police, the latter is granted a bail in
anticipation of arrest and is therefore effective at the very moment of arrest.

Imposition of Conditions

In Mahesh Chandra v. State of Uttar Pradesh, (2006) 6 SCC 196, it was observed that while
deciding the bail application, it is not the jurisdiction of the court to decide civil disputes as
between the parties. Hence the matter was remitted to High Court to consider the bail
application already on merit and to pass an appropriate order without imposing any condition of
the nature imposed by the impugned order.

Condition of Making Huge Deposits

In Sohan Lal Juneja v. State of Punjab, MANU/SC/8655/2006 : AIR 2007 SC 136: 2007 Cr LJ

303: (2006) 12 SCALE 210 it was observed: The FIR pertains against appellants and others for
their alleged involvement in misappropriation of stock. The order imposing condition of making
huge deposits for protection under section 438 of the Cr. P.C. was not reasoned. In the order
the ambit of section 438 had not been kept in view. The order as was held is liable to be set
aside. It was held that the High Court should keep in view the principles indicated by the
Supreme Court relating to section 438 of Cr. P.C. in Adri Dharan Das v. State of West
Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR 2005 SC 1057: 2005 AIR SCW 1013:
2005 Cr LJ 1706 and the relevancy and the applicability of the decision in Bal Kishan Das v.
P.C. Nayar, MANU/SC/0353/1991 : AIR 1991 SC 1531: 1991 AIR SCW 1353 while dealing with
application in terms of section 438.

Power of Court

In O.K. Ganesh Babu case, MANU/SC/1086/2007 : AIR 2007 SC 1450: (2007) 4 SCC 434: 2007
Cr LJ 1827 it was observed that the power exercisable under section 438 of the Code of
Criminal Procedure, 1973 is somewhat extraordinary in character and it is only in exceptional
circumstances and where it appears that the person may be falsely implicated or where there
are reasonable grounds for holding that a person accused of an offence is not likely to
 otherwise misuse his liberty then power is to be exercised under section 438.

Factors to be Taken into Consideration

In Bharat Chaudhary v. State of Bihar, MANU/SC/0787/2003 : (2003) 8 SCC 77: AIR 2003 SC

4662: 2003 Cr LJ 5038: (2003) 8 SCALE 340 it was observed that the object of section 438 is
to prevent undue harassment of the accused person in pre-trial arrest and detention. The
gravity of the offence is an important factor to be taken into consideration while granting such
anticipatory bail so also the need for custodial interrogation, but these are only factors that
must be borne in mind by the courts concerned while entertaining a petition for grant of
anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be
construed as a prohibition against the grant of anticipatory bail. The court i.e. the Court of
Session, High Court or Supreme Court have the necessary power vested in them to grant
anticipatory bail in non-bailable offences under section 438 of the Code of Criminal Procedure,
1973 even when cognizance is taken or a charge-sheet is filed provided the facts of the case
require the court to do so.

Limited Duration of Bail

In Adri Dharan Das v. State of West Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR
2005 SC 1057: 2005 AIR SCW 1013: 2005 Cr LJ 1706 it was observed that the anticipatory bail
is given for a limited duration so as to enable the accused to move the regular court for bail in
terms of section 439 of the Code of Criminal Procedure, 1973. The view that such limited
duration may extend to the date on which the bail application is disposed of or even few days
thereafter to enable the accused to move the higher court, cannot be accepted.

Ground of Parity

In Kamaljit Singh v. State of Punjab, (2005) 7 SCC 226 it was observed that on similar
allegation, the remaining two accused had been granted the said benefit of anticipatory bail, it
is a fit case for granting anticipatory bail.

Absence of Adequate Opportunity to File Objection

Union of India v. Yusuf Razak, Dhanani, MANU/SC/0686/2003 : (2003) 8 SCC 98: AIR 2003 SC
4578: 2003 Cr LJ 4560.

The appellant-accused being apprehended arrest, moved an application for anticipatory bail
during vacation. The matter was heard by the High Court on the very next day without giving
adequate opportunity to file objections. It was held that the procedure adopted by the High
Court was bad. The matter was remanded to High Court to be heard afresh.

Publication of Article on Religious Feeling

In B.V. Seetharama v. State by Inspector-General of Police, (2007) 3 Karn LJ 269: 2007 Cr LJ

3503 it was held that the relief of blanket order of anticipatory bail could not be granted where
the relief asked for was to grant anticipatory bail in all future cases to be registered against
them (petitioner) anywhere in the State of Karnataka for the offence of publishing article on
religious feeling.
Territorial Jurisdiction to Hear Anticipatory Bail Application

The Sessions Court or the High Court of that State has the jurisdiction to hear the anticipatory
bail application where the accused is alleged to have committed an offence. Not only this, any
anticipatory bail granted by a competent court, without hearing the State concerned, or
Director General of Police, is held illegal.

In para 10 of its judgment, in State of Assam v. Dr. Brojen Gogol, MANU/SC/0845/1998 :

(1998) 1 SCC 397: AIR 1998 SC 143: 1997 AIR SCW 4101: JT (1997) 8 SC 652, the Supreme
Court held that the question of granting anticipatory bail to any person who is allegedly
connected with the offences in question must for all practical purposes be considered by the
High Court of Guwahati within whose territorial jurisdiction such activities could have been
perpetrated. Since the State of Assam was not heard in that case, on that ground only, the
Supreme Court set aside the orders of the grant of anticipatory bail.

In order to avoid conflicting decisions and opinions, the Supreme Court directed that all future
petitions for anticipatory bail made by anyone in common or related matters referring to such
activities committed within the territorial limits of the Guwahati High Court shall be heard only
by the same Division Bench. The Supreme Court in this case directed the registrar to take
immediate steps to ensure that the applications filed by the respondents for anticipatory bail in
Bombay High Court are despatched to the Guwahati High Court.

Pre-arrest Bail and Post-arrest Bail

In Dukhishyam Benupani v. Arun Kumar Bajoria, AIR 1998 SC 696: (1998) 1 SCC 52 the
Supreme Court held that considerations for pre-arrest are different from post-arrest bail. The
Supreme Court further held that the court should not monitor the investigating process unless
such investigation transgresses any provisions of law. It must be left to the investigating
agency to decide the venue, the timings and the questions and the manner of putting such
questions.

The Supreme Court also pointed out that considerations to be weighed with the court while
dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail
application.

The petitioner before the Supreme Court alleged that the High Court was interfering with the
procedure adopted by the investigating agency, and wanted to act as the High Court directed.

The Supreme Court held that 'it is not the function of the court to monitor investigation process
so long as such investigation does not transgress any provisions of law. It must be left to the
investigating agency to decide the venue, the timing and the questions and the manner of
putting such questions to persons involved in such offences. A blanket order fully insulating a
person from arrest would make his interrogation a mere ritual.

In Jitendra Singh v. State of Rajasthan, 1999 Cr LJ 158 (Raj): 1998 Cri LR (Raj) 804: 1998 (2)
Raj Cri C 709, the High Court of Rajasthan held that 'consideration which must' be kept on the
mental screen and precautions which may be taken in disposing of an application for
anticipatory bail under section 438 of the Code of Criminal Procedure, 1973, require to be
spelled out in the order that the provision is meaningfully applied and judicial discretion is
exercised in an appropriate manner in such matters.

The High Court deprecated the mechanical manner in which the anticipatory bails are rejected
by the Sessions Court. It observed that anticipatory bail application was dismissed by the
Sessions Judge without assigning any reasons and without applying his mind to the glaring
facts of the case. The High Court granted conditional anticipatory bail to the petitioner.

If at the time of hearing the anticipatory bail application the court is convinced that the
petitioner is alleged to have committed serious crime of murder and criminal conspiracy and the
available evidence points out accused's participation in the alleged crime, the grant of
anticipatory bail under these circumstances will be improper.

In para 59 of its judgment, the High Court of Gujarat in State of Gujarat v. Dipak Jaswantlal
Seth, 1999 Cr LJ 162 (176): 1998 Cr LR (SC MAH GUJ) Guj 264: 1998 (2) Guj LH 1044 para
59, made the following observations:

"In these circumstances the order of the Sessions Court in issuing directions in respect
of Respondent No. 2, under section 438 deserves to be set aside and the bail granted in
pursuance of that direction be cancelled. However keeping in view the fact that reasons
for setting aside the order under section 438 is that the learned Sessions Judge has
improperly considered application under section 438 and it is because of serious
infirmity in considering the application inasmuch as the approach of the learned sessions
Judge ignores the well settled principles for considering the applications in case of non-
bailable offence punishable with death and life imprisonment. The order under section
438 is not sustained by this court but at the same time, this court being not for the
present seized with the matter for grant of bail on merit and direction under section 438
has already been operated by arresting the respondent and releasing him on bail and no
untoward incident has been reported so far about abuse of his liberty by the accused
respondent, it will be only appropriate that in consonance enunciated in Salauddin Abdul
Samad Sheikh v. State of Maharashtra, MANU/SC/0280/1996 : AIR 1996 SC 1042:
(1996) 1 SCC 667: (1995) Supp 6 SCR 556, and the practice of this court, the impugned
order be modified from being in the nature of unlimited operation to be circumscribed
with usual limitations.

The Andhra Pradesh High Court in K. Rajashekhara Reddy v. State of Andhra Pradesh, 1999 Cr
LJ 1933: MANU/AP/0620/1998 : 1998 (4) ALD 677, held that even in the absence of the
registration of the crime, the court can grant anticipatory bail. But the application must disclose
a reasonable belief. The court cannot entertain any application on mere suspicion, gossip or
wild rumour.

In para 11 of its judgment the High Court observed, "It is thus clear that filing of an FIR and
registration of a crime by the police is not a condition precedent to the exercise of power under
section 43 of the Code of Criminal Procedure, 1973.... There is also no requirement that a copy
of the FIR should be made available for the purpose of considering the application under section
438 of the Code of Criminal Procedure, 1973.

In Thayyanbadi Meethal Kunhiraman v. S.L of Police, Panoor, 1985 Cr LJ 1111: 1985 Ker LT
378: 1985 Mad LJ (Cri) 263, the Kerala High Court observed:

"In order to invoke the provision, it is not necessarv that a case has already been
 registered or even a first information has been lodged. The court must be satisfied that
there is a reasonable chance of arrest in connection with the specified accusation."

In case of Dharam Vir v. State of Rajasthan, JT 2000 (10) SC 318 the Supreme Court held
when the accused has not played a major role in the offence and if the accused who has played
a major role has been released, is entitled to anticipatory bail.

Pre-arrest Bail

In Abdul Hamit Ansari v. State of Maharashtra, AIR 2000 SC 3541: 2000 Cr LJ 4660: JT 2000
(7) SC 390 it was held that the appellants though not traced out first stage of investigation
included among suspected persons pursuant to further investigation the deceased was
described by the appellants as dreaded. In peculiar facts and circumstances the pre-arrest bail
to appellants was not granted. But the directions issued to release appellants on bail if
appellants surrender before police within two weeks.

Interim Bail

In case of Sukhwant Singh v. State of Punjab, 2010 AIR SCW 1185 "the Supreme Court opined
that the court has inherent power to grant interim bail." Further it was held in this case that:

"In the power to grant bail there is inherent power in the Court concerned to grant
interim bail to a person pending final disposal of the bail application. Of course, it is in
the discretion of the Court concerned to grant interim bail or not but the power is
certainly there".

Supreme Court Guidelines on Anticipatory Bail

Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2

SCC 565 as explained in Savitri Agarwal v. State of Maharashtra, AIR 2009 SC
3173:MANU/SC/1193/2009 : (2009) 8 SCC 325

1. Though the power conferred under section 438 of the Code can be described as of an
extraordinary character, but this does not justify the conclusion that the power must be
exercised in exceptional cases only because it is of an extraordinary character.
Nonetheless, the discretion under the section has to be exercised with due care and
circumspection depending on circumstances justifying its exercise.

2. Before power under sub-section (1) of section 438 of the Code is exercised, the Court
must be satisfied that the applicant invoking the provision has reason to believe that he
is likely to be arrested for a non-bailable offence and that belief must be founded on
reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the
applicant to show that he has some sort of vague apprehension that someone is going to
make an accusation against him, in pursuance of which he may be arrested. The
grounds on which the belief of the applicant is based that he may be arrested for a non-
bailable offence, must be capable of being examined by the Court objectively. Specific
events and facts must be disclosed by the applicant in order to enable the Court to
Judge of the reasonableness of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the section.

3. The observations made in Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC
66: (1976) 4 SCC 572, regarding the nature of the power conferred by section 438 and
regarding the question whether the conditions mentioned in section 437 should be read
into section 438 cannot be treated as conclusive on the point. There is no warrant for
reading into section 438, the conditions subject to which bail can be granted under
section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect
of offences like criminal breach of trust for the mere reason that the punishment
provided for is imprisonment for life. Circumstances may broadly justify the grant of bail
in such cases too, though of course, the Court is free to refuse anticipatory bail in any
case if there is material before it justifying such refusal.

4. No blanket order of bail should be passed and the Court which grants anticipatory bail
must take care to specify the offence or the offences in respect of which alone the order
will be effective. While granting relief under section 438(1) of the Code, appropriate
conditions can be imposed under section 438(2) so as to ensure an uninterrupted
investigation. One such condition can even be that in the event of the police making out
a case of a likely discovery under section 27 of the Evidence Act, the person released on
bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise,
such an order can become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the order was
passed.

5. The filing of First Information Report (FIR) is not a condition precedent to the exercise
of power under section 438. The imminence of a likely arrest founded on a reasonable
belief can be shown to exist even if an FIR is not yet filed.

6. An anticipatory bail can be granted even after an FIR is filed so long as the applicant
has not been arrested.

7. The provisions of section 438 cannot be invoked after the arrest of the accused. After
arrest, the accused must seek his remedy under section 437 or section 439 of the Code,
if he wants to be released on bail in respect of the offence or offences for which he is
arrested.

8. An interim bail order can be passed under section 438 of the Code without notice to
the Public Prosecutor but notice should be issued to the Public Prosecutor or to the
Government-advocate forthwith and the question of bail should be re-examined in the
light of respective contentions of the parties. The ad-interim order too must conform to
the requirements of the section and suitable conditions should be imposed on the
applicant even at that stage.

9. Though it is not necessary that the operation of an order passed under section 438(1)
of the Code be limited in point of time but the Court may, if there are reasons for doing
so, limit the operation of the order to a short period until after the filing of FIR in respect
of the matter covered by the order. The applicant may, in such cases, be directed to
obtain an order of bail under section 437 or 439 of the Code within a reasonable short
period after the filing of the FIR.

At this juncture, it would be appropriate to note that the view expressed by this Court in
Adri Dharan Das v. State of West Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR
 2005 SC 1057: to the effect that while dealing with an application under section 438 of
the Code, the Court cannot pass an interim order restraining arrest as it will amount to
interference in the investigation, does not appear to be in consonance with the opinion
of the Constitution Bench in Gurbaksh Singh Sibbia v. State of
Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565. Similarly, the
observation that power under section 438 is to be exercised only in exceptional cases
seems to be based on the decision in Balchand's case (supra), which has not been fully
approved by the Constitution Bench. 

Supreme Court Guidelines on Anticipatory Bail - Relevant factors

State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, MANU/SC/8008/2007 : AIR

2008 SC 155: (2008) 3 SCC 213

The four factors, which are relevant for considering the application for grant of anticipatory bail,
are:

1. the nature and gravity or seriousness of accusation as apprehended by the applicant;

2. the antecedents of the applicant including the fact as to whether he has, on conviction
by a Court, previously undergone imprisonment for a term in respect of any cognizable
offence;

3. the likely object of the accusation to humiliate or malign the reputation of the
applicant by having him so arrested; and

4. the possibility of the appellant, if granted anticipatory bail, fleeing from justice.

© Universal law Publishing Co.

 
  

   

Chapter 7

Cancellation of Bail

 Cancellation of Bail: Conduct of Accused Subsequent to Release 73

 Whether the Magistrate has any Power to Cancel the Bail 74

 Cancellation of Bail Granted under section 389 of the Code of Criminal 78

Procedure, 1973

 Cancellation: Should not be in Mechanical Manner 79

 Reconsideration of Material and Absence of Discovery of New Material 80

 Supervening Facts and Post-Release Misconduct 80

 Cancellation of Bail Other than State 80

 Non-Disclosure of the Identity of the Petitioner for Cancellation of Bail 80

 Right of Appellant to be Released on Bail 81

 Bail Matters Not to be Over-Publicised 81

 Distinction Between Rejection and Cancellation of Bail 82

  Reasoned Order to be Passed While Dismissing Bail Application 83

 Leading Cases: Latest on Cancellation of Bail 84

 Threat to Witnesses 84

 Alien Grounds of Case 84

 Other Cases Against Accused Pending for Trial 84

 Misuse of Temporary Bail 85

 Hearing of the Accused 85

 Grounds for Cancellation 85

 Cryptic Order 86

 Intervention by the National Human Rights Commission 86

 Lawyer's Duty 87

 Appeal against Cancellation of Bail 87

 Rejection of Bail on Basis of Confessional Statement 88

 Misuse of Bail 88

 Cancellation of Bail 88

 Likelihood of misuse of bail is not the only factor for cancellation of bail 88

The sub-section (5) of the section 437 of the Criminal Procedure Code, 1973 provides that any court
releasing any person on bail may direct that such person be arrested and commit him to custody.
Hence the High Court or Court of Session can cancel the bail. But a Magistrate has no power to cancel
the bail when such bail has been granted by the High Court on the same case.

If the courts have the discretion or power to grant bail, they have also the power to cancel bail
already granted to a person accused of an offence under the Indian Penal Code or under any other
provision of law.

In Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338 it was inter alia held that one of the
grounds for cancellation of bail would be where material evidence brought on record have been
ignored and that to without any reason.

Keeping this observations in view the Supreme Court from the peculiarity and circumstances of farts
in the case of Curia, Swayam Sevi Sansthan v. State of Uttar Pradesh, 2010 AIR SCW 1182 held the
opinion that if the private respondents had been granted bail long time back and in some case trials
have also been concluded, it would not be proper to cancel bail.

In State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR

1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950, the Supreme Court held that a person whom
bail has been granted the court has power to cancel his bail. There has been different opinions on
whether the anticipatory bail can be cancelled before regular bail is actually granted.

No answer to this question is explicitly available either in section 438 or in any other provision of the
Code of Criminal Procedure, 1973, However, the High Courts of Delhi and Bombay have answered the
question in affirmative; Suresh Vasudev v. State (Delhi Administration), 1978 Cr LJ 677; State of
Maharashtra v. Vishwas, 1978 CrLJ 1403.

In the State of Maharashtra v. Vishwas, 1978 Cr LJ 1403, it was observed ...by its very nature...
orders of bail do not possess irreversible finality. Law does not inhibit cancellation or revocation of
such orders. In this context when section 438 permits of making an order and order is made granting
anticipatory bails, it is simple that the court making such an order is entitled upon appropriate
concentration to cancel or recall the same. It is not necessary for such purposes to find out any
further specific provision conferring power of cancellation.

Further the High Court was of the view that Chapter XXXIII of the Code of Criminal Procedure, 1973
postulates two types of release on bail, viz., release after arrest, and release from arrest; the first
wherein the arrest is accomplished while in the second it is in anticipation. Therefore, the High Court
of Bombay held that the persons released on bail and those who have obtained anticipatory bail are
covered under section 439(2) and the bail orders (including anticipatory bail orders) can be cancelled
in respect of all these persons in appropriate cases.

Now let us see what the High Court of Delhi has pointed out in its judgment in Suresh Vasudev v.
State (Delhi Administration), 1978 Cr LJ 677. The High Court of Delhi in its judgment has observed
that "the order for anticipatory bail is really an order for bail in the event of arrest". The High Court
further held that like another order, for the bail, it can always be cancelled in appropriate cases if a
case is made out for the same.

From the two judgments quoted above, we find an answer to the effect that if the case is made out
the anticipatory bail already granted can also be cancelled.

Cancellation of Bail: Conduct of Accused Subsequent to Release

In cancellation of bail the conduct of accused subsequent to release on bail and supervening
circumstances will be relevant. However, power of a superior court to cancel bail in
appropriate cases on other grounds is not restricted. Subodh Kumar Yadav v. State of
Bihar, MANU/SC/1207/2009 : AIR 2010 SC 802.

Whether the Magistrate has any Power to Cancel the Bail

The simple answer is NO. The Magistrate has no power to cancel the bail of a person who has
been granted bail in a bailable offence. May be bail has been granted by the same Magistrate
who cancelled the orders of bail in the bailable offence. Therefore, it is quite clear that a
Magistrate has the power to grant bail in a bailable offence, but he has no power to cancel the
bail granted by him.

In the case of State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ

952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950 the
Supreme Court held that the power to cancel bail must be exercised with care and
circumspection in appropriate case.

In Janardhan Yadav v. State of Bihar, 1978 Cr LJ 1318: MANU/BH/0070/1978 : AIR 1978 Pat

322, the petitioners were being prosecuted for a bailable offence under section 325 of the
Indian Penal Code and were on bail. As they were found threatening the prosecution
witnesses, the Magistrate after due enquiry cancelled their bail bond. When the matter came
up before the High Court of Patna, the court, after having gone into the provisions of the Code
and the facts and circumstances of the case, pointed out that the said Magistrate had no
power to cancel the bail bond of the petitioners who had been granted bail under bailable
offence.

Therefore, the power to cancel bail in respect of any offence, bailable or non-bailable, has
been confined to the Court of Session and the High Court under section 439(2) of the Code of
Criminal Procedure, 1973.

It will be interesting to know that a Magistrate who has granted the bail in a non-bailable
offence can cancel the bail if he finds it necessary but the Magistrate granting bail in bailable
offence, is not competent to cancel bail.

There are certain circumstances which are to be kept in mind by the Session Court or the High
Court when the bail already granted is to be cancelled. Rejection of bail is certainly different
than the cancellation of bail. The judgment in Gurcharan Singh v. State (Delhi Administration),
1978 Cr LJ 129 (132): AIR 1978 SC 179a: (1978) I SCC 118: (1978) 2 SCR 358, is of great
significance. The said judgment covers almost all the circumstances in relation to the
cancellation of bail.

The following observations of the Supreme Court in the above case are very important:

"It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying
wide powers, will be oblivious of the considerations of the likelihood of the accused
being guilty of an offence punishable with death or imprisonment for life. Since the
Sessions Judge or the High Court will be approached by an accused only after refusal of
bail by the Magistrate, it is not possible to hold that the mandate of the law of the bail
under section 437 of the Code of Criminal Procedure, 1973 for the Magistrate will be
ignored by the High Court or by the Sessions Judge."

There is another interesting judgment in which a son of a Prime Minister tried to intimidate the
witnesses and tamper with the evidence. The Supreme Court did not hesitate in cancelling the
bail already granted to him; State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ
952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950.

While allowing the appeal and cancelling the bail of Sanjay Gandhi, the Supreme Court laid
down the law relating to the cancellation of the bail. According to the Supreme Court "the
rejection of bail when applied for is one thing, cancellation of bail already granted is another."

It is easier to reject a bail application in a non-bailable offence than to cancel a bail granted in
such a case. Cancellation of bail necessarily involves the review of a decision already made
and can by and large be permitted only if by reason of supervening circumstances it would be
no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

The fact that the prosecution witnesses have turned hostile cannot by itself justify the
inference that the accused has won them over..... The objective fact that the witnesses have
turned hostile must be shown to bear a casual connection with subjective involvement therein
of the respondent (accused) without such proof a bail once granted cannot be cancelled on the
off chance or on the supposition that the witnesses have been won over by the accused.

The prosecution can establish its case in an application for cancellation of bail by showing
preponderance of probabilities that the accused had attempted to tamper or has tampered
with witnesses. Proving by the test of balance of probabilities that the accused has abused his
liberty or that there is reasonable apprehension that he will interfere with the course of justice
is all that is necessary for the prosecution to do in order to succeed in an application for
cancellation of bail.

By applying the above test to the facts and the circumstances of the case, the Supreme Court
concluded, that the respondent has abused the liberty to suborn the prosecution witnesses
and that the respondent's bail ought to be cancelled.

The power, therefore, to cancel the bail has to be exercised with care and circumspection.
Finally, to bring home its point the Supreme Court struck a note of warning and further
observed:

"Refusal to exercise the wholesome power in such cases ......

will reduce it to a dead letter and will suffer the court to be silent spectator to the subversion
of judicial process. We might as well wind up the courts and bolt their doors against all than to
permit a few to ensure that justice shall not be done.

The facts in Mohan Singh v. Union Territory of Chandigarh, 1978 Cr LJ

844: MANU/SC/0128/1978 : AIR 1978 SC 1095: (1978) 2 SCC 366: (1978) 3 SCR 127, arc
quite significant and worth taking note of. In this case the accused was granted bail by the
Sessions Court, but his bail was cancelled by the High Court of Punjab and Haryana on the
ground that the accused simultaneously moved the Sessions Court and the High Court. The
High Court thus reversed the bail order already granted by the Sessions Court only on the plea
of concealing the fact that he had simultaneously moved the Sessions Court and the High
Court for the grant of bail.

The Supreme Court in this case observed that the appellant had not interfered with the course
of justice. Deciding his appeal against the orders of the High Court, the Supreme Court
allowed the appellant to continue on bail. Lastly the Supreme Court made an observation that
refusal of bail should not be used as an indirect process of punishing an accused person before
he is convicted.

If after rejection of bail by the Magistrate, High Court grants bail, the Supreme Court may
interfere; Bimla v. State of Bihar, (1994) 1 UJSC 326: 1994 Cr LJ 638: MANU/SC/0606/1994 :
(1994) 2 SCC 8.

In the case of Kartar Singh v. State of Punjab, JT 1994 (2) SC 423 the Court held that
although the High Court has jurisdiction to entertain the prayer for bail in writ jurisdiction, it
has no power to cancel the bail, once the bail has been granted by the Supreme Court.

In yet another case, Bashir v. State of Haryana, 1978 Cr LJ 173: MANU/SC/0077/1977 : AIR

1978 SC 55: (1977) 4 SCC 410: (1978) 1 SCR 585, the Sessions Court refused to grant bail to
the accused person. On appeal the High Court also rejected his bail application on merits. In
this case the challan had not been filed within 60 days, as required under section 167(2) of
the Code of Criminal Procedure. On this plea the High Court granted him bail but after the
challan was filed the prosecution filed an application for cancellation of his bail on merits of the
case. Curiously, ignoring the provisions of section 167(2) of the Code of Criminal Procedure
 both the Court of Session as well as the High Court cancelled the bail of the appellant on
merits only. Aggrieved by this order the appellant moved the Supreme Court and prayed for
grant of bail on the basis of the provisions of section 167(2). While granting bail to the
appellant, the Supreme Court made the following observations:-

"Cancellation of bail can only be on the grounds known to law. The fact that before an
order was passed under section 167(2) of the Code of Criminal Procedure the said bail
petition of the accused was dismissed on merits, is not relevant for the purpose of
taking action of cancellation of bail under section 437(5). Neither it is a valid ground
that subsequent to the release of appellant, a challan was filed by the Police."

The appellants were thus set at liberty by a judgment passed by the Supreme Court setting
aside the orders of the Sessions Court as well as the High Court.

In T.N. Jayadesh Devidas v. State of Kerala, 1980 Cr LJ 906, the Petitioner moved an
application under section 482 of the Code of Criminal Procedure to get the orders quashed by
the Chief Judicial Magistrate, directing him (already released on bail by the concerned
Magistrate) to appear in the court to be placed under the custody of police for four days to
enable the police to make effective recovery. The appellant moved against the orders of the
Chief Judicial Magistrate. Here are the observations made by the High Court of Kerala in this
case-"Section 437(5) contemplates a situation where a person enlarged on bail has misused
freedom granted or has disobeyed the condition imposed or has imperiled the smooth course
of investigation or has done such acts as in the opinion of the court are sufficient to cancel the
bail already given. To extend the principle contained in the above sub-section to the case on
hand would not only be doing violence to the sub-section but to override the principles under
which a citizen's liberty is safeguarded. A court has no right to direct a person to be committed
to custody for the purpose of securing recovery under section 27."

Thus, the bail already granted to the accused person in this case was not cancelled as per the
directions and findings of the High Court.

It was held by the Supreme Court in case of Vikramajit Singh v. State of Madhya
Pradesh, MANU/SC/0081/1992 : AIR 1992 SC 474: 1992 Cr LJ 516: 1992 Supp (3) SCC 62
that where the bail granted to the accused by High Court was cancelled by the Co-ordinate
Bench of same court on an application for cancellation filed by State having no additional fact
stated nor any allegation made against the accused, cancellation of bail would not be proper.

Cancellation of Bail Granted under section 389 of the Code of Criminal Procedure, 1973

In State of Madhya Pradesh v. Chintaman, 1989 Cr Lj 163, the High Court of Madhya Pradesh
has held that once a bail is granted under section 389 of the Code of Criminal Procedure, 1973
it could not be cancelled under section 439(2) inasmuch as the persons who are granted bail
were no more accused. In this case the persons were convicted and sentenced under sections
148, 323/149 and 326/144 of the Indian Penal Code (45 of 1860). They preferred an appeal in
the High Court which suspended the sentence and released them on surety. After some time
the State moved an application for cancellation of bail as they were tampering with the
evidence. After going through the facts and the circumstances of the case, the High Court of
Madhya Pradesh declined to accept the prayer of the State and observed:

"By passing an order under section 389 of the Code of Criminal Procedure, 1973 the
 sentence is not set aside but is merely suspended, that is kept in abeyance, and the
appellant remains a convict for all practical purposes. The indulgence is shown because
the appellate court feels that the guilt is required to be rejudged and pending such
adjudication if the appellant had served the sentence or a substantial part of it, in the
event of his ultimate acquittal the suffering may become irreversible."

It is pertinent to note that section 389 of the Code of Criminal Procedure, 1973 speaks about
the convicted person whereas section 439 speaks about the accused person. Therefore, the
judgment passed by the High Court in this case has the validity of the reasons explained in its
findings and is laudable.

Cancellation: Should not be in Mechanical Manner

In Dolat Ram v. State of Haryana, JT 1995 (1) (SC) 127: MANU/SC/0547/1995 : (1995) 1 SCC
349: (1994) Supp 6 SCR 69, the Supreme Court held that bail once granted should not be
cancelled in a mechanical manner without considering whether any supervening circumstances
had rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during trial. The Supreme Court further held that in this case,
these principles appeared to have been lost sight of by the High Court, when it decided to
cancel the bail already granted.

In para 4 of its judgment the Supreme Court very clearly observed that 'rejection of bail in a
non-bailable case at the initial stage and the cancellation of the bail so granted, have to be
considered and dealt with on different basis. Very cogent and overwhelming circumstances are
necessary for an order directing the cancellation of bail, already granted. Interference or
attempt to interfere with due course of administration of justice or evasion or attempt to
enable the due course of justice, or abuse of the concession granted to the accused in any
manner are some of the grounds which must weigh in the mind of the High Court, while
cancelling the bail already granted to an accused person. The possibility of the accused's
absconding is yet another reason justifying the cancellation of the bail.

In Gurbaksh Singh Sibba v. State of Punjab, MANU/SC/0215/1980 : (1980) 2 SCC 565: AIR

1980 SC 1632: (1980) 3 SCR 383, the Supreme Court held that 'the question whether to grant
bail or not depends for its answer upon a variety of circumstances, the cumulative effect of
which must enter into the judicial verdict. Any one single circumstance cannot be treated as of
universal validity or as necessarily justifying grant or refusal of bail'.

Reconsideration of Material and Absence of Discovery of New Material

For the purpose of cancellation of bail, the discovery of new material in relation to
reconsideration of material is important. And the prosecution agency do not always have at
their table. Thus it cannot be said that the freedom granted to the accused was abused or
misused when there is an absence of subsequent discovery of new material or there was any
danger of tampering with the evidence by the accused. Thus the learned Sessions Judge, in
Gurcharan Singh v. State of Delhi (Admn.), AIR 1978 SC 179: (1978) 1 SCC 118: (1978) 2
SCR 358, found that when the bail application was filed or applied for, there was hardly any
matter except the matter of suspicion but as the investigation proceeding further and more
facts and circumstances confer to the light and in consequence some material was found, was
held to be relevant in the cancellation for bail under section 439(2) of the Code of Criminal
 Procedure, 1973. The keywords are appropriate circumstances where the Sessions Judge have
the power to cancel the bail.

Supervening Facts and Post-Release Misconduct

When supervening facts are brought to the notice of the court, the court may cancel the bail
looking from the angle of seriousness of the case. Absence of post-release misconduct is an
essential factor to deny the cancellation of bail. A relevant case in this connection is Bhagirath
Singh Judeja v. State of Gujarat, (1984) 1 Crimes 334: MANU/SC/0052/1983 : AIR 1984 SC
372: (1984) 1 SCC 284: (1984) 1 SCR 839.

Cancellation of Bail Other than State

A third party or a private party may apply for cancellation of bail. Rajpal v. Jagvir Singh, 1979
All Cr Rep 514.

Non-Disclosure of the Identity of the Petitioner for Cancellation of Bail

The authenticity of the petitioner and the reliability of the allegations made by petitioner in the
petition would damage the whole case as against the respondent against whom the relief is
sought. The reason being that the respondent would not be able to verify the identity of the
petitioner. The cancellation of bail was denied outrightly. Chhotelal v. Ganpat Singh Dhurvey,
1990 Cr LR (MP) 31.

Right of Appellant to be Released on Bail

This question was examined by the Supreme Court in Sanjay Dutt v. State through CBI,
Bombay, JT 1994 (5) SC 540: MANU/SC/0554/1994 : (1994) 5 SCC 410: (1994) Supp 3 SCR
263, where it had been laid down that the right to be released on bail for failure to complete
the investigation within the prescribed time is not automatic and even if indefeasible, it has to
be availed of by the accused at an appropriate stage, and that "the indefeasible right accruing
to the accused in such a situation is enforceable only prior to the filing of the challan and it
does not survive or remain enforceable on the challan being filed, if already not availed of,
once the challan has been filed, the question of grant of bail has to be considered and decided
only with reference to the merits of the case under the provisions relating to grant of bail to an
accused after filing of the challan, the custody of the accused after the challan has been filed is
not governed by section 167, but by different provisions of the Code of Criminal Procedure,
1973." If that right has accrued to the accused but it remained unenforced till the filing of the
challan, then there is no question of its enforcement thereafter, since it is extinguished the
moment challan is filed, because section 167, the Code of Criminal Procedure, 1973 ceases to
apply.

On the question of grant of bail in this case, the Supreme Court directed the Designated Court
to dispose of the bail application in accordance with the law expeditiously, keeping in view the
principles laid down by this court, in the above referred case.

In case of enmity between parties and the plea of false implication raised by the appellant, the
bail application cannot be disallowed; Harbansh Singh v. State of Uttaranchal, (2002) 49 ALR
111: I (2003) DMC 420.
Bail Matters Not to be Over-Publicised

The press has a very important role to play while reporting bail matters. This is indeed a
crucial and most delicate stage and the merits or demerits of the case are not to be
highlighted even by the courts at the stage of granting or refusing bail. The press has to be
more careful. Every citizen who is being tried for an offence alleged to have been committed
by him is presumed to be an innocent person till he is found guilty after the conclusion of the
trial by a competent court.

Recently in Vishnu Pandit v. State, 1993 Cr LJ 3223, in which the Session Court granted him
bait imposing certain conditions, the press publicised that case out of proportion and the result
was that not only the bail granted by the Sessions Court was cancelled, the High Court of
Delhi withdrew the powers of grant of bail of the concerned Sessions Judge. Though this harsh
order of the High Court is not known to the law, yet the over publication of this matter made
the Addl. Sessions Judge to suffer irreparable loss.

While granting bail to the accused Vishnu Pandit (who was earlier granted bail in alleged rape
offence and later on was again taken into custody on the cancellation of bail by High Court)
the Supreme Court in its very recent judgment had released him on bail with the observations
that Vishnu Pandit had been kept in detention for a long time only on account of over
publicising the matter in the press.

Sanjay Dutt v. State through CBI, Bombay, MANU/SC/0554/1994 : (1994) 5 SCC 410: JT

1994 (5) SC 540: (1994) Supp 3 SCR 263 is another example of over publication.
Unfortunately, when the matter was pending before the court/courts, his innocence was
debated on the streets, which was not liked by the courts. And due to variety of reasons,
including out of proportion publicity the decision on his bail application got a severe blow and
became complicated.

A reasonable restraint is therefore very essential, when the bail matter of an individual
howsoever high or low one may be, is pending before a court of law, particularly before the
apex Court.

Therefore, the press has to play a very important and significant role in order to protect the
life and personal liberty of every individual, which is his fundamental right under article 21 of
the Constitution of India. Press must act with full restraint and within limits, particularly where
the dignity, reputation and liberty of an individual is at stake.

Distinction Between Rejection and Cancellation of Bail

The bail was granted to the accused petitioner, by the Second Addl. Sessions Judge, At that
point of time, the State did not choose to question the grant of bail in the High Court, but the
High Court later on cancelled the bail of the accused in the said case. When the matter came
up in the Supreme Court, it relied on its earlier judgment [Dolat Ram v. State of
Haryana,MANU/SC/0547/1995 : (1995) 1 SCC 349: (1994) Supp 6 SCR 69: (1994) 4 SCALE
1119] in which it was held:

"Very cogent and overwhelming circumstances are necessary for an order directing the
cancellation of the bail already granted. The High Court, it appears to us, overlooked
the distinction between the factors relevant for rejecting bail in a non-bailable case in
 the first instance and the cancellation of bail already granted".

The Supreme Court thus observed that the above principles had been totally lost sight by the
High Court while cancelling the bail. The High Court overlooked the distinction of factors while
cancelling the bail of the appellant in a mechanical manner. The order of the High Court was
thus set aside and the order of the 2nd Addl. Session Judge was restored.

Reasoned Order to be Passed While Dismissing Bail Application

In a murder case the accused was taken into custody. The accused continued to be in custody
even though the investigating agency had laid the final report. On the application for bail by
the accused-petitioner, the Patna High Court passed the following order:-

"Heard Counsel for the parties.

Considering the facts and circumstances of the case, I do not find any merit in this
application. It is accordingly dismissed."

Being aggrieved by the cryptic order of the Patna High Court, the petitioner approached the
Supreme Court by way of Special Leave Petition. The Supreme Court felt that the High Court
should have passed a reasoned order before dismissing the bail application of the accused
petitioner and directed the High Court to rehear the bail application. The order of the Supreme
Court reads as under:

"We are unable to find from the aforesaid order as to any reason why the learned
Judge did not find any merit in the application for bail. We do not know, whether he
urged such grounds before the High Court, as the impugned order is silent. In such a
situation we feel that a more feasible course is to permit the petitioner to move the
High Court again. If any such application is filed, we request the High Court to pass a
reasoned order while disposing of the application." [Dhruv K. Jaiswal v. State of
Bihar, MANU/SC/1238/1999 : AIR 2000 SC 209: (2000) 10 SCC 84: 2000 Cr LJ 410].

In the matter of Raj Pal v. State of Uttar Pradesh, (2002) 49 ALR 4, the court held that misuse
of the privilege of bail by the accused who have been previously released on bail, abuses the
process of court and to secure the ends of justice bail bonds are to be cancelled.

Leading Cases: Latest on Cancellation of Bail

Threat to Witnesses

Mchboob Dawood Shaikh v. State of Maharashtra, MANU/SC/0048/2004 : (2004) 2

SCC 362: AIR 2004 SC 2890: 2004 Cr LJ 1359.

Mere assertion of an alleged threat to witnesses should not be utilised as a ground for
cancellation of bail, routinely. Otherwise, there is ample scope for making such
allegation to nullify the bail granted. The court should, in each case, carefully weigh the
acceptability of the allegations and pass orders as circumstances warrant in law. Such
matters should be dealt with expeditiously so that actual interference with the ordinary
and moral course of justice is nipped in the bud and an irretrieval stage is not reached.

Alien Grounds of Case

 Bunau Chatterjee v. Sanchita Chatterjee, MANU/SC/0125/2004 : (2004) 3 SCC 388:
AIR 2004 SC 1699: 2004 Cr LJ 1451.

The court cannot cancel the bail on a ground alien to the grounds mentioned in section
437 of the Code of Criminal Procedure, 1973. Hence cancellation of bail by High Court
on the ground that the accused failed to keep his wife (complainant) with him and thus
violated the terms of compromise which formed the basis for the grant of bail, as was
held not justified.

The grant of bail on the basis of an assurance of a compromise, or its

cancellation for violation of the terms of such compromise, held not permissible.
Further, material on record indicated that no such compromise was arrived at
between the parties. Hence the question of fulfilling the terms thereof did not
arise at all.

Other Cases Against Accused Pending for Trial

Omer Usman Chamadia v. Abdul, ATR 2004 SC 1508: 2004 Cr LJ 1364.

The bail was rejected on the ground that at least 7 other cases involving very serious
charges against applicant were pending for trial and some of them were committed
after obtaining bail in other cases. It was reasoned that there is every likelihood that
applicant, if released on bail, would interfere with investigation, threaten witnesses and
even go to the extent of causing physical harm to the complainant.

Misuse of Temporary Bail

Mandata Singh v. State of Rajasthan, AIR 2004 SC 3054: (2004) 9 SCC 428; (2004) 2
SCALE 545.

The temporary bail granted to accused was misused by him by entering into a
conspiracy and getting purchaser of property of complainant assaulted. The medical
report said that the purchaser had received grievous injuries. It was prima facie that
the accused had misused the liberty and, his temporary bail was cancelled.

Hearing of the Accused

Gurdev Singh v. State of Bihar, AIR 2000 SC 3556: 2000 Cr LJ 4686.

The accused person refused to accept notice served as the process server indicated.
Held: Report of server is not sufficient proof of notice, accused was entitled to hearing
before bail is cancelled.

Grounds for Cancellation

Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338: AIR 2001 SC 2023:

(2001) 3 SCR 432: 2001 Cr LJ 2566.

Generally speaking, the grounds for cancellation of bail are interference or attempt to
interfere with the course of administration of justice or evasion or attempt to evade the
due course of justice or abuse of the concession granted to the accused in any manner.
However, these instances are not exhaustive but only illustrative. One such ground of
 cancellation of bail would be where ignoring material and evidence on record in
perverse order granting bail is passed in a heinous crime.

In cancelling bail the court can consider whether irrelevant materials were taken into
consideration by court granting bail. Suhodh Kumar Yadav v. State of
Bihar,MANU/SC/1207/2009 : AIR 2010 SC 802.

In ease of Afzalkhan v. State of Gujarat, MANU/SC/7460/2007 : AIR 2007 SC 2111 it

was observed that the detailed examination of evidence and elaborate documentation
of merits of case are not to be done by court. See also Suman Pandey v. State of Uttar
Pradesh, AIR 2007 SC (Supp) 621.

Cryptic Order

The grant of bail by a cryptic order without taking into consideration the relevant
circumstances is not proper; A.K. Sharma v. State of LLP., (2005) 7 SCC 507.

Intervention by the National Human Rights Commission

Having been perturbed by the abuse and misuse of the TADA provisions, the Human Rights
Commission (headed by Justice Ranganath Mishra) moved an application in the Supreme
Court, before the Constitution Bench hearing Bail matter of Sanjay Dutt to intervene and
address argument on true ambit and scope of section 5 of the Terrorist and Disruptive
Activities (Prevention) Act (TADA), which makes mere possession of arms and ammunition, a
substantive offence.

In its application, the Commission submitted that interpretation of section 5 of TADA was of
great public importance, and therefore had been referred to a Constitution Bench of the apex
Court.

The Commission further submitted that during the course of investigation into a large number
of complaints of violation of human rights, section 5 had figured prominently as being grossly
abused, violating the principles of human rights enshrined in articles 14 and 21 of the
Constitution, as also violative of articles of International Human Rights Covenants to which
India was a signatory.

The application filed by the Commission further stated that it had no interest in the dispute
relating to grant of bail, but in the interest of justice and in public interest the Human Rights
Commission be allowed to intervene in proceedings pending before the court in Sanjay Dutt v.
State through CBI, Bombay.

The Bench headed by Justice A.M. Ahmadi (former Chief Justice of India) observed, "the court
will not allow any third party to intervene in a criminal case. However, if the Commission
wants to file written submissions, we will welcome it."

At the executive level, the Human Rights Commission has certainly gingered up both the State
and the Central Government. The overall effect of all the efforts made by the Commission is
that the Centre has sent a circular letter to all the State Governments to review all the TADA
cases. Maharashtra has decided to review all the TADA cases and reportedly has dropped 40
per cent, cases booked under TADA. Andhra Pradesh is also going to review those cases. It is,
 of course, a happy beginning.

Raj Babbar, filmstar turned politician has spearheaded a campaign against the blatant misuse
of TADA provisions through his newly formed organisation "Mukti". Justice V.R. Krishna Iyer,
Justice Rajindar Sachhar and many social activists have also condemned the abuse and misuse
of TADA provisions.

The author earnestly feels that pressure must be continued on the Government and every
effort must be made by all social activists to see that the liberty of the innocent citizens is not
jeopardised in any way under the garb of TADA provisions. The right to life is the most
precious right that a citizen enjoys under article 21 of the Constitution of our country and it
must be protected at all costs.

Lawyer's Duty

In dealing with bail matters, the lawyers have to act very cautiously and with great restraints.
They must keep in mind that they are dealing with the dignity/ reputation and liberty of an
individual which is at stake. They have to give utmost priority to the interest of their client and
have to adopt a strategy accordingly keeping in view the gravity of the alleged offence and the
mood of the Court. At the bail stage under no circumstances, the lawyers can afford to hurt
the dignity of the Court and annoy the Presiding Judge unnecessarily. The law provides a great
discretion to the Judge hearing the bail matters and the lawyers should not forget this
important factor. At this stage every grain of mercy of the Court has to be diverted in favour
of the accused person, whom the lawyer represents.

Appeal against Cancellation of Bail

The case was repeatedly adjourned with expectation that important witnesses would be examined
by prosecution and trial would be completed at early date. It was also a fact that if the trial is not
already over, Sessions Court would be directed to complete same within three months. And if for
any reason, except non-co-operation of accused, the trial is delayed beyond three months, it was
held that the accused would be at liberty to move Sessions Court for bail. Akhilesh Kumar Singh
v. State of Bihar, MANU/SC/7240/2008 : AIR 2008 SC 1680.

Rejection of Bail on Basis of Confessional Statement

The case was based on confessional statement and other evidence showed the involvement of
accused in alleged conspiracy. The plea was raised by accused that no confession was in fact
made by him and alleged confession even if made was retracted. However, at the time of
confirmation of confession no plea was raised that it was made under pressure. It was held
that the rejection of bail was proper. Gulam Mohd. v. State, AIR 2009 SC 509.

Misuse of Bail

In Brij Nandan Jaiswal v. Munna, MANU/SC/8441/2008 : AIR 2009 SC 1021 it was observed

that the complainant can challenge bail order on merits and the cancellation of bail on ground
of misuse is not only way out of order granting bail.

In granting bail the meticulous facts and circumstances of case should be considered (Prasanta
Kumar Sarkar v. Ashish Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC 274).
Cancellation of Bail

Likelihood of misuse of bail is not the only factor for cancellation of bail

In case of Prakash Kadam v. Ramprasad Vishwanath Gupta, MANU/SC/0616/2011 :

AIR 2011 SC 1945 the Supreme Court observed that:

"It cannot be contended that the consideration for cancellation of bail is different
from the consideration of grant of bail. That is not absolute rule, and it will
depend on the facts and circumstances of the case. In considering whether to
cancel the bail the court has also to consider the gravity and nature of offence,
prima facie case against the accused, the position and standard of accused, etc.
If there are very serious allegations against the accused his bail may be
cancelled even if he has not misused the bail granted to him. Moreover, the
above principle applies when the same Court which granted bail is approached
for cancelling the bail. It will not apply when the order granting bail is appeal
against before the appellate/revisional court. There is no absolute rule that once
the bail is granted to the accused then it can only be cancelled if there is
likelihood of misuse of the bail. That factor, though no doubt important, is not
the only factor. There are several other factors also which may be seen while
deciding to cancel the bail".

© Universal law Publishing Co.

 
  

Chapter 8

Bail in Security Proceedings

 Delay 'Bail' out Sanjay 89

 Initiation of Proceeding under this Section 94

 Jurisdiction and Source of Information 94

 Commencement of the Inquiry Proceeding under section 107 of the Code 95

of Criminal Procedure, 1973

 Proceedings under sections 107 and 145 of the Code of Criminal 95

Procedure, 1973

 What Type of Publication Attracts section 108 of the Code of Criminal 97

Procedure, 1973

 Whether an Order can be Passed under section 109 of the Code of 98

 Criminal Procedure, 1973, Without Holding an Enquiry by the Magistrate

 Meaning of the Expression "give a satisfactory account of himself" 99

 Object, Philosophy and the Scope of section 110 of the Code of Criminal 100
Procedure, 1973

 Section 111 of the Code of Criminal Procedure, 1973 101

Delay 'Bail' out Sanjay

Sanjay Dutt gets temporary relief as the Supreme Court grants him 'interim bail' on 20th
August, 2007.

Certain startling lapses on the part of the authorities (TADA Court and the CBI) virtually forced
the Supreme Court to grant Dutt and others bail. Inexplicable delays on the part of TADA
Court Judge PD Kode to hand over his judgment to the convicts means that the Supreme
Court has allowed then (Sanjay Dutt and Others) bail not on merit, but a technicality. Senior
Criminal lawyer Majid Menon said that non-receipt of the copy of the TADA Court's judgment
gave Sanjay Dutt the right to make a grievance. Sanjay Dutt's contentions for bail were:

(a) Impeccable conduct during the last 12 years while on bail.

(b) TADA Court had failed to provide him with a copy of the judgment as required
under section 363(1) of the Code of Criminal Procedure, 1973.

(c) His testimonial of good conduct disregarded by court while turning down plea for
release under the Probation of Offenders' Act, 1958.

(d) Weapons were never found either in Sanjay Dutt's possession or his residence.

Some of the questions went unanswered in connection with Sanjay Dutt's bail:

* Why was P.D. Kode's judgment not made available to Sanjay Dutt?

* Why did the CBI not demand more time from the SC to obtain the judgment?

* Why has the CBI not approached the TADA court to expedite the release of its
judgment?

Senior Advocate Rohtagi has said that the court has actually granted bail on the condition that
they (Sanjay Dutt and Others) will report to the CBI office in Mumbai once every week, that
they will not abuse the grant of liberty in bail and that they will surrender the moment copy of
the judgment is given to them.

Senior Counsel Kapil Sibal said that the court has itself said that Dutt is not accused under
TADA and if that is so then it must get bail. The court has the right to make its decision.
However, no court will make a decision without explaining to the complainant its reasons.

Whenever there is an apprehension of disturbance or breach of peace or there is likelihood

that two parties would enter into a quarrel on a disputed piece of land or any other property or
for that matter on any other ground, due to which a law and order problem would be created,
the police on receiving such information, immediately swings into action, and arrest both the
parties. Both the parties are then produced before the Sub-Divisional Magistrate or the
Executive Magistrate, as the case may be. The Magistrate after hearing the parties direct that
the bonds for the good behaviour be submitted to the court before the party/parties are set at
liberty.

In order to prevent breach of peace and to ensure good behaviour from the involved parties,
the Code of Criminal Procedure, 1973 covers various eventualities. You must know that such
proceedings under the Code are "Inquiries" and not "trials". These proceedings, therefore, do
not culminate or end in punishment or acquittal.

The most important sections under the Code dealing with security proceedings are sections
106, 107, 108, 109 and 110. Sections 111 to 124 deal mainly with the procedure to be
adopted.

Section 106 of the Code deals with security for keeping the peace on conviction. Section 107
of the said Code deals with security for keeping peace in other cases, such as breach of peace
or disturbing the public tranquility. The rest of the sections of the code, i.e. sections 108, 109
and 110 deal with security for good behaviour, from persons disseminating seditious matters,
security for good behaviour from suspected persons and security for good behaviour from
habitual offenders.

Section 106 of the Code of Criminal Procedure, 1973 is reproduced below:

106. Security for keeping the peace on conviction

(1) When a Court of Session or Court of a Magistrate of the first class convicts a
person of any of the offences specified in sub-section (2) or of abetting any such
offence and is of opinion that it is necessary to take security from such person
for keeping the peace, the court may, at the time of passing sentence on such
person, order him to execute a bond, with or without sureties for keeping the
peace for such period, not exceeding three years, as it thinks fit.

(2) The offences referred to in sub-section (1) are--

(a) any offence punishable under Chapter VIII of the Indian Penal Code
(45 of 1860), other than an offence punishable under section 153A or
section 153B or section 154 thereof;

(b) any offence which consists of or includes, assault or using criminal

force or committing mischief;

(c) any offence of criminal intimidation;

(d) any other offence which caused, or was intended or known to be

likely to cause, a breach of the peace.

(3) If the conviction is set aside, on appeal or otherwise, the bond so executed
shall become void.

(4) An order under this section may also be made by an Appellate Court or by a
Court when exercising its powers of revision.

In fact the whole Chapter VIII of the Code of Criminal Procedure, 1973 basically deals with
security for keeping peace and for good behaviour. In State of Gujarat v. P.B. Ramlabhai, AIR
1969 Guj 263, the Gujarat High Court pointed out that the object of the provisions was the
prevention of the offence and to enable the accused to improve and keep good behaviour. This
Chapter, therefore, does not prescribe any punishment, as the provisions contained in the
Chapter are not punitive in nature. It is also quite important to know that the past conduct of
a person alone may not be sufficient to invoke these provisions, but there must be something
more.

As regards section 106 of the Code of Criminal Procedure, 1973 is concerned the order for
security for keeping peace should he passed by the concerned Magistrate on conviction of an
offence. A conviction under section 504 of the Indian Penal Code justifiably attracts the
provisions of section 106 of the Code of Criminal Procedure, 1973; Emperor v. Syed Yakooli,
ILR 47 Bom 554.

When a person is convicted of an offence falling within the scope of section 106 and it is
considered necessary to bind over the accused to keep the peace, the proper procedure is the
one under section 106; if the Magistrate fails to avail himself of his powers under that section,
he cannot draw up proceedings against the accused under section 106 on the same materials.

In Mahamad Khasim v. State of Mysore, AIR 1957 Mys 49: 1957 Cr LJ 520: ILR 1956 Kar 315,
the High Court of Mysore observed that the mere fact that accused was convicted and
sentenced to one of the offences under section 106(2) of the Code of Criminal Procedure,
1973 might not be sufficient for the court to take security from him since it was necessary that
the court must be of the opinion that taking security was necessary.

The following conditions are necessary to attract section 106 of the Code of Criminal
Procedure, 1973. In the absence of these conditions the Magistrate should not ask for security
under the said section of the Code:--

(a) the accused must have been convicted for an offence mentioned in this section;

(b) the conviction must have been given by a Court of Session or a Court of a
Magistrate of the first class;

(c) such court must be of the opinion that it is necessary to take security from such
persons for keeping the peace; and

(d) the order directing security should be passed at the time of passing the sentence;
Mani Lal v. Emperor, AIR 1938 Oudh 95.

The presence of an accused is necessary to pass an order for security under section 106 of the
Code of Criminal Procedure, 1973.

A distinction can be drawn between a bare probability and reasonable probability of a breach
of peace being committed. Reasonable probability of a breach of peace is mandatory.

Offences which attract section 106 of the Code of Criminal Procedure, 1973 are sections 141
to 160 of the IPC excluding sections 153A, 153B and 154 of the IPC.

The security does not continue where the conviction is set aside on appeal. [Section 106(3) of
the Code of Criminal Procedure, 1973] Abdul v. Amiran Bibi, ILR 30 Cal 10.

An order to execute a bond to keep good behaviour along with keeping the peace is devoid of
any reason and incorrect. The bond taken should be only to keep peace. Bakshish Singh v.
State, AIR 1952 Pep 138 (142).

The period of imprisonment (for example a long period of imprisonment of seven years) has to
be kept in mind to attract section 106 of the Code of Criminal Procedure, 1973. Thus an order
should not be made. Also in case of minor offences where the period of imprisonment is only
one month, section 106 of the Code of Criminal Procedure, 1973 is not attracted. Re
Saroja, MANU/TN/0235/1955 : AIR 1955 Mad 596; Bakshish Singh v. State, AIR 1952 Pep
138: 1952 Cr LJ 1467.

In order to attract section 107 of the Code of Criminal Procedure, 1973, the following
conditions must exist:--

(a) receipt of information by the Magistrate;

(b) such information must be that a person is likely to commit breach of the peace or
disturb the public tranquillity; and

(c) on such information the Magistrate must be able to form an opinion that there are
sufficient grounds for proceeding; Moidu v. State of Kerala, 1982 Cr LJ 2293.

As we have already mentioned, all these sections--sections 106 to 111, are not punitive, these
are preventive measures to maintain peace, law and order, in society.

To sum up, we may safely say that if the Magistrate (of the concerned area over which he has
the jurisdiction) is fully satisfied on the police report that proceedings under section 107 of the
Code of Criminal Procedure, 1973 be initiated, he should record the reasons of his satisfaction.
After that the Magistrate can issue notice to the person against whom such proceedings are to
be initiated in accordance with the procedure laid down in the Code.

For the convenience of learned readers, we reproduce below section 107 of the Code of
Criminal Procedure, 1973:--

107. Security for keeping the peace in other cases

(1) When an Executive Magistrate receives information that any person is likely
to commit a breach of the peace or disturb the public tranquility or to do any
wrongful act that may probably occasion a breach of the peace or disturb the
public tranquility and is of opinion that there is sufficient ground for
proceedings, he may, in the manner hereinafter provided, require such person
to show cause why he should not be ordered to execute bond with or without
sureties for keeping the peace for such period, not exceeding one year, as the
Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive
Magistrate when either the place where the breach of the peace or disturbance
is apprehended is within his local jurisdiction or there is within such jurisdiction
a person who is likely to commit a breach of the peace or disturb the public
 tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.

When despite the detenue being taken into custody by police and being
produced before the Magistrate for action to be taken against them for breach of
peace under section 107 of the Code of Criminal Procedure, 1973, neither any
proceeding under section 107 is drawn up under section 111; the detention is
illegal.

Initiation of Proceeding under this Section

The pivotal point in this section is the satisfaction or to meet the expectations or desires of a
Magistrate. Before the issuance of a show cause order, by a Magistrate the actual existence of
truth and importunate information is needed. The satisfaction intended in this section is not
the objective satisfaction and must be based upon certain materials justifying the said
expectation or desire. The purpose of section 107 of the Code of Criminal Procedure, 1973 is
preventive and not punitive.

Jurisdiction and Source of information

A Magistrate cannot proceed against any person where there is not an iota of information
against him. The Magistrate can proceed on the basis of a report of the police or Subordinate
Magistrate or on information provided by a private individual.

No right of a party is affected in situation wherein a notice is served upon an offender of minor
crime or misdeed to show cause why they should not execute interim bond. The offender of
such crime is given an opportunity to file his reply to the notice and can convince the
Executive Magistrate not to execute an interim bond.

Commencement of the Inquiry Proceeding under section 107 of the Code of Criminal
Procedure, 1973

Commencement of summons trial provided under Chapter XX of the Code of Criminal

Procedure, 1973 and section 112 of the Code of Criminal Procedure, 1973 can also be seen in
this regard which is reproduced below:

Section 251 of the Code of Criminal Procedure, 1973: When in a summons case the accused
appears or is brought before the Magistrate, the particulars of the offence of which he is
accused shall be stated to him, and he shall be asked whether he pleads guilty or has any
defence to make, but it shall not be necessary to frame a formal charge.

Section 112 of the Code of Criminal Procedure, 1973: If the person in respect of whom such
order (readers please note such order which is made under section 111) is made in court, it
shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.

Proceedings under sections 107 and 145 of the Code of Criminal Procedure, 1973

Whenever there is a dispute of land or water which includes buildings, markets, fisheries,
crops or other produce of land and the rents or profits of any such property and there is
likelihood of breach of peace, the Executive Magistrate on the report of a police officer or upon
other information, after satisfying himself, can initiate proceedings against the parties
concerned. The decision as regards the title of the land in dispute is concerned, is generally
referred to a civil court. Pending decision of title, and in order to maintain peace, law and
order, the court can order to seal the property in dispute. Till the final decision by a civil court,
no party is allowed to have any access whatsoever on the property in dispute. In the
meantime, the parties have to maintain status quo as per the direction of the court.

The object of section 145 is, therefore, to compel the parties to go to the civil court to settle
their disputes and to get adjudication of their rights to immovable properties. In case the
Magistrate is satisfied, that there is apprehension or likelihood of breach of peace, he can
initiate proceedings under section 107 of the Code of Criminal Procedure, 1973.

As regards initiation of proceedings under section 107 and section 145 simultaneously, it was
pointed out by the Calcutta High Court in Emperor v. Abbas, ILR 39 Cal 150, that "it will
depend upon the circumstances of each case whether action should be taken simultaneously
or not".

The next section is section 108 of the Code of Criminal Procedure, 1973. This section deals
with security for good behaviour from persons disseminating seditious matters. It lays down
that any person, who disseminates, or attempts to disseminate, or abets dissemination of any
seditious matter, the publication of which is punishable under sections 124A, 153A, 153B or
295A of the Indian Penal Code (45 of 1860) or any matter which amounts to criminal
intimidation or defamation concerning a Judge, may be ordered to give security for good
behaviour. Section 108 is reproduced below for ready reference:

108. Security for good behaviour from persons disseminating seditious matters

(1) When an Executive Magistrate of the first class receives information that
there is within his local jurisdiction any person who, within or without such
jurisdiction,--

(i) either orally or in writing or in any other manner, intentionally

disseminates or attempts to disseminate, or abets the dissemination of,
--

(a) any matter the publication of which is punishable under

section 124A or section 153A or section 153B or section 295A of
the Indian Penal Code (45 of 1860); or

(b) any matter concerning a Judge acting or purporting to act in

the discharge of his official duties which amounts to criminal
intimidation or defamation under the Indian Penal Code (45 of
1860),

(ii) makes, produces, publishes or keeps for sale, imports, exports,

conveys, sells, lets to hire, distributes, publicly exhibits or in any other
manner puts into circulation any obscene matter such as is referred to in
section 292 of the Indian Penal Code (45 of 1860),

and the Magistrate is of opinion that there is sufficient ground for proceeding,
the Magistrate may in the manner hereinafter provided, require such person to
show cause why he should not be ordered to execute a bond, with or without
 sureties, for his good behaviour for such period, not exceeding one year as the
Magistrate thinks fit.

(2) No proceedings shall be taken under this section against the editor,
proprietor, printer or publisher of any publication registered under, and edited,
printed and published in conformity with the rules laid down in the Press and
Registration of Books Act, 1867 (25 of 1867), with reference to any matter
contained in such publication except by the order or under the authority of the
State Government or some officer empowered by the State Government in this
behalf."

What Type of Publication Attracts section 108 of the Code of Criminal Procedure, 1973

The provision of this section are not meant for keeping persons under detention without trial
for which separate and adequate provisions exist.

To understand the provisions of this section particularly as to what amounts to publication, we

may refer to a case decided by the High Court of Calcutta in Sital Prasad v. Emperor, ILR 43
Cal 591.

In this case it was held that in order to justify an order under section 108(1)(a) it is sufficient
that the words used are likely to promote feelings of enmity and hatred between different
classes and it is necessary to establish an intention to promote such feelings, as it would be on
a trial for the offence triable under section 153A of the Indian Penal Code.

In Emperor v. T.K. Pitre, ILR 47 Bom 438, decided by the High Court of Bombay, the following
were the brief facts. There were proceedings against the author, printer and the publisher in
which the only evidence offered was (i) the pamphlet mentioned the names of the author,
printer and publisher, (ii) statement furnished under section 18 of the Press and Registration
of Books Act, 1867, stating the same information, and (iii) a declaration under section 4 of the
Act, mentioned the name of the alleged printer as the keeper of press. It was held that the
evidence was not sufficient to establish the identity of the author, that the identity of the
printer was produced but that he was not shown to have knowledge of the contents of the
pamphlet and that the alleged publisher was properly bound. As a publisher, he disseminated
or at least abetted the dissemination of seditious matter, and he could be presumed to have
had knowledge of the contents.

Circulation of offending notices on one occasion only - this section does not apply; Swami
Swarna Nando, (1940) 16 Luck 260.

The proceedings under section 108 of the Code of Criminal Procedure, 1973 are preventive in
nature and are initiated against the persons concerned to enable them to inform and keep
good behaviour in future. And the order of security should be just, fair and reasonable so that
the person concerned may be able to get a surety without much difficulty.

Section 109 of the Code of Criminal Procedure, 1973 deals with the security for good
behaviour from suspected persons. The said section reads as under:

109. Security for good behaviour from suspected person

When an Executive Magistrate receives information that there is within his local
 jurisdiction a person taking precautions to conceal his presence and that there is
reason to believe that he is doing so with a view to committing a cognizable
offence, the Magistrate may in the manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a bond with or
without sureties for his good behaviour for such period, not exceeding one year,
as the Magistrate thinks fit.

A person against whom proceedings under this section are pending, would be
entitled to be released on bail only after the bond has been executed.

Whether an Order can be Passed under section 109 of the Code of Criminal Procedure,
1973, Without Holding an Enquiry by the Magistrate

No. The Magistrate cannot pass any such order against the person concerned under section
109 without holding an enquiry as prescribed in sections 116 and 117 of the Code of Criminal
Procedure.

In Bipin Kumar v. State, (1962) 2 Cr LJ 537, the Gujarat High Court held that an order under
section 109 cannot be passed without holding an enquiry under section 116 and section 117 of
the Code of Criminal Procedure, 1973 on the ground that the person concerned had expressed
his willingness to give surety and to furnish security.

In Emperor v. Bishi Sahara, AIR 1935 Pat 69, the Patna High Court pointed out that simply
avoiding police or taking infrequent route is by itself no ground for action under section 109 of
the Code of Criminal Procedure.

A person need not be arrested in accordance with section 55 of Code of Criminal Procedure,
1973 that spells the procedure when police officer deputes subordinate to arrest without
warrant, before he could be proceeded against under section 109 of the Code of Criminal
Procedure, 1973 and both sections relate to different subjects and are independent of each
other.

Meaning of the Expression "give a satisfactory account of himself"

In Kartar Kaur v. Crown, AIR 1951 Punj 422: 1951 Cr LJ 939, the Punjab High Court held that
the words, "give a satisfactory account of himself" cannot be given the meaning of "explain
what he was doing" or explain his conduct at any particular time or place and that the failure
does not bring his case within the ambit of section 109 of the Code of Criminal Procedure,
1973.

Section 110 of the Code of Criminal Procedure, 1973 broadly deals with the habitual offenders,
i.e. robbers, house breakers, forgers, etc. etc. The said section reads as under :

110. Security for good behaviour from habitual offenders

When an Executive Magistrate receives information that there is within his local
jurisdiction a person who--

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have

been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment on

disposal of stolen property, or

(d) habitually commits, or attempts to commit, or abets the commission

of, the offence of kidnapping, abduction, extortion, cheating or mischief,
or any offence punishable under Chapter XII of the Indian Penal Code
(45 of 1860), or under section 489A, section 489B, section 489C or
section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission

of, offences, involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission

of--

(i) any offence under one or more of the following Acts, namely:--

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);

(c) the Employees' Provident Funds and Family Pension Fund Act,
1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962);

(h) the Foreigners Act, 1946 (31 of 1946); or

(ii) any offence punishable under any other law providing for the
prevention of hoarding or profiteering or of adulteration of food or
drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large

without security hazardous to the community, such Magistrate
may, in the manner hereinafter provided, require such person to
show cause why he should not be ordered to execute a bond, with
sureties, for his good behaviour for such period, not exceeding
three years, as the Magistrate thinks fit. Item

(h) has been added to sub-clause (i) of clause (f) to effectively

deal with offences under the Foreigners Act, 1946 in order to
strengthen the hands of State authorities by empowering them to
take action under section 110 against persons assisting
infiltration. This will help to check the flow of undesirable
 foreigners into the country.

Object, Philosophy and the Scope of section 110 of the Code of Criminal Procedure, 1973

The main purpose, philosophy and the scope of section 110 has been amply discussed and
explained in various judgments delivered by the High Courts and the Supreme Court of India.

The readers are advised to go through the judgment of the Supreme Court in Subbayyan
Achari Gopalan Achari v. State of Kerala, 1981 Cr LJ 1359, in which these aspects have been
elaborately discussed. The main purpose of section 110 is to give full protection to the public
against a repetition of crimes by the persons proceeded against in which the safety of the
property is menaced and not the security of the person alone is jeopardised. A word of caution
has also been directed towards the Presiding Officers (Magistrates) to take every care, that
the wide discretion in this section, provided to them, should always be used justly and
judiciously and not capriciously or arbitrarily. It was further observed that the court should
always keep in mind two major aspects, i.e.

(i) that every citizen of this country has certain liberties guaranteed to him under the
Constitution and those liberties under no circumstance be curtailed or tampered with by
any unreasonable action on the part of any police officer, and

(ii) that when the liberty enjoyed by an individual is enjoyed in such a fashion that it
becomes hazardous to the community at large that liberty could be curtailed as
contemplated in Chapter VIII of the Code.

The judgment in the following cases may also be of great use to the learned readers; (1)
Emperor v. Nawab, ILR 2 All 835; (2) Raj Valad Hussain v. Sahele, ILR 10 Bom 174. A couple
of cases can be taken note of; S.V. Shinde v. J.R. Sangam, Asstt. Commissioner of Police,
1995 (1) Crimes 577 (Bom) and Gopalanachari v. State of Kerala, MANU/SC/0068/1980 : AIR
1981 SC 674: (1981) 1 SCR 1271: 1981 Cr LJ 337.

The object of this section is not to send the people into jails with bad characters but to bring
reasonable pressure to bear on such persons to respect the law.

Section 111 of the Code of Criminal Procedure, 1973

In Queen Empress v. Ishwar Chander Sur, ILR Cal 13, the High Court of Calcutta observed
that when no order under section 111 of the Code has been made and the person accused
under section 109 or Section 110 of the Code was not told of the case that he had to meet,
the order requiring security was set aside. The Magistrate, therefore, has been directed by the
High Court and the Supreme Court to always act judiciously and not arbitrarily without
keeping in mind the provisions of the Code. In yet another judgment in the case of Krishna
Swamy v. Thathaihari, ILR 30 Mad 282, the Madras High Court clearly pointed out that an
omission to make an order in writing as per provisions of section 111 renders all the
subsequent proceedings void.

It is, therefore, of utmost importance that (while dealing with the persons under sections 106,
107, 108, 109 and 110) without an order under section 111 of the Code of Criminal Procedure,
1973, the concerned Magistrate has no power or competence to deal with such persons.

Dealing with the question on the sum and substance of the information, the Madras High Court
 made the significant observations:

"There must be information of a nature which convinces him that there is a likelihood of
the breach of the peace. They further observed that the person who gave the
information might not be in a position to give details but the source of the information
might be sufficient to convince the Magistrate that a breach of peace was likely and if
he was convinced, the law required him to take action."

Section III of the Code of Criminal Procedure, 1973 is as under:

111. Order to be made

When a Magistrate acting under section 107, section 108, section 109 or
section 110, deems it necessary to require any person to show cause
under such section, he shall make an order in writing, setting forth the
substance of the information received, the amount of the bond to be
executed, the term for which it is to be in force, and the number,
character, and class of sureties (if any) required.

The Magistrate in the notice under section 111 of the Code of Criminal
Procedure, 1973 has to specify the substance of facts and circumstances
which are contained in the information that has come to him and not
merely the fact that he has received an information from which an
inference can be drawn that there is likelihood of breach of peace.

© Universal law Publishing Co.

   

Chapter 9
 Bail and Bail Bond

 Bail 103

 Bailable/Non-Bailable Offences 104

Bail Bonds 104

 Anticipatory Bail 104

 Presence of Accused Whether Required? 105

 Considerations Which Weigh Court's Mind While Releasing the Accused 105
on Personal Bond

 Personal Bond and Cash Security 106

 Amount of Bail Bond and whether Surety should be from Accused's 106
District

 Surety Bonds -Procedure and Acceptance 108

 Bond of Accused and Sureties 108

 Declaration by Sureties 109

 Discharge from Custody 109

Discharge of Sureties 109

 Whether the Sureties can ask for their Discharge 109

 Cancellation of Bail Bond 110

BAIL

The very word 'bail' means the process by which the liberty of a citizen, which is under cloud, is to be
restored with or without conditions imposed by the courts of competence. Every person at the pre-
trial stage is presumed to be an innocent person until the guilt is established as per provisions of law.
The trial may take years together, and if the liberty of that person is jeopardised for such a long time,
it will amount to violation of his fundamental right to protection of life and personal liberty as per
provisions contained under article 21 of the Constitution of India. Therefore, specific provisions have
been made under the Code of Criminal Procedure, 1973, which provides the relevant procedure for
release of a person on bail during the trial.

The meaning of bail, therefore, can be described in an ordinary sense to set free a person who is
under arrest, detention or is under some kind of restraint by taking security for his appearance.

Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and
indigent's rights, bail covers both release on one's own bond, with or without sureties. When sureties
should be demanded and what some should be insisted on, are dependent on variables. Even so poor
men, young persons, infirm individuals and women are weak categories, and courts should be liberal
in releasing them on their own recognizance put whatever reasonable conditions they may fix; Moti
Ram v. State of Madhya Pradesh, AIR 1978 SC 1549.

Bailable/Non-Bailable Offences
 Offences are generally categorised as (i) bailable offences, and (ii) non-bailable offences. If
any person is arrested for an offence which is categorised as bailable offence, he is entitled to
get bail as a matter of right and if any person is arrested for an offence which comes under
the category of non-bailable offence, the grant or refusal of bail is a matter of discretion.

BAIL BONDS

To get oneself released on bail, in bailable or non-bailable offences, one has to file the bail bond as
per provisions of the Code of Criminal Procedure, 1973. The bail bond is filed by the surely, who takes
the responsibility for producing the accused person in the court or before any investigating agency as
and when required.

In case of bailable offence, one has to file only the bail bonds duly filled in by the surety undertaking
the production of the accused person as and when required by the court.

For non-bailable offence, as also for getting anticipatory bail (where one apprehends an arrest) one
has to move an application setting out the grounds for the grant of bail. In case the court is convinced
that bail should be granted it passes the order after hearing the arguments of the counsel for the
accused person. And at that stage only one has to fill in the bail bond duly signed by the surety and to
be filed through the Advocate. In case the accused is before the court, he is set at liberty (granting
him bail) in the court itself and in case the accused is under detention in the jail, orders of grant of
bail are sent to the concerned jail, where he is set at liberty at once.

Anticipatory Bail

In case of anticipatory bail, one has to move the Court of Sessions Judge through an advocate.
The Sessions judge either himself hears the bail application or he sends it to the designated
Court of Addl. Sessions Judge. On receiving the application, one copy of the bail application is
sent to the concerned Police Station for getting report from the S.H.O.

On the date of hearing given by the court, the public prosecutor addresses the arguments on
behalf of the State, and the Advocate for the accused also addresses the court. After hearing
both the sides, the court comes to the conclusion, whether to accept or reject the bail
application moved by the accused through his counsel.

Presence of Accused Whether Required?

It is a very vital and significant point. Generally, the new and budding advocates, without
realising the repercussions (in case the bail is not granted) bring the accused person in the
court at the time of arguments. In case the court is not satisfied with the arguments on the
basis of the case put up by the prosecution the police can immediately arrest him and keep
him in its custody. Therefore, it is always advisable not to bring the accused person (who is
apprehending arrest at the hands of the police in a non-bailable offence) in the court while you
are arguing on bail application moved by you on behalf of the accused person.

In case the anticipatory bail is granted, the court passes the order that the accused be
released on bail in the event of his arrest. This order in case of grant of anticipatory bail is
meant for the police not to arrest the accused person.

There is another possibility also, supposing the police sends a report that there is no case
against him and he is not needed under any offence. In that event the court dismisses the bail
 application filed by the accused.

Considerations Which Weigh Court's Mind While Releasing the Accused on Personal Bond

The courts have wide powers in the matter of grant or rejection of bail by their wisdom, long
experience and guidelines laid down by the Hon'ble Supreme Court of India, the courts by and
large use their judicial discretion while releasing the accused persons on personal bond.

In Afsar Khan v. State, 1992 CCR 2019 (Karn), the High Court observed:

"If the court is satisfied on a consideration of a relevant factor that the accused has ties
in the community and there is no substantial risk of non-appearance, the accused may,
as far as possible, be released on personal bond. The decision as regards the amount
should be an individualised decision depending on the financial circumstances of the
accused individual and the probability of his absconding."

When the condition or conditions of the bond is violated, then it must be proved to the
satisfaction of Magistrate or court that the bond has been forfeited and the court has to
record the grounds of proof of the violation of condition or conditions of the bond.

When the conditions are violated the Magistrate or the court may call upon the person
bound by the bond to show cause why he should not pay the penalty. These conditions
are mandatory and unless they are violated the court has no jurisdiction to issue notice
to show cause why penalty could not be levied.

Personal Bond and Cash Security

In some cases it has been observed that while granting bail, the court directs for personal
bond, as well as security in cash. This is not a good legal approach and the courts should not
ask for personal bond as well as cash security. In Afsar Khan v. State, 1992 CCR 2019 (Karn),
the Karnataka High Court observed:--

"The present approach of the learned Sessions Judge in insisting upon the petitioner to
deposit a cash security of Rs. 750 in each case totaling Rs. 6750 is not only harsh and
oppressive, but indirectly denial of bail thus depriving the person's individual liberty."

Amount of Bail Bond and whether Surety should be from Accused's District

Some times the courts are unreasonable and direct the accused person to produce sureties for
a heavy amount beyond his capacity. In such cases the Supreme Court has shown its
unhappiness and annoyance and has invariably directed the courts below to be reasonable
while fixing the amount of surety.

In Moti Ram v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549: (1978) 4 SCC
47: 1978 Cr LJ 1703, the Supreme Court pointed out:

"It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs.
10,000. The Magistrate must be given the benefit of doubt for not fully appreciating
that our Constitution enacted by--"WE THE PEOPLE OF INDIA" is meant for the butcher,
the baker and the candle stick maker, bonded labourer and pavement deweller. To add
insult to the injury, the Magistrate has demanded sureties from his own district. What
 is a Malayalee, Kannadiga, Tamilian or Telugu to do if arrested for alleged
misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or
Chandni Chowk? He cannot give sureties of persons owning properties in these distant
places. He may not know any one there and might have come in a batch or to seek a
job or in a morcha. Judicial disruption of Indian unity is sure to be achieved by such
provincial allergies. The Supreme Court mandated the Magistrate to release the
petitioner on his own bond in a sum of Rs. 1,000."

After mandating the Magistrate to release the petitioner, on his own bond in a sum of rupees
one thousand, the Supreme Court in the last para of its judgment made the following
suggestions for the Parliament to look into:

"We leave it to Parliament to consider whether in our socialistic republic with social
justice as its hallmark, monetary superstition not other relevant considerations like
family ties, roots in the community, membership of stable organisations, should prevail
for bail bonds to ensure that the 'Bailee' does not flee justice. The best guarantee of
presence in court is the reach of law, not the money tag. A parting thought. If the
indigents are not to be betrayed by the law including the bail law, re-writing of many
procedural laws is an urgent desideratum, and the judiciary will do well to remember
that the geographical frontiers of the Central Codes cannot be disfigured by
cartographic dis-action in the name of language or province."

In Sandeep Jain v. National Capital Territory of Delhi, MANU/SC/0026/2000 : (2000) 2 SCC

66: AIR 2000 SC 714, it was observed that it is not possible to appreciate even the first order
passed by the Metropolitan Magistrate imposing onerous conditions that an accused at the FIR
stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. On default in payment of that
amount, the appellant is to languish in jail for more than 10 months, is sufficient indication
that he was unable to make up the amount. If the cheques issued by his surety were
dishonoured, the court could perhaps have taken it as a ground to suggest to the payee of the
cheques to resort to the legal remedies provided by law. Similarly if the court was dissatisfied
with the conduct of the surety as for his failure to raise funds for honouring the cheques issued
by him, the court could have directed the appellant to substitute him with another surety. But
to keep him in prison for the offences alleged, is not only hard but improper. The court has not
even come to the conclusion that the allegations made in the FIR are true. That can be
decided only when the trial concludes, if the case is charge-sheeted by the police.

Surety Bonds--Procedure and Acceptance

Section 441 of the Code of Criminal Procedure, 1973 deals with this aspect of the matter. It
reads as follows;--

Bond of Accused and Sureties

(1) Before any person is released on bail or released on his own bond, a bond
for such sum of money as the Police Officer or Court, as the case may be, thinks
sufficient shall be executed by such person, and, when he is released on bail, by
one or more sufficient sureties conditioned that such person shall attend at the
time and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or court, as the case may be.
 (2) Where any condition is imposed for the release of any person on bail, the
bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail
to appear when called upon at the High Court, Court of Session or other Court
to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the
court may accept affidavits in proof of the facts contained therein relating to the
sufficiency or fitness of the sureties, or, if it considers necessary, may either
hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate
to the court, as to such sufficiency or fitness.

In State of Rajasthan v. Lal Singh, 1987 Cr LJ 269, the High Court of Rajasthan
pointed out:

"If the personal bond and surety bonds are furnished and affidavit is filed
by the surety about his status, generally the same should be accepted. If
the court has any doubt then the proper course is to accept it as an
interim measure, release the accused and then send it for verification
and if on verification the status of surety is found to be less than the
accused then the accused should be called upon to furnish fresh surety in
the amount for which he has been ordered to furnish it."

The court further held that the procedure adopted by the learned A.A.M. that
when the surety bonds were furnished along with the affidavits of the surety he
did not release the accused, did not accept them, directed the surety to appear
before the Tahsildar for verification of his status; that the Tahsildar slept over
the papers for a few days thereby the accused was kept in custody, cannot be
said to be in the interest of justice.

Declaration by Sureties

Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety
including the accused, giving therein all the relevant particulars.

Section 441A has been inserted to provide that a person standing surety for an accused
person shall disclose as to in how many cases he has already stood surety for accused
persons.

Discharge from Custody

Section 442 of the Code of Criminal Procedure, 1973 is the relevant section. According
to the provisions of this section--

(1) As soon as the bond has been executed, the person for whose appearance it
has been executed shall be released; and, when he is in jail, the Court admitting
him to bail shall issue an order of release to the officer in charge of the jail, and
such officer on receipt of the order shall release him.
 (2) Nothing in this section, section 436 or section 437 shall be deemed to
require the release of any person liable to be detained for some matter other
than that in respect of which the bond was executed.

Restraint over the activities and whereabouts of the person released rests upon
the surety the restraint must be minimum and up to such maximum period for
the surety that to get relief form the responsibility under his bond and to make
the court to pass suitable orders in the matter.

DISCHARGE OF SURETIES

Whether the Sureties can ask for their Discharge

Yes, the sureties at any time can move an application in the court seeking discharge of the
sureties in case they find that the accused is getting out of their control. Even for any other
reason the sureties have a right of discharge with the permission of the court. According to
section 444 of the Code of Criminal Procedure, 1973--

(1) All or any sureties for the attendance and appearance of a person released on bail
may at any time apply to a Magistrate to discharge the bond, either wholly or so far as
relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest
directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary
surrender, the Magistrate shall direct the bond to be discharged either wholly or so far
as relates to the applicants and shall call upon such person to find other sufficient
sureties, and, if he fails to do so, may commit him to jail.

A situation in which the surety finds himself out of his control (say, for instance, death of a
person released on bail), the surety is discharged. S.V. Naidu v. Emperor, ILR 37 Mad 156.

Almost all bail order means to ensure the attendance of the accused in the court whenever
required and other conditions are subsidiary. So long as that core postulate remains
unchanged a surety cannot take advantage of any subsequent modification effected in respect
of any other conditions. If a surety is not agreeable to abide by the modified conditions he
must apply to the court under section 444(1) of the Code of Criminal Procedure, 1973 to
discharge him. Until the surety is discharged he is bound by the bond and any modification or
even deletion of a condition of the order cannot absolve him from his liability in respect of the
unaltered conditions; Mohammad Kanju v. State of Karnataka, MANU/SC/0696/1999 : AIR
2000 SC 6.

Cancellation of Bail Bond

In case of Prasanta Kumar Sarkar v. Ashis Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC

274 it was held that on merits of case the bail bond and surety can be cancelled. 

  
 Chapter 10

Failure of Police to File Charge-Sheet in Time -- Effect on Bail

 Accused Must Be Produced Before Magistrate 111

 Expeditious Treatments at the Hands of Criminal 113

 justice System 113

Section 167 of the Code of Criminal Procedure, 1973 [Paragraph (a) to sub-section (2)] provides that
the Magistrate may authorise the detention of accused persons, otherwise than in the custody of the
police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but
no Magistrate shall authorise the detention of the accused persons in custody under this paragraph for
a total period exceeding (i) 90 days, where the investigation, relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten years, (ii) Sixty days,
where the investigation relates to any other offence, and 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 and every person released on bail under this subsection shall be deemed to be
so released under the provisions of Chapter XXXIII (Provisions as to bail and bail bonds).

Accused Must Be Produced Before Magistrate

No Magistrate shall authorise detention in any custody under this section unless the accused is
produced before him [Proviso (b) to sub-section (2)]. Further no Magistrate of the second class,
not specially empowered in this behalf by the High Court, shall authorise detention in the
custody of the police [Proviso (c) to sub-section (2)].

Explanation I added by the Amendment Act, 1978 lays down that for the avoidance of
doubts, it is hereby declared that, notwithstanding the expiry of the period specified in
paragraph (a) above, the accused shall be detained in custody so long as he does not
furnish bail.

Explanation II says that if any question arises whether an accused person was produced
before the Magistrate as required under Paragraph (b), the production of the accused
person may be proved by his signature on the order authorising detention.

The accused persons were arrested in the alleged match fixing cases/scandal. They had not
been granted bail on various grounds;

It was an interesting and quite informative material regarding the dramatic turn in the grant of
bail to the two accused persons on account of failure of the police in filing the charge-sheets
within the prescribed time limit.

Those two accused persons were released on bail as soon as Delhi Police failed to file the
charge sheet within the stipulated period of 60 days which elapsed on 5-6-2000.

As per information gathered from Hindustan Times, dated 6-6-2000, it was stated that as soon
as the deadline of 60 days was over, both the accused were entitled to get bail whatever may
be the reasons for non-filing of the charge sheet in the alleged Match Fixing case. The accused
were bound to be set at liberty, even if the court or the police felt that they were still needed to
 be kept in custody in the interest of justice and fair trial.

"The main hurdle before the investigating agency was that they still did not have voice
sample to establish that the "Voice" recorded was of Hansie Cronje. According to sources
they had already sent three reminders to the concerned authorities in South Africa, but
they had not got any reply."

According to the news published in the Statesman of 7th June, 2000, date line 6-6-2000 "the
accused was granted bail by a Delhi Court, as the Delhi Police failed to file the charge sheet
against him within the statutory period of 60 days after his arrest in the match-fixing scandal.
If the police could not file the charge sheet by 28th June, the accused would also be
released/entitled to bail on similar grounds."

"Asked why the police did not file the charge-sheet the Joint Commissioner of Police,
Crime, said, "The investigation was continuing and charge sheet in court could not be
filed at that stage."

According to a PTI report from Durban a Delhi Police Inspector involved with the match fixing
investigations, was expected to attend the proceedings of South African Commission of Enquiry
from 7th June, 2000. Quoting the Secretary of King Commission of Inquiry, Mr. John Bacon, the
report said the Inspector was expected to attend the hearing to monitor the proceedings.

According to the Agency Report, Mr. Bacon said, the crucial Hansie Cronje tapes have not been
received from India as yet. "We had not heard anything from India yet. Perhaps the Indians did
not wish this evidence to be available to defence counsel at that stage, he said."

Cronje had reportedly offered the players rupees four lakhs each to lose one day match in
Mumbai. Cronje himself was set to gain about Rs. 85 lakhs. This was a classic case of
international importance where the statutory provisions of law (in connection with the grant or
rejection of bail) made the investigating agency as also the court helpless spectators. The law
thus helped the accused persons in that most unusual and extraordinary case to be set at
liberty for non-filing of the charge sheets by the police within the prescribed period of sixty
days.

Expeditious Treatments at the Hands of Criminal

Justice System

The whole object of providing prescribed limitation to file the charge-sheet i.e., within 60
or 90 days as the case may be under section 167(2) of the Code of Criminal Procedure,
1973 is that the accused should receive speedy trial or expeditious disposal of his case.
Failure to file charge-sheet within the said time limit entitles the accused to enlarge him
on bail.

Object of section 167 of the Code of Criminal Procedure, 1973: The object of section 167
is for giving pressure on the organs of prosecution to make every effort to ensure
detention and punishment of crime quickly. The aim is to prevent vexatious and belated
prosecutions, clearly in consonance with the concept of fairness of trial enshrined in
article 21 of the Constitution of India. [Y. Krishnappa v. State, 1993 Cr LJ 3646 (Mad)]

In Bhola v. State, 1993 Cr LJ 2821 (MP), it was observed that non-supply of papers to
the accused within a period of ninety days is not fatal and supply of the copies of the
documents two days after the filing of the charge-sheet by the police in the court has
not caused any prejudice to the accused and the accused cannot claim bail simply on
this ground

In Banka Das v. State, 1993 Cr LJ 442 (Ori) it was held that even if by operation of
section 167(2) proviso, an accused becomes entitled to bail, yet he shall not be released
on bail until the court is further satisfied that the conditions stipulated in section 37 of
NDPS Act, 1985 are satisfied. Section 37 of the Act overrides section 167(2) of the Code
of Criminal Procedure, 1973 because it is a special statute.

 
    

Chapter 11

Cancellation: Bail Granted Under Section 167(2) of the Code of Criminal 115
Procedure, 1973

Cancellation: Bail Granted Under Section 167(2) of the Code of Criminal Procedure, 1973

Can we think of cancellation of Bail granted under section 167(2) of the Code of Criminal Procedure,
1973, by the Magistrate suo moto on presentation of challan report under section 173 of the Code of
Criminal Procedure, 1973 against the accused?

Once an accused person has been released on bail under section 167(2) of the Code of Criminal
Procedure, 1973, the mere fact that subsequent to his release, a challan has been filed, is not
sufficient to cancel his bail, but there must exist special reasons for doing so. Even if two views are
possible, release on bail under section 167(2) of the Code of Criminal Procedure, 1973 belonging to the
field of criminal justice evolving liberty of an individual, the provision must be construed strictly in
favour of individual liberty.

In Jeewan Kumar Raut v. Central Bureau of Investigation, MANU/SC/1153/2009 : AIR 2009 SC 2763:

(2009) 7 SCC 526 the Supreme Court held that:

"It is one thing to say the court could take recourse to the procedure laid down in section 202
of Cr. P.C. or even reject the complaint but then only because such a course of action would be
restored to by the Magistrate, the same, by itself, would not lead to conclusion that the
complaint petition should have been treated to be a police report, the logical corollary whereof
would be to invoke the provisions of section 167(2) of Criminal Procedure Code".

The Supreme Court in Rajnikant Jivan Lal Patel v. Intelligence Officer, Narcotic Control Bureau, 1990
Cr LJ 62: MANU/SC/0440/1989 : AIR 1990 SC 71: (1989) 3 SCC 532: (1989) 3 SCR 377, laid down
that when on failure of the submission of charge-sheet within the prescribed time limit, the accused is
released on bail, it is an order-on-default. Such bail is not granted on merits, rather it is a command of
the legislature to release the accused on bail under the proviso (a) to sub-section (2) of section 167 of
the Code of Criminal Procedure, 1973. But if after the investigation and filing of the charge-sheet, it is
revealed that the accused has committed serious offence, the accused as a matter of right cannot
claim to remain on bail and bail granted under the above proviso may be cancelled.

In Raghubir Singh v. State of Bihar, 1987 Cr LJ 157: MANU/SC/0199/1986 : AIR 1987 SC 149: (1986)
4 SCC 481: (1986) 3 SCR 802, the Supreme Court says that if an order of bail has been passed under
the said proviso, it is not defeated by a lapse of time, filing of charge-sheet or by remand to custody
under section 309(2) of the Code of Criminal Procedure, 1973 but it may be cancelled under section
437(5) or 439(2) of the Code of Criminal Procedure, 1973.

Where a bail has been granted for not completing the investigation within 60 days under proviso (a) to
section 167(2) and the defect is cured by filing the charge-sheet, the prosecution may seek to have
the bail cancelled on the ground that there are reasonable grounds to believe that the accused has
committed a non-bailable offence and it is necessary to arrest him.
In the case of Aslam Babalal Desai v. State of Maharashtra, JT 1992 (6) SC 21: AIR 1993 SC 1: (1992)
4 SCC 272 the Supreme Court pointed out legislative history of section 167 and the purpose and object
of the legislative mandate. It was observed in this, case that since section 167 of the Code of Criminal
Procedure, 1973 docs not empower cancellation of the bail the power to cancel the bail can only be
traced to section 437(5) or 439(2) of the Code of Criminal Procedure, 1973. The bail can then be
cancelled on consideration which are valid for cancellation of bail granted under section 437(1) or (2)
or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of
section 167(2) proviso (1) of the Code of Criminal Procedure, 1973 then reader in the background.
Once the accused has been released on bail, his liberty cannot be inferred with lightly i.e. on the
ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce
a sense of complacency in the investigating agency and would destroy the very purpose of instilling a
sense of urgency expected by sections 57 and 167(2) of the Code of Criminal Procedure, 1973. Once
an accused is released on bail, under section 167(2), he cannot be taken back in custody merely on
the filing of a charge-sheet but there must exist special reasons for doing so besides the fact that the
charge-sheet reveals the commission of a non-bailable offence.

Chapter 12

The Role of Police- Its Powers and Duties

 Arrest by Police without Warrant 119

 Supreme Court Guidelines on Arrest 122

 Arrest of Judicial Officers 124

 Supreme Court Guidelines for Protection of Prisoners Especially Females 125

in Lock-ups

Duties of Police Officer 127

 Person Arrested to be Informed of Grounds of Arrest and of Right to Bail 129

 Obligation of Person Making Arrest to Inform About the Arrest, etc., to a 129
Nominated Person

 Discharge of Person Apprehended 129

 Release of Accused When Evidence Deficient 130

Powers of Police Officer 130

 Powers of Police to Grant Bail 130

 Bailable and Non-Bailable Offences (Section 436 of the Code of Criminal 130
Procedure, 1973)

 How Long Police can keep an Arrested Person in its Custody (Section 167  130
of the Code of Criminal Procedure, 1973 and Article 22 of the Constitution
of India)

 Purpose of section 57 and section 167 (1) of the Code of Criminal  131
 Procedure, 1973

 Whether Police Can Use Third Degree Method? 131

 Power to Take Bonds from Witnesses 132

 Cases to be sent to Magistrate when evidence is sufficient 132

 Complainant and witnesses not to be required to accompany police 133

officer and not to be subject to restraint

 Report of police officer on completion of investigation 133

 Custodial Deaths 135

Handcuffing 136

 Police cannot Handcuff the Prisoners 136

 Handcuffing of Prisoners in the Hospital 137

 Violation of Directions Amount to Contempt of Court 138

 Compensation Granted on Wrong Handcuffing 138

 Policing the Police 139

 Supreme Court Guidelines on Handcuffing-I 139

 Supreme Court Guidelines on Handcuffing-11 144

The social order in a civilized society needs a force to maintain public order and prevention of crime
plus bringing the criminals, by prompt prosecution to condign punishment. To ensure this process we
need an organised body sensitive to human rights, beyond purchase or pressure and totally committed
to a crime-free society. Towards this end the State must empower the police echelons from top to
bottom, to take preventive action, investigate crimes, impart confidence to the people about their
security land, apart from defending the victim, to take punitive measures according to law. In this
larger sense, the police represents the collective interests of the community. The functional fulfillment
of the police duty requires non-interference by those in political authority, extraneous clouts or
coercion or even unwarranted judicial commands. Indeed the measure of society's stability depends on
the autonomy, integrity and fearless performance of duty by the police hierarchy. The rule of law and
lively democracy can be sustained only by the law that governs the police and the police operating
strictly within the contours of the corpus juris. Thus there is controllerate to keep the police within
bounds and a sanction for operation by the police of its duties and commitments.

The police have to act very cautiously and with an unbiased approach and mind. A little negligence on
their parts would destroy the moral fabric of the society.

The Code of Criminal Procedure, 1973 gives very wide powers to the investigating officers in cognizable
cases to make arrests, the only limitation being the necessary requirements of reasonable and credible
information to prevent misuse of power. Whenever the power of arrest has been misused by the police
officials, it always affects the liberty and the dignity of a citizen of this country and violates article 21 of
the Constitution of India.

It has been rightly observed that the detention and arrest of members of the public are not matter of
caprice but are governed by and must be conducted upon certain rules and principles which the law
clearly lays down.

Arrest by Police without Warrant

The Police Officer of the concerned area, in certain circumstances can arrest a person even
without warrant or order from the Magistrate.

Section 41 of the Code of Criminal Procedure, 1973, lays down the following circumstances,
under which such arrests can be made by a police officer. It reads thus:

41. When police may arrest without warrant.--

(1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person--

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are satisfied,
namely:--

(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the

offence to disappear or tampering with such evidence in any
manner; or

(d) to prevent such person from making 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 the
police officer; or

(e) as unless such person is arrested, his presence in the Court

whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in
writing:

Provided that a police officer shall, in all cases where the arrest of
a person is not required under the provisions of this sub-section,
record the reasons in writing for not making the arrest.
 (ba) against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a term
which may extend to more than seven years whether with or without fine
or with death sentence and the police officer has reason to believe on the
basis of that information that such person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by
order of the State Government; or

(d) in whose possession anything is found which may reasonably be

suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would
have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained
in custody in India; or

(h) who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition specifies
the person to be arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who issued the
requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-

cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order of a Magistrate.

41 A. Notice of appearance before police officer.--

(1) The police officer shall, in all cases where the arrest of a person is not
required under the provisions of sub-section (1) of section 41, issue a notice
directing the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.
 (2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice unless, for
reasons to be recorded, the police officer is of the opinion that he ought to be
arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice
or is unwilling to identify himself, the police officer may, subject to such orders as
may have been passed by a competent Court in this behalf, arrest him for the
offence mentioned in the notice.

41B. Procedure of arrest and duties of officer making arrest.--

Every police officer while making an arrest shall--

(a) bear an accurate, visible and clear identification of his name which will
facilitate easy identification;

(b) prepare a memorandum of arrest which shall be--

(i) attested by at least one witness, who is a member of the family of the
person arrested or a respectable member of the locality where the arrest
is made;

(ii) counter-signed by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a

member of his family, that he has a right to have a relative or a friend
named by him to be informed of his arrest.

41C. Control room at districts.--

(1) The State Government shall establish a police control room--

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept
outside the control rooms at every district, the names and addresses of the
persons arrested and the name and designation of the police officers who made
the arrests.

(3) The control room at the Police Headquarters at the State level shall collect
from time to time, details about the persons arrested, nature of the offence with
which they are charged, and maintain a database for the information of the
general public.

41D. Rigid of arrested person to meet an advocate of his choice during interrogation.--

When any person is arrested and interrogated by the police, he shall be entitled
 to meet an advocate of his choice during interrogation, though not throughout
interrogation.

Supreme Court Guidelines on Arrest

D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : (1997) 1 SCC 416: AIR 1997 SC 610

1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness,
who may be either a member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be counter-signed by the arrestee
and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed,
as soon as practicable, that he has been arrested and is being detained at the particular
place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or
through the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of his right to have someone informed of
his arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of
the person which shall also disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of the police officials in
whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any, present on his/her body, must be recorded at that
time. The "Inspection Memo" must be signed both by the arrestee and the police officer
effecting the arrest and its copy must be provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48

hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the concerned State or Union Territory,
Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should
be sent to the (sic) Magistrate for his record.
 10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

11. A police control room should be provided at all district and State headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a conspicuous police board.

Arrest of Judicial Officers

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of

Gujarat, MANU/SC/0473/1991 : (1991) 4 SCC 406: AIR 1991 SC 2176

A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an
offence like any other citizen but in view of the paramount necessity of preserving the
independence of judiciary and at the same time ensuring that infractions of law are
properly investigated, we think that the following guidelines should be followed:

(A) if a Judicial Officer is to be arrested for some offence, it should be done under
intimation to the District Judge or the High Court as the case may be.

(B) If the facts and circumstances necessitate the immediate arrest of a Judicial
Officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The fact of such arrest should be immediately communicated to the District
and Sessions Judge of the concerned District and the Chief Justice of the High
Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without
the prior order or directions of the District and Sessions Judge of the concerned
District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer for

communication with his family members, legal advisers and Judicial Officers,
including the District and Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any
panchnama be drawn up nor any medical tests be conducted except in the
presence of the Legal Adviser of the Judicial Officer concerned or another Judicial
Officer of equal or higher rank, if available.

(G) There should be no handcuffing of a Judicial Officer. If, however, violent

resistance to arrest is offered or there is imminent need to effect physical arrest
in order to avert danger to life and limb, the person resisting arrest may be
overpowered and handcuffed. In such case, immediate report shall be made to
the District and Sessions Judge concerned and also to the Chief Justice of the
High Court. But the burden would be on the Police to establish the necessity for
effecting physical arrest and handcuffing the Judicial Officer and if it be
established that the physical arrest and handcuffing of the Judicial Officer was
unjustified, the Police Officers causing or responsible for such arrest and
handcuffing would be guilty of misconduct and would also be personally liable for
 compensation and/ or damages as may be summarily determined by the High
Court.

Supreme Court Guidelines for Protection of Prisoners Especially Females in Lock-ups

Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCC

96

1. Four or five police lock-ups should be selected in reasonably good localities where
only female suspects should be kept and they should be guarded, by female constables.
Female suspects should not be kept in a police lock-up in which male suspects are
detained.

2. Interrogation of females should be carried out only in the presence of female police
officers/constables.

3. A person arrested must be immediately informed of the grounds of his arrest. It must
immediately be made known to the arrested person that he is entitled to apply for bail.
The Maharashtra State Board of Legal Aid and Advice should forthwith get a pamphlets
prepared setting out the legal rights of an arrested person. The pamphlets should be in
Marathi, Hindi and English. Printed copies of the pamphlets in all these languages should
be affixed in each cell in every police lock-up. As soon as the arrested person is brought
to the police station, the pamphlet should be read out to him in any of the languages
which he understands.

4. Whenever a person is arrested by the police and taken to the police lock-up, the
police should immediately give intimation of the fact of such arrest to the nearest Legal
Aid Committee which should take immediate steps to provide legal assistance to him at
State cost provided he is willing to accept such a legal assistance.

5. In the city of Bombay, a City Sessions Judge, nominated by the principal Judge of the
City Civil Court, preferably a lady Judge if there is one, shall make surprise visits to
police lock-ups in the city periodically with a view to providing the arrested persons an
opportunity to air their grievances and for ascertaining the conditions in the police lock-
up, whether the requisite facilities are being provided, whether the provisions of law are
being observed and that these directions are being carried out. If it is found that there
are any lapses on the part of the police authorities, the City Sessions Judge shall bring
them to the notice of the Commissioner of Police and if necessary to the notice of the
Home Department. If even this approach fails, then the City Sessions Judge may draw
the attention of the Chief Justice of the High Court of Maharashtra to such lapses. This
direction in regard to police lock-up at the district headquarters shall be carried out by
the Sessions Judge of the district concerned.

6. As soon as a person is arrested, the police must immediately obtain from him the
name of any relative or friend whom he would like to be informed about his arrest and
the police should get in touch with such relative or friend and inform him about the
arrest.

7. The magistrate before whom an arrested person is produced shall enquire from him
whether he has any complaint of torture or maltreatment in police custody and inform
 him that he has a right under section 54 of the Code of Criminal Procedure, 1973 to be
medically examined. We are aware that section 54 of the Code of Criminal Procedure,
1973 undoubtedly provides for examination of an arrested person by a medical
practitioner at the request of the arrested person and it is a right conferred on the
arrested person. But, very often, the arrested person is not aware of this right and on
account of his ignorance, he is unable to exercise this right even though he may have
been tortured or maltreated by the police in police lock-up. It is for this reason that we
are giving a specific direction requiring the Magistrate to inform the arrested person
about this right of medical examination in case he has any complaint of torture or
maltreatment in police custody.

DUTIES OF POLICE OFFICER

The duties of a Police Officer under the Police Act, 1949 are--

(i) to obey and execute all orders and warrants lawfully issued to him by any competent
authority;

(ii) to collect and communicate intelligence affecting the public peace;

(iii) to prevent the commission of offences and public nuisances;

(iv) to detect and bring offenders to justice and to apprehend all persons whom he is
legally authorised to apprehend, and for whose apprehension sufficient grounds exist;

(v) to enter and inspect any drinking shop, gambling house or other place or resort of
loose and disorderly characters;

(vi) to keep law and order on the public roads, and in the public streets, thoroughfares,
ghats, and landing places and at all other places of public resort and to prevent
obstruction on the occasions of assemblies and processions on the public roads and in
public streets or in the neighbourhood of places of worship during the time of public
worship and in any case when, any road, street, thoroughfare, ghat or landing place
may be thronged or may be liable to be obstructed;

(vii) to take into custody, without a warrant, any person who within his view commits
any of the following offences, to the obstruction, inconvenience, annoyance, risk, danger
or damage to the residents, or passengers--

FIRST: Slaughtering cattle, furious riding, etc.

Any person who slaughters any cattle or cleans any carcass; any person
who rides or drives any cattle recklessly or furiously or trains or breaks
any horse or other cattle;

SECOND: Cruelty to animals

Any person who wantonly or cruelly beats, abuses or tortures any

animals;

THIRD: Obstructing passengers

 Any person who keeps any cattle or conveyance of any kind standing
longer than is required, for loading or unloading or for taking up or setting
down passengers or who leaves any conveyance in such a manner as to
cause inconvenience or danger to the public;

FOURTH: Exposing goods for sale

Any person who exposes any goods for sale;

FIFTH: Throwing dirt into street

Any person who throws and lays down any dirt, filth, rubbish or any
stones or building materials, or who constructs any cowshed, stable or the
like, or who causes any offensive matter to run, from any house, factory,
dung-heap or the like,

SIXTH: Being found drunk or riotous

Any person who is found drunk or riotous or who is incapable of taking

care of himself,

SEVENTH: Indecent exposure of person

Any person who wilfully and indecently exposes his person, or any
offensive, deformity or disease, or commits nuisance by easing himself or
by bathing or washing in any tank or reservoir, not being a place set apart
for that purpose;

EIGHTH: Neglect to protect dangerous places

Any person who neglects to fence in or duly to protect any well, tank, or
other dangerous place or structure; (viii) to lay any information before a
Magistrate and to apply for a summon, warrant, search-warrant or such
other legal process as may, by law, be issued against any person
committing any offence;

(ix) to take charge of unclaimed property which is subject to the order of Magistrate for
the purpose of disposal, and he is required to furnish an inventory thereof to the
Magistrate;

(x) the police officer cannot resign without leave or two month's notice;

(xi) the officer is also liable to suffer penalties for neglect of duties, under sections 30
and 34 of the said Act. Section 44 provides that the police officer is bound to keep a
diary.

Person Arrested to be Informed of Grounds of Arrest and of Right to Bail

(1) Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds for
such arrest.
 (2) Where a police officer arrests without warrant any person other than a person accused of a
non-bailable offence, he shall inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf.

Obligation of Person Making Arrest to Inform About the Arrest, etc., to a Nominated Person

(1) Every police officer or other person making any arrest under this Code shall forthwith give
the information regarding such arrest and place where the arrested person is being held to any
of his friends, relatives or such other persons as may be disclosed or nominated by the arrested
person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as
soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made
in a book to be kept in the police station in such form as may be prescribed in this behalf by the
State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.

Section 50A requires the police to give information about the arrest of the person as well as the
place where he is being held to any one who may be nominated by him for sending such
information.

Discharge of Person Apprehended

No person who has been arrested by a police officer shall be discharged except on his own
bond, or on bail, or under the special order of a Magistrate.

Release of Accused When Evidence Deficient

If, upon an investigation under this Chapter, it appears to the officer in charge of the police
station that there is not sufficient evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such officer shall, if such person is in custody,
release him on his executing a bond, with or without sureties, as such officer may direct, to
appear, if and when so required, before a Magistrate empowered to take cognizance of the
offence on a police report, and to try the accused or commit him for trial.

POWERS OF POLICE OFFICER

Powers of Police to Grant Bail

In accordance with the provisions of Code of Criminal Procedure, and certain other Acts, the
Police has the power to grant bail in the offences generally categorised as bailable offences. But
after the challans are filed in the court, the accused person has to fill in the prescribed bail
bond in order to get regular bail from the court of competence.

Bailable and Non-Bailable Offences (Section 436 of the Code of Criminal Procedure, 1973)

Bailable offence means an offence shown as bailable in the First Schedule of Code of Criminal
 Procedure or which is made bailable by any other law for the time being in force; and non-
bailable offence means any other offence. So far as offences under the Indian Penal Code are
concerned: First Schedule of the Code of Criminal Procedure mentions--individually as to which
of them are bailable or non-bailable. As regards the offences other than those falling under the
Indian Penal Code, it enacts a general rule that if an offence is punishable with death;
transportation or imprisonment for seven years or upwards it is non-bailable. An offence
punishable with imprisonment for three years and upwards but less than seven years is also
non-bailable except where it falls under section 19 of the Arms Act, 1878. In case the
legislature has made a special provision for the bailability or otherwise of an offence that will
over-ride the general provisions of First Schedule of the Code.

How Long Police can keep an Arrested Person in its Custody (Section 167 of the Code of
Criminal Procedure, 1973 and Article 22 of the Constitution of India)

The police cannot keep any person arrested for any alleged offence for more than twenty-four
hours. Within 24 hours the police is legally duty-bound to produce the said arrested person
before the nearest Magistrate under whose jurisdiction the alleged offence has been committed.
In case the police fails to produce him within the prescribed period of 24 hours, the detention
will amount to an illegal detention, and on moving a habeas corpus writ petition, he has to be
set at liberty at once. There have been instances, where police had kept some persons in their
custody for more than 24 hours, and on moving the writ petition they had been ordered to be
released without any loss of time. The Supreme Court has taken a very serious view of the
lapse, on the part of the police officers and in many cases passed strictures against them.
Article 22 of the Constitution of India, and section 57 of the Code of Criminal Procedure, 1973
mandate every police officer not to keep any arrested person in its custody for more than 24
hours. The guarantee under article 22 of the Constitution of India was intended to offer
protection to the subject against the act of the executive or other non-judicial authorities.

In State v. Ram Avtar Chaudhary, MANU/UP/0050/1955 : AIR 1955 All 138, it has been stated
that section 57 does not empower a police officer to keep an arrested person in custody a
minute longer than is necessary for the purpose of investigation and it does not give him an
absolute right to keep a person in custody till twenty-four hours.

Purpose of section 57 and section 167(1) of the Code of Criminal Procedure, 1973

The purpose of section 57 and sub-section (1) of section 167 is to prevent abuse by the Police.
This law is enacted to ensure that the accused person is brought before a Magistrate with the
least possible delay and to enable the accused to make any representation he may wish to
make in this matter.

Whether Police Can Use Third Degree Method?

No, under no circumstances the police has any power or authority to use third degree method.
Though there have been some instances where the over-enthusiastic police officers physically
tortured the persons in their custody, yet the courts of our country have condemned this
inhuman approach in their judgments. The following observations of Krishna Iyer, J., in Kishore
Singh v. State of Rajasthan, MANU/SC/0072/1980 : AIR 1981 SC 625: (1981) 1 SCC 503:
(1981) 1 SCR 995: (1981) Cr LJ 17, would be enough to bring home the deep concern being
shown by the Apex Court regarding police cruelty:
 "... no police life style, which relies more on fists than on wits, on torture more than on
culture, can control crime because means boomerange on ends and re-fuel the vice
which it seeks to extinguish. Secondly, the State must re-educate the constabulary out
of their sadistic arts and inculcate a respect for the human person--a process which
must begin more by example than by precept if the lower rungs are really to emulate...
Nothing is more cowardly and unconscionable than a person in police custody being
beaten up and nothing inflicts a deeper wound on our constitutional culture than a state
official running berserk regardless of human rights. We believe the basic pathology
which makes police cruelty possible will receive Government's serious attention who will
police the Police?... what will "Wits not Fists" become a police Kit? When will the roots of
"third degree" be plucked out and fresh shoots of humanist respect be put?...

In Peoples Union for Democratic Rights v. Police Commissioner, MANU/SC/0409/1989 : (1989)

4 SCC 730: (1990) Cr LR 240, the court awarded the compensation to the victims of the police
atrocities under Article 32 of the Constitution.

When the constitutional and legal rights of a person are invaded with a mischievous or
malicious infant, the court has jurisdiction to compensate the victim, by awarding suitable
monetary compensation; Bhim Singh v. State of Jammu and Kashmir, 1986 Cr LJ 192
(SC): MANU/SC/0064/1985 : AIR 1986 SC 494: (1985) 4 SCC 677.

Power to Take Bonds from Witnesses

Cases to be sent to Magistrate when evidence is sufficient

(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the
police station that there is sufficient evidence or reasonable ground as aforesaid, such
officer shall forward the accused under custody to a Magistrate empowered to take
cognizance of the offence upon a police report and to try the accused or commit him for
trial, or, if the offence is bailable and the accused is able to give security, shall take
security from him for his appearance before such Magistrate on a day fixed and for his
attendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police station forwards an accused person to a
Magistrate or takes security for his appearance before such Magistrate under this
section, he shall send to such Magistrate any weapon or other article which it may be
necessary to produce before him, and shall require the complainant (if any) and so
many of the persons who appear to such officer to be acquainted with the facts and
circumstances of the case as he may think necessary, to execute a bond to appear
before the Magistrate as thereby directed and prosecute or give evidence (as the case
may be) in the matter of the charge against the accused.

(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court
shall be held to include any Court to which such Magistrate may refer the case for
inquiry or trial, provided reasonable notice of such reference is given to such
complainant or persons.

(4) The officer in whose presence the bond is executed shall deliver a copy thereof to
one of the persons who executed it, and shall then send to the Magistrate the original
 with his report.

Complainant and witnesses not to be required to accompany police officer and not to
be subject to restraint

No complainant or witness on his way to any Court shall be required to accompany a

police officer, or shall be subjected to unnecessary restraint or inconvenience, or
required to give any security for his appearance other than his own bond:

Provided that, if any complainant or witness refuses to attend or to execute a

bond as directed in section 170, the officer in charge of the police station may
forward him in custody to the Magistrate, who may detain him in custody until he
executes such bond, or until the hearing of the case is completed.

Report of police officer on completion of investigation

(1) Every investigation under this Chapter shall be completed without unnecessary
delay.

(2)     (i) As soon as it is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police report,
a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the
circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by
whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or
without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by
the State Government, the action taken by him, to the person, if any, by whom
the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report,
shall, in any case in which the State Government by general or special order so directs,
be submitted through that officer, and he may, pending the orders of the Magistrate,
direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused
has been released on his bond, the Magistrate shall make such order for the discharge of
such bond or otherwise as he thinks fit.
 (5) When such report is in respect of a case to which section 170 applies, the police
officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes
to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant
to the subject-matter of the proceedings or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient in the public interest, he shall
indicate that part of the statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the accused and stating his reasons
for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may
furnish to the accused copies of all or any of the documents referred to in sub-section
(5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of
an offence after a report under subsection (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of the police station obtains
further evidence, oral or documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form prescribed; and the provisions of
subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports
as they apply in relation to a report forwarded under sub-section (2).

Bail to person arrested under a warrant executed outside the district - sections 78 to 81.

Custodial Deaths

The accused persons who are detained in the police lock-ups or the prison houses face lot of
hardships, and mental/physical tortures. At the pre-trial stage they are either kept in the police
lock-up or the prison house, i.e., either they are kept in police custody or judicial custody. The
convicts who have to undergo the imprisonment in accordance with the judgment of a court,
are kept in prison houses. All these prisoners have to be kept in accordance with the procedure
established by law. They continue to enjoy the fundamental rights enshrined in the Constitution
of India, though with some restrictions and limitations as per rules and regulations prescribed
by the appropriate authority.

In spite of all these safeguards provided by the State, third degree methods are applied and in
many cases the accused persons detained in the police lock-ups are tortured in gross violation
of the law of the land. The result is that in some cases, the detained persons are deprived of
their very existence, and die an unnatural death. Such unfortunate deaths are called custodial
deaths.

A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule
of law.

The Supreme Court has taken a very serious view of this misplaced adventure and over-
 enthusiasm on the part of the errant police officers who try to take law in their hands and
destroy the precious lives illegally and arbitrarily.

The facts of the case of Nilabati Behera v. State of Orissa, MANU/SC/0307/1993 : (1993) 2 SCC
746: AIR 1993 SC 1960: (1993) 2 SCJ 487, are an eye opener and shake the conscience of
every one. A man in custody was first beaten to death and then was thrown at the railway track
and a case was cooked up that he escaped and died at the railway track. The Supreme Court in
this case held that "convicts, prisoners, and undertrials also have rights under Article 21 of the
Constitution of India. The State has strict duty to ensure that a citizen in custody of police or
prison is not deprived of his right under article 21, except in accordance with law.........It was a
case of custodial death. The case put up by the police of the alleged escape of the deceased
from police custody and his sustaining the fatal injuries in a train accident is not acceptable."

The Supreme Court in this case passed severe strictures on the working of the police
administration and directed the State Government to pay a sum of Rs. 1,50,000 (rupees one
and a half lakh) to the petitioner (victim's legal heir), and a sum of Rs. 10,000 as cost to be
paid to the Supreme Court Legal Aid Committee.

HANDCUFFING

Police cannot Handcuff the Prisoners

The Supreme Court has created a new jurisprudence in the field of law. There was a practice
that the alleged offenders used to be paraded on the streets duly handcuffed and were also
produced before the courts handcuffed. Thanks to the wisdom of the celebrated Judges of the
Supreme Court that they have stopped this degrading and inhuman approach through their
immortal judgments.

In Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675: (1978) 4 SCC

494: (1979) 1 SCR 392, Justice Krishna Iyer had laboured very hard to bring to limelight the
constitutional framework within which iron fetters can be put on a prisoner. It may be stated
here that much of what was stated in Sunil Batra's case was pressed into service in Prem
Shankar Shukla v. Delhi Administration, MANU/SC/0084/1980 : AIR 1980 SC 1535: (1980) 3
SCR 855: (1980) 3 SCC 5625: (1980) Cr LJ (SC) 740, wherein the court was seized with the
grim scenario triggered off by a short telegram from one Shukla, a prisoner lodged in Tihar Jail,
complaining about handcuffs being forced on him in spite of the order and direction in Sunil
Batra's case, Krishna Iyer, J., took strong exception and observed as follows in paragraph 22:

"... Handcuffing is prima fade inhuman and, therefore, unreasonable, is over-harsh and
at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict
"irons" is to resort to zoological strategies repugnant to article 21."

In Sunil Gupta v. State of Madhya Pradesh, MANU/SC/0661/1990 : (1990) 3 SCC 119: (1990)

2 SCR 871: (1990) Cr LR 441, the Supreme Court observed that handcuffing of educated
persons who staged dharna for a public cause and voluntarily surrendered was regarded as
arbitrary and unreasonable humiliation with the obvious motive of "pleasing some one" because
of which the same was condemned and the State Government was directed to take appropriate
action against the erring escort party for having unjustly and unreasonably handcuffed the
person.
Handcuffing of Prisoners in the Hospital

In Citizen of Democracy v. State of Assam, MANU/SC/0551/1996 : AIR 1996 SC 2193: JT 1995

(4) SC 475 the Supreme Court severely criticised the inhuman action of the Police for putting
fetters and handcuffs on the prisoners in the hospital. The Supreme Court held that the
handcuffing and in addition tying with ropes of the patient prisoners, who were lodged in the
hospital was the least, they could say, inhuman and in utter violation of human rights
guaranteed to an individual under the International Law and the law of the land. The following
observations made by the Supreme Court are worth taking note of:

"We declare, direct and lay down as a rule that handcuffs or other fetters shall not be
forced on a prisoner - convicted or undertrial - while lodged in a jail or anywhere in the
country or while transporting or in transit from one jail to another or from jail to court or
back. The police and the jail authorities, on their own shall have no authority to direct
the handcuffing of any inmate of a jail in the country or during transport from one jail to
another, or from jail to court and back."

Where the police or the jail authorities have well-grounded basis for drawing a strong inference
that a particular prisoner is likely to jump jail or break out of custody, then the said prisoner be
produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner
be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness
of the prisoner to violence, his tendency to escape, he being so dangerous, desperate and
finding no other practical way of forbidding escape is available, the Magistrate may grant
permission to handcuff the prisoner.

Violation of Directions Amount to Contempt of Court

The Supreme Court further held that its directions in this regard must be obeyed meticulously.
Any violation of any of the directions issued by the Supreme Court by any rank of police in the
country or member of the jail establishment would be summarily punishable under the
Contempt of Court Act apart from other penal consequences under the law.

Other cases of similar nature - Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCR
855: MANU/SC/0084/1980 : AIR 1980 SC 1535: (1980) 3 SCC 562: (1980) Cr LJ (SC) 740, and
Sunil Batra v. Delhi Administration, (1979) 1 SCR 392 (para 2): MANU/SC/0184/1978 : AIR
1978 SC 1675: (1978) 4 SCC 494, may also be perused by the learned readers.

Compensation Granted on Wrong Handcuffing

Relying on the aforesaid decision in State of Maharashtra v. Ravikant, MANU/SC/0561/1991 :

(1991) 2 SCC 373, a sum of Rs. 10,000 was awarded as compensation to a person who was
wrongly handcuffed and the amount was made payable by the State.

Custodial deaths, tortures, and wrongful confinements of the citizens by the police have
attracted the attention of the People in general, and the courts including the Supreme Court of
India in particular. In a recent case from Uttar Pradesh, where a wrong Affidavit was filed in the
Supreme Court, by the U.P. Police, the Supreme Court has directed the Registrar General to file
a complaint against the concerned Police Officer for an act of perjury. It is a matter of great
solace and comfort that the Apex Court swings into action even on petition filed under Public
 Interest Litigation, popularly known as PIL.

In an alleged case illegal confinement of one Shakil Nasreen with police connivance, (brought to
the light by her mother Shakila Bano) which rocked the Supreme Court for many days, the
Division Bench of Justices, S. Mohan and M.N. Venkatachaliah, held in their order that Inspector
Prem Pal Singh had committed an offence under section 191 of the Indian Penal Code (giving or
fabricating false evidence in a judicial proceeding).

This case had been brought before the Supreme Court by Shakila Bano, the mother of Nasreen,
who was alleged to have been sold by her husband for flesh trade. And unfortunately the police
failed to perform its duty; rather by hiding the facts from the highest court, it committed an act
of perjury.

Policing the Police

The police whose sacred task is sometimes prevented into victimizing people on account of
corrupt motives outside pressures, pornomania and sadi tic sex and torture. The result is that
the credibility in the police is at stake. When the police become criminal, the violence that they
inflict escape punitive proceedings. So much so, it is essential to have a Vigilance Commissioner
other ombudsman to act immediately when police delinquency or criminality is brought to its
notice. So it is important that apart from the long-winded judicial proceedings we must have an
instant instrumentality, outside the police department, which will blitz into action when reports
about the police violation come to its notice. There is a need for an organization to guard the
guards, to try offences by the police by an independent agency a la vitial land his website and
insist upon compliance with constitutional guarantees.

Supreme Court Guidelines on HANDCUFFING-I

Prem Shankar Shukla v. Delhi Administration, MANU/SC/0084/1980 : (1980) 3 SCC

526 : MANU/SC/0084/1980 : AIR 1980 SC 1535

Handcuffing is prima facie inhuman and therefore, unreasonable, is over-harsh and at

the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons'
is to resort to zoological strategies repugnant to article 21. Thus, we must critically
examine the justification offered by the State for this mode of restraint. Surely, the
competing claims of securing the prisoner from fleeing and protecting his personality
from barbarity have to be harmonised. To prevent the escape of an under-trial is in
public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man's
hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and
stand him for hours in the courts is to torture him, defile his dignity, vulgarise society
and foul the soul of our constitutional culture. Where then do we draw the humane line
and how far do the rules err in print and praxis?.

Insurance against escape does not compulsorily require handcuffing. There are other
measures whereby an escort can keep safe custody of a detenu without the indignity
and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together
either the hands or the feet or both has not merely a preventive impact, but also a
punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation
on the bearer. The Encyclopaedia Britannica, Vol. II, 1973 Edn., at p, 53, states
'Handcuffs and fetters are instruments for securing the hands or feet of prisoners under
arrest, or as a means of punishment'. The three components of 'irons' force on the
human person must be distinctly understood. Firstly, to handcuff is to hoop harshly.
Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron
straps are insult and pain writ large, animalising victim and keeper. Since there are
other ways of ensuring security, it can be laid down as a rule that handcuffs or other
fetter shall not be forced on the person of an under-trial prisoner ordinarily. The latest
police instructions produced before us hearteningly reflect this view. We lay down as
necessarily implicit in articles 14 and 19 that when there is no compulsive need to fetter
a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by
manacling him. Such arbitrary conduct surely slaps article 14 on the face. The minimal
freedom of movement which even a detainee is entitled to under article 19 (see Sunil
Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675) (supra))
cannot be cut down cruelly by application of handcuffs or other hoops. It will be
unreasonable so to do unless the State is able to make out that no other practical way of
forbidding escape is available, the prisoner being so dangerous and desperate and the
circumstances so hostile to safe-keeping.

Once we make it a constitutional mandate that no prisoner shall be handcuffed or

fettered routinely or merely for the convenience of the custodian or escort - and we
declare that to be the law - the distinction between classes of prisoners becomes
constitutionally obsolete. Apart from the fact that economic and social importance
cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how
can we assume that a rich criminal or under-trial is any different from a poor or pariah
convict or under-trial in the matter of security risk? An affluent in custody may be as
dangerous or desperate as an indigent, if not more. He may be more prone to be
rescued than an ordinary person. We hold that it is arbitrary and irrational to classify
prisoners for purposes of handcuffs, into 'B' class and ordinary class. No one shall be
fettered in any form based on superior class differential, as the law treats them equally.
It is brutalising to handcuff a person in public and so is unreasonable to do so. Of
course, the police escort will find it comfortable to fetter their charges and be at ease
but that is not a relevant consideration.

The only circumstance which validates incapacitation by irons - an extreme measure - is

that otherwise there is no other reasonable way of preventing his escape, in the given
circumstances. Securing the prisoner being a necessity of judicial trial, the State must
take steps in this behalf. But even here, the policeman's easy assumption or scary
apprehension or subjective satisfaction of likely escape if fetters are not fitted on the
prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as
reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit
in chains and shackles are permissible, as not unreasonable, only if every other less
cruel means is fraught with risks or beyond availability. So, it is that to be consistent
with articles 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a
few more guards will suffice, then no handcuffs. If a close watch by armed policemen
will do, then no handcuffs. If alternative measures may be provided, then no iron
bondage. This is the legal norm.

Functional compulsions of security must reach that dismal degree that no alternative will
work except manacles. We must realise that our Fundamental Rights are heavily loaded
in favour of personal liberty even in prison, and so, the traditional approaches without
reverence for the worth of the human person are obsolete, although they die-hard.
Discipline can be exaggerated by prison keepers; dangerousness can be physically
worked up by escorts and sadistic disposition, where higher awareness of constitutional
rights is absent, may overpower the finer values of dignity and humanity. We regret to
observe that cruel and unusual treatment has an unhappy appeal to jail keepers and
escorting officers, which must be countered by strict directions to keep to the
parameters of the Constitution. The conclusion flowing from these considerations is that
there must first be well-grounded basis for drawing a strong inference that the prisoner
is likely to jump jail or break out of custody or play the vanishing trick. The belief in this
behalf must be based on antecedents which must be recorded and proneness to violence
must be authentic. Vague surmises or general averments that the under-trial is a crook
or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete
proof readily available of the dangerousness of the prisoner in transit - the onus of proof
which is on him who puts the person under irons -the police escort will be committing
personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see
the mechanical way in which callous policeman, cavalier fashion, handcuff prisoners in
their charge, indifferently keeping them company assured by the thought that the
detainee is under 'iron' restraint.

Even orders of superiors are no valid justification as constitutional rights cannot be kept
in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy
a reasonable mind that dangerous and desperate is the prisoner who is being
transported and further that by adding to the escort party or other strategy he cannot
be kept under control. It is hard to imagine such situations. We must repeat that it is
unconscionable, indeed, outrageous, to make the strange classification between better
class prisoners and ordinary prisoners in the matter of handcuffing. This elitist concept
has no basis except that on the assumption the ordinary Indian is a sub-citizen and
freedoms under part III of the Constitution are the privilege of the upper sector of
society.

Merely because a person is charged with a grave offence he cannot be handcuffed. He

may be very quiet, well-behaved docile or even timid. Merely because the offence is
serious, the inference of escape-proneness or desperate character does not follow. Many
other conditions mentioned in the Police Manual are totally incongruous with what we
have stated above and must fall as unlawful. Tangible testimony, documentary or other,
or desperate behaviour, geared to making good his escape, alone will be a valid ground
for handcuffing and fettering, and even this may be avoided by increasing the strength
of the escorts or taking the prisoners in well-protected vans. It is heartening to note that
in some States in this country no handcuffing is done at all, save in rare cases, when
taking undertrials to courts and the scary impression that unless the person is confined
in irons he will run away is a convenient myth.

Even in cases where, in extreme circumstances, handcuffs have to be put on the

prisoner, the escorting authority must record contemporaneously the reasons for doing
so. Otherwise, under article 21 the procedure will be unfair and bad in law. Nor will mere
recording the reasons do, as that can be a mechanical process mindlessly made. The
escorting officer, whenever he handcuffs a prisoner produced in court, must show the
 reasons so recorded to the Presiding Judge and get his approval. Otherwise, there is no
control over possible arbitrariness in applying handcuffs and fetters. The minions of the
Police establishment must make good their security recipes by getting judicial approval.
And, once the court directs that handcuffs shall be off, no escorting authority can
overrule judicial direction. This is implicit in article 21 which insists upon fairness
reasonableness and justice in the very procedure which authorises stringent deprivation
of life and liberty. The ratio in Maneka Gandhi v. Union of India, (1978) 2 SCR
621: MANU/SC/0133/1978 : AIR 1978 SC 597 and Sunil Batra v. Delhi
Administration, MANU/SC/0133/1978 : AIR 1978 SC 597 and MANU/SC/0184/1978 :
AIR 1978 SC 1675 (supra) read in proper light, leads us to this conclusion.

We, therefore, hold that the petition must be allowed and handcuffs on the prisoner
dropped. We declare that the Punjab Police Manual, insofar as it puts the ordinary Indian
beneath the better class breed (paras 26.21-A and 26.22 of Chapter XXVI) is untenable
and arbitrary and direct that Indian humans shall not be dichotomised and the common
run discriminated against regarding handcuffs. The provisions in para 26.22 that every
under-trial who is accused of a non-bailable offence punishable with more than 3 years'
prison term shall be routinely handcuffed is violative of articles 14, 19 and 21, so also
para 26.22(b) and (c). The nature of the accusation is not the criterion. The clear and
present danger of escape breaking out of the police control is the determinant. And for
this there must be clear material, not glib assumption, record of reasons and judicial
oversight and summary hearing and direction by the court where the victim is produced.
We go further to hold that para 26.22(1) (d), (e) and (f) also hover perilously near
unconstitutionality unless read down as we herein direct. 'Desperate character' is who?
Handcuffs are not summary punishment vicariously imposed at police level, at once
obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed
under-trial and extra-guards can make up exceptional needs. In very special situations,
we do not rule out the application, of irons. The same reasoning appears to (e) and (f).
Why torture the prisoner because others will demonstrate or attempt his rescue? The
plain law of under-trial custody is thus contrary to the unedifying escort practice. We
remove the handcuffs from the law and humanize the police praxis to harmonize with
the satwic values of part III, The law must be firm, not foul, stern, not sadistic, strong,
not callous.

We clearly declare - and it shall be obeyed from the Inspector-General of Police and
Inspector-General of Prisons to the escort constable and the jail warder - that the rule
regarding a prisoner in transit between prison house and court house is freedom from
handcuffs and the exception, under conditions of judicial supervision we have indicated
earlier, will be restraints with irons, to be justified before or after. We mandate the
judicial officer before whom the prisoner is produced to interrogate the prisoner, as a
rule, whether he has been subject to handcuffs or other 'irons' treatment and, if he has
been, the official concerned shall be asked to explain the action forthwith in the light of
this judgment.

Supreme Court Guidelines on Hand Cuffing-II

Citizen for Democracy v. State of Assam, MANU/SC/0551/1996 : AIR 1996 SC 2193; (1995) 3

SCC 743
1. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be
forced on a prisoners - convicted or under-trial - while lodged in a jail any where in the
country or while transporting or in transit from one jail to another or from jail to Court
and back. The police and the jail authorities, on their own, shall have no authority to
direct the handcuffing of any inmate of a jail in the country or during transport from one
jail to another or from jail to Court and back.

2. Where the police or the jail authorities have well-grounded basis for drawing a strong
inference that a particular prisoner is likely to jump jail or break out of the custody then
the said prisoner be produced before the Magistrate concerned and a prayer for
permission to handcuff the prisoner be made before the said Magistrate. Save in rare
cases of concrete proof regarding proneness of the prisoner to violence, his tendency to
escape, he being so dangerous/desperate and the finding that no other practical way of
forbidding escape is available, the Magistrate may grant permission to handcuff the
prisoner.

3. In all the cases where a person arrested by police, is produced before the Magistrate
and remand - judicial or nonjudicial - is given by the Magistrate the person concerned
shall not be handcuffed unless special orders in that respect are obtained from the
Magistrate at the time of the grant of the remand.

4. When the police arrests a person in execution of a warrant of arrest obtained from a
Magistrate, the person arrested shall not be handcuffed unless the police has also
obtained orders from the Magistrate for the handcuffing of the person to be so arrested.

5. Where a person is arrested by the police without warrant the police officer concerned
may if he is satisfied, on the basis of the guidelines given by us in para above, that it is
necessary to handcuff such a person, he may do so till the time he is taken to the police
station and thereafter his production before the Magistrate. Further use of fetters
thereafter can only be under the orders of the Magistrate as already indicated by us.

6. We direct all ranks of police and the prison authorities to meticulously obey the above
mentioned directions. Any violation of any of the directions issued by us by rank of
police in the country or members of the jail establishment shall be summarily punishable
under the Contempt of Courts Act apart from other penal consequences under law.

© Universal law Publishing Co.

    

Chapter 13

Police Interrogation

 Whether the Police can Visit Your House at any Time 146

 Rights of Women and Children 146

 Right to Silence 147

 Whether You Can Take Assistance of an Advocate when Summoned at the 149
Police Station

 What Precautions Should You Take in Case of Arrest by the Police? 149

 Important Tips to Remember 150

 Rights of Prisoners in Police Lock-up and During the Detention in Jail 151

 Complaint of Torture or Maltreatment in Police Custody 154

 Recommended Actions of the Supreme Court 155

 Important Tips for the Prisoners 156

Whether the Police can Visit Your House at any Time

No, the police has no authority to visit your house at odd hours. Normally the police should not
visit any house after sun set and before sun rise. Decency demands that the convenience of the
person sought to be interrogated or for that matter for any other purpose, may be kept in view,
before visiting any house. But in certain compelling cases, the police, even can break open any
house, where the necessity demands under extraordinary situation.

If there is no male member in the house, the police has to give reasonable time to the female
member to dress herself properly, before entering the said house.

If she is a parda-nashin lady, the police has to be more careful, and has to give the lady
reasonable time to dress herself properly, i.e. wearing of burqa, etc., before entering that
house.

Right to protection of life and personal liberty of every citizen--poor or rich, woman or child--as
enshrined in article 21 of the Constitution of India has always to be kept in mind, before the
police ventures to do this act.

Rights of Women and Children

The women and the children (male persons) under the age of 15 years have special
constitutional and legal safeguards. The proviso to section 160(1) of the Code of Criminal
Procedure, 1973 reads as under:

"Provided that no male person under the age of fifteen years or woman shall be required
to attend at any place other than the place in which such male person or woman
 resides."

Right to Silence

In Nandini Satpathy v. P.L. Dani, (1978) 3 SCR 608: MANU/SC/0139/1978 : AIR 1978 SC

1025: (1978) 2 SCC 424: (1978) Cr LJ 968, the police directed the petitioner (Mrs. Sathpathy)
to appear at the police station. Mrs. Sathpathy was given a long range of questions in writing.
She refused to answer certain questions on the plea that she had the right to silence under
article 21(3) of the Constitution and section 161(2) of the Code of Criminal Procedure, 1973. A
complaint was filed in the court of Magistrate for offence under section 171 of Indian Penal
Code (45 of 1860). She challenged the validity of the Magisterial proceedings. The High Court
rejected her plea. She ultimately came in the Supreme Court. The following observations of the
apex court are quite significant:

"At the outset, the Supreme Court took note of the fact that the accused Nandini was
directed to appear at a police station for interrogation in flagrant contravention of the
wholesome provisions of section 160(1) of Code of Criminal Procedure, 1973. The
Supreme Court strongly felt that such deviance on the part of police must be visited with
prompt punishment, 'since policemen may not be a law unto themselves' expecting
others to obey law."

The Supreme Court in this landmark judgment has held that the police cannot force the
accused person to answer each and every question which they put to the accused person on
the principle that no person can be compelled to be witness against himself. Considering the
incriminatory statement, the Court observed--

"Not all relevant answers are incriminatory, not all criminatory answers are confessions.
Tendency to expose to a criminal charge is wider than actual exposure to such charge...
the orbit of relevancy is large..."

The apprehension of incrimination from the answer sought must be substantial and real, as
distinguished from danger of remote possibilities or fanciful flow of inference. The real test is,
could the witness (accused) have reasonably sensed the peril of prosecution from his answer in
the conspectus of circumstances? The perception of the peculiarities of the case cannot be
irrelevant in proper appraisal of self-incriminatory potentiality.

The Court explained compelled testimony as evidence procured not merely by physical threats
or violence, but by physical torture, atmospheric pressure,... environmental coercion, tiring
interrogative prolixity, overbearing and intimidating/ intimidatory methods and the like--not
legal penalty for violation. However, the manner of mentioning the legal penalty to the victim of
interrogation may introduce--

"an element of tension and tone of command precisely hovering measuring

compulsion..."

The Apex Court then laid down certain guidelines for the observance of the
principles discussed below:

(i) The police should permit the advocate, if there be one, to be present at
the time the accused is examined.
 (ii) The police should invariably warn and record the fact about the right
to silence against self-incrimination; and where the accused is literate
take his written acknowledgment.

(iii) After an examination of the accused, where a lawyer of his choice is

not available, the police must take him to a magistrate, doctor or other
willing and non-partisan official or non-official and allow a scheduled
audience where he may unburden himself beyond the view of the police
and tell whether he has suffered duress which should be followed by
judicial or some other custody for him where the police cannot reach him.
The Collector may briefly record the relevant conversation and
communicate it--not to the police but the nearest Magistrate.

The Supreme Court then quashed the proceedings before the Magistrate and
directed the appellant to undertake to answer all questions put to her which do
not materially incriminate her. The Court further directed that the police officer
should not summon the accused Nandini to police station but examine her in
terms of proviso to section 160(1) of the Code of Criminal Procedure, 1973.

There is no doubt indeed that the judgment of the Supreme Court in Nandini
Sathpathy's case, (supra) has made the law relating to police interrogation more
sophisticated and refined. The said verdict of the Apex Court clearly and boldly
shows the concern of the Supreme Court for the unfortunate and hapless victims
of oppression and injustice at the hands of the police. Believe it or not, this
remains a bitter truth that whatever remedies or restraints the law of the land
may provide, the accused person held by the Police is in practice generally
without any of the remedies available to him under the Constitution of India or
the Code of Criminal Procedure.

It has been rightly suggested by an eminent jurist who said:

"Can we not think of a system where police will have full power to
interrogate without having the custody of the interrogatee?"

Whether You Can Take Assistance of an Advocate When Summoned at the Police Station

Yes, every accused person who had been arrested or is summoned at the police station has the
right to get assistance of an advocate of his choice. The right to consult an advocate is
fundamental right guaranteed under article 22(1) of the Constitution of India. It is very clearly
laid down by the highest court of the land in the landmark judgment in Nandini Satpathy v. P.L.
Dani, (1978) 3 SCR 608: MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC 424: (1978)
Cr LJ 968, that if an accused person expresses the wish to have his lawyer by his side, when his
examination goes on, this facility should not be denied without being exposed to the serious re-
proof that involuntary self-crimination secured in secrecy and by coercing the will was the
project.

The following observation of the Supreme Court is worth taking note of:

"Not that a lawyer's presence is a panacea for all problems of involuntary self-
crimination, for he cannot supply answers or whisper hints or otherwise interfere with
 the course of questioning except to intercept where intimidatory tactics are tried,
caution his client where incrimination is attempted and insists on questions and answers
being noted where objections are not otherwise fully appreciated. He cannot harangue
the police but may help his client and campaign on his behalf although his very presence
will ordinarily remove the implicit menace of a police station."

What Precautions Should You Take in Case of Arrest by the Police?

In majority of the cases people get panicky when they are summoned or are arrested by the
police. It is unfortunate that neither the citizens are aware of the legal and constitutional
safeguards provided to them, nor the police officials, intentionally or unintentionally take
initiative in making the unfortunate victims aware of their safeguards and facilities available to
them in case of arrest.

Important Tips to Remember

Here are some very vital and important tips to remember in case any person is landed at the
police station:--

(a) the moment any person is arrested by the police he has every right to know the
offence alleged to have been committed by him;

(b) he has legal and constitutional entitlement to inform his nearest relation of the fact
that he has been detained at a particular police station;

(c) it is bounden duty of the police officer on the spot to inform the nearest relations of
the accused persons about his arrest;

(d) if he has been hauled up in a bailable offence, he is entitled to be released forthwith

on bail at the police station itself as a matter of right on furnishing bail bond of
reasonable amount;

(e) in case the police officer refuses to bail him out, it will amount to an illegal
confinement and the police officer is liable to be punished for the contempt of court;

(f) he cannot be detained in police custody for more than 24 hours;

(g) he cannot be denied the facility of having an advocate by his side;

(h) if a woman or a male person under the age of fifteen years, she or he cannot be
summoned to the police station, for interrogation;

(i) he cannot be compelled to answer each and every question that the police chooses to
put to him; he has only to truthfully give the facts of the matter to assist the police;

(j) in other words he has the right to silence in certain circumstances as explained in the
foregoing paragraphs of this chapter;

(k) he has every entitlement to resist every kind of undue coercion, pressure or torture
(physical or mental).

These are in nutshell the safeguards and facilities available to every arrested person as per the
 provisions of the Code of Criminal Procedure, 1973 and the Constitution of India. Before parting
we may mention the advice given by the Supreme Court to the police personnel in one of its
judgments--

"An aware policeman is the best social asset towards crimelessness- the consciousness
of the official as much as of the community is the healthy hope for a crime ridden
society. Judge centered remedies don't work in the absence of community centered
rights. All these add up to separation of investigatory personnel from the general mass
and in service specialisation of many hues of a scientific basis. This should be vertically
and horizontally more important, the policeman must be released from addiction to
coercion and sensitized constitutional values."

Rights of Prisoners in Police Lock-up and During the Detention in Jail

The Supreme Court through its significant judgments has developed the rights of the prisoners
while in Jail or in Police Custody. In fact the Apex Court has given new and dynamic dimensions
to the Criminal Jurisprudence, while dealing with the hapless under-trial prisoners or the
convicts while in police/ army custody, or in jail custody.

Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : (1983) 2 SCC

96: MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCR 337, disclosed sensational and
distressing facts, which made the Supreme Court to develop further the law protecting under-
trial prisoners and persons in Police or Military custody from being ill-treated, tortured or killed.
Justice P.N. Bhagwati gave very useful and practical directions in the judgment to spell out
safeguards provided by the Constitution of India and the law for prisoners which has to be
made available to each and every prisoner--rich or poor alike.

In Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : (1983) 2 SCC

96: MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCR 337, the court gave important
directions to the authorities concerned--

(i) We would direct that four or five police lock-ups should be selected in reasonably
good localities where only female suspects should be kept and they should be guarded
by female constables. Female suspects should not be kept in a police lockup in which
male suspects are detained. The State of Maharashtra has intimated to us that there are
already three cells where formal suspects are kept and are guarded by female
constables and has assured the court that two more cells with similar arrangements will
be provided exclusively for female suspects.

(ii) We would further direct that interrogation of females should be carried out only in
the presence of female police officers/ constables.

(iii) Whenever a person is arrested by the police without warrant, he must be

immediately informed of the grounds of his arrest and in case of every arrest it must
immediately be made known to the arrested person that he is entitled to apply for bail.
The Maharashtra State Board of Legal Aid and Advice will forthwith get a pamphlet
prepared setting out the legal rights of an arrested person and the State of Maharashtra
will bring out sufficient number of printed copies of the pamphlet in Marathi which is the
language of the people in the State of Maharashtra as also in Hindi and English and
printed copies of the pamphlet in all the three languages shall be affixed in each cell in
 every police lock-up and shall be read out to the arrested person in any of three
languages which he understands as soon as he is brought to the police station.

(iv) We would also direct that whenever a prisoner is arrested by the police and taken to
the police lock-up, the police will immediately give intimation of the fact of such arrest
to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate
steps for the purpose of providing legal aid/assistance to the arrested person at State
cost provided he is willing to accept such legal assistance. The State Government will
provide necessary funds to the concerned Legal Aid Committee for carrying out this
direction.

(v) We would direct that in the City of Bombay a City Sessions Judge, to be nominated
by the Principal Judge of the City and Court, preferably a lady judge, if there is one shall
make surprise visits to police lock-ups in the city periodically with a view to providing
arrested persons an opportunity to air their grievances and ascertaining what are their
conditions in the police lock-ups and whether the requisite facilities are being provided
and the provisions of law are being observed and the directions given by us are being
carried out. If it is found as a result of inspection that there are any lapses on the part of
the police authorities, the City Sessions Judge shall bring them to the notice of the
Commissioner of Police, and if necessary to the notice of the Home Department and
even if this approach fails, the City Sessions Judge may draw the attention of the Chief
Justice of the High Court of Maharashtra of such lapses. This direction in regard to police
lock-ups at the district headquarters shall be carried out by the Sessions Judge of the
district concerned.

(vi) We would direct that as soon as a person is arrested, the police must immediately
obtain from him the name of any relative or friend whom he would like to be informed
about his arrest and the police should get in touch with such relative or friend and
inform him about the arrest; and lastly.

(vii) We would direct that the Magistrate before whom the arrested person is produced
shall enquire from the arrested person whether he has any complaint of torture or
maltreatment in police custody and inform him that he has right under section 54 of the
Code of Criminal Procedure, 1973 to be medically examined. We are aware that section
54 of the Code of Criminal Procedure, 1973 undoubtedly provides for examination of an
arrested person by a medical practitioner at the request of the arrested person and it is
a right conferred on the arrested person.

But very often the arrested person is not aware of his right and on account of his ignorance, he
is unable to exercise this right even though he may have been tortured or maltreated by the
police in police lock-up. It is for this reason that we are giving a specific direction requiring the
Magistrate to inform the arrested person about this right of medical examination in case he has
any complaint of torture or maltreatment in police custody.

We have no doubt that if these directions which are being given by us are carried out both in
letter and spirit, they will afford considerable protection to prisoners in police lock-ups and save
them from possible torture or ill-treatment.

Complaint of Torture or Maltreatment in Police Custody

 Sebastian M. Hongray v. Union of India, (1984) 1 SCR 904: MANU/SC/0381/1983 : AIR 1984
SC 571: (1984) 1 SCC 339: (1984) Cr LJ 289, is so sensational a case that can even melt those
who have hearts of stone.

In this case, Danial and Paul had been arrested by the Army and taken away to an army camp,
and were never seen alive again. On a habeas corpus application, Justice Desai after going
through the evidence rejected the claim of the Respondents that they had left the camp with
their friends a day after they had been taken to the camp. The apex court directed the
Respondents to produce Danial and Paul before them, and on their failure to do so (as both of
them prima facie appear to have been killed) directed the Union of India to pay an exemplary
compensation of rupees one lakh to the wife of Danial and rupees one lakh to the wife of Paul.

Another case which came to the Supreme Court by way of an appeal in which a person who had
complained against the demand of a bribe by a policeman to the higher police authorities was
mercilessly beaten and done to death by the very policeman against whom the complaint had
been made. In this case vigilance of the Magistrate paid dividends as it was due to the
vigilance, kindliness and humanity of a Magistrate that on a remand application, he went out to
the veranda to see the prisoner who could not be brought before him and he recorded what, in
effect, became the "dying declaration" of the injured person. On that dying declaration and on
other evidence the officers were found guilty and sentenced to rigorous imprisonment by the
Session Judge. On appeal to the highest court, it was held that the police had attempted to
support their case by false and fabricated document.

In case of U.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 1997 SC 610: (1997)
1 SCC 416: (1997) Cr LJ 743 the Supreme Court observed that for custodial death, the writ
court can award compensation. Custodial death has been described as one of the worst crimes
in a civilised society, governed by the rule of law.

The Supreme Court also held in Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 :

AIR 1983 SC 378: MANU/SC/0382/1983 : (1983) 2 SCC 96: (1983) 2 SCR 337 that right
against custodial violence arises from Article 21 of the Constitution.

Recommended Actions of the Supreme Court

Keeping in view the haplessness and helplessness of prisoners who were ill-treated, tortured
and killed, the then Chief Justice Chandrachud made a very practical and valid suggestion that
the burden of proof should be shifted to the persons in whose custody the prisoner was kept.

H.M. Seervai, a noted constitutional expert has rightly observed in the case of Rudal v. State of
Bihar, MANU/SC/0380/1983 : (1983) SCR 508: AIR 1983 SC 1086: (1983) 4 SCC 141: (1983)
Cr LJ 1644, about the most inhuman and unprecedented treatment meted out to one Rudal
Shah who was released from jail 14 years after the orders of the acquittal, as "a sordid and a
disturbing state of affairs". Though the petitioner was acquitted by the Court of Session,
Muzaffarpur, Bihar, on June 3rd, 1968 he was released from jail on 16th October, 1982--that is
more than 14 years after he had been acquitted. The petitioner applied for a writ of habeas
corpus against his unlawful detention in jail and prayed for ancillary reliefs like rehabilitation,
reimbursement of expenses, which he may have to incur for medical treatment for the
incarceration in jail.

The court observed that the only way in which compliance with article 21 could be procured was
 to direct compensation to be paid for unlawful acts of officials who acted in the name of public
interest, with the powers of the State as a shield.

Justice Chandrachud, the then Chief Justice further said--

"If civilisation is not to perish in this country, as it has perished, in some other too well
known to suffer mention, it is necessary to educate ourselves into accepting that,
respect for the rights of individuals is the true bastion of democracy. Therefore, the
State must repair the damage done by its officers to the petitioner's rights. It may have
recourse against those officers."

The court directed that the State should pay to the petitioner a sum of Rs. 30,000 in addition to
the sum of Rs. 51,000 already paid. The payment should be made within two months from the
date of the judgment. The Government of Bihar agreed to make the payment, but
Chandrachud, C.J., expressly stated that the order was not passed on government's consent.
The order was not to preclude the right of the petitioner to recover appropriate damages from
the State if he thought fit to do so.

Important Tips for the Prisoners

Delhi Legal Aid and Advice Board, and for that matter such Boards in all other States have been
rendering free legal aid to the Prisoners and other persons entitled for legal aid, for the past
many years.

In the court of Metropolitan Magistrate an advocate on behalf of the Legal Aid Board is always
available.

In case of an offence which carries imprisonment of more than 10 years, the challan must be
filed by the police within 90 days from the date of one's arrest.

Under article 39A of the Constitution of India every person is entitled for free legal aid from the
concerned Legal Aid Board.

One should always remember the number of F.I.R., the date of arrest, the date from which one
is under judicial custody, the name of the Board, the next date of hearing, and the name and
address of your advocate.

One is also entitled to write any letter, application or appeal to any court, which has to be
forwarded by Jail Superintendent preferably within 24 hours from the date of submission.

If you do not want to engage any advocate, you can go to the court from jail and argue your
case in person.

You are entitled to get every assistance from jail authorities to have your application/petition
drafted, typed and filed in the court.

It was held in State of Haryana v. Bhajan, (1991) 2 SCJ 351 the Court should not normally
interfere with the criminal investigation. It may prohibit the continuance of a criminal
proceeding at any stage before its conclusion, in extraordinary cases e.g., where the
proceeding was launched by a person who was not competent to make the FIR or to institute
prosecution under the relevant law.
 © Universal law Publishing Co.

 
    

Chapter 14

First Information Report (F.I.R.)

 Definition of First Information Report (F.I.R.) 157

 Who can File an F.I.R.? 158

 Where to File an F.I.R.? 158

 What is the Procedure of Filing an F.I.R.? 159

 What should You Mention in the F.I.R.? 159

 What Can be Done if F.I.R. is not Registered? 159

 Object and the Significance of an F.I.R.? 159

 Evidentiary Value of an F.I.R. 160

 Effect of Delay in Filing an F.I.R. 160

 Ingredients of an F.I.R. 161

 Significance of Filing an F.I.R. Promptly 162

 Whether any Duration of Time can be Fixed for Filing an F.I.R.? 162

 Statements not Amounting to an F.I.R. 163

 Faulty F.I.R. and Tainted Investigation 163

 Quashing of F.I.R./Criminal Proceedings 164

 Zero F.I.R. 164

Definition of First Information Report (F.I.R.)

F.I.R. is the abbreviated form of the 'First Information Report'. The first information report
means an information recorded by a police officer on duty given either by the aggrieved person
or any other person to the commission of an alleged offence. On the basis of first information
report, the police commences its investigation. Section 154 of the Code of Criminal Procedure,
1973 defines as to what amounts to first information. The said section reads as under:--

154. Information in cognizable cases

(1) Every information relating to the commission of a cognizable offence, if given

orally to an officer-in-charge of a police station, shall be reduced to writing by
him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid shall be
signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the State Government may
prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given
 forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer-in-charge of police

station to record the information referred to in sub-section (1) may send the
substance of such information, in writing and by post to the Superintendent of
Police concerned, who if satisfied that such information discloses the commission
of a cognizable offence shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him, in the manner
provided by this Code, and such officer shall have all the powers of an officer-in-
charge of the police station in relation to that offence.

The provision in section 154 regarding the reduction of oral statement to writing
and obtaining signature of the informant to it, is for the purpose of discouraging
irresponsible statement about criminal offences by fixing the informant with the
responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable

under section 180 of the Indian Penal Code. The absence of signatures on the
first information report by the informant, however, is not necessary to the extent
that it will vitiate and nullify such report. The first information is still admissible in
evidence.

In order to constitute an F.I.R. in terms of section 154 of the Code of Criminal

Procedure, 1973 two conditions are to be fulfilled:--

(a) what is conveyed must be an information; and

(b) that information should relate to the commission of a cognizable

offence on the face of it.

In other words, F.I.R. is only a complaint to set the affairs of law and order in
motion and it is only at the investigation stage that all the details can be
gathered. In one of the judgments, the Madhya Pradesh High Court observed
that the report of the crime which is persuading the police machinery towards
starting investigation is F.I.R., subsequent reports are/were written, they are not
hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be
treated as such.

Who can File an F.I.R.?

First Information Report (F.I.R.) can be filed by any person. He need not necessarily be the
victim or the injured or an eyewitness. First Information Report may be merely hearsay and
need not necessarily be given by the person who has first hand knowledge of the facts.

Where to File an F.I.R.?

An F.I.R. can be filed in the police station of the concerned area in whose jurisdiction the
offence has occurred. A first information report must be made to an officer-in-charge of a police
station. When permanent officer-in-charge of the police station is not available, assistant sub-
inspector of police is competent to enter upon investigation. Officers at the police out posts are
 not officers-in-charge of police station.

What is the Procedure of Filing an F.I.R.?

 If the information is given orally about the commission of cognizable offence, the police must
write it in black and white.

 It is your right and duty of police to demand that the information recorded by the police is
read over to you.

 The information recorded by the police must be signed by the person giving the information.

 Left thumb-impression must be put on the document after being satisfied that it is a correct
record.

 Always ask for the copy of the FIR free of cost.

What should You Mention in the F.I.R.?

 Name and address of yours.

 Date, time and location of the incident you are reporting.

 The true facts of the incident as they occurred.

 Name and description of the persons involved in the incident.

What Can be Done if F.I.R. is not Registered?

 Bring your complaint to the notice of Superintendent of Police or other higher officers, DG or
IG; or

 Send the complaint by post to the SP. If he is satisfied with the complaint he shall either
investigate or order investigation in your case; or

 File a private complaint before the court having jurisdiction; or

 If the police is biased and act in a corrupt manner then make a complaint to the State Human
Rights Commission or National Human Rights Commission.

Object and the Significance of an F.I.R.?

The principal object of the F.I.R. is to set the criminal law in motion and from that point of view
the investigating authorities are to obtain information about the alleged criminal activity so as
to be able to take suitable steps for tracing and bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged
criminal activity and to record the circumstances before the trial, lest such circumstances are
forgotten or embellished.

Evidentiary Value of an F.I.R.

As regards the evidentiary value of an F.I.R. It is well-settled proposition that it is not a

substantial piece of evidence. In some cases it was reiterated that an F.I.R. can be used for
 corroborating or contradicting the statement of its maker under sections 157 and 154 of the
Indian Evidence Act, 1872, respectively.

Effect of Delay in Filing an F.I.R.

Delay in lodging an F.I.R. is fatal when not satisfactorily explained. The inordinate delay in
registration of F.I.R. casts a cloud of suspicion on the credibility of prosecution story. In Thuba
Kali v. State of Tamil Nadu, 1972 Cr LJ 1296, the Supreme Court pointed out that delay in filing
the F.I.R. has to be satisfactorily explained because on account of delay the report not only
gets bereft of the advantage of spontaneity, danger creeps in the introduction of the coloured
version, exaggerated account or concocted story as a result of deliberation and consolidation.
Accordingly a delay of 20 hours in lodging report in the nearby police station was deemed
unsafe to pass conviction to the accused.

First Information Report (F.I.R.) is the most immediate and first version of the incident and has
great value in ascertaining the truth where it comes from a person who was not only present at
the scene but actually took part in the incident. The report has the greatest value and must be
held to mitigate against any contrary or varied subsequent version. F.I.R., however, is not the
end of every criminal case and is also not substantive evidence. It can be used only for limited
purposes like corroborating and contradicting the maker thereof.

In case of State of Maharashtra v. Joseph Mingal Koli, (1997) 2 Cr LJ 238, it was held that
whether the F.I.R. has been lodged belatedly or not is always a question of fact and has to be
answered bearing in mind the fact of the case in question and also the explanation furnished by
the prosecution in case there is some delay in its being lodged. There can be no mathematical
computation of the time taken in the lodging of the F.I.R. What the court has to examine is
whether the delay is inordinate and whether any cogent explanation is forthcoming in case it is
so. Some delay in the lodging F.I.R. is only natural and would not detract from the value to be
attached to it. A little delay is sometimes bound to be there.

The duties of Police Officers in regard to F.I.R. have been envisaged in sections 50, 50A, 59 and
169 of the Code of Criminal Procedure, 1973.

The courts cannot overlook the fact that in sexual offences delay in the lodging of the F.I.R. can
be due to variety of reasons particularly the reluctance of the prosecutrix or her family
members to go to the police and complain about the incidence which concern the reputation of
the prosecutrix and the honour of her family. It is only at the giving cool thought that a
complaint of sexual offence is generally lodged; Bhivani Yadav v. State of Orissa, (1972) 2
Crimes 406. In another case of same nature the Supreme Court held that the delay simpliciter
in the lodging of a F.I.R. in a case of rape is not material; State of Maharashtra v. Suresh
Nivrutti Bhusare, (1997) 2 Crimes 257.

Ingredients of an F.I.R.

First Information Report is significant from the point of view of setting the criminal law in
motion, and also for contradicting or corroborating the statement of the makers.

In State v. Ram Singh, 1973 Cr LJ 153, the report entered in the police diary as well as
telegram sent to the Superintendent of Police was not regarded as an F.I.R. Likewise in Laxman
v. State, 1973 Cr LJ 1658, the information regarding the commission of the cognizable offence
 was reported to the police officer and the investigating machinery was set in motion. It was
held that the failure of the S.H.O. to reduce the F.I.R. in writing did not rob the information of
its character as F.I.R. contemplated by section 154 of the Code of Criminal Procedure.

An elaborate account of everything that happened is necessary to lend weight and credibility to
the report.

In R.D. Baghi v. State of Maharashtra, AIR 1973 SC 1476, three members of a family died as a
result of communal riots. The F.I.R. was lodged by an eye witness who sustained several
injuries in the melee. The F.I.R. was at variance with the version of the informant of the court.

The value of the F.I.R. depends on the facts and circumstances of each case. The F.I.R. can
only discredit the testimony of the informant. It cannot be utilised for contradicting or
discrediting the other witnesses.

Sometimes the F.I.R. is lodged by a person who has second hand knowledge of occurrence of
the crime and in such a case the facts get omitted or mixed up which normally should have
been mentioned; Radha Kishan v. State, 1973 Cr LJ 481. Under such circumstances no
suspicion can be attached to such a statement.

Significance of Filing an F.I.R. Promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the
First Information Report should always be filed promptly and without wasting any time. Such
type of report gains the maximum credibility and is always welcome and appreciated by the
courts.

According to Supreme Court the F.I.R. recorded promptly before the time afforded to embellish
or do away with the evidence is useful. It eliminates the possible chance of giving rise to
suspicion.

Whether any Duration of Time can be Fixed for Filing an F.I.R.?

We have already emphasised this fact that as far as possible and practicable, every F.I.R.
should invariably be filed promptly, expeditiously and without wasting any time. There may be
circumstances where some concession of time must be given in filing the F.I.R. But there must
be cogent reasons for reasonable delay in filing the F.I.R. under the compelling circumstances.
Judges with lot of wisdom and experience can use their discretion judiciously and in the interest
of justice in each and every case. However, no possible duration of time can be fixed for
applying the test of reasonableness to the lodging of an F.I.R. as we have already explained. It
depends upon facts and circumstances of each case. The delay in lodging the F.I.R. as such is
not fatal in law if the prosecution substantiated the factual difficulties encountered by the
persons lodging the report.

Statements not Amounting to an F.I.R.

Following are the reports or statements which do not amount to be an F.I.R.:--

1. A report or a statement recorded after the commencement of the investigation

(sections 162 and 163 of the Code of Criminal Procedure, 1973).
 2. Reports not recorded immediately but after questioning of witnesses.

3. Reports recorded after several days of developments.

4. Information not about occurrence of cognizable offence but only cryptic message in
the form of an appeal for immediate help.

5. Complaint to the Magistrate.

6. Information to beat house.

7. Information to the Magistrate or police officer on phone.

8. Information received at police station prior to the lodging of an F.I.R.

It was held in Damodar v. State of Rajasthan, 2003 (4) RCR (Cri) 355 (SC) that if the
information was conveyed to police on telephone and DD entry was made, it will not constitute
an FIR even if the information disclosed commission of cognizable offence.

Faulty F.I.R. and Tainted Investigation

In every criminal trial, truth is the quest and the courts have not only to act as umpires or
referees, but have to fully involve themselves to crystallise the truth of the matter. In case
there is a faulty F.I.R. or the faulty investigations, whatsoever be the motive behind it, it often
leads to a grave injustice. And that is exactly what happened in Suresh Rai v. State of Bihar, JT
2000 (4) SC 12: (2000) 4 LRI 27.

On account of faulty F.I.R. and faulty investigations, the accused were given life imprisonment
by the Sessions Court as well as High Court. But fortunately the Supreme Court Bench
comprising of Justices S. Saghir Ahmad, A.P. Misra and Y.K. Sabharwal, accepted the appeal
against the order of the High Court.

The learned counsel for the appellants, U.R. Lalit successfully brought home his point, that the
prosecution relied on the evidence of the three witnesses who were actually not present on the
spot. The learned counsel for the appellants also contended that 'the investigation was wholly
tainted, and taking advantage of the enmity with the family of the deceased, the police at the
instance of complainant, had roped them in the case'.

While admitting the appeal, the Supreme Court in para 18 of the judgment thus observed, "The
entire investigation was wholly tainted, and the appellants have been implicated in the case on
the collective mischief of the informant, Sheo Deo Rai (PW 10) and the Investigating Officer,
Haleshwar Prasad Singh (PW 15).

Quashing of F.I.R./Criminal Proceedings

In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, MANU/SC/0261/1988 :

AIR 1988 SC 709: (1988) 1 SCC 692 it was observed that the legal position is well-settled that
when a prosecution at the initial stage is asked to be quashed, the test to be applied by the
court is as to whether the uncontroversial allegations as made prima facie establish the offence.
It is also for the court to take into consideration any special features which appear in a
particular case to consider whether it is expedient and in the interest of justice to permit a
prosecution to continue. This is on the basis that the court cannot be utilized for any of the
 unique purpose and where in the opinion of the court, chances of an ultimate conviction are
bleak and, therefore is likely to be served by allowing a criminal prosecution to continue, the
court may while taking into consideration the special facts of a case also quash the proceedings
even though it may be at a preliminary stage.

Zero F.I.R.

In the month of December 1999, an Indian Air lines plane was hijacked from Nepal by the
terrorists. On its way to Afghanistan, it stopped at Amritsar, but unfortunately no effective
steps could be taken to capture the hijackers at Raja Sansi Airport. The hijackers successfully
managed to fly the plane with all the hostages to Afghanistan at Kandhar Airport. The whole
Government of India was unable to do anything in the matter, and it was a very serious
concern for all and sundry. Thank God, with pressure from all over the world the hostages were
ultimately released. But the Indian Government had to pay a very heavy price, by releasing five
terrorists to buy the release of the hostages. When the plane flew from Amritsar, the local
police registered a case against the hijackers by way of Zero FIR.

© Universal law Publishing Co.

 
 

 
    

Chapter 15

Investigation

 Definition of Investigation 165

 Purpose/Object of Investigation 166

 Who Can Investigate ? 167

Investigation only by Legal Authority 167

 Effect of Non-Compliance of Section 17 of Prevention of Corruption Act, 167

1988

 When does the Investigation Start ? 169

 What is a Fair and Impartial Investigation ? 170

 No Investigation Without a Reasonable Suspicion 170

 Whether a Magistrate Can Interfere With the Police Investigations? 171

 Whether the Magistrate has Power to Stop Investigation ? 172

 Statement of Witnesses under section 161 172

 Does Police Enjoy Unlimited Powers ? 174

 Misuse of Power of Investigation by Police 175

 Investigation and Re-investigation 176

 Focus should not be only on Flaws in Investigation: Supreme Court 177

Investigation has assumed the status of a science. The modern scientific investigation does not rely on
torture. Scotland Yard or the FBI on the basis of the fingerprints of the suspect, with the help of a
computer network, in almost no time an ascertain whether he or she has a criminal background.
Similarly, the DNA test of hair, blood and semen etc. and chemical analysis of substances is of great
help in criminal investigation. Diligence, dedication and devotion are the tripartite factors needed to
investigate the crime. On ascertainment of relevant, facts and collection of evidence whatever is
available from the eyewitnesses or from the concerned sources, the police officer competent under the
provisions of law moves the law into action, of course, on receipt of reliable information about the
commission of an offence.

A defective investigation may lead to nabbing of an innocent person or full facts about the crime may
not see the light of the day.

Definition of Investigation

According to section 2(h) of the Code of Criminal Procedure, 1973 "investigation" includes all
the proceedings under the Code for the collection of evidence conducted by a police officer or
by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. In
many cases the investigation had taken place under the directions of the courts. So, either the
 police suo moto, or under the directions of the court in certain cases undertake the role of
investigation. In Arjun Singh v. State of Rajasthan, 1987 Cr LJ 610, it was on the basis of a
letter addressed by the parents of the victim that the court directed the Central Bureau of
Investigation (C.B.I.) to conduct the investigation.

Though the definition of "investigation" given in the Code is not exhaustive, yet the courts in
their various judgments have tried to explain the meaning of the word "investigation" which is
the backbone of any criminal trial. In State of Uttar Pradesh v. Bhagwant Kishore
Joshi, MANU/SC/0066/1963 : AIR 1964 SC 221: (1964) 3 SCR 71: (1964) 1 Cr LJ 140,
Supreme Court observed--if on receipt of credible information about the commission of an
offence, the police officer proceeds to the scene of offence, ascertains the relevant facts, by
going through the records and submits its final report-- his act constitutes investigation within
the meaning of section 4(1) of the Code of Criminal Procedure, 1898, section 2(h) of the Code
of Criminal Procedure, 1973.

Purpose/Object of Investigation

Every criminal trial is a voyage of discovery in which truth is the quest. As we have already
mentioned, the stage of investigation in a criminal trial is of great significance. The powers
given to the Police for investigation are very wide, but these powers have to be used keeping
the ultimate goal in mind, i.e. to find out the truth of the matter.

Only with the object of finding out the truth of each and every case, section 156 of the Code of
Criminal Procedure, 1973, has provided wide powers to the police officers while conducting
investigation. The main object to provide powers to the police is to enable them to prevent
crimes and control the crimes also.

The Gujarat High Court in one of its judgments has observed:

"The provision relating to the power of the police to investigate into offences and the
procedure to be adopted by them are to be found in *Chapter XII headed--"Information
to the Police and their powers to investigate". These provisions are clearly intended to
secure that an investigation does not take place into a reported offence and the
investigation is carried out within the limits of the law without causing any harassment
to the accused, and is completed without unnecessary or undue delay. The manner and
method of conducting the

_______________

*Chapter XII of the Code of Criminal Procedure, 1973.

investigations are, however, left entirely to the police and the Magistrate has no power
under any provision of the Code to interfere with the same."

Who Can Investigate ?

Once a report regarding a cognizable offence has been entered in "First Information Book", the
investigation of the offence should be done with the least possible delay by Station House
Officer by immediately proceeding to the scene of offence. If there are reasons that render the
S.H.O. impossible to investigate the case personally by visiting the scene of offence, he may
depute a head constable to investigate. Under such circumstances the S.H.O. shall make a note
 on the F.I.R. itself as to why he himself did not take up investigation.

In H.N. Rishbud v. State of Delhi, MANU/SC/0049/1954 : AIR 1955 SC 196: (1955) 1 SCR

1150: (1955) Cr LJ 526, the Supreme Court observed:

"The scheme of the Code also shows that while it is permissible for an Officer Incharge
of Police Station to depute some subordinate officer to conduct some of the steps in the
investigation, the responsibility of taking one of these steps is that of the Officer
Incharge of Police Station, it having been clearly provided in section 168 of the Code of
Criminal Procedure that when a subordinate officer makes an investigation he should
report the result to the officer-in-charge of the Police Station. It is also clear that the
final steps in the investigation, viz., the formation of the opinion as to whether or not
there is a case to place the accused on trial is to be that of the officer-in-charge of Police
Station."

INVESTIGATION ONLY BY LEGAL AUTHORITY

Effect of Non-Compliance of Section 17 of Prevention of Corruption Act, 1988

The investigation must be conducted by a person who is legally authorised to do so. Non-
compliance of the provisions of section 17 attracts quashing of the proceedings.

"It is of utmost importance that the investigation into criminal offence must always be
free from any objectionable features or infirmities, which may legitimately lead to the
grievance of the accused that the work of the investigation was carried on unfairly and
with ulterior motive. The prosecution of the accused on the basis of investigation by a
person who had no legal authority cannot be allowed."-- Madhya Pradesh High Court
Judgment - referred by the Supreme Court in State of Madhya Pradesh v. Kedarilal
Vaishya, JT 2000 (1) SC 518.

But reacting to the judgment of the High Court, the Supreme Court observed:

"Procedural delays and technicalities of law should not be permitted to defeat the object
sought to be achieved by the Act. The overall public interest and the social object is
required to be kept in mind while interpreting various provisions of the Act and deciding
cases under it. The facts of Bhajan Lal's case were distinguishable as in the instant case,
the Superintendent of Police appears to have applied his mind and passed the order
authorising the investigation by an Inspector under the peculiar circumstances of the
case. The reasons for entrustment of investigation were obvious. The High Court should
not have liberally construed the provisions of the Act in favour of the accused resulting
in the closure of the trial of serious charges made against the respondents in relation to
commission of offences punishable under an Act legislated to curb the illegal and corrupt
practices of the public officers".

Showing this serious concern about rampant corruption in a civilised society a disease like
cancer, the Supreme Court in para 7 of its judgment, held:

"If not detected in time is sure to maliguise the polity of the country leading to a
disastrous consequences. It is termed as a plague which is not only contagious but if not
controlled spreads like a fire in the jungle. Its virus is compared with HIV leading to
 AIDS, being incurable. It has also been termed as Royal Thicenery. The socio-political
system to such a dreaded communicable disease is likely to crumble under its own
weight. Corruption is opposed to democracy and social order, being not only anti-people,
but aimed and targetted against them. It affects the economy and destroy the cultural
heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking
of the socio-economic-political system in an otherwise healthy, wealthy, effective and
vibrating society."

When does the Investigation Start ?

The investigation of a crime starts, when the police officer is in possession of matter under
inquiry. The starting of investigation, therefore, is the collection of evidence in respect of the
fact under inquiry, viz. the fact of the crime.

The mere fact that the police officer registers the F.I.R. and proceeds to the scene of offence
does not mean that the investigation has started. Investigation actually starts when an officer
in charge of police station decides to investigate the case.

In one of its judgments, the Madras High Court has observed;

"a report reading of sub-section (1) of section 157 of the Code of Criminal Procedure,
1973 would show what the police officer has to do when he suspects the commission of
an offence which he is empowered to investigate. Section 156 of the Code of Criminal
Procedure, 1973 does not prescribe the conditions for starting the investigations or
specify the conditions which ought to proceed in an investigation. There is nothing going
against his construction on the language of this section. It is, therefore, not possible to
accede to the contention that the sending of a report to the Magistrate concerned is a
"sine qua non" for the commencement of an investigation by a police officer when he
suspects that offence has been committed."

In H.N. Rishbud v. State of Delhi, MANU/SC/0049/1954 : AIR 1955 SC 196: (1955) 1 SCR

1150: (1955) Cr LJ 526, the Supreme Court observed:

"An investigation starts after the police officer receives information with regard to the
offence and consists of the following steps:--

1. proceeding to the spot;

2. ascertainment of the facts and circumstances of the case;

3. discovery and arrest of the suspected offender;

4. collection of evidence relating to the commission of the offence, which may

consist of (a) the examination of various persons (including the accused) and the
reduction of their statement, into writing if the police officer thinks fit, (b) the
search of places, seizure of things considered necessary for the investigation and
to produce at the trial; and

5. formation of opinion as to whether on the material collected there is a case to

place the accused before a Magistrate for trial".
What is a Fair and Impartial Investigation ?

As we have stated above, the truth should be the quest for every police officer who is entrusted
with the assignment of investigation. The aim of the investigating officer should be to find out
truth and to achieve this. It is necessary to have the presence of an open mind throughout the
investigation. The following observations are also worth taking note of:

"Investigations into the criminal offences must always be free from any objectionable
features or infirmities which may lead to grievance of accused that investigation is
carried on unfairly or with ulterior motive. The administration of criminal justice requires
that every act done by the agency responsible for the investigation of crime must be
fair, upright and free from any fault of any sort."

In another case the High Court of Delhi pointed out:

"The investigation of offence must be straight forward and free from padding. The High
Court certainly condemns unequivocally any illegal interference with the discharge of
official duties by police servant, and particularly in the investigation of offences by the
investigating agency. At the same time the High Court expects the police officer to
investigate the offences in a fair and legal manner and to refrain from falsely collecting
or exaggerating relevant circumstances which may throw light on the true nature of the
incident, under investigation and trial."

Bias: It an accused believes that the investigating officer is personally biased against him, he
must inform about this to the higher authorities or the court at the earliest. On the other hand,
if he allows the investigating officer to complete the investigation and after the report is
submitted, it will be treated if he has waived his objections again. It should, however, be noted
that the evidence collected during investigation is not be all and end all.

No Investigation Without a Reasonable Suspicion

The High Court of Karnataka ordered a CBI probe into the alleged kick back paid for alleged
favours shown to M/s Cogenetrix Inc. established in USA in connection with the setting up of
thermal power plant of 1000 MW capacity at Mangalore. The Supreme Court observed that the
probe was ordered on the grounds that none of the thirteen circumstances noticed by High
Court could give rise to any suspicion. Muchless a basis for investigation by a criminal
investigating agency. The attempt made by the High Court in this case appears to be in the
nature of blind shot fired in the dark without even knowing whether there is a prey at all.....The
High Court has looked at different circumstances in the case with a judicial eye...

Quashing the order of investigation passed by the High Court in State of Karnataka v. Arun
Kumar Agarwal, MANU/SC/0773/1999 : AIR 2000 SC 411: (2000) 1 SCC 210, the Supreme
Court made the following observations:

"The acts of persons will not be subject of criminal investigation unless a crime is
reported to have been committed or reasonable suspicion thereto arises. On mere
conjecture or surmises as a plight of fancy that some crime might have been committed,
somewhere, by somebody but the crime is not known, the persons involved in it or the
place of crime unknown, cannot be termed to be reasonable basis at all for starting a
criminal investigation. However, condemnable the nature of or extent of corruption in
 the country, not all acts could be said to fall in that category."

In case of C. Laxmi Chand v. State of Tamil Nadu, 1991 Cr LJ 1647 the court held that if
investigation can be stopped by police on basis of complainant's letter that matter was amicably
settled, still final report has to be sent to court where F.I.R. is pending.

Whether a Magistrate Can Interfere With the Police Investigations ?

No, the Magistrate or for that matter the judiciary as such, cannot and should not interfere with
the police investigation. The Supreme Court and various High Courts have warned the trial
Courts not to interfere with the police investigation as the police should be given a free hand at
the investigation stage. In R.M. Chatterji v. Havaldar Kuer Singh, 1970 (1) SCWR 394, the
Supreme Court has observed:

"It has been emphasised in several decisions that it is of utmost importance that the
judiciary should not interfere with the police in matters which are within their province
and into which law imposes on them a duty of enquiry. It is for the police to form their
opinion and the final step in the investigation is to be taken only by the police and no
other authority. The Magistrate cannot call upon the police to submit charge sheet when
they have sent a report that there is no case for sending up the accused for trial
because that would be dictating the police to form an opinion in accordance with that of
Magistrate, such a course is not desirable."

In case of Randhir Rana v. Delhi Administration, 1997 Cr LJ 779 (SC): MANU/SC/0161/1997 :

AIR 1997 SC 639: (1997) 1 SCC 361 the court held that the judicial Magistrate, after taking
cognizance of an offence on the basis of a police report and after appearance of the accused in
pursuance of the process issued, cannot order of his own, the further investigation in the case,
such a power is available to police after submission of charge sheet.

Whether the Magistrate has Power to Stop Investigation ?

The Magistrate or the judiciary has no power under the Code of Criminal Procedure, 1973 to
interfere with the police investigation, it has no power either to stop the investigation. The Code
does not give any such power to any Magistrate. Of course, the High Court under Article 226 of
the Constitution of India can always issue a writ of mandamus restraining the police officer
from misusing his legal powers, if it is convinced that the power of investigation has been
exercised by the police officer mala fide.

In S.N. Sharma v. Bipen Kumar Tiwari, MANU/SC/0182/1970 : AIR 1970 SC 786: (1970) 1 SCC
653: (1970) 3 SCR 946: 1970 Cr LJ 764, the Supreme Court pointed out that the only power
given to the Magistrate under sub-section (3) of section 156 of the Code of Criminal Procedure,
1973 is to order an investigation. There is no mention of any power given to the Magistrate to
stop an investigation by the Police.

Statement of Witnesses under section 161

It is the duty of the investigating officer to record statements of eye-witnesses of the

occurrence at the earliest opportunity after the registration of the case.

Examination of witnesses by police.--

 (1) Any police officer making an investigation under this Chapter, or any police officer not
below such rank as the State Government may, by general or special order, prescribe in this
behalf, acting on the requisition of such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by
such officer, other than questions the answers to which would have a tendency to expose him
to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of
the statement of each such person whose statement he records.

It was held in Mohd. Jainal Aladin v. State of Assam, (1997) 2 Crime 660 (Gau) that the
investigating officer has to perform his duties with the sole object of investigating the
allegations and in the course of the investigation he has to take into consideration the relevant
material whether against or in favour of the accused.

It was held in Mantram v. State of Madhya Pradesh, (1997) 2 Crimes 550 (MP) where the
investigating officer had deliberately failed to record the F.I.R. and prepared it after reaching
the spot after due deliberations, the investigation is tainted and it would be unsafe to rely on
such tainted investigation.

In State of Maharashtra v. Joseph Mingal Koli, (1997) 2 Crimes 228 (Bom) it was observed that
the value of prompt interrogation of a witness during investigation cannot be over-emphasized
because the same eliminates to a very large extent, the possibility of an adulterated occurrence
creeping in the testimony of a witness.

By virtue of section 162, statements before the police cannot be looked into except for the
purpose of contradicting the respective authors thereof in the witness-box. Section 162
prohibits signing of the statement of the witnesses recorded during investigation. This practice
helps police officers to mould statements in the way they like, sometimes to the utter dismay of
the witnesses. Section 162 of the Code of Criminal Procedure, 1973 helps accused to contradict
the witness during trial in the court. In normal course, the informant as well as the witnesses
are expected to adhere to their statements in the F.I.R. and the case diary respectively. But
there are a number of instances where divergent statements come to light during police
investigation and trial. The case of Harkirat Singh v. State of Punjab, MANU/SC/0815/1997 :
(1997) 11 SCC 215: 1997 SCC (Cri) 1068: AIR 1997 SC 3231 is on the point. It was observed:

"The contentions of the F.I.R. could have been used for the purpose of corroborating or
contradicting Walaiti Ram (informant) if he had been examined but under no
circumstances as a substantive piece of evidence."

Does Police Enjoy Unlimited Powers ?

No, the police, though has wide powers of investigation as provided under the Code of Criminal
Procedure, 1973, but they do not have unlimited powers. These powers are regulated to
prevent the misuse of the wide powers enjoyed by the police. The duty of the Police Officer is to
investigate on the facts set out in the F.I.R. and not to make it a case on some theory of his
 own. Such practice has earned the wrath of the courts and has thus been deprecated.

In Ajit Singh v. State of Punjab, 1969 (1) SCWR 100, the Supreme Court lashed out at the
police:

"It is true that an investigating officer is not restricted in the course of investigation of
an offence to the case set up by the complainant. He is entitled and indeed bound to
make a full investigation in the light of the facts disclosed. But in the present case, the
investigating officer apparently evolved a theory of his own and set up four persons for
trial under a charge-sheet for a grave offence of murder who are found to have nothing
to do with the assault on Chan Singh and then sought to support that case by evidence
which was patently unreliable. This conduct deserves severe condemnation."

The case of Swati Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).

The section 157 casts a duty upon the investigating officer to forthwith send the report of the
cognizable offence to the concerned Magistrate. The purpose for forthwith sending the report to
the concerned Magistrate is to keep the concerned Magistrate informed of the investigation of a
cognizable offence so that he may be able to control the investigation and if required, to issue
appropriate directions. Mere delay in the despatch of the F.I.R. itself is no ground to throw
away the prosecution case in its entirety. Sending the report to the concerned Magistrate is
circumstance which provides a basis to raise suspicion that the F.I.R. is the result of
consultation and deliberations and it was recorded much later than the date and time
mentioned in it and discloses that the investigation is not fair and forth right.

The Gauhati High Court in the matter of Mohd. Jainal Aladin v. State of Assam, (1997) 2 Crimes
660 held that Investigating Officer has to perform his duties with the sole object of
investigating the allegations and in the course of the investigation, he has to take into
consideration the relevant material whether against or in favour of the accused.

Misuse of Power of Investigation by Police

The law has provided wide powers to the police with regard to investigating the offences, but
certainly the powers were never meant to be misused by them. Wherever these powers have
been exercised mala fide the courts have never hesitated to condemn this high-handedness on
the part of the police. If the police ceases to be kind, merciful and friendly to the weak and the
innocent, then the society will face the rule of jungle and the unscrupulous element will have a
free hand. The police, therefore, in order to maintain law and order, and peace in the society,
will have to exercise the powers provided under the Code most diligently and meticulously.

Here is a very disturbing story of one Prem Chand, (known as paniwala) described in Prem
Chand v. Union of India, (1981) 1 SCR 1262: MANU/SC/0191/1980 : AIR 1981 SC 613: (: 981)
1 SCC 639, who had been used as a stock witness by the police in 3000 cases on account of
which many innocent persons might have landed in jail. But no sooner did Prem Chand
(paniwala) refuse to oblige the police it came very heavily on him and started externment
proceedings against him. The observations made be the Supreme Court are eye opener for the
people in general and for the police personnel in particular:

"We have no doubt that the petitioner who has given particulars of a large number of
cases where he had been cited as witness is speaking the truth even assuming that
 3000 cases may be an exaggeration......., the peril to the judicial process is best left to
imagination if professional perjuries like the self confessed Paniwala (i.e. name acquired
as an alias by the petitioner Prem Chand) are kept captured by the police to be pressed
into service for 'proving' cases. Courts trusting the police may act on apparent veracious
testimony and sentence people to prison. The community satisfied with such convictions
may well believe that all is well with law and order. We condemn in the strongest terms,
the system, etc., pollution of the judicial process and the consequent threat to human
rights of innocent persons. We hope that the higher authorities in the department, who
apparently are not aware of the various groups at the lower levels will immediately take
measures to stamp out this unscrupulous means."

The petition was disposed of without giving any direction, as the State counsel assured that no
further action would be taken against the petitioner. The Supreme Court, however, emphasised
the need of the State to issue clear orders to the Police Department to free the processes of
investigation, and prosecution from the contamination of connecting through the expediency of
stock piling stock witnesses.

The Supreme Court has cautioned courts to be vigilant against the motivated or unfair dealings
of the investigating officers during the course of investigation. In the case of Karnel Singh v.
State of Madhya Pradesh, MANU/SC/0497/1995 : (1995) 5 SCC 518: 1995 SCC (Cri) 977: AIR
1995 SC 2472, the Hon'ble Supreme Court observed:

"In cases of defective investigation, the court has to be circumspect in evaluating the
evidence but it would not be right in acquitting the accused person solely on account of
the defect, to do so would tantamount to playing into the hands of the investigating
officer if the investigation is designedly defective."

Investigation and Re-investigation

In S.N. Dube v. N.B. Bhoir, JT 2000 (1) SC 220: (2000) 2 SCC 254, the court held that in all
probability the first information was recorded at Palghar Railway Police Station much later and
after PSI Podekar had gone back to Balgarh. Copy of the F.I.R. was not sent to the Magistrate
either on that day or the next day. It had reached the Magistrate on 12-10-1989. This delay
does create a suspicion regarding influence of the two gangs.

In this case, the court has upheld the re-investigation and held that the trial judge was wrong
in holding that there was no material for entertaining any doubt and re-opening the
investigation, and that it was done with some oblique motive.

The prosecution, informant or accused cannot claim, as held in case of Shyama Charan Dubey
v. State of Uttar Pradesh, 1990 UP Cr R 81, further investigation as a matter of right except
that I.O.or incharge of police station can undertake further investigation even after charge-
sheet filed.

Focus should not be only on Flaws in Investigation: Supreme Court

Endeavour should be made by the trial Courts to see that the criminal justice system is
salvaged despite defects in investigation. The Hon'ble Supreme Court held that if offenders are
acquitted on account of flaws or defects in investigation, the cause of criminal justice becomes
a victim. They further held that it should be bear in mind the time constraints of the police
officers in the present system, the ill-equipped machinery, and the apathy of respectable
persons to come forward to give evidence.

© Universal law Publishing Co.

 
    

Chapter 16

Framing of the Charge

 Discharge and Acquittal Distinguished 180

 Witnesses Need not be Examined 180

 Prima Facie Case: Prosecution to Establish 180

 Material Rights of the Parties 181

 Whether the Allegations are Groundless 181

 Production of Document 181

 Meticulous Examination Not Required 181

 Situation Where the Charge is Not to be Framed 181

 Purpose of Charge 181

 Quashing of the Charge 181

 Conviction for Offence Other Than Charged 182

 Hostile Witness 182

 Grounds of Discharge 183

 Discharge: Claim 183

 No Reasons to be Recorded while Framing Charge 183

 Failure to Mention Provision 184

 Guidelines Given by the Supreme Court 184

 High Court May Record Reasons for Quashing the Charge 185

 Quashing of the Charge 185

 Relaxation of Condition 186

Chapter XIX of the Code of Criminal Procedure, 1973, deals with provisions for trial of warrant cases
instituted on police report.

Section 239 of the Code of Criminal Procedure, 1973, deals with the cases where the Magistrate has
the power to discharge a person accused of an offence under the Indian Penal Code. In that case, the
Magistrate is obliged to record reasons for discharging the accused person. The said section reads as
under:

239. When an accused shall be discharged

(i) If upon considering the police report, and the documents sent with it under Section
173 and making such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an opportunity of being
 heard, the Magistrate considers the charge against the accused groundless, he shall
discharge the accused and record his reasons for so doing.

Section 239 of the Code of Criminal Procedure, 1973, therefore, shows that the Magistrate is obliged to
record his reasons in case he decides to discharge the accused of the offence made out by the police
after completing the interrogation.

The next section, i.e. section 240 deals with the framing of the charge, which reads as under:

240. Framing of charge

(i) If upon consideration, examination, if any and hearing, the Magistrate is of opinion
that there is a ground for presuming that the accused has committed an offence, triable
under this chapter, which such Magistrate is competent to try and which in his opinion,
could be adequately punished by him, he shall frame in writing a charge against the
accused.

(ii) The charge shall then be read and explained to the accused and he shall be asked
whether he pleads guilty of the offence charged or claim to be tried.

Section 239 of the New Code of Criminal Procedure corresponds section 251 of the repealed Code. This
section provides for the discharge of the accused under the circumstances specified in the sub-section.
The corresponding provision for discharge of accused in cases instituted otherwise than on police
report is contained in section 245. Although both the provisions deal with a discharge, in warrant cases
they are not similar in terms.

At the stage of framing of charge as held in case of State of Maharashtra v. Priya Sharan
Maharaj, MANU/SC/1146/1997 : AIR 1997 SC 2041, the court has to consider the material with a view
to find out if there is ground for presuming that the accused has committed the offence or that there is
no sufficient ground for proceeding against him and not for the purpose arriving at the conclusion that
it is not likely to lead to a conviction.

The scheme of this section is primarily for a speedier conclusion of a criminal trial. Unlike section 245
of the Code of Criminal Procedure, 1973, the Magistrate under section 239 of the Code of Criminal
Procedure, 1973 dispenses with the hearing of the complainant, taking of all such evidences produced
by the prosecution and summoning of the complainant's witnesses, etc., required under section 244(1)
in cases instituted otherwise than on police report, what is, therefore, obligatory for the Magistrate
under section 239 is consideration of the police report, and the documents sent with it under section
173, the examination of the accused, if any, and after giving an opportunity to the prosecution and the
accused of being heard to discharge the accused of the charge against him is considered groundless;
Sirajuddin v. State, MANU/TN/0163/1968 : AIR 1968 Mad 117.

In a case of discharge before the Kerala High Court, it was held that this section did not apply to the
case of a person whose name was wrongly entered in the police charge-sheet alongwith other accused.

The court further observed: "In such a case the Magistrate has no jurisdiction to proceed under this
section and discharge him, but he has to remove him from the party array and set him at liberty";
State of Kerala (in re:), 1973 Cr LJ 1288 (1291) (Ker). But it is imperative on the Magistrate to record
in the order of discharge that he has complied with the provisions of this section, and on such
compliance found the charge to be groundless; State v. Ganga Ram Kalita, 1965 (1) Cr LJ 144.
The discharge of an accused can only be claimed before the charge is framed. Once the charge has
been framed under the relevant section, against the accused person, a trial has got to be concluded
either by conviction or acquittal.

Discharge and Acquittal Distinguished

Where the accused were charge-sheeted by the police, in respect of compoundable offences,
read with section 148 of the Indian Penal Code (45 of 1860), but the compoundable offences
were compounded, it was held that the proper order for the Magistrate was to discharge the
accused under this section.

Witnesses Need not be Examined

The witnesses need not be examined before the court makes an order for discharging the
accused, or under section 240 of the Code of Criminal Procedure, 1973 for framing a charge.
The Supreme Court in one of its judgments held, "The Magistrate before either framing a
charge or discharging an accused, has first to examine the accused if necessary, and to afford
an opportunity to the prosecution and the accused of being heard"; Ram Narayan v. State of
Maharashtra, MANU/SC/0079/1963 : AIR 1964 SC 949 (954).

Prima facie Case: Prosecution to Establish

At the time of framing of charge it is not necessary for the prosecution to establish beyond all
reasonable doubts that the accusation which are brought against the accused is bound to be
brought home against him. At this stage only prima facie case is to be seen. Whether the case
is "beyond reasonable doubt" is not to be seen at this stage. It was observed in Arun Gulab
Gawli v. State of Maharashtra, 1998 Cr LJ 4481: "While recording the ultimate findings, there is
every presumption in favour of the innocence of the accused in the matter of determining his
guilt and even in the matter of determining his intention or knowledge affecting the gravity of
the crime, but at the stage of framing the charge, even a strong suspicion, of course, founded
upon material, the presumptive opinion, would enable the court in framing a charge against the
accused.

Material Rights of the Parties

Framing of charge is not an interlocutory order as it affects material rights of the parties.
Sudesh Kumar v. State of Delhi, 2002 (2) CCC 585 (Del).

Whether the Allegations are Groundless

The stage of framing of charge is not the stage of weighing the pros and cons of all the
implications of the materials nor for sifting the materials presented by the prosecution. The
exercise at this stage should be confined to considering the police report and the documents
decide whether the allegations against the accused are "groundless" or whether "there is
ground for presuming that the accused has committed the offences". Bherulal v. State of
Rajasthan, 2002 (2) CCC 503 (Raj).

Production of Document

The trial Court cannot allow accused to produce any document at the stage of framing charges.
However High Court has such power to allow the accused under section 482 of the Cr PC or
 under Article 226 of the Constitution. State of Orissa v. Debendra Nath Padhi, 2005 (1) CCC
312 (SC).

Meticulous Examination Not Required

At the stage of framing of charge, the court is not required to meticulously examine and
marshal the material available on record as to whether there is sufficient material against the
accused which would ultimately result in conviction. The Court is prima facie required to
consider whether there is sufficient material against the accused to presume the commission of
offence. Even strong suspicion about commission of offence is sufficient for framing charge. Om
Prakash v. State of Rajasthan, 2004 (1) CCC 735 (Raj).

Situation Where the Charge is Not to be Framed

If the allegations are vague and the complaint itself shows that the accused has been falsely
implicated then the charge is not to be framed. If the charge is framed, it will tantamount to
abuse of the process of the court. Mukesh Rani v. State of Haryana, 2000 (2) CCC 123 (P&H).

Purpose of Charge

The purpose of charge is to apprise the accused precisely and consciously the charge to be
framed against him. The charge shall contain the particulars with regard to time and place of
the alleged offence and the person against whom or the thing in respect of which it was
committed as are reasonably sufficient to give the accused notice of the matter with which he is
charged. If the charge is defective, which materially prejudice the accused then on the basis of
such charge conviction cannot be sustained. Khurshid v. State of Haryana, 2004 (3) CCC 610
(SC).

Quashing of the Charge

The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged by cross-examination or
rebutted by defence evidence, if any, cannot show that the accused committed the particular
offence. Vaman Narayan Ghiya v. State of Rajasthan, 2004 (4) CCC 518 (Raj).

Conviction for Offence Other Than Charged

The court can convict an accused for minor offence even though charge was for major offence.
Dalbir Singh v. State of Uttar Pradesh, 2004 (2) CCC 682 (SC).

Hostile Witness

The courts have to be very cautious while appreciating the evidence given by the
witness. Their evidence plays a vital role particularly in criminal cases, to prove the guilt
or innocence of the accused person.

In its recent judgment - JT 2000 (3) SC 480, Kothakalava Naga Subba Reddi v. Public
Prosecutor, High Court of Andhra Pradesh, the Supreme Court set aside the order of the
trial court, whose approach in appreciating the evidence of material witnesses was
absolutely unreasonable and unjustified. Agreeing with the order of the High Court,
which reversed the order of acquittal by the Sessions Court, the Supreme Court
 observed:

"In our view the said submission is without any substance, because the trial court
materially erred in rating this witness as a hostile only on the ground that the
public prosecutor after obtaining the permission...had asked a question with
regard to the role played by the accused Nos. 4 and 6 on the basis of his police
statement. In our view, there was no reason for the Learned Judge to treat this
witness as not supporting for prosecution case. On the contrary this would mean
that the witness was truthful and he has not supported his police version with
regard to the identification of accused Nos. 4 and 6. From this also, he cannot be
dubbed as a liar, to whom no credence can be given as held by the Learned
Session Judge."

The Supreme Court further observed:

"In our view the approach of the learned Session Judge in treating this witness as a
hostile witness, and terming him as a liar, is to say the least, wholly unjustified and
unreasonable."

The Supreme Court thus held that High Court was fully justified in reversing the acquittal order
passed by the Sessions Court.

Grounds of Discharge

The Calcutta High Court in its judgment observed that the Magistrate under this Section is
required to discharge an accused if he considers on a consideration of the various materials
referred to therein that the charge against the accused is groundless. Since the object of
framing a charge is not to prosecute the accused person by any means, but to make them face
a trial which may reasonably lead to conviction, the word 'groundless' would mean the absence
of reasonable ground to expect a conviction; Ram Rijhumal v. State, 1958 Cr LJ 480.

Discharge: Claim

The accused is at liberty to place any document before trial judge to claim discharge. However,
accused cannot summon record of an earlier case. Surinder Kumar Tikku v. State through CBI,
2002 (1) CCC 179 (P&H).

No Reasons to be Recorded while Framing Charge

In one of its latest judgments - Kanti Bhadra Shah v. State of West Bengal, JT 2000 (1) SC 13:
(2000) 1 SCC 722, the Supreme Court held, "if the trial court decides to frame the charge there
is no legal requirement that it should pass an order specifying the reasons as to why it opts to
do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion,
upon considering the police report and other documents and after hearing both sides, that
there is ground for presuming that the accused has committed the offence which he is
competent to try. He is only required to frame a charge in writing against the accused."

In para 12 of its judgment, the Supreme Court further observed that, "if there is no legal
requirement, that the trial court should write an order showing the reasons for framing a
charge, why should the already burdened trial courts be further burdened with such an extra
work. The time has reached to adopt all possible measures to expedite the court proceedings
 and to chalk out measures to overcome all road blocks causing unavoidable delays.

If a Magistrate is to write detailed orders at different stages merely because the counsel would
address the arguments at all stages, the snail pace progress of proceedings in the trial courts
would further be slowed down. We are coming across interlocutory orders of the Magistrates,
and Sessions Judges running into several pages. We can appreciate if such a detailed order has
been passed for evaluating the proceedings before them. But it is quite necessary to write
detailed orders at other stages, such as issuing process, remanding the accused to custody,
framing of charge, passing over to next stage, in the trial.

Whether the offence mentioned in charge sheet on its facts and circumstances are maintainable
cannot be the matter of Supreme Court in a petition under Article 32 of the Constitution as it
cannot convert itself into a court of a Magistrate or a special judge. This fact was interpreted in
case of Raghubir Singh v. State of Bihar, (1986) 3 SCJ 599: MANU/SC/0199/1986 : AIR 1987
SC 149: (1986) 4 SCC 481: (1986) 3 SCR 802.

Failure to Mention Provision

Failure to mention the provision is only an irregularity but to mention the nature of offence
committed in the charge is not a mere irregularity. Bala Seetharamaiah v. Perike S. Rao, 2004
(3) CCC 01 (SC).

Guidelines Given by the Supreme Court

In this very judgment, the Supreme Court thought it proper to give some guidelines for the trial
courts. "It is a statutory guideline that when orders rejecting or granting trial are passed, the
court should avoid expressing one way or other on contentious issues, except in cases such as
those falling within section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985".

High Court May Record Reasons for Quashing the Charge

In its celebrated judgment the Supreme Court further observed that if the High Court decides
to quash the charge, it is open to the High Court to record the reasons thereof.

Para 13 of the Supreme Court judgment at page 17 thus reads:

"In the present case, a Metropolitan Magistrate has chosen to frame the charge, the
High Court when moved by the accused for quashment of the charge, could have re-
examined the records to consider whether the charge framed was sustainable or not. If
the High Court decides to quash the charge it is open to the High Court to record the
reasons thereof.

The present order of the High Court after all is one of the setting aside the charge without
stating any reason. But the direction to the Magistrate to consider the materials once again and
then to frame a charge for the same offence (if the Magistrate reaches the opinion that there is
a ground for presuming the commission of offence) is simply to repeat what the Metropolitan
Magistrate had done once at the first instance.

To ask him to do the same thing over again is adding an unnecessary extra work on the trial
court. Be that as it may, the State has not challenged the order of the High Court. Hence we
are not in a position to set aside the impugned order of the High Court and leave the order as
 such by making the aforesaid observation. We leave it to the M.M. to exercise his function
under section 239 or 240 of the Code as he deems fit in the light of the observation made
above".

Quashing of the Charge

In State of Madhya Pradesh v. S.B. Johri, JT 2000 (1) SC 169: (2000) 2 SCC 57, there were
allegations of conspiracy and corruption by the Dean, Superintendent and Medical Officer of
Cancer Hospital as also of the use of forged documents. After appreciating and weighing the
material on record, the High Court came to its own conclusion.

In para 4 of the judgment the Supreme Court observed:

"In our view it appears that the entire approach of the High Court is illegal, and
erroneous. From the reasons recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has appreciated and weighed the
materials on record for coming to the conclusion that the charge against the
respondents could not have been framed. It is a settled law that at the stage of framing
of the charge, the court has to prima fade consider whether there is a sufficient ground
for proceeding against the accused. The Court is not required to appreciate the evidence
and arrive at the conclusion that the materials produced are sufficient or not for
convicting the accused. If the Court is satisfied that a prima facie case is made out for
proceeding further then a charge hereto be framed. The charge can be quashed by the
evidence which prosecutor proposes to adduce to prosecute guilt of the accused, even if
fully accepted before it is challenged by cross examination or rebutted by defence
evidence, if any, cannot show that the accused committed the particular offence. In such
case there would be no sufficient ground for proceeding with the trial".

In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, JT 1990 (3) SC 408: AIR
1990 SC 1962: (1990) 4 SCC 76: (1990) Cr LJ 496, the Supreme Court held that at the stage
of framing of the charge, inquiry most necessarily be limited for deciding of the facts emerging
from such materials constitute the offence with which the accused could be charged.

Relaxation of Condition

In M. Rajendran v. State by Inspector of Police Tamil Nadu, JT 2000 (1) SC 192, the petitioner
sought relaxation of conditions by changing place of police station for causing appearance
during bail period. A Special Leave Petition was filed in the Supreme Court, by the petitioner.

It was argued before the Supreme Court that condition No. 1 imposed by the High Court may
be relaxed to the extent that the place of appearance of the petitioner is changed from Race
Course Police Station, Coimbatore to any other police station nearby Nagapattinam.

The petitioner did not mention this request in the High Court while being granted bail from the
court. The Supreme Court declined to accede to the prayer of the petitioner on the plea that he
had not made any such request in the High Court. But the

Supreme Court gave the petitioner an opportunity to approach the High Court afresh seeking
relaxation and modification of the condition No. 1 and it was for the High Court to decide the
matter on its own merits.
In case of R.S. Nayak v. A.R. Antulay, AIR 1986 SC 684: (1984) 2 SCC 183: (1984) 2 SCR 495
it was held that prima facie case has to be made out before framing of charge against accused.

In case of State of Maharashtra v. Somnath Thappa, MANU/SC/0451/1996 : AIR 1996 SC

1744: (1996) 4 SCC 659: (1996) Cr LJ 2448, the Supreme Court justifiably held the prima fade
case against the accused in the offence. The ground for presumption must exist against the
accused.

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Chapter 17

The Court, Prosecution and the Defence

 Role of the Judges 188

 Whether the Judge Can Act as a Prosecutor? 189

 Court - Prosecution - Defence 190

Nothing rankles more in a human mind than a brooding sense of injustice. The Code of Criminal
Procedure, 1973 and the Constitution of India, therefore, require the State to secure that the operation
of the legal system promotes, on the basis of equal opportunity, and to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic and other disabilities.

It is an admitted fact that the laws of a country do not reside in a sealed book. They grow and develop.
Too technical interpretation of the provisions of the law, therefore, would not be of much use; the
judges have to interpret the provisions in a more practical and liberal way, taking into consideration
the welfare of the society and the overall interest of the individual citizen before the court.

We have seen that the reforms in the grant of bail have come more from the courts than the
legislature. And in many judgments, the courts have observed--grant of bail is a rule, and rejection of
the bail is an exception. Kudos to the Supreme Court of India, which has created a revolution in the
criminal jurisprudence through their ever-green landmark judgments delivered from time to time. The
illustrious Judges of our country, by way of judicial activism, have never hesitated to iron out the
creases in the virgin laws of the land in favour of the society and the citizen.

Role of the Judges

In the area of grant of bail to the accused persons (who are supposed to be innocent until the
final verdict) the role of the judges is of immense significance. As we know, the judges enjoy
wide powers and discretion, to grant or not to grant the bail. Though the discretion has to be
used-judiciously and judicially, yet the scope of discretion differs from judge to judge. So the
judges have to involve themselves actively and with an open mind to discover the truth of the
matter not only in bail matters, but in all cases tried before them.

In Ram Chander v. State of Haryana, 1981 Cr LJ 609: MANU/SC/0206/1981 : AIR 1981 SC

1036, the Supreme Court rightly observed:

"Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of
a presiding judge to explore every avenue open to him in order to discover the truth and
to advance the course of justice."

In the absence of evidence withdrawal of case is rightly applied and correctly permitted; Mohd.
Mumtaz v. N. Satpathy, (1987) 1 SCJ 232. Again in the application for withdrawal from
prosecution, Magistrate is not required to pass reasoned order nor assess evidence; Sheo
Nandan Paswan v. State of Bihar, 1987 Cr LJ 793: MANU/SC/0206/1986 : AIR 1987 SC 877:
(1987) 1 SCC 288: (1987) 1 SCR 702.
Whether the Judge Can Act as a Prosecutor?

No, the judge, under no circumstances, can act as a prosecutor. With such wide powers that he
enjoys, the judge must actively participate in the trial to elicit the truth and to protect the weak
and the innocent. It must not, of course, assume the role of a prosecutor in putting questions.
The functions of the Counsel, particularly those of the prosecutor, are not to be usurped by the
judge, by descending into the arena, as it were. Any question put by the judge must be so as
not to frighten, coerce, confuse or intimidate the witness.

The inherent danger if a judge adopts much stern attitude towards witnesses has been
explained by Lord Justice Birkett:

"The people accustomed to the procedure of the court are likely to be overawed or
frightened or confused or distressed, when under the ordeal of prolonged questioning
from the presiding judge, moreover.........."

"The part to be played by the judge in all this is to hear the evidence, only himself
putting questions to witnesses when it is necessary to clear up any point that has been
overlooked or left obscure, or to see that the advocates behave themselves seemly and
keep to the rules laid down by law; to exclude irrelevancies and discourage repetitions,
to make sure by wise intervention that he follows the point that the advocates are
making and can assess their worth; and at the end to make up his mind where the truth
lies. If he goes beyond this, he drops the mental of the judge, and assumes the role of
an advocate; the change does not become him well."

Here are the observations of our own Supreme Court on this very point:

"We may go farther than Lord Denning and say that it is the duty of the Judge to
discover the truth and for that purpose he may ask any question in any form, at any
time, of any witness or of the parties about any fact, relevant or irrelevant. But
trespassing upon the functions of the public prosecutor and the defence counsel without
any hint of partisanship and without appealing to frighten or bully witnesses, he must
take the prosecution and the defence with him ..."

In Mohit Bhatnagar v. State (Delhi Administration), Cr. Misc. (Main) 2907/94 and Cr. Misc.
2683/94 dated 9-11-1994, Justice Jaspal Singh, observed that while acting as a Presiding
Officer, the judge should not give an impression that he was acting as a prosecutor also.
Quoting Lord Denning, the learned Judge agreed that 'when a Judge sits in court he is on trial
himself- While acting as a judge, he should not even obliquely give an impression that he was
acting as a prosecutor.' Lastly the learned Judge made the following observations:

"I am confident that in the discharge of his duties, onerous they bring the presiding
officer shall conduct himself and the proceedings in such a manner as not to send wrong
signals."

Court - Prosecution - Defence

"The court, prosecution and the defence must work as a team whose captain is the judge. The
judge like the conductor of the choir, must by force of personality induce his team to work in
harmony; subdue the revecous, encourage the timid, conspire with the young, flatter the old."
The Sessions Judge puts questions in a threatening tone. The questions put by the learned
Sessions Court particularly threats held out to witnesses that if they changed their statements,
they would involve themselves in prosecution for perjury were certainly intimidating." Coming
as they did from the presiding Judge, the Supreme Court observed, "we find it impossible to
justify the attitude adopted by the Sessions Court, and we also find it impossible to accept any
portion of the evidence of the eyewitness."

Justice S. Murtaza Fazal Ali the then judge of the Supreme Court in a valedictory address on
judicial approach rightly observed:

"...You are holding an important position in the judiciary which is an important wing of
the State and it is the only institution which commands confidence of the people..."

Quoting Cardozo, the learned Judge said:

"The final cause of law is the welfare of the society. The rule that misses its aim cannot
permanently justify its existence."

And here are the memorable words of justice Holms:

"Law is a magic mirror, in it, is reflected not only our own lines, but also lines of those
who have gone before us..."

The function of a judge thus has always been regarded as a divine function right from the very
beginning when the concept of law developed.

In the case of State of Haryana v. Bhujan Lal, (1992) Supp 1 SCC 335: MANU/SC/0115/1992 :
AIR 1992 SC 604: 1990 Supp (3) SCR 259 the principle of quashing of prosecution is laid down.

A Delhi High Court sitting judge Shameet Mukherjee was allegedly involved in DDA Scam Case.
Before his involvement came in media he resigned and during the police search he was
surrendered before the court. The court sent him to police custody and latter he was released
on bail upto next hearing, Shameet Mukherjee v. CBI, Crl. M. (M.) No. 2471/2003 and Crl. M
No. 3301/2003 (Delhi High Court), on 15 July, 2003 the counsel for CBI sought permission of
court to place reply on record stating that the accused is tampering with evidence. Let the
same be taken on record of the case, and he stated that the rejoinder to be filed within one
week. The court directed investigating officer to be present along with record and directed that
the interim order to continue upto next hearing.

© Universal law Publishing Co.

   
    

Chapter 20

Guidelines for the Courts

 Justice Denied to the Poor 202

 Recommendation Made to the Parliament 203

 What is the Scope of "Compulsive Bail" ? 204

 Monetary Bail - Discrimination Against the Poor 205

 Views of the American President 205

 Recommendations of the Gujarat Committee 206

 Guidelines for the Courts (By the Supreme Court) 207

 Liberal Policy 207

 Justice Krishna Iyer's Observation 208

 Violation of Articles 14 and 21 208

 Justice H.R. Khanna on Bail 210

Chapter 20

Guidelines for the Courts

In Hussainara Khatoon v. State of Bihar, 1979 Cr LJ 1036: MANU/SC/0121/1979 : AIR 1979 SC 1369 a

Writ of Habeas Corpus was filed in the Supreme Court on the basis of the news reports. According to
these news reports published in the issues of the Indian Express, dated 8th and 9th January, 1979, a
large number of men and women were behind prison bars for years awaiting trial in the Courts of Law.
The offences with which some of them were charged, carried a punishment which might be even for a
year or two.

In S.D. Madan v. State, 54 (1994) DLT 460 the Addl. Sessions Judge on 22-4-1994 directed the
accused applicant charged under section 420/120, IPC to be released in the event of arrest by
furnishing a surety of Rs. 3 crores to the satisfaction of the concerned I.O./S.H.O., subject to the
condition that the applicant shall join the investigation as and when required by the I.O. and shall not
leave India without the specific permission of the court concerned, Granted bail till 24-5-1994.

Another judgment passed in Hussain Ara Khatoon's case, MANU/SC/0121/1979 : AIR 1979 SC 1369:
1979 Cr LJ 1036, wherein the factors were laid down while granting bail, the H.C. said, "Unfortunately,
in the present case, the learned Addl. Sessions Judge, deems to have completely lost sight of them
with the result that the remedy has been reduced to a husk by exercise of presence which has neither
been reasonable nor fair nor just. Surely the amount of bail, to borrow the words of apex court in
Keshal Narayan Bannerjee v. State of Bihar, AIR 1985 SC 166, appears to be excessively onerous,
virtually amounting to denial of bail itself.

The petition is allowed. The bail amount is reduced from Rs. 3 crores to Rs. 25,000.
While dealing with the cases of these undertrials, who had been made to over-stay in the jail because
of poverty, helplessness as also the unsatisfactory Bail system, the Supreme Court observed:

"It is a travesty of justice that many poor accused, Little Indians are forced into long cellular
servitude for little offences, because the bail procedure is beyond their meager means and trials
do not commence and even if they do they never conclude."

Justice Denied to the Poor

In Hussain Ara Khatoon case, Justice P.N. Bhagwati made the following observations:--

"One reason why our legal and judicial system continually denies to the poor by keeping them
for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a
property oriented approach which seems to proceed on the erroneous assumption that risk of
monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure
even after its re-enactment, continues to adopt the same antiquated approach.... And where an
accused is to be released on his personal bond, it insists that the bond should contain a
monetary obligation requiring the accused to pay a sum of money in case he fails to appear at
the trial...... This system of bails operates very harshly against the poor.... The poor find it
difficult to furnish bail even without sureties because very often the amount of bail fixed by the
courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy
the police or the Magistrate about their solvency for the amount of the bail and where the bails
are with sureties, as is usually the case, it becomes almost an impossible task for the poor to
find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced
by the police and revenue officials or by touts and professional sureties and sometimes they
have to even incur debts for securing their release........".

Recommendation Made to the Parliament

While delivering its judgment in this most alarming and shocking case, the Supreme Court made some
valuable suggestions for the Parliament to consider seriously and implement them in right earnestness.

"Parliament would do well to consider whether it should not be more consonant with the ethos
of our Constitution that instead of risk of financial loss, other consideration such as family ties,
roots in the community, job security, membership of stable organisations, etc. should be the
determinative factors in grant of bail and the accused should in appropriate cases be released
on his personal bond without monetary obligation. Of course it may be necessary in such a case
to provide by an amendment of the penal law that if the accused wilfully fails to appear in
compliance with the promise contained in his personal bond, he shall be liable to penal action".

Justice R.S. Pathak urged for immediate clear provision in the antiquated bail system.

While concluding in his separate judgment Justice Pathak observed:

"It seems desirable to draw attention to the absence of explicit provision in the Code of
Criminal Procedure enabling the release, in appropriate cases of an under trial prisoner on Ms
bond without sureties and without any monetary obligation. There is urgent need for 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 invidious
discrimination. The more so under a constitutional system which promises social equality and
social justice to all of its citizens, the deprivation of liberty for the reasons of financial poverty
only is an incongruous element in a society aspiring to the achievement of these constitutional
objections. There are sufficient guarantors for appearance in the host of consideration to which
reference has been made earlier and it seems to me our law makers would take an important
step in defence of individual or liberty if appropriate provision was made in the statute for non-
financial release".

What is the Scope of "COMPULSIVE BAIL"?

In Uday Mohanlal Acharya v. State of Maharashtra, (2001) 3 Supreme Today 142, a Full Bench,
comprising G.B. Pattanaik, U.C. Banerjee and B.N. Agrawall, JJ., of the Supreme Court, by passing
B.N. Agrawal, J.'s dissenting judgment, has finally resolved "dilemma" as to the accused's right to bail
'till challan is not filed in court after expiry of 90/60 days' and 'when challan is filed in court after
expiry of such a statutory period before the accused is released on bail'. Thus, the court gave the
following suggestions, namely:--

1. Immediately after the expiry of a statutory period of 90 days, or 60 days, or otherwise, an

indefeasible right to bail is accrued to the accused.

2. In his own interest the accused has to file an application for bail, without any delay, in the
court.

3. When the accused has not filed an application for bail, but if the police has filed challan in
the meanwhile in the Court, his application for bail filed subsequent thereto, ipso facto becomes
infructuous.

4. The Magistrate is legally obliged to dispose of the accused's application for bail not only on
the same day but also without any delay, e.g., waiting for a challan to be filed.

5. If the Magistrate does not dispose of the accused's application in accordance with the law, or
refuses, disallows or rejects his application for bail on one reason or the other, he must
approach the higher court in revision or otherwise.

6. A challan filed by the police, while the accused's application for bail is sub-judice in the court,
does not cause prejudice to his indefeasible right to bail.

7. The Magistrate must release the accused forthwith on bail:

Provided that,--

(i) The statutory period is already expired;

(ii) The police did not file challan within the statutory period in his court; and

(iii) The accused has availed of his indefeasible right to bail after the expiry of
statutory period but before the police has not filed challan till that day.

8. The period is 90 days or 60 days and not 3 months or 2 months.

 9. In a few special laws such period is more than 90 days.

Note.--Perhaps, a revision lies to the Court of Session.

Monetary Bail - Discrimination Against the Poor

In an earlier judgment delivered by the Supreme Court, Justice V.R. Krishna Iyer, expressed the
similar feelings and deprecated the old investigating system of granting the bail. In Moti Ram v. State
of Madhya Pradesh, AIR 1978 SC 1549: (1978) 4 SCC 47: (1979) 1 SCR 335: 1978 Cr LJ 1703, the
Magistrate ordered the release of Moti Ram, a poor mason, on his furnishing bail bonds to the
satisfaction of the Chief Judicial Magistrate. The Magistrate ordered that the accused may be released
on bail on furnishing a surety amounting to Rs. 10,000. The poor Moti Ram was unable to procure any
surety and the Magistrate refused to accept the surety of his brother, whose assets were in another
district.

Aggrieved by the order of the Magistrate, Moti Ram ultimately approached the Supreme Court for the
modification of the order. Moti Ram's request was acceded to and the Supreme Court directed the
Magistrate to release him on his bond in a sum of Rs. 1,000.

Having been disturbed by the order of the Magistrate demanding surety of Rs. 10,000 from a poor
mason, the Supreme Court made a survey of the various sections of the Code of Criminal Procedure,
1973 and made the following observation:--

"Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom
and indigents' rights, we hold that bail covers both release on one's own bond, with or without
sureties. When sureties be demanded and what sum should be insisted on are dependant on
variables".

Views of the American President

The same anguish was expressed by President Tyndon B. Johnson at the time of signing the Bail
Reforms Act, 1966.

"Today we join to recognise a major development in our system of Criminal Justice"--The reform of the
Bail System.

This system has endured - Archaich, unjust and virtually unexamined - since the Judiciary Act of 1789.

The principal purpose of bail is to ensure that an accused person will return for trial if he is released
after arrest.

How is that purpose met under the present system ? The defendant with means can afford to pay bail.
He can afford to buy his freedom. But poorer defendant cannot pay the price. He languishes in jail
weeks, months and perhaps even years before trial.

"He does not stay in jail because he is guilty. He does not stay in jail because any sentence has
been passed. He does not stay in jail because he is any more likely to flee before trial. He stays
in jail for one reason only - because he is poor....."

The bail system, thus, as it operates today is a source of great hardship to the poor and if we really
want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the
administration of justice, it is imperative that the bail system should be thoroughly reformed so that it
could be possible for the poor, as easily as rich to obtain pre-trial release without jeopardizing the
interest of justice.

Recommendations of the Gujarat Committee

The following recommendations made by the Gujarat Committee are based on the studies made by it
in depth:

"The bail system as we see it administered in criminal courts today, is extremely unsatisfactory
and needs drastic changes. In the first place it is virtually impossible to translate risk of non-
appearance by the accused into precise monetary terms and even its basic premise that risk of
financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are
several considerations which deter an accused from running away from justice and risk of
financial loss is only one of them and that too not a major one. The experience of enlightened
bail projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows
that even without monetary bail it has been possible to secure the presence of the accused at
the trial in quite a large number of cases. Moreover, the bail system causes discrimination
against the poor, since the poor would not be able to furnish bail on account of their poverty
while wealthier persons otherwise similarly situated would be able to secure their freedom
because they can afford to furnish bail".

Guidelines for the Courts (By the Supreme Court)

In Moti Ram's case, Justice Krishna Iyer, a celebrated Judge of the Supreme Court, made the following
suggestions:--

"We suggest that the magistrate must always bear in mind that monetary bail is not a
necessary element of the criminal process and even if risk of monetary loss is deterrent against
fleeing from justice, it is not the only deterrent and there are other factors which are sufficient
deterrents against flight."

The Magistrate must abandon the antiquated concept under which pre-trial release could be ordered
only against monetary bail. That concept is outdated and experience has shown that it has done more
harm than good.

The new insight has developed in socially advanced countries particularly the United States. According
to the practice prevalent there, every other feasible method should be exhausted before resorting to
monetary bail. The practice which is now being followed in the United States is that the accused should
ordinarily be released on order to appear or on his own recognizance unless it is shown that there is
substantial risk of non-appearance or there are circumstances justifying imposition of condition on
release.... If a Magistrate is satisfied after making an enquiry into the condition and background of the
accused that the accused has his roots in the community and is not likely to abscond, he can safely
release the accused on an order to appear on his own recognizance....".

Later a Committee of Judges, Lawyers, Members of Parliament and other legal experts also came to
the same conclusion.

Liberal Policy

We think that a liberal policy of conditional release without monetary sureties or financial security and
release on one's own recognizance without punishment provided for violation will go a long way to
reform the bail system and help the weaker and poorer sections of the community to get equal justice
under law......when the accused is too poor to find sureties, there will be no point in insisting on his
furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps
in making his defence".

Justice Krishna Iyer's Observation

It shocks our conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000. The
Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted
by "WE, THE PEOPLE OF INDIA", is meant for the butcher, the baker and the candle-stick maker --
shall we add the bonded labourer and pavement dweller.........If the indigents are not to be betrayed
by law including bail law, rewriting of many processual laws is an urgent desideratum; and the
judiciary will do well to remember that geographical frontiers of the Central Codes cannot be disfigured
by the cartographic dissection in the name of language or province.

The best guarantee of the presence of the accused in the court is the reach of law, not the money tag.
We leave it to Parliament to consider whether in our Socialistic Republic with Social Justice as its
hallmark, monetary superstition, not other relevant considerations like family ties, roots in the
community, membership of stable organisations, should prevail for bail bonds to ensure that the bailee
does not flee from justice.

Violation of Articles 14 and 21

For the past many years the Supreme Court has been stressing this point that surety in terms of
money is not at all desirable and justiciable while granting bail to the accused persons, particularly the
poor persons who are unable to procure such sureties involving huge amounts. This method is
otherwise against the letter and spirit of Articles 14 and 21 of the Constitution of India. The Supreme
Court also held in many of its judgments that the courts should be liberal in granting the bail; taking
into consideration the facts and circumstances of each case, the courts may impose certain conditions
on the accused persons while granting the bail.

In State of Rajasthan v. Balchand, MANU/SC/0152/1977 : AIR 1977 SC 2447 Justice Krishna Iyer, a

Judge of the Apex Court held, "the basic rule may perhaps be tersely put as bail not jail, except where
there are circumstances suggesting of fleeing from justice or thwarting the course of justice creating
other troubles in the shape of repeating offences or intimidating witnesses and the like by petitioner
who seeks enlargement on bail from the court..... At the same time any possibility of the absconsion or
evasion or other abuse can be taken care of by a direction that the petitioner will report himself before
the police station at Baran once every fortnight......

It may well be that in most cases not monetary suretyship, but undertaking by relations of the
petitioner or organisation to which he belongs may be better and more socially relevant. Even so, in
this case, we stick to the practice and direct the furnishing of one surety for Rs. 5,000.

In another popularly known, Sunder Murder case--Gurcharan Singh v. Delhi Administration, AIR 1978
SC 179 (185) (para 22), the Supreme Court observed:

"In other non-bailable cases, the court will exercise its judicial discretion in favour of granting
bail subject to subsection (3) of section 437 of the Code of Criminal Procedure, 1973 if it deems
necessary to act under it. Unless exceptional circumstances are brought to the notice of the
court which may defect proper investigation and a fair trial, the court will not decline to grant
 bail to a person who is not accused of an offence punishable with death or imprisonment for
life".

In its remarkable latest judgment Sandeep Jain v. National Capital Territory of

Delhi, MANU/SC/0026/2000 : AIR 2000 SC 714: (2000) 2 SCC 66, in which the accused person was
directed to give surety for Rs. 2 lakhs and he had been languishing in jail for almost ten months
besides the grant of bail, which he could not procure, the Supreme Court made the following
observation:

"We are unable to appreciate even the first order passed by the Metropolitan Magistrate
imposing the onerous condition that an accused at the F.I.R. stage should pay a huge sum of
Rs. 2 lakhs to be set at liberty..... Can he be detained in custody endlessly for his inability to
pay the amount in the range of Rs. 2 lakhs..... But to keep him in prison for such a long period,
that too in a case where bail would normally be granted for the offence alleged, is not only
harsh but improper. It must be remembered that the court has not even come to the conclusion
that the allegations made in the FIR are true. That can be decided only when the trial
concludes, if the case is charge sheeted by the police... We, therefore, allow this appeal and set
aside the impugned judgment. We order the appellant to be released on bail on his executing a
bond in the sum of Rs. 25,000 with two solvent sureties to the satisfaction of the Metropolitan
Magistrate".

Justice H.R. Khanna on Bail

In one of his articles (Bail Pertaining to the Law of Procedure Hindustan Times, dated 1-4-1996) Justice
H.R. Khanna, the then Judge of the Supreme Court, opined that while considering the question of bail,
it has to be borne in mind that the bail pertains to the law of procedure. It was initially devised as an
arrangement for the release of a person to secure his attendance in court. During the early years of
independence and also during the British Times, police investigations and the trial of criminal cases in a
court of law did not take long. Justice H.R. Khanna was District and Sessions Judge in the year 1953-
55 in Ferozepur, which of all the districts in the country had the largest number of murder cases. The
trial of the murder case at that time would finish within two months.

This meant that the entire period from filing of the charge-sheet in the court of Committing Magistrate,
the commitment proceeding, or recording of necessary evidence before him, the order of commitment
of the accused to the Court of Sessions, the trial in the Court of Sessions, for recording of prosecution
evidence, defence evidence, if any, and the pronouncement of the judgment by the Sessions Judge,
would not exceed two months.

Unfortunately, criminal cases now take years to dispose of. This is because of heavy workload of courts
and the number of courts not being enough to deal with the heavy load, with the result that the courts
are constrained to give long dates of hearing. It is appreciated that in such cases the accused should
be released on bail.

© Universal law Publishing Co.

    

Chapter 21

Habeas Corpus

 When Does Writ of Habeas Corpus Lie? 213

 Compensation for Illegal Detention 215

Chapter 21

Habeas Corpus

The Constitution of India mentions the writ of habeas corpus in articles 32 and 226. The writ ordinarily
issued for the object to secure the release of a person found to be detained illegally. In case of
Additional Secretary v. Alka Gadia, (1990) 2 SCALE 1352 the court held that the writ of habeas corpus
is applied only after a person is arrested.

The preamble of our Constitution contains the ideals and aspirations or the objects which the
Constitution-makers intended to be realised by its enacting provisions. And for that matter, the
preamble of a statute is often described as a key to understand it. It may legitimately be consulted to
solve an ambiguity or to ascertain and fix the meaning of the words in their context which otherwise
bear more meanings than one. It may afford useful assistance as to what the statute intends to reach.
This was observed by the Supreme Court in AC. Sharma v. Delhi Administration,MANU/SC/0073/1973 :
AIR 1973 SC 913.

In the year 1950, in A.K. Gopalan v. State of Madras, often quoted as Gopalan's case AIR 1951) SC
27: 1950 SCR 120, the Supreme Court was approached to clarify the interpretation of the Preamble of
the Constitution. It was contended that the preamble to our Constitution which seeks to give India a
"democratic" Constitution should be the guiding star in its interpretation of India and thus any law
made under Article 21 of the Constitution of India should be held as void, if it offended against the
principles of natural justice.

In the post Gopalan's case the Supreme Court visibly is inclined to take a larger cognizance of the
preamble as setting forth the goal of our political society, so that it may be invoked to determine the
ambit of Fundamental Rights and the Directive Principles contained in the Constitution.

Article 21 of the Constitution guarantees protection of life and personal liberty for every citizen in the
country. It reads--"No person shall be deprived of his life or personal liberty except according to
procedure established by law."

In Kiran v. State of Andhra Pradesh, (1990) 1 SCC 282, the Supreme Court held that the court is not
powerless to interfere with an imminent threat to the freedom of life or personal liberty of an
individual. It further held that it must not wait until the person has actually been taken into custody.

The law provides that no person can be detained in police custody for more than twenty-four hours. In
case he is required to be detained for more period, he has to be produced before the concerned
Magistrate, for the extension of time of his detention. In case the police does not produce that person
within twenty-four hours of the arrest, that will amount to an illegal detention. The remedy lies by way
of writ habeas corpus under article 226 of the Constitution of India to be filed in the High Court.

Section 57 of the Code of Criminal Procedure, 1973 provides that no police officer shall detain in
custody a person arrested without warrant for a longer period than under all the circumstances of the
case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under
section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place
of arrest to the Magistrate's Court.

According to article 22(2) of the Constitution of India, every person who is arrested and detained in
custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of arrest to the Magistrate and no
such person shall be detained in custody beyond the said period without the authority of a Magistrate.

Section 167 of the Code of Criminal Procedure, 1973 provides that whenever any person is arrested
and detained in custody, and it appears that investigation cannot be completed within the period of
twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or
information is well-founded, the officer-in-charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and
shall at the same time forward the accused to such Magistrate.

When Does Writ of Habeas Corpus Lie?

Any illegal detention attracts writ of habeas corpus in the High Court under article 226 of the
Constitution of India and in the Supreme Court under article 32 of the Constitution of India. Right to
life as provided under article 21 of the Constitution of India is the most precious right guaranteed to
every citizen, and in case of its violation by any authority, is at once remedied by the courts of our
country including the Supreme Court, when approached by way of writ of habeas corpus.

Quoting Blackstone, in his book 'Right to Life and Liberty under the Constitution', Justice B.L. Hansaria
(formerly Hon'ble Judge of the Supreme Court) observes that the writ of habeas corpus is the great
and efficacious writ in all manner of illegal confinement.

Highlighting the significance and efficacy of the writ of habeas corpus, Lord Denning said--

"Whenever one of the King's Judges takes his seat, there is one application which by long
tradition has priority over all others. Counsel has but to say, 'My Lord I have an application
which concerns the liberty of the subject', and forthwith the judge will put all other matters
aside and hear it. It may be an application for writ of Habeas Corpus or an application for bail,
but whatever form it takes, it is first heard."

The Indian Judiciary has not lagged behind; the courts of our country, particularly the Apex Court has
given new dimensions and created a new jurisprudence in cases where the fundamental rights of the
citizens were disturbed in violation of the Constitution. With humility and great indebtedness, the
author takes the liberty to mention a few cases, from the book of the Hon'ble Mr. Justice B.L. Hansaria,
which throw a flood of light on the writ of habeas corpus.

The history of the writ of habeas corpus has been dealt in detail by a Constitution Bench in Kanu
Sanyal v. District Magistrate, MANU/SC/0154/1974 : AIR 1974 SC 510: (1974) 4 SCC 141: (1974) 3
SCR 279: (1974) Cr LJ 465. It was described as a writ of immemorial antiquity, whose first threads are
woven deeply within the "seamless web of history" and untraceable among countless incidents that
constituted a total historical pattern of Anglo Saxon jurisprudence. Some writers even found the magna
carta provision prohibiting imprisonment without due process of law as the direct ancestor of this writ--
the direct heritage may be debatable but indirect connection is not. The primary object of the writ was
said to be the immediate determination of the right of the applicant's freedom--that was its substance
and its end.

It was stated in Ranjit Singh v. State of Pepsu, MANU/SC/0049/1959 : AIR 1959 SC 843, that the
whole object of this writ is to keep law as free from technicality as possible and to keep them as simple
as permissible, as otherwise the incalculable value of this writ will be lost.

This writ has been described as a writ of right which is granted ex debito justitiae. Though a writ of
right, it is not a writ of course. The applicant must show a prima facie case of this unlawful detention.
Once, however he shows such a case and the return is not good and sufficient he is entitled to this writ
as of right. This writ can be issued in case of "counterfeited release" also, so too, when there is a
pretended ignorance of the place of custody or identity of the custodian as stated in Barnardo v. Ford,
1891 (4) All ER Rep 522. Following this decision, the Gauhati High Court took the same view in N.N.C.
Onghi Devi v. Rishang Keshing, 1982 (1) GLR 756.

The writ of habeas corpus is a prerogative writ of highest constitutional importance, being a remedy
available to the meanest against the mightiest. In Sunil Batra v. Delhi
Administration,MANU/SC/0184/1978 : AIR 1980 SC 1579: (1980) 3 SCC 488: (1980) 2 SCR 557:
(1980) Cr LJ 1099, it was held that the essence of the matter is that in our era of human rights
consciousness, the habeas corpus writ has functional plurality and the constitutional regard for human
decency and dignity is tested by this capability. Insofar as approach to the court is concerned, anybody
acting pro bono publico can knock the door of the court for his relief.

Compensation for Illegal Detention

If a person is wrongfully confined or illegally detained by the police or any other authority, he is
entitled for compensation. This has been held so by the Apex Court in various judgments delivered
from time to time.

In Rudal Shah v. State of Bihar, MANU/SC/0380/1983 : AIR 1983 SC 1086: (1983) 4 SCC 141: (1983)
3 SCR 508: 1983 Cr LJ 1644, the Supreme Court directed the State to pay a compensation of Rs.
35,000 for illegally keeping the victim for 14 years more than the punishment awarded to him. The
Apex Court also held that a compensation awarded by a writ court in such a case does not prevent the
person concerned from bringing a suit to recover appropriate damages.

In Bhim Singh v. State of J&K, MANU/SC/0064/1985 : AIR 1986 SC 494, the Supreme Court awarded
compensation to the tune of Rs. 50,000, for wrongfully detaining an MLA to prevent him from
attending the Assembly session.

Even wrongful handcuffing was compensated in State of Maharashtra v.

Ravikant, MANU/SC/0561/1991 : (1991) 2 SCC 373: (1991) Cr LR 261, by awarding a sum of Rs.
10,000.

Recently, in Nilabati Behera v. State of Orissa, MANU/SC/0307/1993 : (1993) 2 SCC 746: AIR 1993 SC
1960: (1993) 2 SCJ 487, a mother was awarded compensation of Rs. 1.5 lakh, whose son had died in
police custody. This incident took place in the State of Orissa. The high compensation was described as
"exemplary damages." While awarding compensation the Apex Court observed that forging of 'new
tools' had become necessary for doing complete justice.

The habeas corpus is entertained as a writ only after the court is satisfied on the following grounds,
namely:--

(1) The order of detention is not passed under the Act under which it purports to be passed.

(2) It is passed against a wrong person.

(3) It is passed for a wrong purpose.

(4) It is passed on vague, extraneous and irrelevant grounds.

(5) The officer purporting to pass the order has no authority in law, to make the order.

© Universal law Publishing Co.

    

Chapter 22

Bail by Magistrate and Court

Introduction 216

 Latest cases on Arrest and Bail under Special Acts 217

1. Conservation of Foreign Exchange and Prevention of Smuggling 217

Activities Act, 1974 (Section 3)

 Detention 217

2. Prevention of Terrorism Act, 2002, section 49(7), provide (6) and 9 217

 Long Time in Custody 217

3. Maharashtra Control of Organised Crime Act, 1999 [Section 21(4)] 217

 Cumulative Conditions 217

4. Maharashtra Control of Organised Crime Act, 1999 [Section 21(4)] 218

5. Kerala Abkari Act [Sections 8 and 41A]; Narcotic Drugs and 218
Psychotropic Substances Act, 1985 [Section 37]

 Anticipatory bail 218

6. Narcotic Drugs and Psychotropic Substances Act, 1985, section 37 219

 Exceptional Circumstances 219

7. Narcotic Drug and Psychotropic Substances Act, 1985, (sections 26 and 219
27)

 Power of Court to Grant Bail 219

8. Prevention of Terrorism Act, 2002 [Sections 34(4), 3(2)(3) and 4] 219

 Direct Approach to High Court for Bail 220

 Denial of Bail 220

 Limitations for grant of bail 220

9. Narcotic Drugs and Psychotropic Substances Act, 1985, section 37(1)(b) 220
  Reasonable Grounds 220

10. Maharashtra Control of Organized Crime Act, 1999, section 21(4) 221

11. Maharashtra Control of Organised Crime Act, 1999, sections 2, 3, 21 221

and 24

 Factors to be considered 221

12. Maharashtra Control of Organised Crime Act, 1999 [Section 21 (4)] 221

 Entitlement of bail 221

13. Prevention of Terrorism Act, Sections 49(6) and 49(7) 222

 Procedure for Bail 222

14. Narcotic Drugs and Psychotropic Substances Act, 1985 (section 37)  222

 Accused Facing Trial 222

 Magistrate's power to grant bail 222

 Innocence of the accused 223

 Power of Court 223

 Power of High Court 223

 Challenge to order of Single Judge 224

 Reasons for granting bail 224

 Some English and American cases on Arrest and Bail under Special Acts 225

Chapter 22

Bail by Magistrate and Court

Introduction

In this Chapter the applicability of Chapter XXXIII of the Code of Criminal Procedure, 1973 in respect
of various special statutes have been dealt with. It may be noted that the accused persons can be
arrested under special statutes besides the offences under the IPC (Indian Penal Code). Apropos
cognizable offences under the special statutes, the accused can be arrested by the officer-in-charge of
the police station. The appropriate question of the custody of the accused person in police custody or in
jail and the production of accused person before the competent Magistrate, in cases of non-bailable
offences, as provided in the Code of Criminal Procedure, 1973 applies.

The Magistrate has no discretion in the matter where section 167(2) proviso (a) of the Code of Criminal
Procedure, 1973 is attracted and the right to bail is accrued to the accused. Consequently if the
accused furnished bail, he should be released on bail. If a chargesheet is filed after a bail is granted
under section 167(2) proviso (a) of the Code of Criminal Procedure, 1973, the order of release of bail
remains in existence. The same can be cancelled under section 437(5) of the Code of Criminal
Procedure, 1973.

The following are some of the Special Acts in which the provisions of Chapter XXXIII applies:

(i) The Arms Act, 1959.

(ii) The Prevention of Corruption Act, 1988.

(iii) The Foreigners Act, 1946.

(iv) The Motor Vehicles Act, 1988.

(v) The Explosives Act, 1884.

Latest cases on Arrest and Bail under Special Acts

1. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(Section 3)

Detention

Union of India v. Harish Kumar, MANU/SC/1372/2007 : AIR 2007 SC 1430: 2007 Cr LJ 1815

Held: The belated consideration of representation by Central Government does not make initial
detention order void ab initio. It renders further detention illegal. The period of detention expired
during pendency of writ petition and detenue was released. The High Court could have disposed of writ
petition in view of such release. It was held that order of High Court holding the detention order invalid
on ground of belated consideration as improper.

2. Prevention of Terrorism Act, 2002, section 49(7), proviso (6) and 9

Kirtibhai Madhavlal Joshi v. State of Gujarat, (2006) 4 SCC 680: (2006) 3 Guj LR 1850: (2006) 2 SCC
(Cri) 399

Long Time in Custody

Held: The appellants were in custody for more than 2 years. The case depending on confessions of
appellants. Considering the confessions, the reports of the Review Committees and the provisions of
section 49 of the Code of Criminal Procedure, 1973 and the clarification provided in PUCL v. Union of
India, MANU/SC/1036/2003 : (2004) 9 SCC 580, the case was made out for grant of bail to appellants.

3. Maharashtra Control of Organised Crime Act, 1999 [Section 21(4)]

Chenna Boyanna Krishna Yadav v. State of Maharashtra, MANU/SC/8749/2006 : (2007) 1 SCC 242:

2006 AIR SCW 6384: 2007 Cr LJ 782: (2006) 13 SCALE 256

Cumulative Conditions

Held: It's plain from a base reading of the non-obstante clause in section 21(4) of MCOCA that the
power to grant bail by the High Court or the Court of Session is not only subject to the limitations
imposed by section 439 of the Code of Criminal Procedure, 1973 but is also subject to the limitations
placed by section 21(4) of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the
other twin conditions are: (i) the satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence, and (ii) he is not likely to commit any
offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated
regarding the accused being not guilty has to be based on reasonable grounds. The expression
"reasonable grounds" means something more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty of the alleged offence. The reasonable
belief contemplated in the provisions requires existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus
recording of findings under the said provision is a sine qua non for granting bail under MCOCA.

4. Maharashtra Control of Organised Crime Act, 1999 [Section 21(4)]

D.M. Vichare v. State of Maharashtra, MANU/SC/7083/2007 : (2007) 4 SCC 113

The power to grant bail by the High Court and Court of Sessions is not only subject to limitation
imposed by section 439 of the Code of Criminal Procedure, 1973 but also one placed by section 21(4)
of MCOCA, 1999. The allegation in chargesheet of the offence in question was not per se sufficient to
bring home offence under section 3(2) of MCOCA, 1999. The maximum punishment provided under
MCOCA is 3 years imprisonment out of which the accused had been in judicial custody for 2 years. The
bail was granted.

5. Kerala Abkari Act [Sections 8 and 41A]; Narcotic Drugs and Psychotropic Substances Act,
1985 [Section 37]

Muraleedharan v. State of Kerala, MANU/SC/0269/2001 : (2001) 4 SCC 638: AIR 2001 SC 1699: 2001
Cr LJ 2187: 2001 (2) KLT 355 (SC)

Anticipatory bail

Section 41A of the Kerala Abkari Act is in pari materia with section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. The Supreme Court, has time and again held that no person who is
involved in an offence under that Act shall be released on bail in contravention of the conditions laid
down in the said section. If the position is thus in regard to an accused even after arrest, it is
incomprehensive how the position would be less than when he approached the court for pre-arrest bail
knowing that he would also be implicated as an accused. In the same case it was observed that the
provision of section 8(2) of the Kerala Abkari Act is pari materia with section 37 of the Narcotic Drugs
and Psychotropic Substances Act, 1985. It was held that custodial interrogation of such an accused is
indispensably necessary for the investigating agency to unearth all the links involved in the criminal
conspiracies committed by the persons which ultimately led to the capital tragedy.

6. Narcotic Drugs and Psychotropic Substances Act, 1985, section 37

State of Madhya Pradesh v. Kajad, MANU/SC/0541/2001 : AIR 2001 SC 3317: (2001) 7 SCC 673:
2001 Cr LJ 4240

Exceptional Circumstances

The purpose for which the NDPS Act, 1985 was enacted and the menace of drug trafficking which it
intends to curtail is evident form its scheme. A perusal of section 37 of the NDPS Act, 1985 leaves no
doubt in the mind of the court that a person accused of an offence punishable for a term of
imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule
and its grant an exception under subclause (ii) of clause (b) of section 37(1).

7. Narcotic Drug and Psychotropic Substances Act, 1985, (sections 26 and 27)

Power of Court to Grant Bail

Maktool Singh v. State of Punjab, MANU/SC/0166/1999 : (1999) 3 SCC 321: (1999) SCC (Cri) 417;
Intelligence Officer NCB v. Sambhu, (2001) 2 SCC 2562: 2001 SCC (Cri) 346; D. Sarojini v. State of
Andhra Pradesh, (2001) 4 Supreme 179: (2001) 7 SCC 677

Held: The only offence exempted from the purview of the rigours on the bail provisions are those under
sections 26 and 27 of the NDPS Act, 1985. The former is punishable up to a maximum imprisonment
for three years and the latter up to a maximum imprisonment for one year. For all other offences, the
court's power to release an accused on bail during the period before conviction has been thus
drastically curtailed by providing that if the public prosecutor opposes the bail application, no accused
shall be released on bail, unless the court is satisfied.

8. Prevention of Terrorism Act, 2002 [Sections 34(4), 3(2)(3) and 4]

State of Gujarat v. Salimbhai Abdulgaffar Shaikh, MANU/SC/0676/2003 : (2003) 8 SCC 50: AIR 2003
SC 3224: 2003 Cr LJ 4348

Direct Approach to High Court for Bail

Held: Under section 34(4) of POTA, the appeal can lie against an order, of the Special Court. Hence,
there is an order of the Special Court, refusing bail, the accused will have no right to file an appeal
before the High Court praying for grant of bail to them. Existence of an order of Special Court was
therefore sine qua non for approaching the High Court.

Denial of Bail

Moulvi Hussain Ibrahim Umarji v. State of Gujarat, MANU/SC/0234/2004 : (2004) 3 SCC 444: (2004)
3 SCALE 355: JT 2004 (4) SC 536

The petitioner was arrested in connection with the offence related to the Godhra incident which
resulted in the death of 59 persons and injuries to 48 others. The petitioner-accused was charged
under various sections of the Indian Penal Code (45 of 1860), POTA, Railways Act, 1989 and the
Prevention of Damage to Public Property Act, 1984. The bail was denied by the Special Judge, POTA, as
well as High Court. It was also held by the Supreme Court that it was not a fit case for grant of bail.

Limitations for grant of bail

Narcotics Control Bureau v. Dilip Prahlad Namade, MANU/SC/0240/2004 : (2004) 3 SCC 619: (2004) 3
SCALE 474: 2004 Cr LJ 1815

The limitations on granting bail comes only when the question of granting bail on merit arises. The
limitations stipulated in the said provision are cumulative and not alternative. The satisfaction
contemplated regarding innocence of the accused, is to be based on reasonable grounds. It
contemplates substantial probable cause for believing that the accused is not guilty of the offence and
is not likely to commit any offence while on bail. Such embargo has been envisaged in view of the
deleterious nature of the offence, public interest and tendencies of the persons.

9. Narcotic Drugs and Psychotropic Substances Act, 1985, section 37(1)(b)

Collector of Customs, New Delhi v. Ahmadalieva Nodira, MANU/SC/0212/2004 : (2004) 3 SCC 549:

2004 Cr LJ 1810: (2004) 3 SCALE 211

Reasonable Grounds

The two limitations which section 37(1)(b) of the NDPS Act, 1985 imposes on granting of bail to those
provided under Code of Criminal Procedure, 1973 are as follows:--

(1) An opportunity to the Public Prosecutor to oppose the bail application.

(2) Satisfaction of the court that there are reasonable grounds for believing that the accused is
not guilty of such offence he is not likely to commit any offence, while on bail.

10. Maharashtra Control of Organized Crime Act, 1999, section 21(4)

Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra, MANU/SC/0268/2005 : (2005) 5 SCC

294: AIR 2005 SC 2277: 2005 Cr LJ 2533

Section 21(4) of MCOCA should be construed so as to maintain a delicate balance between judgment of
acquittal and conviction and an order granting bail much before commencement of trial. Further it was
held that, the satisfaction of court as regards applicant's likelihood of not committing an offence while
on bail must be construed to mean an offence under the Act and not any offence whatsoever, be it a
minor or major offence.

11. Maharashtra Control of Organised Crime Act, 1999, sections 2, 3, 21 and 24

Dattatray Krishnaji Ghule v. State of Maharashtra, MANU/SC/7083/2007 : (2007) 4 SCC 113

Factors to be considered

It is neither necessary nor desirable to weigh the evidence meticulously to return a positive finding as
to whether or not the appellant have committed offences he has been charged with. However as the
provisions of MCOCA have been invoked in the instant case, in addition to considerations which
normally weigh with the court in granting bail in non-bailable offences, the limitation imposed as
provisions contained in section 21(4) of MCOCA have to be borne in mind.

12. Maharashtra Control of Organised Crime Act, 1999 [Section 21(4)]

Gokul Bhagaji Patil v. State of Maharashtra, MANU/SC/8750/2006 : (2007) 2 SCC 475: 2007 Cr LJ

776: JT 2007 (1) SC 311

Entitlement of bail

Held: When the provisions of MCOCA are invoked, in addition to the basic considerations which
normally weigh with the courts for granting bail in non-bailable offences, the limitations imposed in
section 21(4) of MCOCA, need not be kept in view while deciding whether or not the accused is entitled
to bail.
13. Prevention of Terrorism Act, Sections 49(6) and 49(7)

Procedure for Bail

People's Union for Civil Liberties v. Union of India, MANU/SC/1036/2003 : AIR 2004 SC 456: (2006) 13
SCALE 379

If the intention of legislature is that an application for bail cannot be made prior to expiry of one year
after detention of offences under POTA, it would have been clearly spelt out in that manner in section
49(b) itself. Section 49(6) and 49(7) of POTA have to be read together and the combined reading of
these two sections is to the effect that public prosecutor has to be given an opportunity of being heard
before realising the accused that there are grounds for believing that he is not guilty of having
committed such offence. It is by way of exception to section 49(7) that proviso is added which means
that after the expiry of one year after the detention of the accused for offences under POTA, the
accused can be released on bail after hearing the public prosecutor under ordinary law without
applying the rigour of section 49(7) of POTA.

14. Narcotic Drugs and Psychotropic Substances Act, 1985 (Section 37)

Union of India v. Ikram Khan, MANU/SC/0879/2000 : AIR 2000 SC 3397: (2000) 9 SCC 221

Accused Facing Trial

Accused was facing trial under the NDPS Act. The bail was granted without bearing in mind the
mandatory provisions of section 37, Hence it was quashed.

1. Prahlad Singh Bhatoi v. NCT, Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280: AIR 2001 SC 1444:
(2001) 2 SCR 684

Magistrate's power to grant bail

The Magistrate can grant bail only when there is no reasonable ground to believe that the accused is
guilty of offence punishable with sentence of death or life imprisonment, unless accused is covered by
provisions of section 437(1) of the Code of Criminal Procedure, 1973.

2. State of Maharashtra v. Ritesh s/o Vasudeo Wanjari, MANU/SC/0171/2001 : (2001) 4 SCC 224: AIR
2001 SC 1310: 2001 Cr LJ 1695

Innocence of the accused

Once the final chargesheet has been filed in the trial Court, the High Court, under the normal
circumstances, should have permitted the respondent to get a verdict of his innocence or involvement
from that court under Chapter XXII of the Code of Criminal Procedure. No exception ground has been
made out, in instant case to depart from such usual established procedure. The order impugned being
contrary to law is liable to be set aside.

3. Chenna Boyanna Krishna Yadav v. State of Maharashtra, MANU/SC/8749/2006 : (2007) 1 SCC 242:

2002 AIR SCW 6384: 2007 Cr LJ 782

Power of Court

It is plain from a bare reading of the non-obstante clause in the sub-section that the power to grant
bail by the High Court or Court of Session is not only subject to the limitations imposed by section 439
of the Code of Criminal Procedure, 1973 but it is also subject to the limitations placed by section 21(4)
of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are:
the satisfaction of the court that there are reasonable grounds for believing that the accused is not
guilty of the alleged offence and that he is not likely to commit any offence while on bail. The
conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused
being not guilty has to be based on reasonable grounds.

ASI, Jaswinder Singh v. State of Punjab, (2007) 2 SCC 802

The adverse directions were issued against appellant police officer on consideration of the plea of the
accused as to his false implications. It was held that while granting anticipatory bail, the High Court
was not justified in giving directions for initiating departmental proceedings and launching a criminal
prosecution against the appellant. It was also not justified in issuing notice to the appellant as to why
compensation should not be paid to the accused.

4. State of Gujarat v. Salimbhai Abdulgaffar Shaikh, MANU/SC/0676/2003 : (2003) 8 SCC 50: AIR

2003 SC 3224: 2003 Cr LJ 4348

Power of High Court

The High Court invoked powers under section 482 of the Code of Criminal Procedure, 1973 while
granting bail to the respondents. Since section 482 of the Code of Criminal Procedure, 1973 saves the
inherent power of the High Court. The High

Court possesses the inherent powers to be exercised ex debito justitiate to do real and substantial
justice for the administration of which alone court exist. The power has to be exercised to prevent
abuse of the process of the court or to otherwise secure the ends of justice. But this power cannot be
resorted to if there is a specific provision in the Code for the redressal of the grievance of the
aggrieved party. There being a specific provision for grant of bail, the High Court clearly erred in taking
recourse to section 482 of the Code of Criminal Procedure, 1973 while enlarging the respondents on
bail.

5. R. Rathinam v. State by DSP, Crime, Madurai, MANU/SC/0071/2000 : (2000) 2 SCC 391: 2000 SCR
718: (2000) SCC (Cri) 958

Challenge to order of Single Judge

The power of bail vested in the High Court can be invoked either by the State or by an aggrieved
party. Nor it is disputed that the said power can be exercised suo moto by the High Court. If so, any
member of the public, whether he belongs to any particular profession or otherwise, who has a concern
in the matter can move the High Court to remind it of the need to invoke the said power suo moto.
There is no barrier either in section 439 of the Code of Criminal Procedure, 1973 or in any other law
which inhibits a person from moving the High Court to have such powers exercised suo moto. If the
High Court considers that there is no need to cancel the bail for the reasons stated in the petition, after
making such consideration, it is open to the High Court to dismiss the petition. If that is the position, it
is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the
petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter
on premise that such a petition is not maintainable.
6. Ghanchi Rubina Salimbhai v. Metubha Diwan Singh Solanki, MANU/SC/0486/2003 : (2003) 7 SCC
183: 2000 Cr LJ 3759: (2003) 5 SCALE 415

Reasons for granting bail

Since the trial Court had assigned reasons for refusing bail which includes availability of material to
establish prima facie case against the respondent-accused, and looking to the gravity of the offence as
also the apprehension of the complaint as to the possibility of interference by the accused with the
investigation and threat to the prosecution witnesses in the event of they being enlarged on bail, it
would have been more appropriate if the High Court could have at least briefly indicated the reasons
which it thought entitled the respondent-accused to bail. It may be that any strong expression of
opinion in the nature of a finding in a bail application by the High Court though not binding on the trial
Court, could influence the mind of the trial Court since such observation conies from High Court, it is
appropriate that some indication of the grounds on which the High Court rejected the findings recorded
by the trial Court, should have been reflected in the order by which the High Court reversed such
findings.

Some English and American cases on Arrest and Bail under Special Acts

1. Vagarancy Act, 1824 (UK) [section 6]; Police and Criminal Investigation Act, 1984 [section 26]

Gapper v. Chief Constable of the Avon and Somerset Constabulary, (1999) 2 WLR 928 (CA)

The Police and Criminal Evidence Act, 1984 (UK) rendered ineffective statuary provisions which
specifically enabled a constable to arrest without warrant but had no application to provisions
conferring a general power of arrest. Since section 6 of the Vagarancy Act, 1894 (UK) gave a power to
any person to arrest someone who had committed an offence under that Act, it was unaffected by
section 26 of the Act of 1984. Accordingly the police officers had been entitled under section 4 of the
Act of 1824.

2. Power of arrest: Anti-social behaviour

Moat Housing Group-South Ltd. v. Harris, (2006) LR 606 (QB): (2005) EWCA (Civ) 287

As to anti-social behaviour orders, once it has been proved to the criminal standard that a defendant
has acted in a manner that has caused, or is likely to cause, harassment, alarm or distress, the court
must consider whether the order is necessary that is an exercise of discretion and on the facts there
are no grounds for interfering with the Judge's exercise of his discretion. The Judge heard full
arguments on the terms, extent and duration of antisocial behaviour order and it cannot be said that
the judge cannot give consideration to the matters relied upon. The Judge clearly found the allegations
to be proved to the criminal standard and it follows that the civil standard of proof was also satisfied.

© Universal law Publishing Co.

    

Chapter 23

Detention under COFEPOSA

 XI. Lok Sabha Debates Session II, Budget, Friday, July 26, 1996 226

 Unexplained Delay 229

 Supreme Court ruling under COFEPOSA 231

 Right to Make Representation 232

 Habeas Corpus Writ Petition No. 35555 of 2002 233

 Misuse of COFEPOSA 234

 Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) 234

Chapter 23

Detention under COFEPOSA

XI. Lok Sabha Debates Session II, Budget, Friday, July 26, 1996

The COFEPOSA Act, 1974 provides for two types of cases in which persons engaged in smuggling
activities can be detained. The first relates to order of detention issued under section 3(1) of the Act
wherein the maximum period of detention is one year After a person is detained the case is referred
within 35 days to the Advisory Board consisting of three High Court Judges for their opinion. If the
Advisory Board recommends that the detention is not justified the detenu is released forthwith.

In other cases, the detention orders are confirmed within 90 days. The second type of cases relates to
cases of persons engaged in smuggling activities in areas categorised as "highly vulnerable areas"
under section 9 of the COFEPOSA Act, 1974. These areas include West Coast, South Eastern Coast,
Indo-Pakistan Border and Delhi Airport. A residual clause provided the extension of these definitions to
other areas In terms of this provision, the Calcutta Airport was defined as "highly vulnerable area" in
December 1985. Subsequently Indian Customs waters contiguous to State of Andhra Pradesh and
Orissa, Yanam in the UT of Pondicherry and the inland area 50 kms in width from the Coast of India
falling within the territories of States of Andhra Pradesh and Orissa and Yanam were also declared as
"highly vulnerable areas" in December 1991. If the Competent Authority issues a declaration under
section 9(1) of the COFEPOSA Act, 1974 to the effect that a person is likely to engage in smuggling
activities in "highly vulnerable area" the maximum period of detention is increased from one year to
two years as per section

10 of the Act. In such cases the opinion of the Advisory Board is required to be obtained within six
months of detention instead of usual period of three months.

In case of Hussain Erumban v. Union of India, (1993) 3 Crimes 6276 (Del) it was held that in a
detention matter the government is required to deal with the representation of a detenu expeditiously
without avoiding delay.

In Kuluic Dariusz v. Union of India, (1990) 1 SCALE 55, the Supreme Court held that continued
detention of the detenu has been rendered illegal by non-consideration of his representation by the
appropriate government according to law resulting in violation of article 22(5) of the Constitution.

Article 22 of the Constitution reads as under:--

22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply --

(a) to any person who for the time being is an enemy, alien; or

(b) to any person who is arrested or detained under any law providing for preventive
detention.

(4) No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless---

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as Judges of a High Court has reported before the expiration of the said
period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any
person beyond the maximum period prescribed by any law made by Parliament
under subclause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest to
disclose.

(7) Parliament may by law prescribe,--

(a) the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in accordance
 with the provisions of subclause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention, and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a)
of clause (4).

Facts of the case: Mr. Kuluic Dariusz was a Polish national. He had a Polish Passport. He was arrested
under Section 104 of the Customs Act at Calcutta Airport while coming from Singapore via Bangkok, on
the ground that he was carrying in his possession foreign gold weighing about 170 tolas. He was
produced before the Chief judicial Magistrate, Barasat. The Magistrate remanded him to jail custody till
May 15, 1989. The Intelligence officer interrogated, and he signed his statement in English.

The detenu challenged his detention on two grounds, (1) that the detenu only knew the Polish
language and did not know English. As he was not given the grounds in his language, he could not
defend himself. (2) His representation submitted to the government was not considered at all and was
not replied by the appropriate authority. As this act of the appropriate authority was in violation of
article 22(5) of the Constitution of India, the order of detention was to be set aside, and the detenu to
set at liberty.

The Counsel of the petitioner relied on the judgment in Ibrahim Ahmad Bhatti v. State of Gujarat,
(1983) 1 SCR 540: MANU/SC/0224/1982 : AIR 1982 SC 1500: (1982) 3 SCC 440: (1983) SCC (Cri) 66
wherein the detenu under the COFEPOSA Act, 1974 was a Pakistani national to whom the detention
order and the grounds of detention were served in English and he contended that he did not know
English and the grounds of detention and the documents relied on were not furnished in Urdu within
the statutory period the detention was held. The court further held that the non-supply of Urdu
translation of those documents had clearly prejudiced the petitioner's right against his detention, and
hence the said act of the detaining authority was violative of Article 22(5) of the Constitution.

Considering the facts and circumstances of the case, the Supreme Court held that had the detenu
known English, or had working knowledge of it, there was then no violation of article 22(5) of the
Constitution of India as regards his first contention was concerned. As regards the second submission
as to the supply of copies of documents in the Polish language, it amounted to a representation made
by the detenu. It was therefore mandatory on the part of the appropriate government to consider and
act upon at the earliest opportunity, and failure to do so would be fatal to the detention order.

Unexplained Delay

It is a settled law that if delay in disposing of the representations was inordinate and unexplained
delay, the detention would be bad and detenu must be ordered to be released forthwith. Also see
Chandroo Kundan v. Union of India, MANU/SC/0570/1980 : AIR 1980 SC 1123.

The Supreme Court observed that the detention of a foreign national who is not resident of the country
involves an element of international law and human rights, include the right to life, liberty and security
of person and freedom from arbitrary arrest and detention.

By not supplying the copies of the documents in Polish language, as prayed for by the detenu, the
appropriate government did violate the provisions of article 22(5) of the Constitution of India. The
Supreme Court thus held:
 "In the result we find force in the second submission and hold that continued detention of the
detenue has been rendered illegal by non-consideration of his representation by the appropriate
government according to law resulting in violation of Article 22(5) of the Constitution, and he is
to be set at liberty."

In another similar case, Mahesh Kumar Chauhan v. Union of India, (1990) I SCALE
863: MANU/SC/0283/1990 : AIR 1990 SC 1455: (1990) 3 SCC 148: (1990) 2 SCR 979, the Supreme
Court set aside the order of the High Court, allowed the appeal and directed the detenu to be set at
liberty forthwith. This was a case of undue delay in disposal of detenu's representation in violation of
Article 22(5) of the Constitution of India.

There is no prescribed period either under the provisions of Constitution or under any detention law.
The words "as soon as may be" occurring in Article 22(5) of the Constitution reflect that the
representation should be expeditiously considered and disposed of with due promptitude and diligence
and with a sense of urgency and without avoidable delay. This fact was discussed by the Supreme
Court in case of Rama Dhondu Boroda v. V.K. Saraf, Commissioner of Police, JT 1989 (2) SC 579: AIR
1989 SC 1861: (1989) 3 SCC 173: (1989) 3 SCR 191.

Rajeev Verma v. Union of India, 2007 Cr LJ 1232: MANU/DE/7019/2007 : 2007 (218) ELT 200 (Del)

SUBJECT: COFEPOSA ACT, 1974

DATE OF DECISION: 2nd January, 2007

W.P. (Crl.) No. 566 of 2005

It was observed that coming to the question of delay is inherent in the very nature of enforcement of a
law relating to preventive detention like the COFEPOSA Act between the prejudicial activities
complained of and making of an order of detention. When a person is detected in the act of smuggling,
thorough investigation into all the facets is required to be undertaken with a view to determine the
identity of all the persons engaged in these operations, which have a deleterious affect on the national
economy. The clandestine manner in which such operations are carried out makes investigation and
collection of evidence, time consuming. To quote from the decision in Rajendra Kumar N. Shah v. State
of Gujarat, MANU/SC/0393/1988 : (1988) 3 SCC 153, the Supreme Court held as follows:--

"Quite obviously, in cases of mere delay in making of an order of detention under a law like
COFEPOSA Act, 1974 enacted for the purpose of dealing effectively with persons engaged in
smuggling and foreign exchange racketeering who, owing to their large resources and influence
have been posing a serious threat to the economy and thereby to the security of the nation, the
courts should not merely on account of delay in making of an order of detention assume that
such delay, if not satisfactorily explained, must necessarily give rise to an inference that there
was no sufficient material for the subjective satisfaction of the detaining authority or that such
subjective satisfaction was not genuinely reached. Taking of such view would not be warranted
unless the court finds that the grounds are 'stale' or illusory or that there is no real nexus
between the grounds and the impugned order of detention."

Madhu Garg v. Union of India, 2004 SCCL.COM 853: (2004) 7 SCC 625: (2004) SCC (Cri) 1999

DATE OF DECISION: 20-09-2004

There was a detention order under section 3(1) of the COFEPOSA Act, 1974. The detenu was an
exporter. He exported alloy steel. One of the allegations made against the detenue in the grounds of
detention was that he had exported consignment upon misdeclaration to the effect that alloy steel
forging (machined) was being exported whereas actually the same was scrap metal. Had the detaining
authority waited for the results of the said chemical analysis before issuing the impugned order of
detention, the first ground stated therein could not have been made a basis therefore. Held the order
of detention passed in haste - when one of the grounds of detention is found to be based on irrelevant
materials not germane for passing the order of detention, the entire order of detention shall stand
vitiated in law.

Supreme Court ruling under COFEPOSA

The Supreme Court has held that a mere delay either in passing a detention order under the provisions
of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(COFEPOSA), or delay in its execution will not be fatal except where the same stands unexplained.

Right to Make Representation

In Kamlesh Kumar v. Ishwar Dass Patch (1995) 2 SCALE 681, the Supreme Court held that when an
order for preventive detention is passed by an officer specially empowered to do so by the Central
Government or the State Government, the person detained has a right to make a representation to the
said officer, and the said officer is obliged to consider the said representation and the failure on his
part to do so results in denial of the right conferred on the person detained to make a representation
against the order of detention.

Having regard to the provisions of article 22(5) of the Constitution and the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) and the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT NDPS Act) the
question posed thus answered: Where the detention order has been made under section 3 of the
COFEPOSA Act and the PIT, by an officer specially empowered for that purpose either by the Central
Government or the State Government the person detained has a right to make a representation to the
said officer and the said officer is obliged to consider the said representation and the failure on his part
to do so results in the denial of the right conferred on the person detained to make a representation
against the order of detention.

This right of the detenu is in addition to his right to make the representation to the State Government
and the Central Government where the detention order has been made by an officer specially
authorised by the State Government and to the Central Government where the detention order has
been made by the Central Government by an officer specially empowered, and the same duly
considered. The right to make a representation necessarily implies that the person detained must be
informed of his right to make a representation to the authority that has made the order of detention at
the lime when he is served with the grounds of detention, so as to enable him to make such a
representation, and the failure to do so results in denial of the right of the person detained to make a
representation.

Repeating its earlier stand, the Supreme Court said, "May be that the detenu is a smuggler whose tribe
(and how their members increase) deserves no sympathy since his activities have paralysed the Indian
economy. But the laws of Preventive Detention afford only a modiciem of safeguards to persons
detained under them and if freedom and liberty have any meaning in our democratic set up, it is
essential that at least, those safeguards are not denied to the detenues.
 The detenus are, therefore, ordered to be set free if unless they are required in connection with
any other matter."

Court cannot, generally speaking, exercise the power to grant temporary release to detenu on parole in
case covered by COFEPOSA during the period an order of detention is in force because of the express
prohibition contained in clause (c) of section 12; Sunil Fulchand Shah v. Union of
India, MANU/SC/0109/2000 : AIR 2000 SC 1023.

Habeas Corpus Writ Petition No. 35555 of 2002

Kumari Indu Mishra v. Union of India

It was observed:--

"It thus appears that even the statutory power vested in the Central Government to revoke the
order of detention may be exercised in its discretion only in cases where "fresh materials" or
"changed or new factors" call for the exercise of that power, and there is no right in favour of
the detenu to get his successive representations based on the same grounds rejected earlier to
be formally disposed of again.

The same grounds and the same materials as stated in the first representation have been stated in the
second representation, except for the difference in language and the manner of presentation. Having
not found any new ground or fresh material or any subsequent event justifying a consideration of the
second representation of the detenu, we are not persuaded to hold that in these circumstances the
Central Government was bound to consider the second representation and pass a separate order
disposing of the same. In fact all the grounds stated in the second representation were also stated in
the first representation which was rejected by the Central Government after obtaining opinion of the
Advisory Board and after due consideration. There was, therefore, no obligation on the part of the
Central Government to pass a similar order again on the basis of the second representation which did
not contain any new or fresh grounds justifying a fresh consideration.

Misuse of COFEPOSA

A person found in possession of contraband can be imprisoned without trial and bail for a period of one
year despite the possibility that the person may have been duped into carrying the contraband,
because, it is often seen that baggage carried by people in good faith on behalf of their friends or
relatives contains smuggled goods and they end up in prison under COFEPOSA. Unfortunately, the law
does not recognize innocence evening such genuine cases.

Abdul Razak Dawood Dhanani v. Union of India, MANU/SC/0336/2003 : (2003) 9 SCC 652: 2003 ACT
(SC) 1204, Supreme Court of India, Criminal Appeal No. 22 of 2003, 17-4-2003.

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

It is plaint from the language of section 37(1)(b) of the NDPS Act, 1985 that the court must adopt a
negative attitude towards 'bail but turn positive firstly if it is satisfied that there are reasonable
grounds for believing that the accused is not guilty of offence under the NDPS Act, 1985 and secondly
that he is not likely to commit any offence while on bail. Both these tests must be satisfied before bail
can be granted; Sukhdev Singh v. Union Territory of Chandigarh, 1986 Cr LJ 1757.

Under the NDPS Act, 1985, if the court entertains strong doubt regarding the accused's awareness
about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to
convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel
any doubt in that regard. Non-compliance of the provisions under the NDPS Act, 1985, causes
prejudice to the accused.

In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, JT 2000 (1) SC 471: (2000) 2 SCC 217, the
Supreme Court made the following observations:--

"If the officer has reason to believe from personal knowledge or prior information received from
any person that any narcotic drug or psychotropic substance (in respect of which an offence has
been committed) is kept or concealed in any building, conveyance or enclosed place, it is
imperative that the officer should take it down in writing and he shall forthwith send a copy
thereof to his immediate official superior. The action of the officer, who claims to have
exercised on the strength of such unrecorded information would become suspect, though the
trial may not vitiate on that score alone. Nonetheless the resultant position would be one of
causing prejudice to the accused."

© Universal law Publishing Co.

    

Chapter 24

Right to Life and Personal Liberty

 Protection of Personal Liberty 236

 Right to Live 237

 Personal Liberty 238

 Right to Silence 239

 Hierarchy of Cases 239

 Speedy Trial 241

 Bail - Discretion not be Used Casually but Judicially 243

 Gurbaksh Singh's case 244

 Wide Power and Discretion to the Sessions Courts and the High Courts 244

 Non-Production of the Accused 243

 Women on Higher Footing than Men 243

Chapter 24

Right to Life and Personal Liberty

According to article 21 of the Constitution of India, no person shall be deprived of his life or personal
liberty except according to procedure established by law.

Protection of Personal Liberty

The object of article 21 is to prevent encroachment upon personal liberty by an appropriate authority,
except in accordance with law and in conformity with the provisions thereof. In Bashina v. State of
Uttar Pradesh, (1969) 1 SCR 32 (40), the Supreme Court held that before a person is deprived of his
life or personal liberty, the procedure established by law must be strictly followed, and must not be
departed from to the disadvantage of the person affected. And similarly the Supreme Court in
Narendra v. B.B. Gujral, MANU/SC/0396/1978 : AIR 1979 SC 420: (1979) 2 SCC 637: (1979) 2 SCR
315, observed that whenever the liberty of the subject is involved, whether under a penal law, or law
of preventive detention, it is the bounden duty of the court, to satisfy itself that "all the safeguards
provided by the law have been scrupulously observed."

In case of Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : AIR 1994 SC 1349:

(1994) 4 SCC 260 the Supreme Court has given direction on the rights of arrested person in light of
articles 21 and 22 of the Constitution of India.

The Supreme Court in this case further held that "The power of preventive detention by the
Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, is subject to the limitations enjoined in the exercise of such power by article 22(5) of the
Constitution of India, as construed by this court.
The Constitution is all pervasive. All laws made by the State must, therefore, yield to constitutional
limitations and restrictions. The citizen's right to personal liberty is guaranteed in articles 21 and 22 of
the Constitution irrespective of his political beliefs, class, creed or religion. The Court has forged
certain procedural safeguards in the case of preventive detention. These safeguards might be
designated as a regulative 'Postulate of Respect', i.e., respect for the intrinsic dignity of human person.

Right to Live

Right to live means something more than 'mere animal existence', and includes the right to live
consistently with 'human dignity and decency' even in a rescue home and prison.

In Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675: (1978) 4 SCC 494:
(1979) 1 SCR 392: 1978 Cr LJ 1741 the Supreme Court held that it is no more open to debate that
convicts are not wholly denuded of their fundamental rights. However, a prisoner's liberty is in the very
nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left
to him is then all the more substantial conviction for a crime does not reduce the person into a non-
person whose rights are subject to the whims of the prison administration, and therefore, the
imposition of any major punishment within the prison system is conditional of the observance of
procedural safeguards.

Personal liberty of the person who is incarcerated is to a great extent curtailed by punitive detention. It
is even curtailed in preventive detention. The liberty to move, mix, mingle, talk, share company with
co-prisoners, if substantially curtailed, would be violative of article 21 of the Constitution, unless the
curtailment has the backing of law.

In yet another case, Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597:
(1978) 1 SCC 248: (1978) 2 SCR 621 the Supreme Court held that the law must be right, just and fair
and not arbitrary, fanciful arbitrary, or oppressive. Otherwise it would be no procedure at all, and the
requirements of Article 21 would not be satisfied.

In this case, Maneka Gandhi's passport was impounded and she was restrained from going abroad. No
reason was told to her as to why her passport had been impounded. The matter came up before the
Supreme Court and on hearing the averments made before it, the Supreme Court held that 'the
principle of audi alteram partem', which mandates that no one shall be condemned unheard, is a part
of the rules of natural justice. Natural justice is a great humanising principle intended to invest law
with fairness and to secure justice and over the years it has grown into a widely pervasive rule
affecting large areas of administrative action.

In the present case it was held by the Supreme Court, that the Central Government not only did not
give an opportunity of hearing to the petitioner (Maneka Gandhi) after making the impugned order
impounding her passport, but even declined to furnish to the petitioner the reasons for impounding her
passport despite request made by her.

Personal Liberty

After Maneka Gandhi's case, the Supreme Court has been adding new dimensions to the concept of
liberty as enshrined in article 21 of the Constitution of India. To mention a few of them, these are:

(1) The right to Privacy,

 (2) The right against Solitary Confinement,

(3) The right against bar fetters,

(4) The right to legal aid,

(5) The right to speedy trial,

(6) The right against hand-cuffing,

(7) The right against delayed execution,

(8) The right against custodial violence,

(9) The right against public hanging,

(10) The right to shelter,

(11) The right to Doctor's Assistance.

But it would not include the right to commit suicide or to be admitted into a college.

It was held in Mohd. Zakir Hussain v. State of Haryana, 2003 (4) RCR (Cri) 662 (P&H) that Registration
of F.I.R. and investigation of the same does not violate any fundamental rights of the accused.

It was held in AC. Shekhar Rao v. B.V.B. Subba Rao, 2003 (3) RCR (Cri) 730 (AP) that if police do not
proceed with investigation, after the report lodged with the police, the only remedy open to litigant is
to approach High Court by invoking writ jurisdiction under Article 226 of the Constitution of India.

Right to Silence

Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC 424: (1978) 3
SCR 608: (1978) Cr LJ 968 is a noteworthy case on right to silence, and the ban on self-accusation. A
Police officer is clearly a person in authority. Insistence on answering is a form of pressure especially in
the atmosphere of Police Station unless certain safeguards erasing duress are adhered to.

In para 55 of its judgment in Nandini Satpathi's case, the Supreme Court has made it clear under what
circumstances the accused has a right to silence.

"We have explained elaborately, and summed up in substance what is self-incriminatory or

tendency to expose oneself to a criminal charge... We further hold that the accused person
cannot be forced to answer question merely because the answers thereto are not implicative
when viewed in isolation and confined to that particular case. He is entitled to keep his mouth
shut if the answer sought has a reasonable prospect of exposing him to the guilt in some other
accusation, actual or imminent, even though the investigation under way is not with reference
to that."

Article 21's right to personal liberty and effect of section 167 of the Code of Criminal Procedure, 1973
with special reference to delay in investigation:

In criminal jurisprudence one of the most important human rights is article 21 of the
Constitution of India. The concept of rule of law that no one can be deprived of his life and
 personal liberty by the executive is enshrined in article 21 of the Constitution of India.

Hierarchy of Cases

Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 1978 SC 597: (1978) 1 SCC 248: (1978)
2 SCR 621

The Supreme Court for the first time took the view that Article 21 protects also against legislation and
not just against an executive action. No law can deprive a person of his/her life or personal liberty
except according to procedure established by law. It's for the court to determine that the procedure is
reasonable,

fair and just. Read with article 39A it would further imply legal aid being made available to the indigent
accused and a prisoner. The concept of "fairness" so evolved has been imported into article 22(3) also,
so that a prison regulation which arbitrarily deprives a detenue of opportunity to interview his relatives
or friends or lawyers is invalid. [Gopalanachari v. Administrator, State of
Kerala, MANU/SC/0068/1980 : AIR 1981 SC 674 (para 6); (1981) 1 SCR 1271: (1980) Supp SCC 649;
Francis C. Mullin v. Union Territory of Delhi, (1981) Cr LJ 306 (SC) (paras 6-8): AIR 1981 SC 746:
(1981) 1 SCC 608: (1981) 2 SCR 516; Olga Tellis v. Bombay Municipal
Corporation, MANU/SC/0039/1985 : AIR 1986 SC 180: (1985) 3 SCC 545: (1985) Supp (2) SCR 51.

Hussainara Khatoon v. State of Bihar, MANU/SC/0121/1979 : AIR 1979 SC 1369: (1980) 1 SCC 98:
(1979) 3 SCR 531 Justice Bhagwati ordered release of persons (undertrials) whose period of
incarceration had exceeded the period of imprisonment for their offences. He brought into focus the
failure of Magistrates to respect section 164(2) of the Code of Criminal Procedure, 1973 which says
that an undertrial be released on bail on expiry of 611 days or 90 days as the case may be.

Justice Bhagwati spoke about the right of speedy trial and sublimated the bail process to the problems
of destitute. He found that the undertrial languished in jail because they were downtrodden and had no
money for bail and not because they were guilty. The right of speedy trial is the need of time as it is
explained in Raj Deo Sharma v. State of Bihar, MANU/SC/0640/1998 : AIR 1998 SC 3281: (1998) 7
SCC 507: (1998) 5 SCALE 477. The accused was charged for offences under the Prevention of
Corruption Act, 1947. About 13 years had elapsed since the institution of the FIR. Accused applied for
quashing the prosecution case on the ground of delay. High Court rejected the application on the
ground that there was only one court of CBI functioning and large number of cases were pending
before it. Held: Rejection improper. (Supreme Court issued guidelines in addition to those issued in
1992).

Mantoo Majumdar v. State of Bihar, AIR 1990 SC 846: (1980) 2 SCC 406: (1980) 2 SCR 1105. The
Court found exceedingly bad the delay in police investigation and the mechanical operation of the
remand process and the Magistrate's insensitivity towards the personal liberty of undertrials.

The right of bail under section 167 of the Code of Criminal Procedure, 1973 was further brought to light
in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v.
State of Bihar, MANU/SC/0089/1982 : (1982) 2 SCC 583 and Sant Bir v. State of Bihar, (1982) 3 SCC
131: MANU/SC/0103/1982 : AIR 1982 SC 1470: 1982 SCC (Cri) 635.

Speedy Trial

In case of Kartar Singh v. State of Punjab, JT 1994 (2) SC 423 it was held that the speedy trial is a
component of personal liberty.

Death sentence to be substituted by life imprisonment; Sher Singh v. State of

Punjab, MANU/SC/0147/1983 : AIR 1983 SC 465.

If the death sentence is not executed within two years, the accused would be entitled to invoke the
protection of article 21 of the Constitution of death sentence by sentence of imprisonment for life:

"Article 21 stands like a sentinel over human misery, degradation and oppression. Its voice is
the voice of justice and fairplay. That voice can never be silenced on the ground that the time
to heel to its imperatives is long since past in the story of a trial. It reverberates through all
stages - the trial, the sentence, the incarceration and finally the execution of sentence."

In Triveni Ben v. State of Gujarat, MANU/SC/0460/1988 : AIR 1989 SC 142: (1988) 4 SCC 574:
(1989) Cr LR 73 the Supreme Court observed that undue delay in execution of a sentence of death will
entitle the condemned person to approach the Supreme Court under article 32 of the Constitution.
Declaring the speedy trial as a part of fundamental right, the Supreme Court made the following
observations:

"As between funeral fire and mental worry, it is the latter which is more devastating, for funeral
fire burns only the dead body, while the mental worry burns the living one."

In Kudra Pehadiya v. State of Bihar, AIR 1981 SC 1939, three years' period of detention in jail without
trial was regarded as shocking and disclosing something wrong with the entire system.

"Three more years have passed but they are still rotting in jail, not knowing what is happening
to their case. They are perhaps reconciled to their fate, living in a small world of their own,
cribbed, cabined and confined within the four walls of the prison. The outside world does not
exist for them. The Constitution has no meaning and significance and human rights no
relevance for them. It is a crying shame upon our adjudicatory system which keeps man in jail
for years on and without a trial."

In Abdul Rehman Antulay v. R.S. Nayak, MANU/SC/0326/1992 : AIR 1992 SC 1701 (1730) para 54:
(1992) 1 SCC 225: (1992) Cr LR 93: 1991 Supp (3) SCR 325, the Supreme Court summarised its
conclusions for speedy trial as a guideline for all the courts in the country.

1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the
accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy
trial is also in public interest or that it serves the societal interest also, does not make any the less the
right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is
determined as quickly as possible in these circumstances.

2. Right to speedy trial flowing from Article 21 encompasses all the stages namely the stage of
investigation, inquiry, trial, appeal, revision and re-trial. This is how this court has understood this
right and there is no reason to take a restricted view.

3. The concern underlying right to speedy trial from the point of view of the accused are:

(a) The period of remand and pre-conviction detention should be as short as possible. In other
words, the accused should not be subjected to unnecessary or unduly long incarceration prior
 to his conviction;

(b) The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and

(c) Undue delay may well result in impairment of the ability of the accused to defend himself,
whether on account of death, disappearance or non-availability of witnesses or otherwise.

4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in
delaying the proceedings. As is often pointed out, "delay is a known defence tactic." Since the burden
of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the
prosecution. Non-availability of witnesses,

disappearance of evidence by lapse of time, really work against the interest of the prosecution. Of
course, there may be cases where the prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first
question to be put and answered is--who is responsible for the delay ?

Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by
them cannot be treated as delaying tactics, nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous proceedings, or proceedings taken merely
for delaying in the day of reckoning cannot be treated as proceedings taken in good faith. The mere
fact that an application/petition is admitted and an order of stay granted by a superior court is by itself
no proof that the proceeding is not a frivolous one, very often these stays obtained on ex-parte
representation..." A case illustrative of speedy trial is Raj Deo Sharma v. State of
Bihar, MANU/SC/0640/1998 : AIR 1998 SC 3281; (1998) 7 SCC 507: (1998) 5 SCALE 477.

Bail - Discretion not be Used Casually but Judicially

The Supreme Court in many of its judgments time and again has observed that while utilising the
discretion for grant or refusal of bail, the courts must make their discretion in a judicious manner and
not in a casual manner, as it involves the liberty of person accused of some offence under the law.

In Bablu Singh v. State of Uttar Pradesh, MANU/SC/0059/1978 : AIR 1978 SC 527, Justice V.R.
Krishna Iyer observed that 'personal liberty', deprived when bail is refused, is "too precious a value of
our Constitutional system recognised under article 21", because of which the power to negate it must
be exercised not casually but judicially with lively concern for the cost to the individual and the
community.

In paragraph 8 of its judgment, the Supreme Court made the following observation:

"......to glamorise impressionistic orders as discretionary may, on occasions, make a litigative

gamble decision of a fundamental right. After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by law". The last
four words of article 21 are the life of that human right.

Gurbaksh Singh's case

Though the case of Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632:
(1980) 2 SCC 565: (1980) 3 SCR 383, deals with anticipatory bail, yet it equally applies to cases of
post-arrest bail also. This is indeed a landmark judgment of the Supreme Court relating to pre-arrest
bail.

In this case the Supreme Court dealt with the question of imposing some conditions while granting
anticipatory bail under section 438 of the Code of Criminal Procedure.

In para 26 of its judgment, the Supreme Court observed that in order to meet the challenge of article
21 the procedure must be fair, just and reasonable, and so word may not be read in Section to make it
unjust or unfair. On the basis of this judgment, it can be stated that if a bail order imposes unjust
condition that would be hit by article 21 of the Constitution of India.

Wide Power and Discretion to the Sessions Courts and the High Courts

In para 14 of its judgment the Supreme Court observed that "there is no risk involved in entrusting a
wide discretion to the Court of Session and the High Court in granting anticipatory bail because firstly,
these are higher courts manned by experienced persons, secondly their orders are not final but are
open to appellate or revisional scrutiny and above all, because discretion has always to be exercised by
courts judicially, and not according to whim, caprice or fancy. On the other hand, there is a risk in
foreclosing categories of cases in which anticipatory bail may be allowed because life throws
unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able
to take possibilities in its stride and to meet these challenges....... Judges have to decide cases as they
come before them, mindful of the need to keep the passions and prejudices out of their decision. But it
will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely
conferred, upon the Courts, by devising a formula which will confine the power to grant anticipatory
bail within a strait jacket.

In Gudikanti Narasimhulu v. Andhra Pradesh, MANU/SC/0089/1977 : AIR 1978 SC 429: (1978) 1 SCC

240: (1978) 2 SCR 371, Justice Krishna Iyer stated: "Bail or Jail ?" at the pre-trial or post-conviction
stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of
bench, otherwise called judicial discretion. What is often forgotten, and therefore warrants reminder, is
the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russell C.J.
said:

"I observe that in this case Bail was refused for the prisoner. It cannot be too strongly
impressed on the magistracy of the country that bail is not to be withheld as a punishment but
requirements as to bail are merely to secure the attendance of the prisoner at trial."

This theme was developed by Lord Russell of Killowan C.J. when he charged the jury at Salisbury
Assizes, 1899:

"...It was the duty of magistrate to admit accused persons to bail wherever practicable unless
there were strong grounds for supposing that such persons would not appear to take their trial.
It was not the poorer classes who did not appear, for their circumstances were such as to tie
them to the place where they carried on their work. They had not the golden wings to fly from
Justice."

Non-Production of the Accused

At the time of seeking remand, the accused must be produced in the court, if he is not produced at
that point of time, it will amount to violation of the settled principles of law. In Blum Singh v. State of
Jammu & Kashmir, MANU/SC/0064/1985 : AIR 1986 SC 494: (1984) Supp SCC 504, the Supreme
Court held that detention in custody without an accused being produced before the court would be
violative of article 21 of the Constitution. In order to meet the challenge of article 21 of the
Constitution, the procedure must be fair, just and reasonable.

Women on Higher Footing than Men

In the words of Justice B.L. Hansaria, a former judge of the Supreme Court, "life" in article 21 as
interpreted it would appear that some special consideration has to be shown to a woman, because
'dignity' which is taken care of by article 21 has more affinity with womanhood.

Not only this, if culture and heritage are to be borne in mind, the Indian culture and heritage, which
has worshipped a woman as mother would provide another reason for treating the infringement of
article 21 insofar as woman is concerned on a higher footing.

The aforesaid view receives support from what has been mentioned in clause (f) of article 51A dealing
with Fundamental Duties, which was inserted by the Forty-Second Amendment Act, 1976, as it
requires preservation of our rich heritage. And our rich heritage has been to protect the dignity of a
woman at all costs. Justice Hansaria in his book - Right to Life and Liberty under the Constitution -
further observed that 'the women themselves to protect their dignities, used to take shelter of the God
of Fire by consigning themselves to flames by observing Johar".

© Universal law Publishing Co.

 
    

Chapter 25

Golden Principles

1. No Person can be Kept in Police Custody for More than Twenty-Four 2-
Hours 17

2. Entitlement of Bail at the Police Station itself 248

3. Right to Know as for which Offence One is Arrested 248

4. Right to Inform Relations 248

5. Right to Silence 248

6. Right to Keep an Advocate Near Him 249

7. Right to Free Legal Aid 249

8. No Handcuffing 249

9. No Third Degree Method to be Used 249

10. Police Not to Enter a Dwelling Place at Any Time 250

11. Right to Sit During Trial in the Court 250

12. Woman or Minor Below 15 not to be called to Police Station for 250

Interrogation

 Delay in Trial 250

 Statutory Bail 251

 Speedy Trial 251

Chapter 25

Golden Principles

This short Chapter is introduced in this book to enable any citizen (man, woman and a minor) to know
as to what are his rights when he is arrested or is likely to be arrested. It has been often noticed that
the ordinary citizen is ignorant about the facilities available to him and he is put to unnecessary
inconvenience, misery and hardship. Mind it, the police or any other agency, which is going to initiate
criminal proceedings against any person is not always willing or will come forward to tell him about his
rights or facilities available to him enshrined in the Constitution of India, the Code of Criminal
Procedure, 1973 or under any provision of the law of the land. Moreover, the facilities that are
available to him are not known to the police or they are exhaustively or elaborately given in the
provisions of the Code of Criminal Procedure, 1973. There have been many situations where the law
has been silent but the superior courts, particularly the Supreme Court has created a new
jurisprudence in the criminal law, in order to protect the rights of the weak, meek, helpless and
innocent citizens of the country. Though all these rights, and facilities have been mentioned in one way
or the other, in the previous chapters, but as a ready recknor, we are producing all this valuable
information at one place in this Chapter.

1. No Person can be Kept in Police Custody for More than Twenty-Four Hours

Police cannot, under any circumstances, keep any person in their custody or detention for more than
twenty-four hours. He must have to be produced before the nearest Magistrate within whose
jurisdiction the police station falls, where he had been detained. In case one is kept for more than 24
hours in police custody without having been produced before a Magistrate, it will amount to an illegal
detention, and will have to be set at liberty at once.

Article 22 of the Constitution and section 57 of the Code of Criminal Procedure, 1973 may be seen.

2. Entitlement of Bail at the Police Station Itself

If any person is arrested by the police for an offence which comes under the category of bailable
offence, he is entitled to be released by the police on giving surety as per provisions of the Code. In
that case, he need not be detained in the police custody even for one minute after the grant of bail by
the police.

3. Right to Know as for which Offence One is Arrested

Whenever any person is arrested by the police, and the police keeps him in their custody, he has every
right to ask the police for which offence they have detained him. Rather it is the bounden duty of the
police to inform him about the offence alleged to have been committed by him.

4. Right to Inform Relations

In case any person is arrested by the police, and has been kept in police station/police custody, he has
every right to use the telephone at the police station and inform his nearest relation. Rather it is the
duty of the police to send information to his nearest relation about his arrest.

In case of Joginder Kumar v. State of Uttar Pradesh cited in MANU/SC/0311/1994 : AIR 1994 SC 1349:
(1994) 4 SCC 260, the Supreme Court has given direction on the rights of arrestee in light of Articles
21 and 22 of the Constitution.

5. Right to Silence

One is not bound to reply each and every question that the police chooses to put, One must remember
this golden principle, that one cannot be a witness against oneself. The police under no circumstances
force any person to reply in accordance with their wishes. That is why the Supreme Court has held in
many judgments; that the accused person does have a right to silence, in such situations. The
judgment of the Supreme Court in Nandini Salpathy v. P.L. Dani, (1978) 3 SCR
608: MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC 424, may be seen.

6. Right to Keep an Advocate Near Him

It is generally seen that the police in order to elicit information from the accused person, put very
embarrassing questions which legally they are not supposed to put. The Supreme Court, therefore, in
their judgments held that the accused persons be allowed to keep their advocate nearby if they so
choose to do. So while one is under interrogation by the police, one may if he chooses, keep one's
advocate nearby.
7. Right to Free Legal Aid

India is a welfare State, and our Constitution has provided equal rights for every citizen--rich or poor
alike. Whereas the rich can afford legal assistance by engaging an Advocate, the poor is unable to do
so. Therefore, under article 39A of the Constitution of India, a provision has been made for the free
services of a lawyer, for those who cannot afford to engage a lawyer to defend themselves. One has,
therefore, a right to have free legal aid and advice on State expense to defend ones case.

8. No Handcuffing

Though there is no specific provision in the Code wherein it has been laid down not to handcuff an
accused person, but the Supreme Court, keeping in view the provisions of article 21 of the
Constitution, has pointed out in unequivocal terms, that unless prior permission is sought of the court,
no accused person be handcuffed. One has therefore, a right not to be handcuffed by the police as per
the directions of the Supreme Court. This is a very precious right which must be remembered by each
and every citizen while he is placed under police or judicial custody. Right to protection of life and
personal liberty is fundamental, and the Supreme Court has never hesitated to swing into action
whenever this right is thwarted by the police or any other concerned agency.

9. No Third Degree Method to be Used

There is no provision whatsoever in the Code or in any other Statute, which permits the police or for
that matter any other investigating agency, to use force, pressure, coercion, or as may be called third
degree method while investigating any offence alleged to have been committed by any individual. One
has, therefore, every right to resist this barbarous or beastly approach being adopted by any
investigating agency. If need be one has every right to move the court and get him medically
examined as per the provisions of the Code of Criminal Procedure, 1973. Section 57 of the Code of
Criminal Procedure, 1973 prescribes the provision of medical examination of the accused person before
he is placed under police custody.

10. Police Not to Enter a Dwelling Place at Any Time

One must be aware that every citizen has a right to maintain privacy. Nobody can enter one's house or
disturb one's privacy, as a matter of normal routine. Even the police cannot enter a dwelling place at
any time. There are certain restrictions which have to be maintained as per the provisions of law.
Normally the police should not visit any house after sun set and before sun rise. In case there is a
parda nashin lady, the police must give reasonable time to that lady to properly dress herself and then
only he can enter the house to make a search of the house. He just cannot break open the house, and
enter at any time whenever he likes to do so.

11. Right to Sit During Trial in the Court

It is generally seen that whenever the under-trial prisoners are produced in the court, they are made
to stand for hours. The Supreme Court has directed the subordinate courts to provide for a place for
sitting to the under-trial prisoners appearing in the courts during trial, particularly when the trial is
long. One has, therefore, a right to sit when one is produced in the court during the trial. Rather it is
the obligation of the court to provide a sitting place, when one is directed to appear for trial.

12. Woman or Minor Below 15 not to be called to Police Station for Interrogation

In case of a woman or a minor below the age of 15, the police cannot force them to come to the police
station for interrogation. The Supreme Court has issued detailed directions on this matter in Nandini
Satpathy v. P.L. Dani, (1978) 3 SCR 608: MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC
424. The Supreme Court passed strictures against the investigating agency for harassing a woman
without any valid reason.

Delay in Trial

Accused remained in custody for over 2 years. The delay in trial was made due to conflicting views
taken by different Benches of High Court, except fact that accused had undergone a further period in
custody, there was really no change in circumstances. Hence, the Supreme Court did not interfere in
order refusing the bail. Jamiruddin Ansari v. C.B.J., MANU/SC/0924/2009 : AIR 2009 SC 2781.

Statutory Bail

The right to be released on statutory bail is available only till investigation remains pending. Such right
is lost once charge-sheet is filed. Dinesh Dalmia v. C.B.I., MANU/SC/7924/2007 : AIR 2008 SC 78.

Speedy Trial:

In the following cases the court favours speedy trial namely:--

(1) Speedy trial is fundamental right of accused; S. Rama Krishna v. S. Rami

Reddy, MANU/SC/7538/2008 : AIR 2008 SC 2066.

(2) It is bounden duty of the court and the prosecution to prevent unreasonable delay; Moti Lal
Saraf v. State of Jammu and Kashmir, MANU/SC/4337/2006 : AIR 2007 SC 56.

(3) Right to speedy trial extends to all criminal prosecutions; Pankaj Kumar v. State of
Maharashtra, MANU/SC/7818/2008 : AIR 2008 SC 3077.

(4) It is a right of accused for speedy trial; P. Ramachandra Rao v. State of

Karnataka, MANU/SC/0328/2002 : AIR 2002 SC 1856.

© Universal law Publishing Co.

 Chapter 18

Remand

 Remand - Meaning and Scope 192

 For How Long Can Police Detain a Person Without Remand ? 193

 Detention Without Authority is Illegal 193

 Who Can Ask for Remand ? 194

 Reasons to be Recorded while Dealing with Remand Cases 194

 Duty of the Magistrate while Remanding Accused to the Police Custody 194

 Magistrate Can Alter Police Custody to Judicial Custody: Remand  196

 Maximum Period of Remand by Magistrate 196

 Order of Remand is to be in the Prescribed Form 197

 Remand of Arrested Person who is Seriously III 197

 Accused in Police Custody-His Right to Food and Clothings 197

Chapter 18

Remand

Remand - Meaning and Scope

Remand means to commit again to custody of a person who has been brought up in custody.

Sections 56, 57,167 and 309 of the Code of Criminal Procedure, 1973, deal with the procedure to be
adopted in relation to grant of remand (judicial remand as well as police remand). A remand in fact is
an authorised detention or custody of a person arrested. The remands are of two types:--

(i) judicial remand or judicial custody;

(ii) police remand or police custody.

Reasons for being held in custody on remand:

(a) The suspect is likely to commit further offences before the trial.

(b) The suspect may leave the court's jurisdiction to avoid his trial and punishment.

(c) The suspect may destroy evidence or interfere with witnesses.

The Magistrate exercises his powers under the Code while granting judicial remand or police remand.

The Allahabad High Court in Bir Bhadra Pratap Singh v. District Magistrate,
Azamgarh, MANU/UP/0092/1959 : AIR 1959 All 384, observed that "the purpose of producing an
accused before a Magistrate is to ensure that the arrest and detention of such a person is prima facie
justified."
For How Long Can Police Detain a Person Without Remand ?

The police cannot keep any person accused of an offence in its custody for more than 24 hours.
Section 57 of the Code of Criminal Procedure, 1973, specifically prohibits a police officer from detaining
the arrested person for more than 24 hours in police custody, exclusive of the time necessary for
journey from the place of arrest to the court of Magistrate, except under the special orders of the
Magistrate. The Code clearly lays down that detention in police custody should not be for a longer
period than under all circumstances of the case, is reasonable.

In R.K. Naba Chandra Singh v. Manipur Administration, MANU/GH/0013/1963 : AIR 1964 Gau 39, the
Hon'ble High Court pointed out that, "if the police officer considers that the investigation cannot be
completed within 24 hours, it is his duty to produce the accused forthwith before the Magistrate".

In State v. Ram Avtar Chaudhary, MANU/UP/0050/1955 : AIR 1955 All 138, the Allahabad High Court
observed: "Section 61 (now section 57) does not empower a police officer to keep an arrested person
in custody, a minute longer than is necessary for the purpose of investigation. It does not give him an
absolute right to keep a person in custody till 24 hours and longer for other reasons like the inability of
the admission of the accused in jail".

In case of Manoj v. State of Madhya Pradesh, MANU/SC/0231/1999 : (1999) 3 SCC 715: AIR 1999 SC
1403: 1999 Cr LJ 2095 the Supreme Court held that no person can be detained in police custody
beyond 24 hours. Detention beyond 24 hours as a sequal to arrest becomes unlawful.

Detention Without Authority is Illegal

It is now quite clear that the accused person cannot be detained in police custody a minute longer than
24 hours. In case the police does so, the detention becomes illegal and the accused has to be released
immediately. "Law is very zealous of the liberty of the subject and does not allow detention unless
there is a legal sanction for it. Section 56 of the Code of Criminal Procedure, 1973, requires a police
officer making an arrest without warrant to send such person to the Magistrate having jurisdiction
without any unnecessary delay, and section 57 prohibits the police officer from detaining the arrested
person for more than 24 hours. Where the Head Constable, no doubt produced the convict before the
judicial Magistrate as required by law, but did not obey his orders, in sending the prisoner to the
judicial custody/ lock-up, but kept him in his custody, the custody of the prisoner with the Head
Constable is illegal."

Who Can Ask for Remand ?

It is only an Officer Incharge of the Police Station or an Investigating Officer not below the rank of
Sub-Inspector of Police who is empowered to ask for the remand under the Code of Criminal
Procedure, 1973.

Reasons to be Recorded while Dealing with Remand Cases

Section 167 of the Code of Criminal Procedure, 1973, contemplates that the Magistrate should not only
direct remand in case he is satisfied that the person arrested has to be remanded for the purpose of
investigation but should also record his reasons while remanding the accused. The Magistrate is also
bound to record the reasons in case he does not feel necessary to order further detention of the
accused for the purpose of investigation and in such a case he should release the accused. In Dr. K.S.
Rao v. State of Hyderabad, AIR 1957 AP 416, it was held that:
"In remanding an accused to police custody the Magistrate ought to follow the provisions of section
167 of the Code of Criminal Procedure, 1973 and should give proper reasons for handing over the
accused to the police custody."

Duty of the Magistrate while Remanding Accused to the Police Custody

The Magistrate has to be very strict and conservative while granting police remand. In many cases the
police goes on asking for police remand which prejudices the fair trial. The law does not favour
detention of the accused person in police custody, unless it is very compelling to do so. While granting
police remand, the concerned Magistrate will have to consider the material, i.e., copies of the entries in
the case diary, placed before it, to come to a conclusion whether there are good and reasonable
grounds for granting such remand. The Magistrate shall bear in mind that granting of police remand
must assist the police in some discovery of evidence and for discovery of that evidence the presence of
the accused must be indispensable.

Grant of police remand for the following purpose is improper--

(a) for pointing out the places through which the accused passed on his way to commit
dacoity;

(b) for compelling the accused to give a clue to the stolen property;

(c) for obtaining the identification of the accused in the village; and

(d) for verifying the confessional statement of the accused recorded under section 161
of the Code of Criminal Procedure, 1973.

Remanding the accused to police custody for 15 days in the first instance is highly objectionable. What
is desirable and proper is that when the Magistrate is satisfied that the presence of the accused is
necessary for the purpose of discovery of some evidence, he should remand the accused to police
custody for a shorter period, considering the facts and circumstances of the case.

A remand to police custody ought not to be granted by a Magistrate without satisfying himself as to its
necessity and the period of remand ought also to be restricted to the necessities of the case.

In another judgment it has been observed:

"The object, as to the period of remand of the accused to police custody should be restricted as far as
possible to a limited period, is that if the accused is remanded to police custody for fifteen days then
some discovery of the evidence can be completed within the shorter period, then order of remand of
such accused person to the police custody for a period of fifteen days will result in gravely prejudicing
the accused in his defence."

In case of Joginder Kumar v. State of Uttar Pradesh, (1994) 2 Crimes 106

(SC): MANU/SC/0311/1994 : AIR 1994 SC 1349: (1994) 4 SCC 260, the Supreme Court held that it
shall be duty of Magistrate before whom the arrested person is produced to satisfy himself that
requirements have been complied with and shall be followed in all cases of arrest till legal provisions
are made in this behalf. These requirements shall be in addition to the rights of the arrested persons
found in the various police manuals.
Magistrate Can Alter Police Custody to Judicial Custody: Remand

A person is arrested and produced before the Court. The Magistrate is not bound to remand the
accused to police custody if investigating agency is not prepared to disclose all the material facts which
necessitate the custody of the accused to the police.

Anil Sreerangam v. State of Kerala, 2003 (1) RCR (Cri) 557 (Ker).

If the order of remand is found to be illegal, it cannot result in acquittal of accused or in termination of
proceedings. State Rep. by Inspector of Police v. N.M.T. Joy Immaculate, 2004 (4) Criminal Court
Cases 141 (SC).

Maximum Period of Remand by Magistrate

The maximum period for which a Magistrate can authorise the detention of the accused in police
custody or judicial custody under section 167 of the Code of Criminal Procedure, 1973, is fifteen days,
where the total period of police remand under section 167 of the Code of Criminal Procedure, 1973,
has expired, the Magistrate has no jurisdiction to further remand the accused to police custody. The
police in such case might at best ask for the remand under section 309 of the Code of Criminal
Procedure, 1973, but that remand can only be to the judicial lock-up and not the police lock-up.

In Yashwant Bapuji Mokashi v. State of Maharashtra, MANU/MH/0129/1968 : AIR 1968 Bom 273, it

was held that:

"In view of sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 the period of
detention in police custody shall not exceed fifteen days. On the whole, if the accused is produced
before a Magistrate having jurisdiction, he can give the accused in the custody of the police for a total
number of fifteen days and not more. The custody may be magisterial custody or police custody but in
either case, during the course of investigation, the total period cannot exceed fifteen days. What
applies to a Magistrate having jurisdiction to try the consequently applies to Magistrate who has no
jurisdiction."

When Magistrate takes the contingence on police report and not on protest petition deemed to have
taken cognizance, then cannot be termed to be illegal. This fact was discussed in Jabaruddin v. State
of Uttar Pradesh, 2000 Cr LJ 158 (All).

The courts have no inherent power of remand of an accused to any custody. The power should be
given by law. The Magistrate must have express power to remand a person to custody. Jurisdiction in
himself cannot be created by a Magistrate.

It was observed in Ram Narayan v. State of Delhi, MANU/SC/0035/1953 : AIR 1953 SC 277: (1953)
SCR 652: (1953) SCJ 326 that it is illegal detention when there is no remand order.

Remand is made to facilitate the process of investigation.

Order of Remand is to be in the Prescribed Form

Whenever any order of remand is passed by a Magistrate, it should be passed in the prescribed form
as per the provisions of the Code.

In Bir Bhadra Pratap Singh v. District Magistrate, Azamgarh, MANU/UP/0092/1959 : AIR 1959 All 384,
it was observed:

"When Magistrates make orders of remand, under section 167 of the Code of Criminal Procedure, 1898
they should make the order in the prescribed form and not on mere chits of paper"

Remand of Arrested Person who is Seriously III

If the person arrested is not in a position to be produced before the Magistrate for the purpose of
remand without danger to his life and needs immediately medical treatment, the police officer shall
admit such person in the hospital and report the matter to the Magistrate having jurisdiction to try the
case.

The Magistrate shall then pass suitable orders regarding the custody of the person admitted in the
hospital by invoking the inherent powers of the court under the provisions of the Code of Criminal
Procedure, 1973 with a direction to the police officer to produce the accused before him immediately
after his discharge from the hospital alongwith a discharge certificate issued by the Medical Officer.

Accused in Police Custody-His Right to Food and Clothings

The police has no right to allow the relatives of the accused in police custody to supply him with food
and clothings so long as they satisfy themselves that no objectionables are supplied.

© Universal law Publishing Co.

 
 

   

Chapter 19

Duty of the Courts to Provide SittingPlace to Arrested Persons

 Note 200

Chapter 19

Duty of the Courts to Provide Sitting Place to Arrested Persons

It has been generally observed that during the trial, particularly criminal trial, the accused persons
who appear in the court have to keep on standing for hours together. Neither the courts have
provided any sitting place for the accused persons nor the advocates have taken initiative to seek
permission of the court for directions to the accused persons to keep sitting while the trial goes on. In
fact, even the lawyers have to stand inside the court room because there are not adequate number of
chairs in the court room.

Here is a case of Avtar Singh v. State of Madhya Pradesh, 1982 Cr LJ 1740:  MANU/SC/0115/1981 :
AIR 1982 SC 1260: (1982) 1 SCC 438, where an accused person requested the court to allow him to
sit down during trial. Unfortunately the Court of Session where he appeared for trial did not permit
him to sit during the trial and he was thus made to keep on standing for hours together and for many
months during the course of the trial.

Aggrieved by the directions of the Court of Session for not permitting him to sit during the trial,
accused Avtar Singh moved the Supreme Court for transfer of his case from the Session Court where
he was facing the trial.

The Supreme Court in the said case which came before it by way of Special Leave Petition, observed
that it was not right or proper that the accused were not provided with the sitting place during the
trial, which had gone on for the past 7 months.

"We direct that the learned Sessions Judge will permit the accused to sit down during the trial.
In fact we are unable to understand how any court in our country can at all insist that the
accused shall keep on standing during the trial, particularly when the trial is long and arduous
as in this case.

We hope that all the High Courts in India will take appropriate steps, if they have not already
done so to provide in their Criminal Manual under section 477(1) of the Code of Criminal
Procedure, 1973, that the accused shall be permitted to sit down during the trial unless it
becomes necessary for the accused to stand up for any specific purpose, as for example for
the purpose of identification."

"We need not add that the facility to be accorded to the accused for sitting down during the
 trial should not be construed as in derogation of the established conventions of our courts that
every one concerned should stand when the presiding officer enters the court."

In this case the Supreme Court did not of course find any justification for acceding to the request of
the accused person for the transfer of his case to some other court, as they did not find any bias by
the court against the accused person. But certainly the Supreme Court felt very bad about the fact
that the accused person was not permitted to sit down during the trial particularly when the trial went
on for quite a long time. By passing this order, the Supreme Court certainly has earned immortality
and has given a practical meaning to the provisions of Article 21 of the Constitution of India.

All these years, the accused persons have been mutely and helplessly kept on standing during their
trials and the courts too did not perceive that there was anything wrong in such practice. The
direction given by the Supreme Court certainly unequivocally, is a signal and a dynamic indication of
the vital and significant change, i.e. percolating in the legal jurisprudence of our country.

It is a matter of serious concern that even after 22 years of the passing of this revolutionary
judgment, the directions (which are mandatory for all the courts of the country) given by the
Supreme Court remain on the paper and have not been implemented in letter and spirit.

Section 477 of the Code of Criminal Procedure, 1973, gives the High Court wide powers to frame rules
for the conduct of the business and regulating procedures in accordance with the provisions of the
Code of Criminal Procedure, 1973. Section 477 of the Code of Criminal Procedure, 1973, is
reproduced below:--

477. Power of High Court to make rules

(1) Every High Court may, with the previous approval of the State Government, make rules--

(a) as to the persons who may be permitted to act as petition writers in the Criminal
Courts subordinate to it;

(b) regulating the issue of the licences to such persons, the conduct of business by
them, and the scale of fees to be charged by them;

(c) providing a penalty for a contravention of any of the rules so made and determining
the authority by which such contravention may be investigated and the penalties
imposed;

(d) any other matter which is required to be, or may be, prescribed.

(2) All rules made under this section shall be published in the Official Gazette.

Note

It is earnestly hoped that all the High Courts of the country will promptly bring necessary amendment
in the rules in view of the above judgment of the Supreme Court delivered in the case of Avtar Singh
v. State of Madhya Pradesh, 1982 Cr LJ 1740: MANU/SC/0115/1981 : AIR 1982 SC 1260: (1982) 1
SCC 438.

© Universal law Publishing Co.

 

 
 

   

Chapter 26

Readers Think Before You Go to Sleep

 Victims of innocence 252

Chapter 26

Readers Think Before You Go to Sleep

Victims of innocence

It is the requirement of justice that no innocent be punished and at the same time no offender should
go unpunished to the satisfaction of the victim and the victim and the society. The purpose of the
criminal justice system appears, at present, to confine to the simple object of ascertaining guilt of
innocence. Under the existing criminal laws in our country, the victim is not having any right to
ensure that the crime is properly and effectively investigated by the police.

In the present system, offences registered by the police are treated as offences against the State
which gets an offence investigated by its agency, moves the court for trial of the offender and
prosecutes him in a court of law. Right to bail is regarded as a right of the accused but the victim has
no right to oppose the bail. The views of the victim are not ascertained either at the stage of framing
of charge or passing an order of discharge. Even victim has no right to appeal in criminal cases if he
considers that justice has not been done to him. He has hardly any role to play in the whole
proceedings except that he may, if alive, be examined by the prosecution as a witness. A victim of
crime is indeed a mute witness to the whole drama.

The United Nations General Assembly in November 1985, adopted the declaration of "Basic Principles
of Justice for Victims of Crime and Abuse of Power". Some of the suggestions made by this
declaration are as follows:--

(i) Victims should be treated with compassion and respect for their dignity.

(ii) Victims should be informed of their rights in seeking redress through formal or informal
procedures that are expeditious, fair, inexpensive and accessible through judicial and
 administrative mechanisms.

(iii) Informing victims of their role and the scope, timing and progress of the proceedings and
of the disposition of their cases, especially where serious crimes are involved and where they
have requested for such information.

(iv) Allowing the views and concerns of their victims to be presented and considered at
appropriate stages of the proceedings where their personal interests are affected without
prejudice to the accused and consistent with the relevant national criminal justice system.

(v) Providing proper assistance to victims throughout the legal process.

(vi) Taking measures to minimize inconvenience to victims, protect their privacy where
necessary and ensure their safety, as well as that of the families and witnesses on their
behalf, from intimidation and retaliation.

© Universal law Publishing Co.

 
    

Chapter 27

Bail Application Forms

 Application for Bail 254

 Additional Bond 255

 Application for Bail under section 167(2)(a) of the Criminal Procedure 256
Code, 1973

 Anticipatory Bail Application 257

 Application under section 444 of the Code of Criminal Procedure, 1973 258

 Written Statement to the Petition 258

 Application under section 437 of the Code of Criminal Procedure, 1973 259

 Application under section 145 of the Code of Criminal Procedure, 1973 260

 Petition under Article 226 of the Constitution of India in the High Court 261

 Application under section 436 of the Code of Criminal Procedure, 1973 262

 Bail Application under section 439 of the Code of Criminal Procedure, 263
1973

 Application under section 439(1)(b) of the Code of Criminal Procedure, 265

1973

 Bail Application under section 389(3) of the Code of Criminal Procedure, 266
1973

 Petition for withdrawal of a case by the party under section 257 of Cr PC 267

 Petition under section 205 of the Code of Criminal Procedure, 1973 268

Chapter 27

Bail Application Forms

APPLICATION FOR BAIL

In the court of.........................................(Metropolitan

Magistrate/Judicial Magistrate/ Chief Judicial Magistrate/ Sessions Judge, etc.)

Criminal Case No..................................of 20.............

State...............................v.........................(Accused)

Offence under section....................................of IPC

Police Station..........................................................
Sir,

It is most respectfully submitted as under:

1. That the accused/applicant was arrested by Police/ Customs Officers (in case of economic
offence) on................. for an alleged offence.

2. That the accused has been falsely implicated in this case and nothing incriminating has been
recovered from him.

3. That the accused is innocent and has not committed any offence whatsoever.

4. That the accused/applicant was induced/threatened to make involuntary statement by

police/customs officers.

5. That the accused/applicant is permanent resident of ...............with his family and there is
no chance of his absconding.

6. That there is no likelihood of applicant tampering with the prosecution evidence since the
challan has already been filed.

7. That no useful purpose would be served, if the accused/ applicant is denied bail, since the
complaint has already been filed and no investigation is said to be pending in this particular
case.

8. That the accused/applicant is ready to abide by any condition that may be imposed by the
Hon'ble court while granting the bail.

9. That the last bail application was moved before this Hon'ble Court
on...............................which has been dismissed on .................

PRAYER

In view of the foregoing it is most respectfully prayed that this Hon'ble Court may kindly admit the
accused/applicant to bail on such terms and conditions as this Hon'ble Court may deem fit and proper
in the interest of justice.

Prayed accordingly.

Dated:  ACCUSED / APPLICANT

through

(Advocate)

ADDITIONAL BOND

Under section 438 of the Code of Criminal Procedure, 1973

1. I undertake to make myself available for interrogation by the police officer whenever asked to do so.

2. I undertake not to induce or influence or threaten any of the persons acquainted with the facts of
the case so as to prevent him from disclosing any fact to any of the courts or police officer.
3. I undertake not to leave India without prior permission of the court.

4. I undertake to abide by the terms and conditions of the bail order.

5. I undertake to present myself before the court whenever asked to do so.

Dated:   ACCUSED / APPLICANT

APPLICATION FOR BAIL UNDER SECTION 167(2)(A) OF THE CRIMINAL PROCEDURE CODE,
1973

In the Court of..................................Metropolitan Magistrate/ Judicial Magistrate (First

Class),............................(place)

Bail Application No...............of................

In re: State v......................, (accused's name)

FIR No.....................date...................., PS

offences under sections....................., IPC

Accused/applicant vs. State Accuser/respondent

Application for bail under section 167(2)(i) or (ii) of the Code of Criminal Procedure, 1973.

Sir/Madam,

The accused/applicant (hereinafter to be referred to as "the applicant") respectfully states:

1. The police arrested the applicant in connection with the FIR (supra) on....................

2. The court remanded the applicant to "judicial custody" on....................

3. The respondent (state) has not filed the challan against the applicant till today in the court.

4. A statutory period of NINETY DAYS or SIXTY DAYS expired on....................

5. The applicant is now entitled to an indefeasible right to bail.

6. The applicant is not only prepared to furnish but also does furnish bail forthwith.

7. The applicant undertakes to abide himself by any terms and conditions of the order bail.

In circumstances the applicant prays to the court to allow his application for bail and to release him on
bail in interest of "right to liberty".

.............................. ...............

Place (Name)

Dated APPLICANT

through

COUNSEL.
 ANTICIPATORY BAIL APPLICATION

Under section 438 of the Code of Criminal Procedure, 1973

In the Court of Sessions Judge,...............................................

Criminal Case No......................................of 20.................

State..................................v..............................(Accused)

Under Section.........................................................of IPC

Police Station........................................................................

(Application under section 438)

MOST RESPECTFULLY SHOWETH:

1. That the applicant (particulars about him, his respectability and credibility, status in life and reasons
as to why and whose instance he is required by the police).

2. Narrate the humiliation to be caused showing that applicant is innocent and is falsely implicated due
to............

3. That applicant is not named in FIR.

4. That no incriminating articles have been recovered from the house of the applicant and the applicant
has been implicated on mere suspicion.

5. That the applicant does not have any past criminal record, the applicant is not a previous convict.

6. That the applicant apprehends that he might be arrested.

7. That the offence is bailable/non-bailable. That the applicant has no desire to evade the due process
of law and shall face the trial to vindicate their innocence.

8. That the applicant undertakes not to misuse the bail and he also undertakes to abide by the terms
of the bail orders.

9. That the applicant has not filed any other bail application under section 438 of the Code of Criminal
Procedure in this Hon'ble Court.

PRAYER

It is, therefore, most respectfully prayed to this Hon'ble Court that this Hon'ble Court may be pleased
to direct to release the applicant on bail in the event of his arrest directing the CJM/ M.M/ Police Official
of the concerned Police Station ................. for such amount of money as this Hon'ble Court deems fit
to fix. Prayed accordingly.

APPLICANT

through

Dated: COUNSEL FOR APPLICANT.

 APPLICATION UNDER SECTION 444 OF THE CODE OF CRIMINAL PROCEDURE, 1973

(Discharge of sureties)

In the Court of......................................................................

Criminal Case No..........................................of 20..............

State...............................v..................................(Accused)

Under Section.........................................................of IPC

Police Station.......................................................................

(Application under section 444)

The humble application on behalf of the applicant.

MOST RESPECTFULLY SHOWETH:

1. That the applicant is one of the sureties for the accused .................in the above case.

2. That the accused.................is present in the court today.

3. That the applicant is leaving...........and is not likely to return before the expiry of a couple of years
within which he will not be able to exercise proper control over the accused and discharge the
responsibility that he has undertaken.

PRAYER

The applicant, therefore, prays that the Hon'ble Court be pleased to allow the applicant to withdraw as
a surety and take action as provided by law for the discharge of the applicant from the responsibilities.

Place:  APPLICANT

WRITTEN STATEMENT TO THE PETITION

Under section 145 of the Code of Criminal Procedure, 1973

In the Court of.................................................................

In re: Shri............................s/o..........................r/o......................

P.S..................................District..........................Applicant

vs.

Shri.............................s/o.....................r/o.......................

P.S..........................District...........................Opposite Party

(Written statement on behalf of the opposite party)

To
 The Hon'ble Judge of the aforesaid court.

The opposite party most humbly showeth as under:

1. That there is no apprehension of breach of peace from the side of the Opposite Party. Rather the
applicant himself is responsible for causing the breach of peace.

2. That initially Shri......................... s/o................ resident of............................

P.S...................... was the owner of the disputed house, who vide sale deed dated ............
transferred the same to the opposite party and delivered the possession of it to the opposite
party..................

3. That the opposite party is in exclusive possession of the disputed house since the date of the
aforesaid sale deed.

4. That the police has visited the disputed house on................... and has found the possession of the
opposite party over it.

5. That in the aforesaid circumstances, it is just and expedient in the interest of justice that this
Hon'ble Court may be pleased to drop the proceedings under section 145 of the Code of Criminal
Procedure and may also be pleased to restrain the applicant from interfering in the peaceful possession
of the opposite party over the disputed house.

Signature

Dated: COUNSEL FOR THE OPPOSITE PARTY

APPLICATION UNDER SECTION 437 OF THE CODE OF CRIMINAL PROCEDURE, 1973

In the Court of Chief Judicial Magistrate................................

State.........................................v............................Accused

Under section.........................................................of IPC

Police Station..........................................................

(Application under section 437)

The humble application on behalf of the applicant:

MOST RESPECTFULLY SHOWETH:

1. That the applicant was arrested by the Police of..................... Police Station and he has been in
detention since then.

2. That the applicant is innocent.

3. That the police have not completed their investigation and no charge sheet has been received
though more than 60 days have expired since the detention of the applicant in custody.

4. That the detention of the applicant is under the circumstances illegal and contrary to the provisions
of section 167 of the Code of Criminal Procedure, 1973.
 PRAYER

It is, therefore, respectfully prayed that the Hon'ble Court may be pleased to order the applicant to be
released on bail.

Dated: COUNSEL FOR THE APPLICANT

APPLICATION UNDER SECTION 145 OF THE CODE OF CRIMINAL PROCEDURE, 1973

In the Court of.....................................................................

In re: Shri...................................s/o.....................r/o....................

Police Station.......................District.......................Applicant

vs.

Shri.........................s/o............................r/o........................

Police Station............District.........................Opposite Party

(Application under section 145 of the Code of Criminal Procedure)

The humble petitioner respectfully showeth:

1. That the applicant is in possession of House No................... situated at.....................for the

last.....................years.

2. That the opposite party, on the basis of an alleged sale deed, dated.....................is trying to
dispossess the applicant from the disputed house.

3. That on account of illegal interference by the opposite party into the peaceful possession of the
applicant over the house in dispute, a dispute likely to cause breach of peace has arisen.

4. That despite, the FIR lodged by the applicant regarding the illegal interference by the opposite
party, the opposite party could not be deterred due to the inaction of the police.

5. That thus the applicant is compelled to resort to the legal proceedings before this Hon'ble Court.

6. That all the deeds and papers, showing the exclusive possession of the applicant over the disputed
house are annexed herewith.

PRAYER

It is, therefore, most respectfully prayed that the Hon'ble Court may be pleased to draw up
proceedings under section 145 of the Code of Criminal Procedure and may also be pleased to pass such
other order and further orders as it deems fit in the circumstances of the case.

Dated: COUNSEL FOR THE APPLICANT

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IN THE HIGH COURT

Civil/Criminal Writ Petition No........................Dated............

 (Under Article 226 of the Constitution of India)

In the matter of:

Shri.............................................s/o...................................

(Detenu detained at present in Jail)

.......................................Petitioner

vs.

1. The District Magistrate..................................District.

2. The Superintendent of........................................Jail.

.......................Respondents

To

The Hon'ble Chief Justice and his Companion Justices of the said Hon'ble Court.

The humble petition of the petitioner abovenamed respectfully showeth:

1. That petitioner was served with the order dated .............. passed by the District
Magistrate .................. authorising his detention under section 3 of the National Security Act,
1980 while he was still in prison in connection with another criminal case.

2. That petition is now confined at..............................Jail. The copy of the said detention
order is enclosed herewith and marked as Annexure 'A'.

3. That the detention order has been made in mala fide exercise of power and the instances
cited in the grounds of detention did not relate to public order. They merely relate to law and
order and some of them were stated as well.

4. That all the materials and the grounds on which the District Magistrate felt satisfied that it
was necessary to detain him with a view to prevent him from acting in a manner prejudicial to
the maintenance of public order were not supplied to him and as such he was not given an
opportunity for making an effective representation in that regard.

(State other grounds on which the order of detention is challenged).

PRAYER

Petitioner, therefore, humbly prays that your Lordships may be graciously pleased to issue a Rule
calling upon the Respondents to show cause why writ in the nature of habeas corpus calling upon them
to produce the petitioner before this Hon'ble Court be not accepted and he be set at liberty forthwith.

Dated: PETITIONER

APPLICATION UNDER SECTION 436 OF THE CODE OF CRIMINAL PROCEDURE, 1973

In the Court of  Judicial Magistrate (1st Class)

 In re:

State......................................v................................Accused

Under section 60 of the UP Excise Act.

Police Station...............................

(Application under section 436)

The accused/applicant most respectfully showeth:--

1. That the applicant was arrested on....................................

2. That the offence is bailable.

3. That the applicant is ready to furnish such bail as the Court may require for the applicant's release
pending the decision of the above case.

PRAYER

It is, therefore, respectfully prayed that the Hon'ble Court be pleased to order the applicant's release
on bail.

Dated: COUNSEL FOR THE APPLICANT

BAIL APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE, 1973

In the High Court of................................at..........................

Criminal Misc.......................(M)....................No......of 20......

In the matter of:

Petitioner/accused..................................................

(Presently lodged in Central Jail Tihar)

vs.

Collector of Customs.............................................................

(Application under section 439 (praying for releasing of the petitioner/accused on bail)

To

The Hon'ble Chief Justice and his Companion Justices of the said High Court......

The humble petition of the petitioner above-named:

MOST RESPECTFULLY SHOWETH:

1. That the petitioner/accused was apprehended by the Customs Officers of ....................

on ........................... in connection with an alleged offence punishable under section 135 of the
Customs Act, 1962 in connection with recovery of 20 gold biscuits
weighing................................... .......................... gms valued at Rs............................................
and currency worth Rs............................from the luggage which does not belong to the petitioner.

2. BRIEF FACTS OF THE CASE.

3. That the petitioner/accused informed the officers that he had no connection with the seized goods,
the petitioner was forced, induced and threatened to make involuntary statement by the Customs
Officers under section 108 of the Customs Act, 1962.

4. That the petitioner/accused is innocent and has not committed any offence whatsoever.

5. That the petitioner/accused was produced in the court of Ld. Session Judge on...........................
and bail application moved by him was rejected on................

6. That the petitioner/accused is a respectable man of the society and he has never come to the
adverse notice of any law enforcing authority.

7. That the petitioner/accused is not a previous convict.

8. That the petitioner/accused is a permanent resident of...... living with the family members and as
such there is no chance of his absconding from trial.

9. That the investigations of the case qua the petitioner/ accused is over and no useful purpose would
be served if the accused/petitioner is denied bail.

10. That the bail application moved before the Sessions Court was dismissed on........................

11. That the petitioner/accused is ready to abide by any condition imposed by this Hon'ble Court.

12. That no similar Bail application has been filed on behalf of the petitioner/accused in this Hon'ble
Court or in any other High Court.

PRAYER

In view of the foregoing it is most respectfully prayed that:

(a) the petitioner/accused may kindly be admitted to bail on such terms and conditions as this
Hon'ble Court may deem fit and proper in the interest of justice and/or;

(b) pass any further order or orders as this Hon'ble Court may deem fit and proper in the
interest of justice.

Prayed accordingly.

PETITIONER/ ACCUSED

through

Dated: COUNSEL

APPLICATION UNDER SECTION 439(1)(b) OF THE CODE OF CRIMINAL PROCEDURE, 1973

[Special Powers of High Court or Court of Session to grant bail--

 Under section 439(1)(b) Condition imposed by Magistrate to be modified or set aside.]

In the Court of the Sessions Judge at..............................Criminal 

Misc. No.......................................of.............................

In re:

State..............................................v..................................

Under section.........................................................of IPC

Police Station.......................................................................

[Application under section 439(1)(b)]

The humble application on behalf of the applicant most respectfully showeth:

1. That the applicant is innocent and has been falsely implicated in the case due to enmity.

2. That the applicant's name is not mentioned in the F.I.R.

3. That there was no recovery of any incriminating articles from the possession of the applicant.

4. That the learned Judicial Magistrate 1st Class was pleased to release the applicant on bail on the
executing of bond with two sureties of Rs................ each but imposed condition on the applicant,
such as:

(i) the applicant shall leave the town of...........................and ........................... must not
enter into the town until the disposal of the case,

(ii) the applicant should report to the Officer-in-Charge of the...........................Police Station

twice in a week.

5. That the applicant has been living in the said town with his family for about 10 years and has been
earning his livelihood by working in a...................

6. That the applicant will be put to immense difficulties if he were to leave the town so much so that he
will be out of work and the members of his family including the applicant shall have to face starvation.

PRAYER

The applicant, therefore, prays that this Hon'ble Court be pleased to set aside the said conditions
imposed by the learned Judicial Magistrate and/or to modify them.

Dated: APPLICANT

BAIL APPLICATION UNDER SECTION 389(3) OF THE CODE OF CRIMINAL PROCEDURE, 1973

(Suspension of sentence pending the appeal, release of appellant on bail)

In the Court of Shri........Judicial Magistrate (First Class)

State..................................v...............................Appellant
 U/s......................IPC

Police Station................

[Application under section 389(3)]

The humble application of the applicant respectfully showeth:

1. That the applicant has been convicted and sentenced by the court in the above case
to.....................month's rigorous imprisonment.

2. That the applicant was on bail during the trial by this Hon'ble Court and never abused the privilege
of bail given to him.

3. That the case is of minor nature and the applicant is entitled to be given the benefit of doubt.

4. That the filing of appeal/revision shall take sometime, and convict applicant shall suffer irreparable
loss till he is heard by the appellate court.

5. That the applicant is the sole earning member in his family and he is the only person who can
arrange for a proper conduct of the appeal against his conviction above mentioned.

6. That the applicant contested the case during the appeal/ trial and intends now to go up in the
appeal to file which the applicant requires time during which it is necessary for him to be on bail.

PRAYER

It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to grant bail for the
applicant to enable him to file the appeal and get orders for bail from the appellate court.

Dated: COUNSEL FOR THE APPLICANT

PETITION FOR WITHDRAWAL OF A CASE BY THE PARTY UNDER SECTION 257 OF CR PC

(withdrawal of complaint)

In the court of..................(name and place of court)

Cri. Case No..........of 20.....

...........................   Petitioner

  vs.

State  Respondent

This humble petition most respectfully sheweth:

1. That the accused.................. (name of the accused), aged ..................(enter the age) is charged
with the .................. sections of IPC (mention the sections of IPC) in the abovementioned case.

2. That the accused..................(name of the accused) belongs to the same blood relation of the
complainant.

3. That on ..................day of.........20.........some people in the same locality themselves intervened

in the matter and an amicable settlement was brought among the complainant..................(name of
the complainant) and the accused..................(name of the accused) and they both were agreed to
withdraw the abovementioned case and finally the complainant is ready to withdraw the case and not
to proceed further.

It is, therefore, prayed that this court may be pleaded to allow the complainant to withdraw the case
from this Honourable court and the accused may be allowed to be acquitted from the abovementioned
case.

..............................................

Signature of Complainant

Place.................... Signature and, Seal of Advocate

Date.................... .........................................................

PETITION UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE, 1973

(Dispensing of Personal attendance of accused by Magistrate)

In the court of..................(name of the court)

at..................(name of place)

Cri. Case No...................of 20.........

..........................  Petitioner

v.

State  Respondent

1. That the petitioner ..................(name of petitioner) herein submits that a case has been initiated
against him under sections ..................IPC (mention to sections) and the petitioner is charge-sheeted
under.............sections of Cr PC (mention the section).

2. That the petitioner has appeared through his counsel on the various dates of hearing.

3. That the petitioner is a very old man of about..............years age and he is unable to attend this
Hon'ble Court for every date of hearing.

4. That the petitioner is the neighbour of the complainant and is known to all the witnesses and there
is no problem of identification at trial and his appearance in the last trial.

5. It is therefore prayed that this Hon'ble Court may be pleased to grant exemption from personal
appearance and may permit him to be represented by advocate ..................(name of advocate) and
also pass such other suitable orders as this Hon'ble Court may think it fit and proper.

Signature of Accused     Signature of Advocate

.....................................     .....................................
Place..................

Date...................

© Universal law Publishing Co.

 
    

APPENDICES

APPENDIX 1

Relevant Forms under the Second Schedule of the Code of Criminal Procedure, 1973

FORM NO. 3

Bond and Bail-Bond after Arrest under a Warrant

(See section 81)

I,......................... (name), of........................., being brought before the District Magistrate

of.........................(or as the case may be) under a warrant issued to compel my appearance to
answer to the charge of...................., do hereby bind myself to attend in the Court
of......................... on the................day of....................next, to answer to the said charge, and to
continue so to attend until otherwise directed by the Court, and in case of my making default herein, I
bind myself to forfeit, to Government, the sum of rupees.

Dated, this................. day of................., 20.....

(Signature)

I do hereby declare myself surety for the above-named...............

of................., that he shall attend before......................... in the Court of......................... on

the.............. day of............... next, to answer to the charge on which he has been arrested, and shall
continue so to attend until otherwise directed by the Court; and, in case of his making default therein,
I bind myself to forfeit, to Government, the sum of rupees.

Dated, this............... day of..............., 20.....

(Signature)

FORM NO. 12

Bond to keep the peace

(See sections 106 and 107)

WHEREAS I,.........................(name) inhabitant of.........................(place), have been called upon to

enter into a bond to keep the peace for the term of............... or until the completion of the inquiry in
the matter of......................... now pending in the Court of...................., I hereby bind myself not to
commit a breach of the peace, or do any act that may probably occasion a breach of the peace, during
the said term or until the completion of the said inquiry and, in case of my making default therein, I
hereby bind myself to forfeit to Government the sum of rupees...............

Dated, this......................... day of........................., 20.....

(Signature)
 FORM NO. 13

Bond for good behaviour

(See sections 108, 109 and 110)

WHEREAS I,.........................(name), inhabitant of (place)........................., have been called upon

to enter into a bond to be of good behaviour to Government and all the citizens of India for the term of
................ (state the period) or until the completion of the inquiry in the matter of....................now
pending in the Court of........................., I hereby bind myself to be of good behaviour to Government
and all the citizens of India during the said term or until the completion of the said inquiry; and, in
case of my making default therein, I hereby bind myself to forfeit to Government the sum of
rupees...............

Dated, this......................... day of........................., 20.....

(Signature)

(Where a bond with sureties is to be executed, add...)

We do hereby declare ourselves sureties for the above-named.........................that he will be of good

behaviour to Government and all the citizens of India during the said term or until the completion of
the said inquiry; and, in case of his making default therein, we bind ourselves, jointly and severally, to
forfeit to Government the sum of rupees.........................

Dated, this.........................day of........................., 20.....

(Signature)

FORM NO. 28

Bond and Bail-Bond on a preliminary inquiry before a Police Officer

(See section 169)

I, ......................... (name), of........................., being charged with the offence of................... and
after inquiry required to appear before the Magistrate of.........................

or

and after inquiry called upon to enter into my own recognizance to appear when required, do hereby
bind myself to appear at........................., in the Court of........................., on the...............day
of............... next (or on such day as I may hereafter be required to attend) to answer further to the
said charge, and in case of my making default therein, I bind myself to forfeit to Government, the sum
of rupees...............

Dated, this.........................day of........................., 20.....

(Seal of the Court)

(Signature)

I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or
sureties) for the above said ......................... (name) that he shall attend at.........................in the
Court of........................., on the...............day of...............next (or on such day as he may hereafter
be required to attend), further to answer to the charge pending against him, and, in case of his making
default therein, I hereby bind myself (or we hereby bind ourselves) to forfeit to Government, the sum
of rupees...............

Dated, this......................... day of........................., 20.....

(Signature)

FORM NO. 29

Bond to prosecute or give Evidence

(See section 170)

I, ......................... (name), of ........................., (place) do hereby bind myself to attend

at.......................... in the Court of......................... at..........o'clock on the............... day
of............... next and then and there to prosecute (or to prosecute and give evidence) (or to give
evidence, in the matter of a charge of.................... against one A.B. and, in case of making default
herein. I bind myself to forfeit to Government the sum of rupees...........................................

Dated, this......................... day of........................., 20.....

(Signature)

FORM NO. 44

Warrant for recovery of fine

(See section 421)

To the Collector of the district of.........................

WHEREAS .............................. (name, address and description of the offender) was on

the ............... day of..............., 20..... convicted before me of the offence of.........................
(mention the offence concisely), and sentenced to pay a fine of rupees...............; and

WHEREAS the said......................... (name), although required to pay the said fine, has not paid the
same or any part thereof;

You are hereby authorised and requested to realise the amount of the said fine as arrears of land
revenue from the movable or immovable property, or both, of the said.........................(name) and to
certify without delay what you may have done in pursuance of this order.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 44A

Bond for appearance of offender released pending realisation of fine

 [See section 424(1)(b)]

WHEREAS I.........................(name), inhabitant of.........................(place), have been sentenced to

pay a fine of rupees............... and in default of payment thereof to undergo imprisonment
for...................., and whereas the Court has been pleased to order my release on condition of my
executing a bond for my appearance on the following date (or dates), namely:--

I hereby bind myself to appear before the Court of.........................

at......................... o'clock on the following date (or dates) namely:--

and, in case of making default therein, I bind myself to forfeit to Government the sum of
rupees.........................

Dated, this.........................day of.........................,20.....

(Signature)

WHERE A BOND WITH SURETIES IS TO BE EXECUTED, ADD

We do hereby declare ourselves sureties for the above-named that he will appear before the Court
of......................... on the following date (or dales) namely:--

and, in case of his making default therein, we bind ourselves jointly and severally to forfeit to
Government the sum of rupees...............

(Signature)

FORM NO. 45

Bond and bail-bond for attendance before officer in charge of police station or Court

[See sections 436, 436A, 437, 437A, 438 (3) and 441]

I.......................... (name), of.........................(place), having been arrested or detained without

warrant by the officer in charge of......................... police station (or having been brought before the
Court of.........................) charged with the offence of........................., and required to give security
for my attendance before such Officer or Court on condition that I shall attend such officer or Court on
every day on which any investigation or trial is held with regard to such charge, and in case of my
making default herein, I bind myself to forfeit to Government the sum of rupees...............

Dated, this.........................day of........................., 20.....

(Signature)

I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or
sureties) for the abovesaid......................... (name) that he shall attend the officer in charge
of.........................police station or the Court of......................... on every day on which any
investigation into the charge is made or any trial (on such charge is held, that he shall be, and appear,
before such Officer or Court for the purpose of such investigation or to answer the charge against him
(as the case may be), and, in case of his making default herein, I hereby bind myself (or we hereby
bind ourselves) to forfeit to Government the sum of rupees.................
Dated, this.........................day of........................., 20.....

(Signature)

FORM NO. 46

Warrant to discharge a person imprisoned on failure to give security

(See section 442)

To the Officer in charge of the Jail at.........................

(or other officer in whose custody the person is)

WHEREAS ......................... (name and description of prisoner) was committed to your custody under
warrant of this Court, dated, the............... day of..............., and has since with his surety (or
sureties) duly executed a bond under section 441 of the Code of Criminal Procedure.

This is to authorise and require you forthwith to discharge the said......................... (name) from your
custody, unless he is liable to be detained for some other matter.

Dated, this .........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 47

Warrant of attachment to enforce a bond

(See section 446)

To the Police officer in charge of the police station at.........................

WHEREAS ......................... (Name, description and address of person) has failed to appear
on.................... (mention the occasion) pursuant to his recognizance, and has by default forfeited to
Government the sum of rupees.........................(the penalty in the bond); and whereas the
said ......................... (name of person) has, on due notice to him, failed to pay the said sum or show
any sufficient cause why payment should not be enforced against him.

This is to authorise and require you to attach any movable property of the said.........................
(name) that you may find within the district of........................., by seizure and detention, and, if the
said amount be not paid within......................... days, to sell the property so attached or so much of it
as may be sufficient to realise the amount aforesaid, and to make return of what you have done under
this warrant immediately upon its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 48

Notice to surety in breach of a bond

 (See section 446)

To........................., of.........................

WHEREAS on the ..............day of............., 20....., you became surety for ..................... (name)
of ......................... (place) that he should appear before this Court on the...............day
of..............., and bound yourself in default thereof to forfeit the sum of rupees...............to
Government; and whereas the said......................... (name) has failed to appear before this Court
and by reason of such default you have forfeited the aforesaid sum of rupees...............

You are hereby required to pay the said penalty or show cause, within..........days from this date, why
payment of the said sum should not be enforced against you.

Dated, this.........................day of.......................... 20.....

(Seal of the Court) (Signature)

FORM NO. 49

Notice to surety of forfeiture of bond for good behaviour

(See section 446)

To........................., of.........................

WHEREAS on the...............day of................, 20....., you became surety by a bond

for.........................(name) of.........................(place) that he would be of good behaviour for the
period of.......... and bound yourself in default thereof to forfeit the sum of rupees............... to
Government; and whereas the said......................... (name) has been convicted of the offence
of......................... (mention the offence concisely) committed since you became such surety,
whereby your security bond has become forfeited;

You are hereby required to pay the said penalty of rupees............... or to show cause
within...............days why it should not be paid.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 50

Warrant of attachment against a surety

(See section 446)

To........................., of..........................

WHEREAS .............................. (name, description and address) has bound himself as surety for the
appearance of......................... (mention the condition of the bond) and the said.........................
(name) has made default, and thereby forfeited to Government the sum of rupees............... (the
penalty in the bond.)

This is to authorise and require you to attach any movable property of the said.........................
(name) which you may find within the district of........................., by seizure and detention; and, if
the said amount be not paid within..........days, to sell the property so attached, or so much of it as
may be sufficient to realise the amount aforesaid, and make return of what you have done under this
warrant immediately upon its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 51

Warrant of commitment of the surety of an accused person admitted to bail

(See section 446)

To the Superintendent (or Keeper) of the Civil Jail at.........................

WHEREAS.............................. (name and description of surety) has bound himself as a surety for the
appearance of......................... (state the condition of the bond) and the said.........................
(name) has therein made default whereby the penalty mentioned in the said bond has been forfeited to
Government; and whereas the said......................... (name of surety) has, on due notice to him,
failed to pay the said sum or show any sufficient cause why payment should not be enforced against
him, and the same cannot be recovered by attachment and sale of his movable property, and an order
has been made for his imprisonment in the Civil Jail for....................(specify the period);

This is to authorise and require you, the said Superintendent (or Keeper) to receive the
said...................(name) into your custody with this warrant and to keep him safely in the said jail for
the said .................... (term of imprisonment), and to return the warrant with an endorsement
certifying the manner of its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 52

Notice to the principal of forfeiture of bond to keep the peace

(See section 446)

To.............................. (name, description and address)

WHEREAS on the............... day of..............., 20....., you entered into a bond not to commit, etc. (as
in the bond), and proof of the forfeiture of the same has been given before me and duly recorded;

You are hereby called upon to pay the said penalty of rupees............... or to show cause before me
within..........days why payment of the same should not be enforced against you.

Dated, this.........................day of.................. . ., 20. ...

(Seal of the Court.) (Signature)

FORM NO. 53
 Warrant to attach the property of the principal on breach of a bond to keep the peace

(See section 446)

To..............................(name and designation of police officer) at the police station

of.........................

WHEREAS..............................(name and description) did, on the............... day of..............., 20.....

enter into a bond for the sum of rupees............... binding himself not to commit a breach of the
peace, etc. (as in the bond), and proof of the forfeiture of the said bond has been given before me and
duly recorded; and whereas notice has been given to the said.........................(name) calling upon
him to show cause why the said sum should not be paid, and he has failed to do so or to pay the said
sum;

This is to authorise and require you to attach by seizure movable property belonging to the
said......................... (name) to the value of rupees..............., which you may find within the district
of........................., and, if the said sum be not paid within..............., to sell the property so
attached, or so much of it as may be sufficient to realise the same; and to make return of what you
have done under this warrant immediately upon its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 54

Warrant of imprisonment on breach of a bondtokeep the peace

(See section 446)

To the Superintendent (or Keeper) of the Civil Jail at.........................

WHEREAS proof has been given before me and duly recorded t(sic) hat.............................. (name
and description) has committed a breach of the bond entered into by him to keep the peace, whereby
he has forfeited to Government the sum of rupees............... and whereas the said.........................
(name) has failed to pay the said sum or to show cause why the said sum should not be paid, although
duly called upon to do so, and payment thereof cannot be enforced by attachment of his movable
property, and an order has been made for the imprisonment of the said.........................(name) in the
Civil Tail for the period of.................... (term of imprisonment);

This is to authorise and require you, the said Superintendent (or Keeper) of the said Civil Jail to receive
the said......................... (name) into your custody, together with this warrant, and to keep him
safely in the said jail for the said period of.................... (term of imprisonment) and to return this
warrant with an endorsement certifying the manner of its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 55

Warrant of attachment and sale on forfeiture of bond for good behaviour

 (See section 446)

To the Police Officer in charge of the police station at...............................................

WHEREAS.............................. (name, description and address) did, on the............... day

of............... 20...... give security by bond in the sum of rupees...............for the good behaviour
of.........................(name etc., of the principal), and proof has been given before me and duly
recorded of the commission by the said.........................(name) of the offence of....................
whereby the said bond has been forfeited; and whereas notice has been given to the
said......................... (name) calling upon him to show cause why the aid sum should not be paid, and
he has failed to do so or to pay the said sum;

This is to authorise and require you to attach by seizure movable property belonging to the
said......................... (name) to the value of rupees...............which you may find within the district
of........................., and, if the said sum be not paid within.........., to sell the property so attached, or
so much of it as may be sufficient to realise the same, and to make return of what you have done
under this warrant immediately upon its execution,

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

FORM NO. 56

Warrant of imprisonment on forfeiture of bond for good behaviour

(See section 446)

To the Superintendent (or keeper) of the Civil Jail at...................................................

WHEREAS.............................. (name description and address) did, on the...............day

of...............20....., give security by bond in the sum of rupees............... for the good behaviour
of......................... (name, etc., of the principal) and proof of the breach of the said bond has been
given before me and duly recorded, whereby the said.........................(name) has forfeited to
Government the sum of rupees..............., and whereas he has failed to pay the said sum or to show
cause why the said sum should not be paid although duly called upon to do so, and payment thereof
cannot be enforced by attachment of his movable property and an order has been made for the
imprisonment of the said.........................(name) in the Civil Jail for the period of..................(term of
imprisonment);

This is to authorise and require you, the Superintendent (or keeper) to receive the
said.........................(name) into your custody, together with this warrant, and to keep him safely in
the said Jail for the period of......................... (term of imprisonment), returning this warrant with an
endorsement certifying the manner of its execution.

Dated, this.........................day of........................., 20.....

(Seal of the Court) (Signature)

APPENDIX 2
 Arrest of Persons

THE CODE OF CRIMINAL PROCEDURE, 1973

Chapter V (Sections 41 to 60)

Note: The below mentioned provisions are the amended provisions as amended in 2008 but not yet
enforced. Please refer to the old (before amendment) provisions for the effective provisions as of now.

41. When police may arrest without warrant--

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any
person--

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:--

(i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making 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 the police
officer; or

(e) as unless such person is arrested, his presence in the Court whenever
required cannot be ensured, and the police officer shall record while
making such arrest, his reasons in writing.

(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more
than seven years whether with or without fine or with death sentence and the police
officer has reason to believe on the basis of that information that such person has
committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order of the
State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be

 stolen property and who may reasonably be suspected of having committed an offence
with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or detained
in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section
(5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the officer
who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or
against whom a complaint has been made or credible information has been received or
reasonable suspicion exists of his having so concerned, shall be arrested except under a
warrant or order of a Magistrate.

Sections 41A to 41D have been inserted by Amendment Act of 2008 (not yet effective)

42. Arrest on refusal to give name and residence.--

(1) When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses, on demand of such officer, to give his
name and residence or gives a name or residence which such officer has reason to believe to be
false, he may be arrested by such officer in order that his name or residence may be
ascertained.

(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate if so
required:

Provided that, if such person is not resident in India, the bond shall be secured by a
surety or sureties resident in India.

(3) Should the true name and residence of such person not be ascertained within twenty-four
hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish
sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
43. Arrest by private person and procedure on such arrest.--

(1) Any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person so arrested to a
police officer, or, in the absence of a police officer, take such person or cause him to be taken
in custody to the nearest police station.

(2) If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he
refuses on the demand of a police officer to give his name and residence, or gives a name or
residence which such officer has reason to believe to be false, he shall be dealt with under the
provisions of section 42; but if there is no sufficient reason to believe that he has committed
any offence, he shall be at once released.

44. Arrest by Magistrate.--

(1) When any offence is committed in the presence of a Magistrate, whether Executive or
Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the
offender, and may thereupon, subject to the provisions herein contained as to bail, commit the
offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest,
in his presence, within his local jurisdiction, of any person for whose arrest he is competent at
the time and in the circumstances to issue a warrant.

45. Protection of members of the Armed Forces from arrest.-- 

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the

Armed Forces of the Union shall be arrested for anything done or purported to be done by him
in the discharge of his official duties except after obtaining the consent of the Central
Government.

(2) The State Government may, by notification, direct that the provisions of sub-section (1)
shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving, and
thereupon the provisions of that sub-section shall apply as if for the expression "Central
Government" occurring therein, the expression "State Government" were substituted.

46. Arrest how made.--

(1) In making an arrest the police officer or other person making the same shall actually touch
or confine the body of the person to be arrested, unless there be a submission to the custody
by word or action:

Provided that where a woman is to be arrested, unless the circumstances indicate to the
contrary, her submission to custody on an oral intimation of arrest shall be presumed
and, unless the circumstances otherwise require or unless the police officer is a female,
 the police officer shall not touch the person of the woman for making her arrest.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an
offence punishable with death or with imprisonment for life.

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall, by
making a written report, obtain the prior permission of the Judicial Magistrate of the first class
within whose local jurisdiction the offence is committed or the arrest is to be made.

47. Search of place entered by person sought to be arrested.--

(1) If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within, any
place, any person residing in, or being in charge of, such place shall, on demand of such person
acting as aforesaid or such police officer, allow him free ingress thereto, and afford all
reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any
case for a person acting under a warrant and in any case in which a warrant may issue, but
cannot be obtained without affording the person to be arrested an opportunity of escape, for a
police officer to enter such place and search therein, and in order to effect an entrance into
such place, to break open any outer or inner door or window of any house or place, whether
that of the person to be arrested or of any other person, if after notification of his authority and
purposes, and demand of admittance duly made, he cannot otherwise obtain admittance:

Provided that, if any such place is an apartment in the actual occupancy of a female (not
being the person to be arrested) who, according to custom, does not appear in public,
such person or police officer shall, before entering such apartment, give notice to such
female that she is at liberty to withdraw and shall afford her every reasonable facility for
withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer
or inner door or window of any house or place in order to liberate himself or any other person
who, having lawfully entered for the purpose of making an arrest, is detained therein.

48. Pursuit of offenders into other jurisdictions.--

A police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.

49. No unnecessary restraint.--

The person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.

50. Person arrested to be informed of grounds of arrest and of right to bail.--

(1) Every police officer or other person arresting any person without warrant shall forthwith
 communicate to him full particulars of the offence for which he is arrested or other grounds for
such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a
non-bailable offence, he shall inform the person arrested that he is entitled to be released on
bait and that he may arrange for sureties on his behalf.

50A. Obligation of person making arrest to inform about the arrest, etc., to a nominated
person.--

(1) Every police officer or other person making any arrest under this Code shall forthwith give
the information regarding such arrest and place where the arrested person is being held to any
of his friends, relatives or such other persons as may be disclosed or nominated by the arrested
person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as
soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made
in a book to be kept in the police station in such form as may be prescribed in this behalf by the
State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.

51. Search of arrested person.--

(1) Whenever a person is arrested by a police officer under a warrant which does not provide
for the taking of bail, or under a warrant which provides for the taking of bail but the person
arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private
person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the
officer making the arrest or, when the arrest is made by a private person, the police officer to
whom he makes over the person arrested, may search such person, and place in safe custody
all articles, other, than necessary wearing-apparel, found upon him and where any article is
seized from the arrested person, a receipt showing the articles taken in possession by the
police officer shall be given to such person.

(2) Whenever it is necessary to cause a female to be searched, the search shall be made by
another female with strict regard to decency.

52. Power to seize offensive weapons.--

The officer or other person making any arrest under this Code may take from the person
arrested any offensive weapons which he has about his person, and shall deliver all weapons so
taken to the Court or officer before which or whom the officer or person making the arrest is
required by this Code to produce the person arrested.

53. Examination of accused by medical practitioner at the request of police officer.--

(1) When a person is arrested on a charge of committing an offence of such a nature and
 alleged to have been committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence as to the commission of an
offence, it shall he lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person acting in good faith in his aid
and under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation.--

In this section and in sections 53A and 54,--

(a) "examination" shall include the examination of blood, blood stains,

semen, swabs in case of sexual offences, sputum and sweat, hair samples
and finger nail clippings by the use of modern and scientific techniques
including DNA profiling and such other tests which the registered medical
practitioner thinks necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner who

possess any medical qualification as defined in clause (h) of section 2 of
the Indian Medical Council Act, 1956 (102 of 1956) and whose name has
been entered in a State Medical Register.

53A. Examination of person accused of rape by medical practitioner.--

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government or by a local authority and
in the absence of such a practitioner within the radius of sixteen kilometers from the place
where the offence has been committed by any other registered medical practitioner acting at
the request of a police officer not below the rank of a sub-inspector, and for any person acting
in good faith in his aid and under his direction, to make such an examination of the arrested
person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following particulars,
namely:--

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling,
and
 (v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in
the report.

(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of
the documents referred to in clause (a) of sub-section (5) of that section.

54. Examination of arrested person by medical officer.--

(1) When any person is arrested, he shall be examined by a medical officer in the service of
Central or State Governments and in case the medical officer is not available by a registered
medical practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female medical officer, and in case the
female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person
shall prepare the record of such examination, mentioning therein any injuries or marks of
violence upon the person arrested, and the approximate time when such injuries or marks may
have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical practitioner, as the
case may be, to the arrested person or the person nominated by such arrested person.

54A. Identification of person arrested.--

Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such
offence, the Court, having jurisdiction, may on the request of the officer in charge of a police
station, direct the person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit.

55. Procedure when police officer deputes subordinate to arrest without warrant.--

(1) When any officer in charge of a police station or any police officer making an investigation
under Chapter XII requires any officer subordinate to him to arrest without a warrant
(otherwise than in his presence) any person who may lawfully be arrested without a warrant,
he shall deliver to the officer required to make the arrest an order in writing, specifying the
person to be arrested and the offence or other cause for which the arrest is to be made and the
officer so required shall, before making the arrest, notify to the person to be arrested the
substance of the order and, if so required by such person, shall show him the order.

(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under
section 41.
55A. Health and safety of arrested person.--

It shall be the duty of the person having the custody of an accused to take reasonable care of
the health and safety of the accused.

56. Person arrested to be taken before Magistrate or officer in charge of police station.--

A police officer making an arrest without warrant shall, without unnecessary delay and subject
to the provisions herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

57. Person arrested not to be detained more than twenty-four hours.--

No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
Court.

58. Police to report apprehensions.--

Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to
the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.

59. Discharge of person apprehended.--

No person who has been arrested by a police officer shall be discharged except on his own
bond, or on bail, or under the special order of a Magistrate.

60. Power, on escape, to pursue and retake.--

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he
escaped or was rescued may immediately pursue and arrest him in any place in India.

(2) The provisions of section 47 shall apply to arrests under subsection (1) although the person
making any such arrest is not acting under a warrant and is not a police officer having authority
to arrest.

60A. Arrest to be made strictly according to the Code.--

No arrest shall be made except in accordance with the provisions of this Code or any other law
for the time being in force providing for arrest.

APPENDIX 3

Security for Keeping the Peace and for Good Behaviour

THE CODE OF CRIMINAL PROCEDURE, 1973

Chapter VIII (Sections 106 to 124)

106. Security for keeping the peace on conviction.--

(1) When a Court of Session or Court of a Magistrate of the first class convicts a person of any
of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that
it is necessary to take security from such person for keeping the peace, the Court may, at the
time of passing sentence on such person, order him to execute a bond, with or without
sureties, for keeping the peace for such period, not exceeding three years, as it thinks fit.

(2) The offences referred to in sub-section (1) are--

(a) any offence punishable under Chapter VIII of the Indian Penal Code (45 of 1860),
other than an offence, punishable under section 153A or section 153B or section 154
thereof;

(b) any offence which consists of, or includes, assault or using criminal force or
committing mischief;

(c) any offence of criminal intimidation;

(d) any other offence which caused, or was intended or known to be likely to cause, a
breach of the peace.

(3) If the conviction is set aside on appeal or otherwise, the bond so executed shall become
void.

(4) An order under this section may also be made by an Appellate Court or by a Court when
exercising its powers of revision.

107. Security for keeping the peace in other cases.--

(1) When an Executive Magistrate receives information that any person is likely to commit a
breach of the peace or disturb the public tranquillity or to do any wrongful act that may
probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that
there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require
such person to show cause why he should not be ordered to execute a bond with or without
sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks
fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either
the place where the breach of the peace or disturbance is apprehended is within his local
jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the
peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such
jurisdiction.

108. Security for good behaviour from persons disseminating seditious matters.--

(1) When an Executive Magistrate receives information that there is within his local jurisdiction
any person who, within or without such jurisdiction,--

(i) either orally or in writing or in any other manner, intentionally disseminates or

attempts to disseminate or abets the dissemination of,--
 (a) any matter the publication of which is punishable under section 124A or
section 153A or section 153B or section 295A of the Indian Penal Code (45 of
1860), or

(b) any matter concerning a Judge acting or purporting to act in the discharge of
his official duties which amounts to criminal intimidation or defamation under the
Indian Penal Code (45 of 1860).

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets
to hire, distributes, publicly exhibits or in any other manner puts into circulation any
obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of
1860), and the Magistrate is of opinion that there is sufficient ground for proceeding, the
Magistrate may, in the manner hereinafter provided, require such person to show cause
why he should not be ordered to execute a bond, with or without sureties, for his good
behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

(2) No proceedings shall be taken under this section against the editor, proprietor, printer or
publisher of any publication registered under, and edited, printed and published in conformity
with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with
reference to any matter contained in such publication except by the order or under the
authority of the State Government or some officer empowered by the State Government in this
behalf.

109. Security for good behaviour from suspected persons.--

When an Executive Magistrate receives information that there is within his local jurisdiction a
person taking precautions to conceal his presence and that there is reason to believe that he is
doing so with a view to committing a cognizable offence, the Magistrate may, in the manner
hereinafter provided, require such person to show cause why he should not be ordered to
execute a bond, with or without sureties, for his good behaviour for such period, not exceeding
one year, as the Magistrate thinks fit.

110. Security for good behaviour from habitual offenders.--

When an Executive Magistrate receives information that there is within his local jurisdiction a
person who--

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment on disposal of

stolen property, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence
of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable
under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section
489B, section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences,
 involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of--

(i) any offence under one or more of the following Acts, namely:--

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);

(c) the Employees' Provident Funds and Family Pension Fund Act, 1952
(19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962);

(h) the Foreigners Act, 1946 (31 of 1946); or 

(ii) any offence punishable under any other law providing for the prevention of
hoarding or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security
hazardous to the community, such Magistrate may, in the manner hereinafter provided,
require such person to show cause why he should not be ordered to execute a bond,
with sureties, for his good behaviour for such period, not exceeding three years, as the
Magistrate thinks fit.

111. Order to be made.--

When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it
necessary to require any person to show cause under such section, he shall make an order in
writing, setting forth the substance of the information received, the amount of the bond to be
executed, the term for which it is to be in force, and the number, character and class of
sureties (if any) required.

112. Procedure in respect of person present in Court.--

If the person in respect of whom such order is made is present in Court, it shall be read over to
him, or, if he so desires, the substance thereof shall be explained to him.

113. Summons or warrant in case of person not so present.--

If such person is not present in Court, the Magistrate shall issue a summons requiring him to
appear, or, when such person is in custody, a warrant directing the officer in whose custody he
is to bring him before the Court:

Provided that whenever it appears to such Magistrate, upon the report of a police officer
or upon other information (the substance of which report or information shall be
 recorded by the Magistrate), that there is reason to fear the commission of a breach of
the peace, and that such breach of the peace cannot be prevented otherwise than by the
immediate arrest of such person, the Magistrate may at any time issue a warrant for his
arrest.

114. Copy of order to accompany summons or warrant.--

Every summons or warrant issued under section 113 shall be accompanied by a copy of the
order made under section 111, and such copy shall be delivered by the officer serving or
executing such summons or warrant to the person served with, or arrested under, the same.

115. Power to dispense with personal attendance.--

The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any
person called upon to show cause why he should not be ordered to execute a bond for keeping
the peace or for good behaviour and may permit him to appear by a pleader.

116. Inquiry as to truth of information.--

(1) When an order under section 111 has been read or explained under section 112 to a person
in Court, or when any person appears or is brought before a Magistrate in compliance with, or
in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed
to inquire into the truth of the information upon which action has been taken, and to take such
further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter
prescribed for conducting trial and recording evidence in summons-cases.

(3) After the commencement, and before the completion, of the inquiry under sub-section (1),
the Magistrate, if he considers that immediate measures are necessary for the prevention of a
breach of the peace or disturbance of the public tranquillity or the commission of any offence or
for the public safety, may, for reasons to be recorded in writing, direct the person in respect of
whom the order under section 111 has been made to execute a bond, with or without sureties,
for keeping the peace or maintaining good behaviour until the conclusion of the inquiry and
may detain him in custody until such bond is executed or, in default of execution, until the
inquiry is concluded:

Provided that--

(a) no person against whom proceedings are not being taken under section 108,
section 109, or section 110 shall be directed to execute a bond for maintaining
good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the
provision of sureties or the number thereof or the pecuniary extent of their
liability, shall not be more onerous than those specified in the order under section
111.

(4) For the purposes of this section the fact that a person is a habitual offender or is so
desperate and dangerous as to render his being at large without security hazardous to the
 community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under inquiry,
they may be dealt with in the same or separate inquiries as the Magistrate shall think just.

(6) The inquiry under this section shall be completed within a period of six months from the
date of its commencement, and if such inquiry is not so completed, the proceedings under this
Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to
be recorded in writing, the Magistrate otherwise directs:

Provided that where any person has been kept in detention pending such inquiry, the
proceeding against that person, unless terminated earlier, shall stand terminated on the
expiry of a period of six months of such detention.

(7) Where any direction is made under sub-section (6) permitting the continuance of
proceedings, the Sessions Judge may, on an application made to him by the aggrieved party,
vacate such direction if he is satisfied that it was not based on any special reason or was
perverse.

117. Order to give security.--

If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good
behaviour, as the case may be, that the person in respect of whom the inquiry is made should
execute a bond, with or without sureties, the Magistrate shall make an order accordingly:

Provided that--

(a) no person shall be ordered to give security of a nature different from, or of an

amount larger than, or for a period longer than, that specified in the order made
under section 111;

(b) the amount of every bond shall be fixed with due regard to the circumstances
of the case and shall not be excessive;

(c) when the person in respect of whom the inquiry is made is a minor, the bond
shall be executed only by his sureties.

118. Discharge of person informed against.--

If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or
maintaining good behaviour, as the case may be, that the person in respect of whom the
inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to
that effect, and if such person is in custody only for the purposes of the inquiry, shall release
him, or, if such person is not in custody, shall discharge him.

119. Commencement of period for which security is required.--

(1) If any person, in respect of whom an order requiring security is made under section 106 or
section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of,
imprisonment, the period for which such security is required shall commence on the expiration
of such sentence.
 (2) In other cases such period shall commence on the date of such order unless the Magistrate,
for sufficient reason, fixes a later date.

120. Contents of bond.--

The bond to be executed by any such person shall bind him to keep the peace or to be of good
behaviour, as the case may be, and in the latter case the commission or attempt to commit, or
the abetment of, any offence punishable with imprisonment, wherever it may be committed, is
a breach of the bond.

121. Power to reject sureties.--

(1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously
accepted by him or his predecessor under this Chapter on the ground that such surety is an
unfit person for the purposes of the bond:

Provided that, before so refusing to accept or rejecting any such surety, he shall either
himself hold an enquiry on oath into the fitness of the surety, or cause such inquiry to
be held and a report to be made thereon by a Magistrate subordinate to him.

(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and
to the person by whom the surety was offered and shall, in making the inquiry, record the
substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or
before a Magistrate deputed under subsection (1), and the report of such Magistrate (if any),
that the surety is an unfit person for the purposes of the bond, he shall make an order refusing
to accept or rejecting, as the case may be, such surety and recording his reasons for so doing:

Provided that, before making an order rejecting any surety who has previously been
accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause
the person for whom the surety is bound to appear or to be brought before him.

122. Imprisonment in default of security.--

(1)     (a) If any person ordered to give security under section 106 or section 117 does not give
such security on or before the date on which the period for which such security is to be given
commences, he shall, except in the case next hereinafter mentioned, be committed to prison,
or, if, he is already in prison, be detained in prison until such period expires or until within such
period he gives the security to the Court or Magistrate who made the order requiring it.

(b) If any person after having executed a bond, with or without sureties for keeping the
peace in pursuance of an order of a Magistrate under section 117, is proved, to the
satisfaction of such Magistrate or his successor-in-office, to have committed breach of
the bond, such Magistrate or successor-in-office may, after recording the grounds of
such proof, order that the person be arrested and detained in prison until the expiry of
the period of the bond and such order shall be without prejudice to any other
punishment or forfeiture to which the said person may be liable in accordance with law.

(2) When such person has been ordered by a Magistrate to give security for a period exceeding
one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a
 warrant directing him to be detained in prison pending the orders of the Sessions Judge and the
proceedings shall be laid, as soon as conveniently may be, before such Court.

(3) Such Court, after examining such proceedings and requiring from the Magistrate any further
information or evidence which it thinks necessary, and after giving the concerned person a
reasonable opportunity of being heard, may pass such order on the case as it thinks fit:

Provided that the period (if any) for which any person is imprisoned for failure to give
security shall not exceed three years.

(4) If security has been required in the course of the same proceeding from two or more
persons in respect of any one of whom the proceedings are referred to the Sessions Judge
under sub-section

(2), such reference shall also include the case of any other of such persons who has been
ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event,
apply to the case of such other person also except that the period (if any) for which he may be
imprisoned, shall not exceed the period for which he was ordered to give security.

(5) A Sessions Judge may in his discretion transfer any proceeding laid before him under sub-
section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and
upon such transfer, such Additional Sessions judge or Assistant Sessions judge may exercise
the powers of a Sessions Judge under this section in respect of such proceedings.

(6) If the security is tendered to the officer-in-charge of the jail, he shall forthwith refer the
matter to the Court or Magistrate who made the order, and shall await the orders of such Court
or Magistrate.

(7) Imprisonment for failure to give security for keeping the peace shall be simple.

(8) Imprisonment for failure to give security for good behaviour shall, where the proceedings
have been taken under section 108, be simple and, where the proceedings have been taken
under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case
directs.

123. Power to release persons imprisoned for failing to give security.--

(1) Whenever the District Magistrate in the case of an order passed by an Executive Magistrate
under section 117, or the Chief Judicial Magistrate in any other case is of opinion that any
person imprisoned for failing to give security under this Chapter may be released without
hazard to the community or to any other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this Chapter,
the High Court or Court of Session, or, where the order was made by any other Court, the
District Magistrate, in the cast of an order passed by an Executive Magistrate under section
117, or the Chief Judicial Magistrate in any other case, may make an order reducing the
amount of the security or (he number of sureties or the time for which security has been
required.

(3) An order under sub-section (1) may direct the discharge of such person either without
 conditions or upon any conditions which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for
which such person was ordered to give security has expired.

(4) The State Government may prescribe the conditions upon which a conditional discharge
may be made.

(5) If any condition upon which any person has been discharged is, in the opinion of the District
Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the
Chief Judicial Magistrate in any other case by whom the order of discharge was made or of his
successor, not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5), such
person may be arrested by any police officer without warrant, and shall thereupon be produced
before the District Magistrate, in the case of an order passed by an Executive Magistrate under
section 117, or the Chief Judicial Magistrate in any other case.

(7) Unless such person gives security in accordance with the terms of the original order for the
unexpired portion of the term for which he was in the first instance committed or ordered to be
detained (such portion being deemed to be a period equal to the period between the date of the
breach of the conditions of discharge and the date on which, except for such conditional
discharge, he would have been entitled to release), the District Magistrate, in the case of an
order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in
any other case may remand such person to prison to undergo such unexpired portion.

(8) A person remanded to prison under sub-section (7) shall subject to the provisions of section
122, be released at any time on giving security in accordance with the terms of the original
order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was
made, or to its or his successor.

(9) The High Court or Court of Sessions may at any time, for sufficient reasons to be recorded
in writing, cancel any bond for keeping the peace or for good behaviour executed under this
Chapter by any order made by it, and the District Magistrate, in the case of an order passed by
an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case
may make such cancellation where such bond was executed under his order or under the order
of any other Court in his district.

(10) Any surety for the peaceable conduct or good behaviour of another person, ordered to
execute a bond under this Chapter may at any time apply to the Court making such order to
cancel the bond and on such application being made, the Court shall issue a summons or
warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be
brought before it.

124. Security for unexpired period of bond.--

(1) When a person for whose appearance a summons or warrant has been issued under the
proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is
brought before the Magistrate or Court, the Magistrate or Court shall cancel the bond executed
by such person and shall order such person to give, for the unexpired portion of the term of
 such bond, fresh security of the same person description as the original security.

(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive) be deemed
to be an order made under section 106 or section 117, as the case may be.

APPENDIX 4

Provisions as to Bail and Bonds

THE CODE OF CRIMINAL PROCEDURE, 1973

Chapter XXXIII (Sections 436 to 450)

436. In what cases bail to be taken.--

(1) When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is brought
before a Court, and is prepared at any time while in the custody of such officer or at any stage
of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, 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 appearance as hereinafter
provided:

Explanation.-- Where a person is unable to give bail within a week of the date of
his arrest, it shall be a sufficient ground for the officer or the Court to presume
that he is an indigent person for the purposes 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 bound by such bond to pay the penalty thereof
under section 446.

436A. Maximum period for which an undertrial 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 than one-half of the 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 maximum period of imprisonment
provided for the said offence under that law.

Explanation.-- In computing the period of detention under this section for

granting bail, the period of detention passed due to delay in proceeding caused
by the accused shall be excluded.

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

(1) When any person accused of, or suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer in charge of a police station or appears or
is brought before a Court other than the High Court or Court of Session, he may be released on
bail, but--

(i) such person shall not be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he
had been previously convicted of an offence punishable with death, imprisonment for life
or imprisonment for seven years or more, or he had been previously convicted on two or
more occasions of a 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 referred to in clause
(ii) be released on bail if it is satisfied that it is just and proper so to do for any
other special reason:

Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise entitled to be released on bail and
gives an undertaking that 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 under this sub-section without
giving an opportunity of hearing to the Public Prosecutor.

(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.

(3) When a person accused or suspected of the commission of an offence punishable with
 imprisonment which may extend to seven years or more or of an offence under Chapter VI,
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 subsection (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,

(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, 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 or tamper with the evidence,
and may also impose, in the interests of justice, such other conditions as it considers
necessary.

(4) An officer or a Court releasing any person on bail under subsection (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, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

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

437A. Bail to require accused to appear before next appellate Court.--

(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence
or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with
sureties, to appear before the higher Court as and when such Court issues notice in respect of
any appeal or petition filed against the judgment of the respective Court and such bail bonds
shall be in force for six months.

(2) If such accused fails to appear, the bond stand forfeited and the procedure under section
446 shall apply.

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

(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and
that Court may, after taking into consideration, inter alia, the following factors, namely:--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has rejected
the application for grant of anticipatory bail, it shall be open to an officer in-
charge of a police station to arrest, without warrant the applicant on the basis of
the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a
notice being not less than seven days notice, together with a copy of such order to be served
on the Public Prosecutor and the Superintendent of Police, with a view to give the Public
Prosecutor a reasonable opportunity of being heard when the application shall be finally heard
by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of
final hearing of the application and passing of final order by the Court, if on an application
made to it by the Public Prosecutor, the Court considers such presence necessary in the interest
of justice.

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

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

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

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

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

439. Special powers of High Court or Court of Session regarding bail.--

(1) A High Court or Court of Session may direct--

(a) that any 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 set
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
notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail
under this Chapter be arrested and commit him to custody.

440. Amount of bond and reduction thereof.--

(1) The amount of every bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case and shall not be excessive.

(2) The High Court or Court of Session may direct that the bail required by a police officer or
Magistrate be reduced.

441. Bond of accused and sureties.--

(1) Before any person is released on bail or released on his own bond, a bond for such sum of
money as the police officer or Court, as the case may be, thinks sufficient shall be executed by
such person, and, when he is released on bail, by one or more sufficient sureties conditioned
that such person shall attend at the time and place mentioned in the bond, and shall continue
so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also
contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when
called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may
accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of
the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry
to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.
441A. Declaration by sureties.--

Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety
including the accused, giving therein all the relevant particulars.

442. Discharge from custody.--

(1) As soon as the bond has been executed, the person for whose appearance it has been
executed shall be released; and when he is in jail, the Court admitting him to bail shall issue an
order of release to the officer in charge of the jail, and such officer on receipt of the orders shall
release him.

(2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of
any person liable to be detained for some matter other than that in respect of which the bond
was executed.

443. Power to order sufficient bail when that first taken is insufficient.--

If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they
afterwards become insufficient, the Court may issue a warrant of arrest directing that the
person released on bail be brought before it and may order him to find sufficient sureties, and,
on his failing so to do, may commit him to jail.

444. Discharge of sureties.--

(1) All or any sureties for the attendance and appearance of a person released on bail may at
any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the
applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing
that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender,
the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the
applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do
so, may commit him to jail.

445. Deposit instead of recognizance.--

When any person is required by any Court or officer to execute a bond with or without sureties,
such Court or officer may, except in the case of a bond for good behaviour, permit him to
deposit a sum of money or Government promissory notes to such amount as the Court or
officer may fix in lieu of executing such bond.

446. Procedure when bond has been forfeited.--

(1) Where a bond under this Code is for appearance, or for production of property, before a
Court and it is proved to the satisfaction of that Court or of any Court to which the case has
subsequently been transferred, that the bond has been forfeited, or where, in respect of any
other bond under this Code, it is proved to the satisfaction of the Court by which the bond was
taken, or of any Court to which the case has subsequently been transferred, or of the Court of
 any Magistrate of the first class, that the bond has been forfeited, the Court shall record the
grounds of such proof, and may call upon any person bound by such bond to pay the penalty
thereof or to show cause why it should not be paid.

Explanation.-- A condition in a bond for appearance, or for production of property,

before a Court shall be construed as including a condition for appearance, or as the case
may be, for production of property, before any Court to which the case may
subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to
recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner
aforesaid, the person so bound as surety shall be liable, by order of the Court ordering
the recovery of the penalty, to imprisonment in civil jail for a term which may extend to
six months.

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty
mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged
from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or section
360 is convicted of an offence the commission of which constitutes a breach of the conditions of
his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the
judgment of the Court by which he was convicted of such offence may be used as evidence in
proceedings under this section against his surety or sureties, and, if such certified copy is so
used, the Court shall presume that such offence was committed by him unless the contrary is
proved.

446A. Cancellation of bond and bail bond.--

Without prejudice to the provisions of section 446, where a bond under this Code is for
appearance of a person in a case and it is forfeited for breach of a condition--

(a) the bond executed by such person as well as the bond, if any, executed by one or
more of his sureties in that case shall stand cancelled; and

(b) (hereafter 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 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:

Provided that subject to any other provision of this Code he may be released in
that case upon the execution of a 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.

447. Procedure in case of insolvency or death of surety or when a bond is forfeited.--

 When any surety to a bond under this Code becomes insolvent or dies, or when any bond is
forfeited under the provisions of section 446, the Court by whose order such bond was taken,
or a Magistrate of the first class may order the person from whom such security was demanded
to furnish fresh security in accordance with the directions of the original order, and if such
security is not furnished, such Court or Magistrate may proceed as if there had been a default
in complying with such original order.

448. Bond required from minor.--

When the person required by any Court, or officer to execute a bond is a minor, such Court or
officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

449. Appeal from orders under section 446.--All orders passed under section 446, shall be
appealable,--

(i) in the case of an order made by a Magistrate, to the Sessions Judge;

(ii) in the case of an order made by a Court of Sessions, to the Court to which an appeal
lies from an order made by such Court.

450. Power to direct levy of amount due on certain recognizances.--

The High Court or Court of Session may direct any Magistrate to levy the amount due on a
bond for appearance or attendance at such High Court or Court of Session.

APPENDIX 5

List of Bailable Offences Section Cognizable/Non-

Particulars of offence of IPC cognizable

(1) (2) (3)

Concealing design to commit an offence 118 According to offence

punishable with death or life imprisonment
which is not committed

Concealing design to commit an offence by 119 According to offence

public servant which is not committed

Concealing a design to commit an offence 120 According to offence

punishable with imprisonment which is not
committed

Criminal conspiracy other than the offence 120B Non-cognizable

punishable with death, life imprisonment or
rigorous imprisonment of 2 years or upwards.

Public servant negligently suffering prisoner 129 Cognizable

of war/stale to escape

Abetment of desertion of an officer, soldier, 135 Cognizable

sailor or airman
Harbouring a deserting officer, soldier, sailor 136 Cognizable
or airman

Deserter concealed on merchant vessel 137 Non-cognizable

through negligence

Abetment of act of insubordination by an 138 Cognizable

officer, soldier, sailor or airman which is
committed in consequence

Wearing garb or carrying token used by 140 Cognizable

soldier, sailor or airman to mislead others

Being member of unlawful assembly 143 Cognizable

Joining unlawful assembly armed with deadly 144 Cognizable

weapon

joining or continuing in an unlawful assembly 145 Cognizable

which is commanded to disperse

Rioting 147 Cognizable

Rioting armed with deadly weapon 148 Cognizable

Knowingly joining or continuing in an 151 Cognizable

assembly of 5 or more persons after
commanded to disperse

Assaulting or obstructing public servant when 152 Cognizable

suppressing riot etc.

Giving provocation to cause riot which is 153 Cognizable

committed

Giving provocation to cause riot which is not 153 Cognizable

committed

Owner or occupier of land not giving 154 Non-cognizable

information of riot, etc.

Person for whose benefit or on whose behalf 155 Non-cognizable

a riot takes place not using all lawful means
to prevent

Agent of owner or occupier for whose benefit 156 Non-cognizable

a riot is committed not using all lawful means
to prevent it

Harbouring persons hired for an unlawful 157 Cognizable

assembly

Being hired to take part in an unlawful 158 Cognizable

assembly or riot

Committing affray 160 Cognizable

Public servant disobeying law for causing 166 Non-cognizable

injury to any person
Public servant framing incorrect document for 167 Cognizable
causing injury

Public servant unlawfully engaging in trade 168 Non-cognizable

Public servant unlawfully buying or bidding 160 Non-cognizable

for property

Wearing garb or carrying token of public 171 Cognizable

servants fraudulently

Bribery 171E Non-cognizable

Undue influence at election 171F Non-cognizable

impersonation at election 171F Cognizable

Making false statement relating to election 171G Non-cognizable

Illegal payment regarding election 171H Non-cognizable

Failure to keep election accounts 171-I Non-cognizable

Avoiding summons from public servant where 172 Non-cognizable

attendance in-person in court is required

Preventing service or affixation of summons 173 Non-cognizable

or removal or preventing proclamation

Preventing service or affixation of summons 173 Non-cognizable

or removal or preventing proclamation where
personal attendance is required in court

Disobeying legal order to attend certain place 174 Non-cognizable

personally or by agent or departing therefrom
without authority

Disobeying legal order to attend certain place 174 Non-cognizable

personally or by agent or departing therefrom
without authority it personal attendance is
required in court

Intentionally omitting, to produce document 175 Non-cognizable

to a public servant by person legally bound

Intentionally omitting to produce document 175 Non-cognizable

to a public servant required in court by
person legally bound

Intentionally omitting to give information to 176 Non-cognizable

public servant by person legally bound

intentionally omitting to give information to 176 Non -cognizable

public servant regarding the commission of
an offence by a person legally bound

Intentionally omitting to give information 176 Non-cognizable

required by order passed under sub-section
(1) of section 356 of IPC to public servant by
person legally bound

Knowingly furnishing false information to 177 Non-cognizable

public servant

Knowingly furnishing false information 177 Non-cognizable

regarding commission of an offence to public
servant

Refusing to take oath by public servant 178 Non-cognizable

Refusing to state truth by one who is legally 179 Non-cognizable

bound

Refusing to sign statements made to public 180 Non-cognizable

servant

Knowingly stating false statement, on oath to 181 Non-cognizable

public servant

Giving false information to public servant 182 Non-cognizable

with intent to cause injury to another person

Resisting taking of property by public-servant 183 Non-cognizable

Obstructing sale of property by public servant 184 Non-cognizable

Bidding by person under legal incapacity to 185 Non-cognizable

purchase or bidding without intending to
perform the obligations

Obstructing public servant while discharging 186 Non-cognizable

public function

Omission to assist public servant when bound 187 Non-cognizable

by law

Wilfully neglecting to aid public servant in 187 Non-cognizable

execution process

Disobedience of an order promulgated by 188 Cognizable

public servant which causes obstruction,
annoyance or injury to lawfully employed
person

Disobedience of an order lawfully 188 Cognizable

promulgated by public servant if such
disobedience causes danger to human life,
health or safety etc.

Threatening public servant or person 189 Non-cognizable

concerned to him with injury, for purpose of
inducing him to do or forbear to any official
act

Threatening any person to induce him to 190 Non-cognizable

refrain front making a legal application for
protection from injury
Giving or fabricating false evidence in judicial 193 Non-cognizable
proceedings

Giving or fabricating false evidence in any 193 Non-cognizable

other case

Knowingly issuing or signing false certificate 197 Non-cognizable

Using false certificates as true etc. 198 Non-cognizable

Making false statement in any declaration 199 Non-cognizable

receivable as evidence

Using false declaration as true 200 Non-cognizable

Causing disappearance of evidence of capital 201 According

offence or giving false information to screen toanoffence
offender

Causing disappearance of evidence of offence 201 Non-cognizable

punishable with life imprisonment or
imprisonment for 10 years or giving false
information to screen offences

Causing disappearance of evidence of offence 201 Non-cognizable

punishable with imprisonment for less than
10 years or giving false information to screen
offenders

Intentional omission to give information of an 202 Non-cognizable

offence by person legally bound to inform

Giving false information respecting an offence 203 Non-cognizable

committed

Secreting or destroying any document to 204 Non-cognizable

prevent its production as evidence

False personation for the purpose of any act 205 Non-cognizable

or proceeding in a suit or criminal prosecution
or for becoming bail or security

Fraudulent removal or concealment of 206 Non-cognizable

property to prevent its seizure as forfeited or
in execution proceedings

Fraudulent claim to property to prevent its 207 Non-cognizable

seizure as forfeited or in execution
proceedings

Fraudulently suffering decree for sum not due 208 Non-cognizable

or suffering execution of already satisfied
decree

False claim in a court of justice 209 Non-cognizable

Fraudulently obtaining a decree for a sum not 210 Non-cognizable

due or executing a decree already satisfied
False charge of offence made with intent to 211 Non-cognizable
injure

False charge of offence punishable with death 211 Non-cognizable

or life imprisonment or 7 years imprisonment
with intent to injure

Harbouring an offender if the offence is 212 Cognizable

capital

Harbouring an offender if offence punishable 212 Cognizable

with life imprisonment or 10 years
imprisonment

Harbouring an offender if offence punishable 212 Cognizable

with 1 year imprisonment and not 10 years
imprisonment

Taking gift to screen an offender from capital 213 Cognizable

punishment

Taking gift to screen an offender from life 213 Cognizable

imprisonment or 10 years imprisonment

Taking gift to screen an offender from 213 Cognizable

imprisonment for less than 10 years

Offering gift or restoration of property to 214 Non-cognizable

screen offender from offence punishable with
capital punishment

Offering gift or restoration of property to 214 Non-cognizable

screen offender from offence punishable with
life imprisonment or 10 years imprisonment

Offering gift or restoration of property to 214 Non-cognizable

screen offender from offence punishable with
imprisonment for less than 10 years

Taking gift for recovering moveable property, 215 Cognizable

which a person deprived by offence without
apprehending offender

Harbouring an offender who has escaped 216 Cognizable

from custody or whose apprehension has
been ordered if offence is capital

Harbouring an offender who has escaped 216 Cognizable

from custody or whose apprehension has
been ordered if offence punishable with life
imprisonment or 10 years imprisonment

Harboring an offender who has escaped from 216 Cognizable

custody or whose apprehension has been
ordered if offence punishable with 1 year
imprisonment and not for 10 years
Harbouring robbers or dacoits 216A Cognizable

Public servant disobeying law for saving 217 Non-cognizable

person from punishment or forfeiture of
property

Public servant framing an incorrect record for 218 Cognizable

saving person from punishment or forfeiture
of property

Public servant making and pronouncing an 219 Non-cognizable

order, report verdict or decision contrary to
law in judicial proceeding

Commitment for trial or confinement by 220 Non-cognizable

person having authority knowingly acting
contrary to law

Intentional omission by public servant to 221 According to offence

apprehend an offender guilty of capital
offence

Intentional omission by public servant to 221 Cognizable

apprehend an offender guilty of offence
punishable with life imprisonment or 10 years
imprisonment

Intentional omission by public servant to 221 Cognizable

apprehend an offender guilty of offence
punishable with imprisonment for less then
10 years

Intentional omission by public servant to 222 Cognizable

apprehend person under imprisonment for
less than 10 years or lawfully committed to
custody

Escape from confinement negligently suffered 223 Non-cognizable

by public servant

Resistance by a person to his lawful 224 Cognizable

apprehension

Intentional omission to apprehend or 225A Non-cognizable

sufferance of escape of person by public
servant

Negligent omission to apprehend or 225A Non-cognizable

sufferance of escape of person by public
servant

Resistance to lawful apprehension or escape 225B Cognizable

or rescue in other cases not provided for

Intentional insult or interrupting public 228 Non-cognizable

servant in any stage of judicial proceeding
Disclosure of identity of victim of certain 228A Cognizable
offences

Printing of publication of proceeding without 228A Cognizable

prior permission of court

Personation of juror or assessor 229 Non-cognizable

Possessing counterfeit Government stamp 259 Cognizable

Using counterfeit Government stamp as 260 Cognizable

genuine

Effacing writing from substance bearing 261 Cognizable

Government stamp or removing stamp from
any document used for such writing or
document, for causing loss to Government

Using Government stamp that has been used 262 Cognizable

before

Erasing mark denoting use of stamp 263 Cognizable

Fictitious stamps 263A Cognizable

Fraudulent use of false instrument for 264 Non-cognizable

weighing

Fraudulent use of false weight or measure 265 Non-cognizable

Possessing false weights or measures for 266 Non-cognizable

fraudulent use

Negligently doing act known to be likely to 269 Cognizable

spread disease dangerous to life

Malignantly doing act known to be likely to 270 Cognizable

spread disease dangerous to life

Knowingly disobeying any quarantine rule 271 Non-cognizable

Adulterating food or drink for salt? so as to 272 Non-cognizable

make them noxious

Selling noxious food and drink 273 Non-cognizable

Offering for sale adulterated drug or medical 275 Non-cognizable

preparation from dispensary

Knowingly selling drug or medical preparation 276 Non-cognizable

as different drug or medical preparation

Defiling water of spring or reservoirs 277 Cognizable

Making atmosphere noxious to health 278 Non-cognizable

Driving or riding on public way rashly or 279 Cognizable

negligently as to endanger human life

Navigating any vessel rashly or negligently as 280 Cognizable

to endanger human life
Exhibiting false light, mark or buoy 281 Cognizable

Conveying for hire any person by water in 282 Cognizable

overloaded vessel as to endanger his life

Causing danger, obstruction or injury in 283 Cognizable

public way or line of navigation

Dealing with poisonous substance so as to 284 Cognizable

endanger human life

Dealing with fire or any combustible matter 285 Cognizable

as to endanger human life

Dealing with explosive substance so as to 286 Cognizable

endanger human life

Dealing with any machinery so as to 287 Non-cognizable

endanger human life

Omission to guard against danger to human 288 Non-cognizable

life by the fall of any building

Omission to take order with any animal as to 289 Cognizable

guard against danger to human life or of
grievous hurt

Committing a public nuisance 290 Non-cognizable

Continuance of nuisance even after granting 291 Cognizable

injunction

Sale etc. of obscene books, etc. 292 Cognizable

Sale etc. of obscene objects to young persons 293 Cognizable

Obscene songs 294 Cognizable

Keeping a lottery office 294A Non-cognizable

Publishing proposals relating to lotteries 294A Non-cognizable

Disturbing religious assembly 296 Cognizable

Trespassing in place of worship or disturbing 297 Cognizable

funeral so as to wound the religious feelings
or offering indignity to human corpse

Uttering word or making any sound or 298 Non-cognizable

gesture or placing any object in the sight of
any person with intention to wound his
religious feeling

Causing death by rash or negligent act 304A Cognizable

Attempt to commit suicide 309 Cognizable

Causing miscarriage 312 Non-cognizable

Causing miscarriage if woman be quick with 312 Non-cognizable

child
Exposure and abandonment of child under 12 317 Cognizable
years of age by parent or person having care
of it

Concealment of birth by secret disposal of 318 Cognizable

deadbody

Voluntarily causing hurt 323 Cognizable

Voluntarily causing grievous hurt 323 Cognizable

Voluntarily causing hurt to extort confession 330 Cognizable

or information or to compel restoration of
property, etc.

Voluntarily causing hurt to person who gave 334 Non-cognizable

grave and sudden provocation

Causing grievous hurt to person who gave 335 Cognizable

grave & sudden provocation

Endangering human life or the personal 336 Cognizable

safety of others by any act

Causing hurt by an act which endangers 337 Cognizable

human life

Causing grievous hurt by an act which 338 Cognizable

endangers human life, etc.

Wrongfully restraining any person 341 Cognizable

Wrongfully confining any person 342 Cognizable

Wrongfully confining for more than 3 days 343 Cognizable

Wrongfully confining for 10 or more days 344 Cognizable

Keeping any person in wrongful confinement 345 Cognizable

for whose liberation writ has been issued

Wrongful confinement in secret 346 Cognizable

Wrongful confinement for extorting property 347 Cognizable

Wrongful confinement for extorting 348 Cognizable

confession or information or compelling
restoration of property

Assault or use of criminal force otherwise 352 Non-cognizable

than on grave provocation

Assault or use of criminal force to a woman 354 Cognizable

with intent to outrage her modesty

Assault or use of criminal force to dishonour 355 Non-cognizable

a person otherwise than on grave and sudden
provocation

Assault or use of criminal force with intent to 356 Cognizable

commit theft

Assault or use of criminal force in attempt to 357 Cognizable

wrongfully confine a person

Assault or use of criminal force on grave and 358 Non-cognizable

sudden provocation

Kidnapping 363 Cognizable

Buying and disposing any person as slave 370 Non-cognizable

Unlawful compulsory labour 374 Cognizable

Intercourse by man with his wife during 376A Non-cognizable

separation

Intercourse by public servant with woman in 376B Cognizable

his custody

Intercourse by superintendent of jail, remand 376C Cognizable

home with woman in his custody

Intercourse by manager, etc. of a hospital 376D Cognizable

with any woman in that hospital

Putting or attempting to put any person in 385 Cognizable

fear of injury for committing extortion

Extortion by threat of accusation of offence 388 Cognizable

punishable with death, life imprisonment or
imprisonment for 10 years

Putting a person in fear of accusation of an 389 Cognizable

offence punishable with death, life
imprisonment or imprisonment for 10 years
for committing extortion

Putting a person in fear of accusation of an 389 Cognizable

unnatural offence for committing, extortion

Dishonest misappropriation of moveable 403 Non-cognizable

property

Dishonest misappropriation of property of 404 Non-cognizable

deceased by person not legally entitled to

Dishonest misappropriation of property of 404 Non-cognizable

deceased by clerk or employee of deceased

Cheating 417 Non-cognizable

Cheating a person whose interest offender 418 Non-cognizable

bound by law or contract to protect

Cheating by personation 419 Cognizable

Fraudulent removal or concealment of 421 Non-cognizable

property etc., to prevent its distribution
among creditors

Fraudulently preventing debt from being 422 Non-cognizable

available for creditors

Fraudulent execution of deed of transfer 423 Non-cognizable

containing false statement of consideration

Fraudulent removal or concealment of 424 Non-cognizable

property or assisting in such removal or
concealment thereof

Mischief 426 Non-cognizable

Mischief and causing damage to the amount 427 Non-cognizable

of Rs. 50 or upwards

Mischief by killing or maiming animals of the 428 Cognizable

value of ten rupees

Mischief by killing or maiming cattle etc. of 429 Cognizable

any value or any animal of the value of fifty
rupees

Mischief by causing diminution of supply of 430 Cognizable

water for agricultural purposes, etc.

Mischief by injury to public road, bridge, 431 Cognizable

navigable river or channel and rendering it
impassable and less safe for travelling

Mischief by causing inundation or obstruction 432 Cognizable

to public drainage

Mischief by destroying or moving a light 433 Cognizable

house or sea-mark

Mischief by destroying a landmark fixed by 434 Non-cognizable

public authority

Mischief by fire or explosive substance for 435 Cognizable

causing danger to an amount of 100 rupees
or upwards

Mischief committed after preparation made 440 Cognizable

for causing death or hurt etc.

Criminal trespass 447 Cognizable

House trespass 448 Cognizable

House trespass for the commission of an 451 Cognizable

offence punishable with imprisonment

Fraudulently opening closed receptacle by 462 Cognizable

person entrusted

Forgery 465 Non-cognizable

Forgery for harming the reputation of any 469 Cognizable

person

Using as genuine a forged document 471 Cognizable

 

Using as genuine a forged promissory note of 471 Cognizable

Central Government

Making or counterfeiting a seal, plate, etc. for 472 Cognizable

committing forgery under section 467 of IPC

Making or counterfeiting a seal, plate, etc. for 473 Cognizable

committing forgery punishable otherwise
than under section 467 of IPC

Possessing a forged document of description 474 Cognizable

mentioned under section 466 of IPC and
using it as genuine

Possessing forged document of description 474 Non-cognizable

mentioned under section 467 of IPC and
using it as genuine

Counterfeiting mark or device used for 475 Non-cognizable

authenticating document described under
section 467 of IPC or possessing
counterfeiting material

Falsification of accounts 477A Non-cognizable

Using false property mark for deceiving or 482 Non-cognizable

injuring any person

Counterfeiting another's property mark for 483 Non-cognizable

causing damage or injury

Counterfeiting property mark or any mark 484 Non-cognizable

used by public servant

Making or possessing any instrument for 485 Non-cognizable

counterfeiting property mark

Selling goods marked with counterfeit 486 Non -cognizable

property mark

Fraudulently making false mark upon any 487 Non-cognizable

package containing goods

Using false mark 488 Non-cognizable

Removing, destroying property mark for 489 Non-cognizable

causing injury

Possessing forged or counterfeit currency 489C Cognizable

notes or bank notes

Making or using documents resembling 489E Non-cognizable

currency notes or bank notes
Refusing to disclose the name and address of 490 Non-cognizable
printer

Voluntarily omitting to attend to needs of 491 Non-cognizable

person helpless from youth, unsoundness of
mind or disease by one bound to attend

Marrying again during the lifetime of husband 494 Non-cognizable

or wife

Marrying again by concealing the former 495 Non-cognizable

marriage from the person subsequently
married

Fraudulently going through ceremony of 496 Non-cognizable

marriage knowing that not lawfully married

Adultery 497 Non-cognizable

Enticing or taking away married woman 498 Non-cognizable

Defamation against President or Vice- 500 Non-cognizable

President or Governor of State or
Administrator of Union Territory oraminister

Defamation in any other case 501 Non-cognizable

Printing or engraving defamatory matter 501 Non-cognizable

against President or the Vice-President or
Governor of State or Administrator of Union
Territory or a minister

Printing or engraving any other defamatory 501 Non-cognizable

matter

Sale of printed or engraved defamatory 502 Non-cognizable

substance against President or Vice-President
or the Governor of the State or Administrator
of Union Territory or a Minister

Sale of printed or engraved defamatory 502 Non-cognizable

substance

Insult intended to provoke breach of peace 504 Non-cognizable

Criminal intimidation 506 Non-cognizable

Criminal intimidation if threat to cause death 506 Non-cognizable

Criminal intimidation by anonymous 507 Non-cognizable

communication

Inducing a person to believe that he will be 508 Non-cognizable

rendered object of divine displeasure

Uttering any word or making gesture to insult 509 Cognizable

the modesty of woman, etc.

Appearing in public place in state of 510 Non-cognizable

intoxication

Attempting to commit offences punishable 511 Non-cognizable

with imprisonment for less than 3 years or
with fine

APPENDIX 6

List of Non-Bailable Offences Section Cognizable/Non-

Particulars of offence of IPC cognizable

(1) (2) (3)

Abetment of offence punishable with 115 According to offence

death or life imprisonment which is
not committed

Abetment offence punishable with 115 According to offence

death or life imprisonment and if any
harm is done in consequence of
abetment

Concealing design to commit offence 118 According to offence

punishable with death or life
imprisonment which is committed

Concealing a design to commit offence 119 According to offence

punishable with death or life
imprisonment by public servant

Waging, attempting or abetting the 121 Cognizable

waging of war against Government of
India

Conspiring to commit certain offences 121A Cognizable

against state

Collecting arms etc., with intention of 122 Cognizable

waging war against Government of
India

Concealing design to wage war against 123 Cognizable

Government of India for facilitating its
commission

Assaulting President, Governor etc. 124 Cognizable

with intent to restrain lawful exercise
of power

Sedition 124A Cognizable

Waging or abetting the waging of war 125 Cognizable

against any Asiatic power in alliance or
at peace with Government of India

Committing depredation on the 126 Cognizable

 territories of any power in alliance or
at peace with Government of India

Receiving property taken by war or 127 Cognizable

depredation mentioned in sections 125
and 126

Public servant voluntarily allowing 128 Cognizable

prisoner of war/State to escape

Aiding escape of, rescuing or 130 Cognizable

harbouring prisoner of war/state or
resisting recapture of such prisoner

Abetting mutiny or attempting to 131 Cognizable

seduce an officer, soldier, sailor or
airman from this duty

Abetting mutiny committed in 132 Cognizable

consequence thereof

Abetting assault by officer, soldier, 133 Cognizable

sailor or airman on his superior officer

Abetment of above assault which is 134 Cognizable

committed

Promoting enemity between classes 153A Cognizable

Promoting enemity between classes in 153A Cognizable

place of worship

Knowingly carrying arms in any 153AA Cognizable

procession or organising or holding or
looking part in any mass drill or mass
training with arms

Imputations, assertions, prejudicial to 153B Cognizable

national integration

Imputations, assertions committed in 153B Cognizable

place of worship

Personating public servant 170 Cognizable

Failure to appear at specified place 174A Cognizable

and specified time as required by a
proclamation published under sub-
section (1) of section 82

Failure to appear at specified place 174A Cognizable

and specified time as required by a  
proclamation published under
subsection (1) of section 82 of this
Code. 
In a case where declaration has been
174A Cognizable
made under sub-section (4) of section 82
of this Code pronouncing a person as
proclaimed offender.
Giving or fabricating false evidence for 194 Non-cognizable
convicting person of capital offence

Giving or fabricating false evidence 194 Non-cognizable

against innocent person

Giving or fabricating false evidence for 195 Non-cognizable

procuring conviction of offence
punishable with life imprisonment or
imprisonment for 7 years or above

Threatening any person to give false 195A Cognizable

evidence

Intentional omission by public servant 222 Cognizable

to apprehend person under sentence
of death

Intentional omission by public servant 222 Cognizable

to apprehend person under sentence
of life imprisonment or imprisonment
for 10 years or above

Resisting or obstructing lawful 225 Cognizable

apprehension of person or rescuing
him from lawful custody charged with
life imprisonment or for a term which
may entend to ten years

Resisting or obstructing lawful 225 Cognizable

apprehension of person or rescuing
him from lawful custody charged with
capital offence

Resisting or obstructing lawful 225 Cognizable

apprehension of person or rescuing
him from lawful custody charged with
life imprisonment or imprisonment for
a term of ten years or up wards

Resisting or obstructing lawful 225 Cognizable

apprehension of person or rescuing
him from lawful custody charged with
death sentence

Violation of condition of remission of 227 Cognizable

punishment

Failure by person released on bail or 229A Cognizable

bond to appear in court

Counterfeiting or performing process 231 Cognizable

of counterfeiting coin
Counterfeiting or performing any part 332 Cognizable
of the process of counterfeiting Indian
coin

Making, buying or selling instrument 233 Cognizable

for purpose of counterfeiting coin

Making, buying or selling instrument 234 Cognizable

for purpose of counterfeiting Indian
coin

Possessing instrument for purpose of 235 Cognizable

counterfeiting coin

Possessing instrument for purpose of 235 Cognizable

counterfeiting Indian coin

Abetting in India the counterfeiting of 236 Cognizable

coin out of India

Import or export of counterfeit coin 237 Cognizable

knowingly

Import or export counterfeitsofIndian 238 Cognizable

coin

Possessing counterfeit coin and. 239 Cognizable

delivering the same to another person

Possessing counterfeits of Indian coin 240 Cognizable

and delivering the same to another
person

Delivering counterfeit coin as genuine 241 Cognizable

by person who did not know it to be
counterfeit initially

Possessing counterfeit coin knowingly 242 Cognizable

Possessing counterfeits of Indian coin 243 Cognizable

knowingly

Person employed in Mint causing coin 244 Cognizable

to be of a different weight or
composition than fixed by law

Unlawfully taking any coining 245 Cognizable

instrument from Mint

Fraudulently diminishing weight or 246 Cognizable

altering composition of coin

Fraudulently diminishing weight or 247 Cognizable

altering composition of Indian coin

Altering appearance of any coin for 248 Cognizable

passing it as coin of different
description
Altering appearance of Indian coin for 249 Cognizable
passing it as coin of different
description

Delivering altered coin to another 250 Cognizable

knowingly

Delivering altered Indian coin to 251 Cognizable

another knowingly

Possessing altered coin knowingly 252 Cognizable

Possessing altered Indian coin 253 Cognizable

knowingly

Delivering altered coin as genuine 254 Cognizable

which when initially delivered did not
known to be altered

Counterfeiting Government Stamp 255 Cognizable

Possessing instrument for purpose of 256 Cognizable

counterfeiting Government stamp

Making, buying or selling instrument 257 Cognizable

for purpose of counterfeiting
Government stamp

Sale of counterfeit Government stamp 258 Cognizable

Making or selling false weights or 267 Cognizable

measures for fraudulent use

Adulterating drug or medicinal 274 Non-cognizable

preparation intended for sale so as to
lessen its efficacy or change its
operation or to make it noxious

Destroying, damaging or defiling place 295 Cognizable

of worship

Maliciously insulting religion or 295A Cognizable

religious beliefs of any class

Murder 302 Cognizable

Murder by person under sentence of 303 Cognizable

life imprisonment

Culpable Homicide not amounting to 304 Cognizable

murder, if act is done for causing
death, etc.

Culpable Homicide not amounting to 304 Cognizable

murder, if act done with knowledge
and without intention the death is
likely caused
Dowry death 304B Cognizable

Abetment of suicide committed by 305 Cognizable

child or insane or delirious person or
an idiot, or a person intoxicated

Abetting the commission of suicide 306 Cognizable

Attempt to murder 307 Cognizable

Attempt to commit culpable homicide 308 Cognizable

For being a Thug 311 Cognizable

Causing miscarriage without woman's 313 Cognizable

consent

Death caused by an act of miscarriage 314 Cognizable

Preventing birth of live child or killing 315 Cognizable

him after birth

Causing death of a quick unborn child 316 Cognizable

by an act amounting to culpable
homicide

Voluntarily causing hurt by dangerous 324 Cognizable

weapons or means

Voluntarily causing grievous hurt by 326 Cognizable

dangerous weapons or means

Voluntarily causing hurt to extort 327 Cognizable

property or to constrain to do an
illegal act

Administering drug for causing hurt, 328 Cognizable

etc.

Voluntarily causing grievous hurt to 329 Cognizable

extort property or to constrain to an
illegal act

Voluntarily causing grievous hurt to 331 Cognizable

extort confession or to compel
restoration of property, etc.

Voluntarily causing hurt to deter public 332 Cognizable

servant from his duty

Voluntarily causing grievous hurt to 333 Cognizable

deter public servant from his duty

Assault or use of criminal force to 353 Cognizable

deter a public servant from discharge
of his duty

Kidnapping a minor and using him for 363A Cognizable

purpose of begging
Maiming minor for using him for 363A Cognizable
purpose of begging

Kidnapping or abducting in order to 364 Cognizable

murder

Kidnapping a person for ransom, etc. 364A Cognizable

Kidnapping or abducting and 365 Cognizable

wrongfully confining person

Kidnapping or abducting woman for 366 Cognizable

marriage or for causing her
defilement, etc.

Procuration of minor girl 366A Cognizable

Importation of girl from foreign 366B Cognizable

country

Kidnapping or abducting person for 367 Cognizable

subjecting him to grievous hurt

Concealing or confining kidnapped 368 Cognizable

person

Kidnapping or abducting child with 369 Cognizable

intention of taking property from
person of such child

Habitual dealing in slaves 371 Cognizable

Selling or letting to hire a minor for 372 Cognizable

purposes of prostitution, etc.

Buying or obtaining possession of 373 Cognizable

minor for same purposes

Rape 376 Cognizable

Unnatural offences 377 Cognizable

Theft 379 Cognizable

Theft in building, tent or vessel 380 Cognizable

Theft of property of master or 381 Cognizable

employer by clerk or servant who are
in possession

Theft, after preparation made for 382 Cognizable

causing death, or hurt or restraint or
fear of death or of hurt or of restraint

Extortion 384 Cognizable

Extortion by putting person in fear of 386 Cognizable

death or grievous hurt

Putting or attempting to put a person 387 Cognizable

in fear of death or grievous hurt for
committing extortion

Robbery 392 Cognizable

Robbery committed on the highway 392 Cognizable

between sunset and sunrise

Attempt to commit robbery 393 Cognizable

Person voluntarily causing hurt in 394 Cognizable

committing or attempting to commit
robbery

Dacoity 395 Cognizable

Murder in Dacoity 396 Cognizable

Robbery or Dacoity with attempt to 397 Cognizable

cause death or grievous hurt

Attempt to commit robbery or dacoity 398 Cognizable

armed with deadly weapons

Preparation for committing dacoity 399 Cognizable

Belonging to gang of person 400 Cognizable

associated for purpose of habitually
committing dacoity

Belonging to wandering gang of 401 Cognizable

person associated for purpose of
habitually committing theft

Being one of five or more persons 402 Cognizable

assembled for purposes of committing
dacoity

Criminal breach of trust 406 Cognizable

Criminal breach of trust by carrier, 407 Cognizable

wharfinger etc.

Criminal breach of trust by clerk or 408 Cognizable

servant

Criminal breach of trust by public 409 Cognizable

servant or banker, merchant or agent,
etc.

Dishonestly receiving stolen property 411 Cognizable

Dishonestly receiving stolen property 412 Cognizable

obtained by dacoity

Habitually dealing in stolen property 413 Cognizable

Assisting in concealment or disposal of 414 Cognizable

stolen property
Cheating and thereby dishonestly 420 Cognizable
inducing delivery of property

Mischief by fire with intent to destroy 436 Cognizable

house etc.

Mischief with intent to destroy or 437 Cognizable

make unsafe a decked vessel

Mischief by five or explosive substance 438 Cognizable

with intent to destroy or make unsafe
a decked vessel

Running vessel ashore for committing 439 Cognizable

theft, etc.

House trespass for commission of an 449 Cognizable

offence punishable with death

House trespass for commission of an 450 Cognizable

offence punishable with life
imprisonment

House trespass for commission of 451 Cognizable

offence of theft

House trespass after having made 452 Cognizable

preparation for causing hurt assault
etc.

Lurking house trespass or house 453 Cognizable

breaking

Lurking house trespass or house 454 Cognizable

breaking for commission of offence
punishable with imprisonment

Lurking house trespass or house 454 Cognizable

breaking for commission of theft

Lurking house trespass or house 455 Cognizable

breaking after preparation made for
causing hurt, assault etc.

Lurking house trespass or house 456 Cognizable

breaking by night

Lurking house trespass or house 457 Cognizable

breaking by night for the commission
of offence punishable with
imprisonment

Lurking house trespass or house 457 Cognizable

breaking by night for commission of
theft

Lurking house trespass or house 458 Cognizable

breaking by night after preparation
made for causing hurt, etc.

Grievous hurt caused while committing 459 Cognizable

lurking house trespass or house
breaking

Death or grievous hurt caused by one 460 Cognizable

of several persons jointly involved in
house breaking

Dishonestly breaking open any closed 461 Cognizable

receptacle containing property

Forgery of court record or of register 466 Non-cognizable

of birth etc.

Forgery of valuable security, will or 467 Non-cognizable

authority to make or transfer any
valuable security

Forgery of promissory note of Central 467 Cognizable

Government

Forgery for purpose of cheating 468 Cognizable

Counterfeiting device or mark used for 476 Non-cognizable

authenticating documents other than
those described in section 467 of IPC
or possessing counterfeit material

Fraudulently destroying or defacing or 477 Non-cognizable

attempting to destroy or deface, or
secreting a will, etc.

Counterfeiting currency notes or bank 489A Cognizable

notes Using forged or counterfeit
489B Cognizable
currency notes or bank notes as
genuine

Making or possessing machinery for 489D Cognizable

forging or counterfeiting currency
notes or bank notes

Causing woman not lawfully married 493 Non-cognizable

to any person to believe to be lawfully
married and make her cohabit under
that belief

Subjecting married woman to cruelty 498A Cognizable if information

given by aggrieved person
or person related to her by
blood, marriage or adoption
or by public servant

Making false statement, rumour etc. 505 Non-cognizable

for causing mutiny or offence against
public peace

Making false statement, rumour etc. 505 Cognizable

for causing enemity, hatred, ill-will
between different classes

Making false statement, rumour etc. in 505 Cognizable

place of worship for creating enemity
or hatred

Attempting to commit offences 511 Cognizable

punishable with death, life
imprisonment or imprisonment for
more than 7 years and in such
attempt doing any act towards its
commission

Attempting to commit offences 511 Cognizable

punishable with 3 years imprisonment
or above but less than 7 years and in
such attempt doing any act towards its
commission

Conversion of Bailable Offences to Section State

Non-bailable by States
Offence

Disobedience to an order lawfully 188 Andhra Pradesh

promulgated by a public servant, if
such disobedience causes obstruction,
annoyance or injury to persons
lawfully employed If such disobedience
causes danger to human life, health or
safety etc.

Adultering food or drink intended for 272 Orissa, Uttar Pradesh and
sale, so as to make the same noxious West Bengal

Selling any food or drink as food and 273 Orissa, Uttar Pradesh and
drink, knowing the same as noxious West Bengal

Adultering any drug or medical 274 Orissa, Uttar Pradesh and

preparation intended for sale so as to West Bengal
lessen its efficacy, or to change its
operation, or to make if noxious

Offering for sale or issuing from a 275 Orissa, Uttar Pradesh and
dispensary any drug or medical West Bengal
preparation known to have been
adulterated

Knowingly selling or issuing from a 276 Orissa, Uttar Pradesh and

dispensary any drug or medical West Bengal
preparation as a different drug or
medical preparation

Assault or use of criminal force to a 354 Orissa and Andhra Pradesh

woman with intent to outrage her
modesty

Kidnapping 363 Uttar Pradesh

Marrying again during the life time of 494 Andhra Pradesh

a husband

Sane of with concealmentofthe former 495 Andhra Pradesh

marriage from the person with whom
subsequent marriage is contracted

A person with fraudulent intention 496 Andhra Pradesh

going through the ceremony of being
married knowing that he is not
thereby lawfully married.

Criminal intimidation 506 Orissa

APPENDIX 7

List of Offences under Indian Penal Section Cognizable/Non-

Code Referred in the Prevention of of IPC cognizable
Money Laundering Act, 2003
Particular of offence

(1) (2) (3)

Waging or attempting to wage war or 121 Cognizable

abetting the waging of war against Govt. of
India

Conspiring for commission of certain 121A Cognizable

offences against State

Murder 302 Cognizable

Culpable homicide not amounting to murder, 304 Cognizable

if act is done with intention of causing death

Culpable homicide not amounting to murder 304 Cognizable

if act is done with knowledge but without
intention to cause death

Attempt to murder 307 Cognizable

In attempt to murder act causes hurt to an 307 Cognizable

person

Attempt by life - convict to murder and hurt 307 Cognizable

is caused

Attempt to commit culpable homicide 308 Cognizable

In attempt to commit culpable homicide hurt 308 Cognizable
is caused to any person

Voluntarily causing hurt to extort valuable 327 Cognizable

security, etc.

Voluntarily causing grievous hurt to extort 329 Cognizable

property or valuable security, etc.

Kidnapping for ransom, etc: 364A Cognizable

Extortion 384 Cognizable

Extortion by putting or attempting to put in 385 Cognizable

fear of injury

Extortion by putting person in fear of death 386 Cognizable

or grievous hurt

Extortion by putting or attempting to put a 387 Cognizable

person in fear of death or grievous hurt

Extortion by theft of accusation of an offence 388 Cognizable

punishable with death, life imprisonment or
10 years imprisonment

Extortion by threat of accusation of 388 Cognizable

unnatural offence

Putting a person in tear of accusation of 389 Cognizable

offence punishable with death or life
imprisonment or 10 years imprisonment for
committing extortion

Putting a person in fear of accusation or 389 Cognizable

unnatural offence

Robbery 392 Cognizable

Robbery committed on highway between 392 Cognizable

sunset and sunrise

Attempt to commit robbery 393 Cognizable

Voluntarily causing hurl in committing or 394 Cognizable

attempting to commit robbery

Dacoity 395 Cognizable

Murder in dacoity 396 Cognizable

Robbery or dacoity with attempt to cause 397 Cognizable

death or grievous hurt

Attempt to commit robbery or dacoity armed 398 Cognizable

with deadly weapons

Preparation for committing dacoity 399 Cognizable

Member of gang associated with habitual 400 Cognizable

 commission of dacoity

Member of wandering gang of persons 401 Cognizable

associated with habitual commission of theft

Being one of five or more persons 402 Cognizable

assembled for purpose of committing dacoity

Forgery of valuable security or authority to 467 Non-cognizable

make or transfer any valuable security etc.
 

Forgery of promissory note of the Central 467 Cognizable

Government

Counterfeiting currency notes 489A Cognizable

Using counterfeit currency notes as genuine 489B Cognizable

APPENDIX 8

Provisions under Prevention of Money-Laundering Act, 2002

3. Offence of money-laundering.--

Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party

or is actually involved in any process or activity connected with the proceeds of crime and
projecting it as untainted property shall be guilty of offence of money-laundering.

17. Search and seizure.--

(1) Where the Director or any other officer not below the rank of Deputy Director authorised by
him for the purposes of this section, on the basis of information in his possession, has reason to
believe (the reason for such belief to be recorded in writing) that any person--

(i) has committed any act which constitutes money-laundering, or

(ii) is in possession of any proceeds of crime involved in money-laundering, or

(iii) is in possession of any records relating to money-laundering, then, subject to the

rules made in this behalf, he may authorise any officer subordinate to him to--

(a) enter and search any building, place, vessel, vehicle or aircraft where he has
reason to suspect that such records or proceeds of crime are kept;

(b) break open the lock of any door, box, locker, safe, almirah or other
receptacle for exercising the powers conferred by clause (a) where the keys
thereof are not available;

(c) seize any record or property found as a result of such search;

(d) place marks of identification on such record or make or cause to be made

extracts or copies therefrom;

(e) make a note or an inventory of such record or property;

 (f) examine on oath any person, who is found to be in possession or control of
any record or property, in respect of all matters relevant for the purposes of any
investigation under this Act:

Provided that no search shall be conducted unless, in relation to the

scheduled offence, a report has been forwarded to a Magistrate under
section 157 of the Code of Criminal Procedure, 1973 (2 of 1974), or a
complaint has been filed by a person, authorised to investigate the offence
mentioned in the Schedule, before a Magistrate or court for taking
cognizance of the scheduled offence, as the case may be.

(2) The authority, who has been authorised under sub-section (1) shall, immediately after
search and seizure, forward a copy of the reasons so recorded along with material in his
possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope,
in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons
and material for such period, as may be prescribed.

(3) Where an authority, upon information obtained during survey under section 16, is satisfied
that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to
be recorded in writing, enter and search the building or place where such evidence is located
and seize that evidence:

Provided that no authorisation referred to in sub-section (1) shall be required for search
under this sub-section.

(4) The authority, seizing any record or property under this section shall, within a period of
thirty days from such seizure, file an application, requesting for retention of such record or
property, before the Adjudicating Authority.

18. Search of persons.--

(1) If an authority, authorised in this behalf by the Central Government by general or special
order, has reason to believe (the reason for such belief to be recorded in writing) that any
person has secreted about his person or in anything under his possession, ownership or control,
any record or proceeds of crime which may be useful for or relevant to any proceedings under
this Act, he may search that person and seize such record or property which may be useful for
or relevant to any proceedings under this Act:

Provided that no search of any person shall be made unless, in relation to the scheduled
offence, a report has been forwarded to a Magistrate under section 173 of the Code of
Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person
authorised to investigate the offence mentioned in the Schedule, before a Magistrate or
court for taking cognizance of the scheduled offence, as the case may be.

(2) The authority, who has been authorised under sub-section (1) shall, immediately after
search and seizure, forward a copy of the reasons so recorded along with material in his
possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope,
in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons
and material for such period, as may be prescribed.
 (3) Where an authority is about to search any person, he shall, if such person so requires, take
such person within twenty-four hours to the nearest gazetted officer, superior in rank to him, or
a Magistrate:

Provided that the period of twenty-four hours shall exclude the time necessary for the
journey undertaken to take such person to the nearest gazetted officer, superior in rank
to him, or Magistrate's Court.

(4) If the requisition under sub-section (3) is made, the authority shall not detain the person
for more than twenty-four hours prior to taking him before the Gazetted Officer superior in rank
to him, or the Magistrate referred to in that sub-section:

Provided that the period of twenty-four hours shall exclude the time necessary for the
journey from the place of detention to the office of the Gazetted Officer, superior in rank
to him, or the Magistrate's Court.

(5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he
sees no reasonable ground for search, forthwith discharge such person but otherwise shall
direct that search be made.

(6) Before making the search under sub-section (1) or sub-section (5) the authority shall call
upon two or more persons to attend and witness the search, and the search shall be made in
the presence of such persons.

(7) The authority shall prepare a list of record or property seized in the course of the search
and obtain the signatures of the witnesses on the list.

(8) No female shall be searched by any one except a female.

(9) The Authority shall record the statement of the person searched under sub-section (J) or
sub-section (5) in respect of the records or proceeds of crime found or seized in the course of
the search:

(10) The authority seizing any record or property under sub-section (1) shall, within a period of
thirty days from such seizure, file an application requesting for retention of such record or
property, before the Adjudicating Authority.

19. Power to arrest.--

(1) If the Director, Deputy Director, Assistant Director, or any other officer authorised in this
behalf by the Central Government by general or special order, has on the basis of material in
his possession reason to believe (the reason for such belief to be recorded in writing) that any
person has been guilty of an offence punishable under this Act, he may arrest such person and
shall, as soon as may be, inform him of the grounds for such arrest.

(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately
after arrest of such person under sub-section (1), forward a copy of the order, along with the
material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a
sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall
keep such order and material for such period, as may be prescribed.
 (3) Every person arrested under sub-section (1) shall within twenty-four hours, be taken to a
Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:

Provided that the period of twenty-four hours shall exclude the time necessary for the
journey from the place of arrest to the Magistrate's Court.

46. Application of the Code of Criminal Procedure, 1973 to proceedings before Special
Court.--

(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure,
1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings
before a Special Court and for the purposes of the said provisions, the Special Court shall be
deemed to be a Court of Session and the persons conducting the prosecution before the Special
Court, shall be deemed to be a Public Prosecutor:

Provided that the Central Government may also appoint for any case or class or group of
cases a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public
Prosecutor under this section unless he has been in practice as an Advocate for not less than
seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this
section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2
of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have
effect accordingly.

APPENDIX 9

List of Offences under Narcotic Drugs and Psychotropic Substances Act, Sectio
1985 n
Particular of offence

(1) (2)

Producing, possessing, transporting, selling, purchasing, using poppy 15

straw

Cultivating, gathering, producing, possessing, selling, purchasing, etc. 16

cocoa plant

Manufacturing, possessing, selling, purchasing, transporting, etc. 17

prepared opium

Cultivating opium poppy or producing, manufacturing, possessing, 18

selling, purchasing, etc. opium

Embezzlement or illegally disposing opium 19

Cultivating, producing, manufacturing, possessing, selling, purchasing, 20

transporting or using cannabis

Manufacturing, possessing, selling, purchasing, transporting or using 21

 any manufactured drug

Manufacturing, possessing, selling, purchasing, transporting or using 22

any psychotropic substances

Importing into India or exporting from India narcotic drugs and 23

psychotropic substances or contravention of act

Obtaining and supplying narcotic drugs and psychotropic substances 24

illegally

Using house, room, enclosure, space, animal etc. for commission of 25

offence under the Act

Omission to maintain accounts or submitting any returns by holder of 26

licence, permit etc. under this Act

Failure to produce licence, permit etc. on demand by officer of Central 26

or State Government

Making or keeping false account by holder of licence, permit, etc. 26

Wilfully doing act in breach of licence, permit etc. 26

Consuming any narcotic drug or psychotropic substance 27

Financing illicit activities under Act and harbouring offenders 27A

Attempt to commit offences under Act 28

Abetting or being party to criminal conspiracy to commit offence 29

punishable under the Act

Preparation for commission of offence under Act 30

APPENDIX 10

Provisions under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

3. Power to make orders detaining certain persons.--

(1) The Central Government or a State Government, or any officer of the Central Government,
not below the rank of a Joint Secretary to that Government, specially empowered for the
purposes of this section by that Government, or any officer of a Stale Government, not below
the rank of a Secretary to that Government, specially empowered for the purposes of this
section by that Government, may, if satisfied, with respect to any person (including a foreigner)
that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and
psychotropic substances, it is necessary so to do, make an order directing that such person be
detained.

(2) When any order of detention is made by a State Government or by an officer empowered by
a State Government, the State Government shall, within ten days., forward to the Central
Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a
person detained in pursuance of a detention order of the grounds on which the order has been
 made shall be made as soon as may be after the detention, but ordinarily not later than five
days, and in exceptional circumstances and for reasons to be recorded in writing, not later than
fifteen days, from the date of detention.

4. Execution of detention orders.--

A detention order may be executed at any place in India in the manner provided for the
execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974)

5. Power to regulate place and conditions of detention.--

Every person in respect of whom a detention order has been made shall be liable--

(a) to be detained in such place and under such conditions including conditions as to
maintenance, interviews of communication with others, discipline and punishment for
breaches of discipline, as the appropriate Government may, by general or special order
specify; and

(b) to be removed from one place of detention to another place of detention, whether
within the same State or in another State by order of the appropriate Government:

Provided that no order shall be made by a State Government under clause (b) for the
removal of a person from one State to another State except with the consent of the
Government of that other State.

6. Grounds of detention severable.--

Where a person has been detained in pursuance of an order of detention under sub-section (1)
of section 3 which has been made on two or more grounds, such order of detention shall be
deemed to have been made separately on each of such grounds and accordingly--

(a) such order shall not be deemed to be invalid or inoperative merely because one or
some of the grounds is or are--

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever,

and it is not therefore possible to hold that the Government or officer making such order
would have been satisfied as provided in sub-section (1) of section 3 with reference to
the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have
made the order of detention under the said sub-section (1) after being satisfied as
provided in that subsection with reference to the remaining ground or grounds.
7. Detention orders not to be invalid or inoperative on certain grounds.--

No detention order shall be invalid or inoperative merely by reason--

(a) that the person to be detained thereunder is outside the limits of the territorial
jurisdiction of the Government or the officer making the order of detention; or

(b) that the place of detention of such person is outside the said limits.

8. Powers in relation to absconding persons.--

(1) If the appropriate Government has reason to believe that a person in respect of whom a
detention order has been made has absconded or is concealing himself so that the order cannot
be executed, that Government may--

(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of

the first class having jurisdiction in the place where the said person ordinarily resides;
and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as
if the order directing that he be detained were a warrant issued by the Magistrate;

(b) by order notified in the Official Gazette direct the said person to appear before such
officer, at such place and within such period as may be specified in the order; and if the
said person fails to comply with such direction, he shall, unless he proves that it was not
possible for him to comply therewith and that he had, within the period specified in the
order, informed the officer mentioned in the order of the reason which rendered
compliance therewith impossible and of his whereabouts, be punishable with
imprisonment for a term which may extend to one year, or with fine, or with both.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
every offence under clause (b) of subsection (1) shall be cognizable.

11. Maximum period of detention.--

The maximum period for which any person may be detained in pursuance of any detention
order to which the provisions of section 10 do not apply and which has been confirmed under
clause (f) of section 9 shall be one year from the date of detention, and the maximum period
for which any person may be detained in pursuance of any detention order to which the
provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read
with sub-section (2) of section 10, shall be two years from the date of detention:

Provided that nothing contained in this section shall affect the power of appropriate
Government in either case to revoke or modify the detention order at any earlier time.

12. Revocation of detention orders.--

(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of
1897), a detention order may, at any time, be revoked or modified--

(a) notwithstanding that the order has been made by an officer of a State Government,
by that State Government or by the Central Government;
 (b) notwithstanding that the order has been made by an officer of the Central
Government or by a State Government, by the Central Government.

(2) The revocation of a detention order shall not bar the making of another detention order
under section 3 against the same person.

13. Temporary release of persons detained.--

(1) The Central Government may, at any time, direct that any person detained in pursuance of
a detention order made by that Government or by an officer subordinate to that Government or
by a State Government or by an officer subordinate to a State Government, may be released
for any specified period either without conditions or upon such conditions specified in the
direction as that person accepts, and may, at any time, cancel his release.

(2) A State Government may, at any time, direct that any person detained in pursuance of a
detention order made by that Government or by an officer subordinate to that Government may
be released for any specified period either without conditions or upon such conditions specified
in the direction as the person accepts, and may, at any time, cancel his release.

(3) In directing the release of any person under sub-section (1) or sub-section (2), the
Government directing the release may require him to enter into a bond with sureties for the
due observance of the conditions specified in the direction.

(4) Any person released under sub-section (1) or sub-section (2) shall surrender himself at the
time and place, and to the authority, specified in the order directing his release, or cancelling
his release, as the case may be.

(5) If any person fails without sufficient cause to surrender himself in the manner specified in
sub-section (4), he shall be punishable with imprisonment for a term which may extend to two
years, or with fine, or with both.

(6) If any person released under sub-section (1) or sub-section (2) fails to fulfil any of the
conditions imposed upon him under the said sub-section or in the bond entered into by him, the
bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the
penalty thereof.

(7) Notwithstanding anything contained in any other law and save as otherwise provided in this
section, no person against whom a detention order made under this Act is in force shall be
released whether on bail or bail bond or otherwise.

APPENDIX 11

Provisions under COFEPOSA, 1974 Sectio

Provision n

Preventing person from smuggling or abetting smuggling of goods or 3

transporting or concealing or keeping smuggled goods or, dealing in it
otherwise or, harbouring persons engaged in smuggling goods by
detention

Detention order be executed in any place in India 4

 Regulating place and condition of detention 5

Grounds of detention severable 5A

Detention order not to be invalid or inoperative on certain ground 6

Power in relation of absconding person sought to be detained 7

Detaining beyond period of 3 months without obtaining the opinion of 9

Advisory Board

Extending period of detention 10A

Revoking detention order 11

Releasing detained person temporarily 11

APPENDIX 12

Provisions under Immoral Traffic (Prevention) Act, 1956

10A. Detention in a corrective institution.--

(1) Where--

(a) a female offender is found guilty of an offence under section 7 or section 8; and

(b) the character, state of health and mental condition of the offender and the other
circumstances of the case are such that it is expedient that she should be subject to
detention for such term and such instruction and discipline as are conducive to her
correction, it shall be lawful for the court to pass, in lieu of a sentence of imprisonment,
an order for detention in a corrective institution for such term, not being less than two
years and not being more than five years, as the court thinks fit:

Provided that before passing such an order--

(i) the court shall give an opportunity to the offender to be heard and
shall also consider any representation which the offender may make to the
court as to the suitability of the case for treatment in such an institution,
as also the report of the probation officer appointed under the Probation
of Offenders Act, 1958 (20 of 1958); and

(ii) the court shall record that it is satisfied that the character, state of
health and mental condition of the offender and the other circumstances
of the case are such that the offender is likely to benefit by such
instruction and discipline as aforesaid.

(2) Subject to the provisions of sub-section (3), the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), relating to appeal, reference and revision and of the Limitation
Act, 1963 (36 of 1963), as to the period within which an appeal shall be filed, shall apply in
relation to an order of detention under sub-section (1) as if the order had been a sentence of
imprisonment for the same period as the period for which the detention was ordered.

(3) Subject to such rules as may be made in this behalf, the State Government or authority,
 authorised in this behalf may, at any time after the expiration of six months from the date of an
order for detention in a corrective institution, if it is satisfied that there is a reasonable
probability that the offender will lead a useful and industrious life, discharge her from such an
institution, without condition or with such conditions as may be considered fit, and grant her a
written licence in such form as may be prescribed.

(4) The conditions on which an offender is discharged under subsection (3) may include
requirements relating to residence of the offender and supervision over the offender's activities
and movements.

11. Notification of address of previously convicted offenders.--

(1) When any person having been convicted--

(a) by a court in India of an offence punishable under this Act or punishable under
section 363, section 365, section 366, section 366A, section 366B, section 367, section
368, section 370, section 371, section 372 or section 373 of the Indian Penal Code (45
of 1860), with imprisonment for a term of two years or upwards; or

(b) by a court or tribunal in any other country of an offence which would, if committed in
India, have been punishable under this Act or under any of the aforesaid sections with
imprisonment for a like term, is within a period of five years after release from prison,
again convicted of any offence punishable under this Act or under any of those sections
with imprisonment for a term of two years or upwards by a court, such court may, if it
thinks fit, at the time of passing the sentence of imprisonment on such person, also
order that his residence, and any change of, or absence from such residence after
release be notified according to rules made under section 23 for a period not exceeding
five years from the date of expiration of that sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall become void.

(3) An order under this section may also be made by an Appellate Court or by the High Court
when exercising its powers or revision.

(4) Any person charged with a breach of any rule referred to in subsection (1) may be tried by
a Magistrate of competent jurisdiction in the district in which the place last notified as his
residence is situated.

13. Special police officer and advisory body.--

(1) There shall be for each area to be specified by the State Government in this behalf a special
police officer appointed by or on behalf of that Government for dealing with offences under this
Act in that area.

(2) The special police officer shall not be below the rank of an Inspector of Police.

(2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer
upon any retired police or military officer all or any of the powers conferred by or under this Act
on a special police officer, with respect to particular cases or classes of cases or to cases
generally:
 Provided that no such power shall be conferred on--

(a) a retired police officer unless such officer, at the time of his retirement, was
holding a post not below the rank of an inspector;

(b) a retired military officer unless such officer, at the time of his retirement, was
holding a post not below the rank of a commissioned officer.

(3) For the efficient discharge of his functions in relation to offences under this Act--

(a) the special police officer of an area shall be assisted by such number of subordinate
police officers (including women police officers wherever practicable) as the State
Government may think fit; and

(b) the State Government may associate with the special police officer a non-official
advisory body consisting of not more than five leading social welfare workers of that
area (including women social welfare workers wherever practicable) to advise him on
questions of general importance regarding the working of this Act.

(4) The Central Government may, for the purpose of investigating any offence under this Act or
under any other law for the time being in force dealing with sexual exploitation of persons and
committed in more than one State, appoint such number of police officers as trafficking police
officers and they shall exercise all the powers and discharge all the functions as are exercisable
by special police officers under this Act with the modification that they shall exercise such
powers and discharge such functions in relation to the whole of India.

14. Offences to be cognizable.--

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any
offence punishable under this Act shall be deemed to be a cognizable offence within the
meaning of that Code:

Provided that, notwithstanding anything contained in that Code,--

(i) arrest without warrant may be made only by the special police officer or under
his direction or guidance, or subject to his prior approval;

(ii) when the special police officer requires any officer subordinate to him to
arrest without warrant otherwise than in his presence any person for an offence
under this Act, he shall give that subordinate officer an order in writing,
specifying the person to be arrested and the offence for which the arrest is being
made; and the latter officer before arresting the person shall inform him of the
substance of the order and, on being required by such person, show him the
order;

(iii) any police officer not below the rank of sub-inspector specially authorised by
the special police officer may, if he has reason to believe that on account of delay
involved in obtaining the order of the special police officer, any valuable evidence
relating to any offence under this Act is likely to be destroyed or concealed, or
the person who has committed or is suspected to have committed the offence is
likely to escape, or if the name and address of such a person is unknown or there
 is reason to suspect that a false name or address has been given, arrest the
person concerned without such order, but in such a case he shall report, as soon
as may be, to the special police officer the arrest and the circumstances in which
the arrest was made.

15. Search without warrant.--

(1) Notwithstanding anything contained in any other law for the time being in force, whenever
the special police officer or the trafficking police officer, as the case may be, has reasonable
grounds for believing that an offence punishable under this Act has been or is being committed
in respect of a person living in any premises, and that search of the premises with warrant
cannot be made without undue delay, such officer may, after recording the grounds of his
belief, enter and search such premises without a warrant.

(2) Before making a search under sub-section (1), the special police officer or the trafficking
police officer, as the case may be] shall call upon two or more respectable inhabitants (at least
one of whom shall be a woman) of the locality in which the place to be searched is situate, to
attend and witness the search, and may issue an order in writing to them or any of them so to
do:

Provided that the requirement as to the respectable inhabitants being from the locality
in which the place to be searched is situate shall not apply to a woman required to
attend and witness the search.

(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a
search under this section, when called upon to do so by an order in writing delivered or
tendered to him, shall be deemed to have committed an offence under section 187 of the
Indian Penal Code (45 of 1860.

(4) The special police officer or the trafficking police officer, as the case may be, entering any
premises under sub-section (1) shall be entitled to remove therefrom all the persons found
therein.

(5) The special police officer or the trafficking police officer, as the case may be, after removing
the person under sub-section (4) shall forthwith produce him before the appropriate
magistrate.

(5A) Any person who is produced before a magistrate under subsection (5), shall be examined
by a registered medical practitioner for the purposes of determination of the age of such
person, or for the detection of any injuries as a result of sexual abuse or for the presence of
any sexually transmitted diseases.

Explanation.-- In this sub-section, "registered medical practitioner" has the same

meaning as in the Indian Medical Council Act, 1956 (102 of 1956).

(6) The special police officer or the trafficking police officer, as the case may be, and other
persons taking part in, or attending, and witnessing a search shall not be liable to any civil or
criminal proceedings against them in respect of anything lawfully done in connection with, or
for the purpose of, the search.

(6A) The special police officer or the trafficking police officer, as the case may be, making a
 search under this section shall be accompanied by at least two women police officers, and
where any woman or girl removed under sub-section (4) is required to be interrogated, it shall
be done by a woman police officer and if no woman police officer is available, the interrogation
shall be done only in the presence of a lady member of a recognised welfare institution or
organisation.

Explanation.-- For the purpose of this sub-section and section 17A, "recognised welfare
institution or organisation" means such institution or organisation as may be recognised
in this behalf by the State Government.

(7) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974) shall, so far as may be,
apply to any search under this section as they apply to any search made under the authority of
a warrant issued under section 94 of the said Code.

APPENDIX 13

Provisions under Arms Act

20. Arrest of persons conveying arms, etc., under suspicious circumstances.--

Where any person is found carrying or conveying any arms or ammunition whether covered by
a licence or not, in such manner or under such circumstances as to afford just grounds of
suspicion that the same are or is being carried by him with intent to use them, or that the same
may be used, for any unlawful purpose, any magistrate, any police officer or any other public
servant or any person employed or working upon a railway, aircraft, vessel, vehicle or any
other means of conveyance, may arrest him without warrant and seize from him such arms or
ammunition.

21. Deposit of arms, etc., on possession ceasing to be lawful.--

(1) Any person having in his possession any arms or ammunition the possession whereof has,
in consequence of the expiration of the duration of a licence or of the suspension or revocation
of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased
to be lawful, shall without unnecessary delay deposit the same either with the officer incharge
of the nearest police station or subject to such conditions as may be prescribed, with a licensed
dealer or where such person is a member of the armed forces of the Union, in a unit armoury.

Explanation.-- In this sub-section "unit armoury" includes an armoury in a ship or

establishment of the Indian Navy.

(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor
or in the case of his death, his legal representative, shall, at any time before the expiry of such
period as may be prescribed, be entitled--

(a) to receive back anything so deposited on his becoming entitled by virtue of this Act
or any other law for the time being in force to have the same in his possession, or

(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise

to any person entitled by virtue of this Act or any other law for the time being in force to
have, or not prohibited by this Act or such other law from having, the same in his
 possession and to receive the proceeds of any such disposal:

Provided that nothing in this sub-section shall be deemed to authorise the return
or disposal of anything of which confiscation has been directed under section 32.

(3) All things deposited and not received back or disposed of under sub-section (2) within the
period therein referred to shall be forfeited to Government by order of the district magistrate:

Provided that in the case of suspension of a licence no such forfeiture shall be ordered in
respect of a thing covered by the licence during the period of suspension.

(4) Before making an order under sub-section (3) the district magistrate shall by notice in
writing to be served upon the depositor or in the case of his death, upon his legal
representative, in the prescribed manner, require him to show cause within thirty days from the
service of the notice why the things specified in the notice should not be forfeited,

(5) After considering the cause, if any, shown by the depositor or as the case may be, his legal
representative, the district magistrate shall pass such order as he thinks fit.

(6) The Government may at any time return to the depositor or his legal representative things
forfeited to it or the proceeds of disposal thereof wholly or in part.

22. Search and seizure by magistrate.--

(1) Whenever any magistrate has reason to believe--

(a) that any person residing within the local limits of his jurisdiction has in his
possession any arms or ammunition for any unlawful purpose, or

(b) that such person cannot be left in the possession of any arms or ammunition without
danger to the public peace or safety, the magistrate may, after having recorded the
reasons for his belief, cause a search to be made of the house or premises occupied by
such person or in which the magistrate has reason to believe that such arms or
ammunition are or is to be found and may have such arms or ammunition, if any, seized
and detain the same in safe custody for such period as he thinks necessary, although
that person may be entitled by virtue of this Act or any other law for the time being in
force to have the same in his possession.

(2) Every search under this section shall be conducted by or in the presence of a magistrate or
by or in the presence of some officer specially empowered in this behalf by the Central
Government.

23. Search of vessels, vehicles for arms, etc.--

Any magistrate, any police officer or any other officer specially empowered in this behalf by the
Central Government, may for the purpose of ascertaining whether any contravention of this Act
or the rules made thereunder is being or is likely to be committed, stop and search any vessel,
vehicle or other means of conveyance and seize any arms or ammunition that may be found
therein alongwith such vessel, vehicle or other means of conveyance.

24. Seizure and detention under orders of the Central Government.--

 The Central Government may at any time order the seizure of any arms or ammunition in the
possession of any person, notwithstanding that such person is entitled by virtue of this Act or
any other law for the time being in force to have the same in his possession, and may detain
the same for such period as it thinks necessary for the public peace and safety.

37. Arrest and searches.--

Save as otherwise provided in this Act,--

(a) all arrests and searches made under this Act or under any rules made thereunder
shall be carried out in accordance with the provisions of the Code of Criminal Procedure,
1973 (2 of 1974), relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person
not being a magistrate or a police officer shall be delivered without delay to the officer in
charge of the nearest police station and that officer shall--

(i) either release that person on his executing a bond with or without sureties to appear
before a magistrate and keep the things seized in his custody till the appearance of that
person before the magistrate, or

(ii) should that person fail to execute the bond and to furnish, if so required, sufficient
sureties, produce that person and those things without delay before the magistrate.

38. Offences to be cognizable.--

Every offence under this Act shall be cognizable within the meaning of the Code of Criminal
Procedure, 1973 (2 of 1974).

39. Previous sanction of the district magistrate necessary in certain cases.--

No prosecution shall be instituted against any person in respect of any offence under section 3
without the previous sanction of the district magistrate.

APPENDIX 14

Provisions under Unlawful Activities (Prevention) Act, 1967

14. Offences to be cognizable.--

Notwithstanding anything contained in the Code, an offence punishable under this Act shall be
cognizable.

15. Terrorist act.--

Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security
or sovereignty of India or with intent to strike terror or likely to strike terror in the people or
any section of the people in India or in any foreign country,--

(a) by using bombs, dynamite or other explosive substances or inflammable substances

or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or
by any other substances (whether biological radioactive, nuclear or otherwise) of a
 hazardous nature or by any other means of whatever nature to cause or likely to cause--

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in
India or in any foreign country; or

(iv) damage or destruction of any property in India or in a foreign country used

or intended to be used for the defence of India or in connection with any other
purposes of the Government of India, any State Government or any of their
agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do
so or causes death of any public functionary or attempts to cause death of any public
functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or
does any other act in order to compel the Government of India, any State Government
or the Government of a foreign country or any other person to do or abstain from doing
any act, commits a terrorist act.

Explanation.-- For the purpose of this section, public functionary means the
constitutional authorities and any other functionary notified in the Official Gazette
by the Central Government as a public functionary.

16. Punishment for terrorist act.--

(1) Whoever commits a terrorist act shall,--

(a) if such act has resulted in the death of any person, be punishable with death or
imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment for life, and shall also be
liable to fine.

25. Powers of investigating officer and Designated Authority and appeal against order of
Designated Authority.--

(1) If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason
to believe that any property in relation to which an investigation is being conducted, represents
proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the
Police of the State in which such property is situated, make an order seizing such property and
where it is not practicable to seize such property, make an order of attachment directing that
such property shall not be transferred or otherwise dealt with except with the prior permission
of the officer making such order, or of the Designated Authority before whom the property
seized or attached is produced and a copy of such order shall be served on the person
concerned.

(2) The investigating officer shall duly inform the Designated Authority within forty-eight hours
 of the seizure or attachment of such property.

(3) The Designated Authority before whom the seized or attached property is produced shall
either confirm or revoke the order of seizure or attachment so issued within a period of sixty
days from the date of such production:

Provided that an opportunity of making a representation by the person whose property

is being seized or attached shall be given.

(4) In the case of immovable property attached by the investigating officer, it shall be deemed
to have been produced before the Designated Authority, when the investigating officer notifies
his report and places it at the disposal of the Designated Authority.

(5) The investigating officer may seize and detain any cash to which this Chapter applies if he
has reasonable grounds for suspecting that--

(a) it is intended to be used for the purposes of terrorism; or

(b) it forms the whole or part of the resources of a terrorist organisation:

Provided that the cash seized under this sub-section by the investigating officer
shall be released within a period of forty-eight hours beginning with the time
when it is seized unless the matter involving the cash is before the Designated
Authority and such Authority passes an order allowing its retention beyond forty-
eight hours.

Explanation.-- For the purposes of this sub-section, "cash" means--

(a) coins or notes in any currency;

(b) postal orders;

(c) traveller's cheques;

(ca) credit or debit cards or cards that serve a similar purpose;

(d) banker's drafts; and

(e) such other monetary instruments as the Central Government

or, as the case may be, the State Government may specify by an
order made in writing.

(6) Any person aggrieved by an order made by the Designated Authority may prefer an appeal
to the court within a period of thirty days from the date of receipt of the order, and the court
may either confirm the order of attachment of property or seizure so made or revoke such
order and release the property.

43. Officers competent to investigate offences under Chapters IV and VI.--

Notwithstanding anything contained in the Code, no police officer,--

(a) in the case of the Delhi Special Police Establishment, constituted under sub-section
(1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below
 the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;

(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any
other metropolitan area notified as such under sub-section (1) of section 8 of the Code,
below the rank of an Assistant Commissioner of Police;

(c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy
Superintendent of Police or a police officer of an equivalent rank, shall investigate any
offence punishable under Chapter IV or Chapter VI.

43A. Power to arrest, search, etc.--

Any officer of the Designated Authority empowered in this behalf, by general or special order of
the Central Government or the State Government, as the case may be, knowing of a design to
commit any offence under this Act or has reason to believe from personal knowledge or
information given by any person and taken in writing that any person has committed an offence
punishable under this Act or from any document, article or any other thing which may furnish
evidence of the commission of such offence or from any illegally acquired property or any
document or other article which may furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any
building, conveyance or place, may authorise any officer subordinate to him to arrest such a
person or search such building, conveyance or place whether by day or by night or himself
arrest such a person or search a such building, conveyance or place.

43B. Procedure of arrest, seizure, etc.--

(1) Any officer arresting a person under section 43A shall, as soon as may be, inform him of
the grounds for such arrest.

(2) Every person arrested and article seized under section 43A shall be forwarded without
unnecessary delay to the officer in charge of the nearest police station.

(3) The authority or officer to whom any person or article is forwarded under sub-section (2)
shall, with all convenient dispatch, take such measures as may be necessary in accordance with
the provisions of the Code.

43C. Application of provisions of Code.--

The provisions of the Code shall apply, insofar as they are not inconsistent with the provisions
of this Act, to all arrests, searches and seizures made under this Act.

43D. Modified application of certain provisions of the Code.--

(1) Notwithstanding anything contained in the Code or any other law, every offence punishable
under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of
section 2 of the Code, and "cognizable case" as defined in that clause shall be construed
accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable
under this Act subject to the modification that in sub-section (2),--

(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they
 occur, shall be construed as references to "thirty days", "ninety days" and "ninety days"
respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"Provided further that if it is not possible to complete the investigation within the
said period of ninety days, the Court may if it is satisfied with the report of the
Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of ninety days,
extend the said period up to one hundred and eighty days:

Provided also that if the police officer making
requests, for the purposes of investigation,
custody of any person in judicial custody, he
reasons for doing so and shall also explain the
police custody.".
the investigation under this Act,
for police custody from judicial
shall file an affidavit stating the
delay, if any, for requesting such

(3) Section 268 of the Code shall apply in relation to a case invoking an offence punishable
under this Act subject to the modification that--

(a) the reference in sub-section (1) thereof--

(i) to "the State Government" shall be construed as a reference to "the Central

Government or the State Government",

(ii) to "order of the State Government" shall be construed as a reference to

"order of the Central Government or the State Government, as the case may be";
and

(b) the reference in sub-section (2) thereof, to "the State Government" shall be
construed as a reference to "the Central Government or the State Government, as the
case may be".

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of
any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence

punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his
own bond unless the Public Prosecutor has been given an opportunity of being heard on the
application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the
Court, on a perusal of the case diary or the report made under section 173 of the Code
is of the opinion that there are reasonable grounds for believing that the accusation
against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the
restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to
a person accused of an offence punishable under this Act, if he is not an Indian citizen and has
 entered the country unauthorisedly or illegally except in very exceptional circumstances and for
reasons to be recorded in writing.

45. Cognizance of offences.--

(1) No court shall take cognizance of any offence--

(i) under Chapter III without the previous sanction of the Central Government or any
officer authorised by the Central Government in this behalf;

(ii) under Chapters IV and VI without the previous sanction of the Central Government
or, as the case may be, the State Government, and where such offence is committed
against the Government of a foreign country without the previous sanction of the
Central Government.

(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be
prescribed only after considering the report of such authority appointed by the Central
Government or, as the case may be, the State Government which shall make an independent
review of the evidence gathered in the course of investigation and make a recommendation
within such time as may be prescribed to the Central Government or, as the case may be, the
State Government.

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