Criminal Law ot possible 10 do so for reasons to be recorded In this Section, the expression lative" means parents, 176: An enquiry into @ suspicious death shou! holding inquest into the dead body or an unnatural death but there should be a further check by enabling the Magistrate to strate was made mandatory when police custody or when the case involved suicide by a woman within seven years of her marriage or the case relates to the death’ of a woman within seven years of marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to that woman. They are commonly known as dowry ‘cases punishable under Section 304B IPC and in any other case inquiry ‘was not mandatory. the Code by the Amendment Act, 2005, custody or disappearance ted ona woman dead body of a person died in the police custody has to be sent for ical examination to the nearest civil surgeon or any other qualified medical man appointed by the State Government for this purpose. So, the CrPC. (Amendment) Act, 2005 has expanded the scope of judicial inquiry. CHAPTER 4A LAW RELATING TO BAIL [Chapter 33: Sections 436 to 450] IMPORTANT POINTS/ISSUES & CASE LAWS (1) @_ Meaning of Bail. (b) Object of Bail. (©) Bail and Personal Liberty. (2) Bailable v. Non-bailable Offences. (8) Statutory framework regarding “Bail” in a “Bailable” Case (Section 436}. isoner (Section 436A), Compulsory Release. uisites to be released on Bail 437(2): Statutory Right to Ball tion 437(3): Conditions imposed while granting ball ): Recording of Reasons. (8) (a) General Rule : Bail not Jai (Factors considered by the Court in granting bail in non- ballable offences). (b) Nature of Offence (Seriousness of the Charge) and the the foremost consideration Case: SC: 1978: Moti Ram v. State of MP. [4A.1]4A2 Criminal Law-tt (@) Limits of the jurisdiction of the Magistrate to grant ball to a Person who is arrested for an offence exclusively triable by a Court of Session, Case: SC: 2001: Prahlad Singh Bhati v. NCT, Delhi ‘ial Powers of High Court or Court of Session regarding Bail (Section 439). (a) “Any person accused of an offence and in custody", (b) Paramount consideration for exercising judicial discretion while grating bail under Sections 437 and 439. Case: SC: 1978: Gurcharan Singh v. State (Delhi Admn.) (10) Cancellation of the Bail [Section 437(5) and 439(2)]. {@) What are the conditions under which ball once granted may be cancelled ? (b) Cancellation of Bail when a convict commits a similar non: bailable offence, Case: SC: 1952: Public Prosecutor v. George William. (c) Distinction between ‘Rejection’ and ‘Cancellation’ of ball, (2) Special considerations which governed the issue of Cancellation of Bal Case: SC: 1976: State (Delhi Admn.) v. Sanjay Gandhi (11) Bonds and Sureties. {Sections 440 to 450), (12) Bail under Special Legislations. (@) Bail of juvenile under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. (b) Bail under Section 37 of the NDPS Act, 1985. (9) INTRODUCTION ‘The law of bails constitutes an important branch of procedural law. The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried Prisoners from disease-ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or delivered to reputable third parties of their own choosing who accepted responsibility for ‘answering their appearance at trial. If the accused did not appears, his bailor would stand trial in his place. Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit moniey when their charges failed Law Relating to Bail 4A3 to appear for trial. From this grew the modem practice af posting » money bond through a commercial bondsman who receives a cash premium fo service, and usually demands some collateral as well, In the event of nom appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court. Meaning and Definition® ‘There is no definition of bail in the Code although offences are classified 4s bailable and non-bailable, Bail has been defined in law Lexicon as security for the appearance of the accused person on giving whic! pending trial or investigation. What is contemplated by bail is to procure the release of a person from legal custody. by undertaking that he shall appear at the time and place designated and submit himself to the Jurisdiction and judgment of the Court. Thus Bail is a Pracedure by which ‘a judge or magistrate sets at liberty one who has been arrested or imprisoned. "upon receipt of security to ensure the released prisoner's later appearance in court for further proceedings. ‘The Extended Meaning of the word “Bail” “Bail”, according to its usual meaning presuppose the existence of sou restraint or custody in jail. Ifa person is already free, talk of such a person being granted bail. However, unde 4 provision is made for an speci circumstances when any person has reason to believe that he may be arrest ‘on an accusation of having committed a non-ba In the w naturally be “the rslease of a person from apprehension of being arrested the immediate future", because in such cases, the person seeking ba the relevant time, already free from restraint, nor is he in police c ty of such a person is psychologic: imposed on his mind by fear or apprehension of being arrest relation to any non-bailable offence which such a person may be alleged hhave committed, This newly inserted provision in the CrPC 0: ‘ever-enduring love and respect for human liberty which is re ‘our Constitution and Parliament Object of Bait ‘The object of arrest and detention of the accused person secure his appearance atthe time of tr guilty he is available to receive the sente a 8 the term been statutorily defined. What are the guidelines prescr exercise of discretion by the courts in granting bail? Discuss in Sections 437, 439 and leading case law. [D.U.,LL8, 2017)Criminal Lawl Lay Relating to Bail 4A and/or if the Court is satisfied for reasons to be recorded thet in spite of the existence of prima facie case there is a need to release such persons on bail where facts and circumstances require it to do so.” Bail is one of the cherished rights, claims or pri person ‘and detention, it would be liberty during the pendency of J proceedings agair lease on bail ges conferred upon a used of any offence which would, but for this noble provisi deliver him and Personal Liberty ‘The fundamental principle of our system of justice is that a person should not be deprived of his liberty except for a distinct breach of law. If there is no cof the accused fleeing the course of justice, there ‘The concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and ion of innocence in favour of the alleged criminal. For the purpose of bail, the CrPC has classified all offences into “bailable’ and ‘non-bailable” offences. However, the Code has not given any test or criterion to determine ther any particular offence is bailable or non-bailable. It all depends upon ‘whether it has been shown as bailable or non-bailable inthe First Schedule of the Code. Itean, however, be stated as a general proposition that by and large serious offences are considered as non-bailable and others as bailable. The points of distinction between ‘baitable’ and ‘non-bailable’ offences are: Definition [Section 2(a)} 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. Non-bailable offence means any other offence. jess there are circumstances suggesting the from justice or thwarting the course of justice. personal liberty of the individual On the basis of Punishment: cording to the First Sched are punish: imprisonment for three years or more, have been considered as “non- ble” offence and others Which are puni imprisonment are considered as “bal ubject to any rule to the contrary mi ‘The SC inKalyanchandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 9: in the light of Article 21. The Court observ tional guarantee. However, Article 21 whi contemplates dep ‘of personal liberty 21 since the same is authorised by law. But even persons accused of non- bailable offences ate entitled for bail ifthe Court concerned comes to the conclusion thatthe prosecution has failed to establish aprima faciecase against406 Criminal Law-I accused of such offence shall not be released on bail, but here in such a case bail is nota matter of right, but only a privilegeto be granted atthe discretion of the court : (4) Anticipatory Bafff The concept of anticipatory bai is relevant only for non-bailable offences. (5) Parpose of Classi and non-bailable has be ‘whether the accused should be released on b: STATUTORY FRAMEWORK REGARDING BAIL (A) Section 436; In what cases Bail to be taken Section 436A; Maximum for wi can be detained. (3) Section 437; When Bail may be taken in case of non-bailable offence (4) Section 437A: Bail to require accused to appear before next appellate Court. (8) Section 438: Direction for grant of bail to person apprehending arrest. (6) Section 439: Special powers of High Court or Court of Session regarding bail (1) Sections 440 to 450: These provisions deal with execution of bond by accused and sureties, form of bond, amount, etc. They also provide procedure in cases of forfeiture of bond, death, insolvency or discharge fertrial prisoner ‘When no formal charge sheet framed after 60 or 90 days in detention. Section 389: Suspension of sentence pending the Appeal; release of appellant on Bail, (0) Section 390: Arrest of accused in appeal from acquittal. (11) Section 395: Reference to High Court. Section 397: Calling for records to exercise power of revisions. BAIL IN A BAILABLE CASE®* [Section 436] Right to claim bail in bailable offence is an absolute and indefeasible right. Therefore, if the accused is prepared to take b: ( 3 @.2. ‘A'was charged Under Section 323, 325 IPC. Bafore he could be formaly arrested by the police, ‘A’ appeared before the magistrate wit his lawyers fed bail. Later on he was acquitted by ‘cour. A year later ‘A’ got selected as a clark in a Government Law Relating to Bail 4A Section 436 reads as follows: “In what eases Bail to be taken: appears or is brought before a Court, and is prepared at any. stody of such officer or at any stage of the proceedin I, such pers Provided that such officer or Court {if such person is indigent and is unable bail from such person, discharge him on cient ground for the office. person for the purposes of this provis Provided further that nothing in this Section shall be deemed. the provisions of sub-section (3) of Section 116 ar Section 446A. (2) Nonwithstanding anything cor 10 comply with the condit and place of attendance, ‘on a subsequent occasion brought in custody and ar penaity thereof under Section 446." Pre-requisites of Section 436(1) to be released on by \der this Section, the followir (1) the person has been accused of a by (2) he has been arrested or detained charge of the ground of h for the post as convicted for an @.3. Discuss the release of a person on bail in a ballable offence (DW, LLB, 2005)4A8 Criminal Law-I epared at any tage of the proceeding before the custody of such officer it to give hail ne three conditions mentioned above ate satisfies be claimed as a matter of right. The word used is “shal ore, there i no di either withthe police efficer or with the ) shows how the b jes in the sum much beyor shall be fixed with due regard to the circumstances of the case and shall not be excessive, Release of Indigent Person on Personal Bo CrPC (Amendment) Act, 2005 has in the first Proviso to Section 436(1) mentioned specially the bond without sureties. 229A IPC inserted in 2006. Second Proviso to Section 436(1): The second proviso to Section 436 saves Section 116(3) and Section 446A. According to Section 1 whom security proceedings for keeping peace or mai irhave been started may be detained in custody Law Relating to Bail 4A9 an interim bond as required by the court in such proceeding. Section 116(3) ng effect and the general rule regarding release on bail contained in Section 436(1) will not affect it, Similarly the provision contained in Section 446A regarding the forfeiture and cancellation of the bond on breach of any condition and consequent constraint imposed on fresh I remain unaffected by the general rule as n to this rule is stated in Section 436(2) wi the effect that a person who absconds or has broken the a bailable case on Jed to bail when brought 10 Moreover, according to Section 446A, the bond executed by such person as well es the bond (if any) executed by his surety shall stand cancelled; and thereafter such a person in that case shall not be released only on his own bbond if itis found that there was no sufficient cause for the failure of the person bound by the bond to comply with its conditions. BAIL TO UNDERTRIAL PRISONER [S ‘There had been instances, where under-tril prisoners were 4 jail for periods beyond the maximum period of imprisonment p the alleged offence. As remedial measure, the new Section 436A envisages the release ofthe accused on bail on his own surety if he has served half of the ‘maximum term prescribed for that offence for which death is not one of the prescribed punishment, In such cases also the prosecution should be heard and on recording the ressons, the Court may order continued detention beyond one half of the said maximum or release hit. “Maximum period for which an under trial prisoner can be detained Where a person has, during the period of invest under this Code ofan offence under any law (not be Provided that the Court may, after hearing the Public Prosecutor and {for reasons to be recorded by in writing, order the continued detention of4A.10 Criminal Law-1t 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 suck person shall in any case be de during the period of investigation, inquiry or rial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation: In computing the period of detention under ‘for granting bail, the period of deter section passed due to delay in proceeding Section 436A has come into force with effect from 23.06.2006. It is a salutary provision and it ameliorates the longstanding grievances of the under trial prisoners that they are incarcerated even for the period more than the maximum period of sentence provided for the offence. The SC in: cases has issued mandamus to release accused persons incarcerate jal prisoners languishing in jail for want of trial COMPULSORY RELEASE, (Mandatory Bail Provisions in the Code) accused of his right, his further detention will be nis filed by the thin time, no right accrues to the accused to claim under Sec (2) Absence of reasonable groun the investigation, to the Court igh there are no reasonable grounds for believing that such person has committed a non-bailable offence, but that there are suffi release the accus of Trial wi in a case triable by a Magistrate the rial is not in 60 days from the first date fixed for taking evidence and such person has been in the Magistrate has reasons (to be recorded in writing) for directing otherwise (4) Non-delivery of Judgment: Section 437 dclivered immediately after conclusion of the trial, the thatthe accused is not gui ‘of a bond for attendance on the date for that court has the power, wh the accused is under confinement. ns While granting bail BAIL IN NON-BAILABLE OFFENCES®* XXXII of the new Code contains pi be court may [Section 437] jons in respect, which this Chapter opens makes an invari 1d exce subject to the speci ion 437 provides as to taken in case of non-bailable offences. Section 437 reads as fol bail may be of Session, he may be released on by (such person shall not by grounds for b with death or imprisonment for life: 1a! be s0 released if such offence iples laid down by the Supreme Court for granting bi offences and also what principles should the cour! fellow wi "g the bail? 1D.U., LLB, 2014) @.5. Commenting on the Principle of "Bail not Jail” enumerate the guidelines, evolved by Courts in granting bai 1D.U, LLB, 2008, 2617)4A12 Criminal Law-It Provided that the Court may direct that a person referred to in clause leased on bail suck person is under the age of 16 years ick or infirm: Provided further that the Court n so direct that a person referred just and proper so other special ided also that the mere fact that. eing identified by witnesses durin refusing to grant bail if san undertaking by the Court accused person may be required 2) [fit appears to such officer or Court at any stage of the investigation, 7 or trial as the case may be, that there are no reasonable grounds j ‘bailable offence, but that 0 his guilt, the accused Section 446A and pending such inguiry, be tion of such officer or Court, on the execution appearance as hereinafter provides 4 person accused or suspected of the commission of an offence shable wil sonment which may extend to seven years or more or of a offence under Chapter VI, Chapter XVI or Chapter XVI of the IPC or abetment of. or conspiracy or attempt to commis, any (on bail undier sub-section (1) the Court shall impose the conditions, (@) that such person shall attend in accordance with the conditions of bond executed under this Chapter, ch person shall not commit an offence similar to the offence ich he is accused, or suspected, of the commission of which he is suspected, and (©) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted wi facts of | dissuade him from disclosing suck fa the Court or to any police officer or ta ‘and may also impese, in the interest considers necessary (3) Whe Law Relating to Bail 4a13 (4) An officer or a Court releasing any person on bail under sub-section 1), oF sub-section (2), shall record in writing his or its reasons or special reasons for so doing, (3) Any Court which has released a person on bail under sub- ‘or sub-section (2) may, if it considers it necessary so to do, direct person be arrested and commit him to custody. (I, in any case triable by a Magistrate, the trial ofa person accused of ‘any non-bailable offence is not concluded within a period of 60 days from the Jirst 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 10 the ion of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs © If, at any time after the conclusion of the trial ofa person accused of ‘non-bailable offence and before judgment is delivered the Court is of opini ‘that there are reasonable grounds for believing ed is not gui of any such offence, it shall release the accused, if he is in custody, on the execution by him of @ bond without sureties for his appearance to hear Judgment delivered.” Distinetion between Section 436 and Section 437: The essential difference is that in case of former bail would be granted as a matter of right the person arrested is willing to furnish bail whereas in the case of non- lable offence either under Section 437 or Section 439. cannot be claimed as a matter of right and grant of bail or not would depend upon the facts and circumstances of each case, Another vital difference is that ualike Section 436, the Court may impose conditions under Section 437. Pre-requisites of Section 437(1) to be released on Bail Section 437(1) deals with the grant of bail in respect of non-bailable offences in general. Section 437 is concerned only with the Court of Magistrate, It expressly excludes the High Court and the Court of Session from it's les the accused in to three eategories for the purposes of srarging bail. They are: 1) Guilty of an offence punishable with death or imprisonment for [Section 437(1)(i)]: With regard to this category, there is a bar to grant i by the Court or the Officer-incharge of a police station if there appear reasonable grounds for believing that he was guilty of the commission of such offence. Moreover, if the police officer or court grants bail under this eategory, the officer or court must :eeurd his reason for 50 doingAALS Criminal Law-It (2) Habitual offenders: [Section 437(1)(i0]: An accused shall not sly convieted on two or more occasions of a non-beilable and cognizable offence, Moreover, if the police officer or court grants bail under this category, the officer or court must record his reasons for so doing (Sub-section (4) jon-ballable Cases: In all other non-bailable cases, judicial ways be exercised by the Court in favour of granting bai subject to Section 437(3), with regard to imposition of conditions. if necessary. Provisos to the above Restrictions? * or (fi) The court being satisfied that, for any other special reason, it would be just and proper to grant (3) Proviso: Identification of Accused: may be required for the identification parade, bail should not be refused on that sole ground if he gives an undertaking that he would comply with the irections of the court in that behall. Mhere the presence of an accused. ‘Opportunity of hearing to the Public Prosecutor ‘There isa general embargo against a Magistrate releasing an accused on bail in certain specific eases i. Section 437(1)(i) and (ji, unless that is any ‘of the special circumstances mentioned in the privsos. Even if the Magistrate intends to grant bail under any of the above {wo provisos, be mandatory dut ;pportunity of hearing to the publ prosecutor before granting bail 1o such an accused, @.6. Can a woman be given bail, when there is reasonable grounds wving that she has been guilty of an offence punishable with death or imprisonment? {0.U, LLB, 2009, Law Relating 10 Bail 4A.15 While Section 437(1) applies when the arrested person is fi before the court, Section 437(2) applies at any stage of the inves t .quiry or trial, where the court has some materials before it which may ing that the accused has been guilty of the offenc therefore, be exercised not only by a court but also by an wvestigating police officer Conditions which may be imposed while granting Bail : S. (1) This sub-section applies to: tion 437(3) (a) Cases of offence punishable with imprisonment for 7 years or upwards: (b) Cases of offence against the State (Chapter VI, IPC); Offen affecting human body (Chapter XVI, IPC); Offences against Property (Chapter XVI, IPC) Abetment of or conspiracy or attempt to commit any offence foregoing categories ‘The Court has to impose the following three mandatory provisions granting bail in respect of the offences enumerated above: (a) that such person shall attend in accordance with cont executed under this Chapter, that such person shail not commit any offence similar to the offence ‘of which he is accused or suspected of the commission of which he is suspected; fion of the bond (©) that such person shall not directly or indirectly make any induc: threat or promise to any person acquainted of the facts of the case as to dissuade him from disclosing such facts to the Covst or police officer or tamper with evidence. (3) Over and above three mandatory conditions, the Magis! impose, in the interest of justice, such other conditions as necessary, 437d) who grants bail in40.18 (Criminal Law-I important points or factors whi taken into consideration by a Court while accepting the app in non- (@) Whether or not there is reasonable ground for believing that the accused has committed an offence with which he is charged. Buil may also be refused to an accused suspected or believed to have it us offence like murder and if there are reasonable The “belie?” as used in the Section must be founded on certain positive fac not be merely the personal belief of the Judge, but Judicial sense; whether upon the evidence in the form of ‘The nature and the gravity of the charge is also a very important factor. If the accused is suspected of having commit of murder, cons case), the Court the offence ‘not accept the application for br The severity of punishment Gil i reason for keeping this factor in mind the high prospect of being convicted may be tempted to jump bi i he is released on bi ju the conviction i a ikelinood ofthe aceused absconding isan importa ‘The accused is kept in custody for ensuring his attendance though the period spent in detention is, under the CzPC counted ‘towards the period of sentence served by the accused. Thus, if there is danger of the accused absconding, the Court would refuse to grant (v) Prevention of offence being repeated. notorious group of eriminals, there is | ‘must be prevented at the outset released on bail, there | The cour has take | Tecon of te accused to make sue a the Ubeny of ba Mould not be used for rina purposes Law Relating to Bail wi (vil) te) 4A.19 ‘The danger of the prosecution being pressurized with and preparation of false evidence in defence. ‘belongs to wealthy class or are men of status, they ate in a pos ccause obstruction in the way of the prosecution by pressurizin witnesses and by tampering with the evidence. They may be abl “purchase” the prosecution wimesses. In Rao Harnarain and Gurcharan Singh's cases, the accused belonged to a class of ‘men and status and had enjoyed high social position. The Court felt that if the appellants were released, there was every likelihood that they will not spare any chance of tampering with the evidence of the prosecution or pressurizing the witnesses who belonged to huinbl class or had been working under these persons whe: high official positions. Their applications for “The age and sex of the accused. If th person or suffers from such other disa the accused absconding, Such persons are prone te fate, and being victims of old a do not look to any punishment tampered Ifthe accused are extremely young, being under 16 years of age, the accused is a woman, the proviso to Section 437( persons shall be release In so faras the py he law may not impose heavy certain reformatory institutions. hood of the bail being The length of trial is also an important factor. S: accused has already spent several months in ja may be released on bail rather than be allowed to languish in jail (Hussainara Khatoon’s case). ‘The conduct, character, behaviour, means and the general sufficient ground for the purpose.44.20 Criminal Law-tt LEADING CASE LAWS ‘The Foremost Consideration in dealitig with an Application for Rai Nature of Offence. STATE V. CAPTAIN JAGJIT SINGH**® ‘When a person is prosecuted for both a AIR 1962 SC 253, ‘was prosecuted far conspiracy and also under Sections 3 and 5 of iecrets Act. The respondent was atthe time of his arrest employed jelegation in India of a French Company. The other two persons were employed at the Army Headquarters, New Delhi. The case against three persons was that they in conspiracy had passed on official secrets to a ney. The respondent applied for bail to the Sessions Judge, but Section 439) to the High ‘The main contention urged before the High losed the case against the respondent on 5 of the Act, which is bailable and not under S took the view that a the other two persons prosecuted alongwith the respondent had been released on bail, the respondent should also be so rcleased, particularly as it appeared thatthe trial was likely to take a considerabl and the respondent was not likely to abscond. Q.9. Subodh is charged for both bailable and non-bailable offences. He asks ‘or his release on bail under Section 436 Gr.P.C, Decide. . 10. Gagan is being prosecuted for conspiracy and als 5, (anon-ballable and ballable offence respective ing passed on defence applied to bail which is refused. He goes in appeal to the High Gour against the orders of the Sessions Court claiming th granted bail under Section 5 of the Act which is a matter of right, Decide the validity of his claim, the Sessions Court Law Relating to Bail 4A21 Legal Issue: Is it proper to deal with the application for bail ignoring the foremost issue whether the offence for which the accused was being prosecuted was a bailable one or otherwise? ‘Supreme Court's Observations (Justice K.N. Wanchoo) There is a basic error in the order of the High Court, Whenever an is made to a court, the first question that it has to decide the offence for which the accused is being prosecuted is bailable or otherwise. Ifthe offence is bailable, bail will be granted under Section 439 ‘without more ado; but if the offence is non-bailable, further considerations 1 arise and the Court will decide the question of grant of bail in the light of further considerations. The ertor in the Order of the High Court is that it did not consider whether the offence for which the respondent ‘was prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the qui yhether the offence inthis case fell under Section S which is bailable or under Section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under Section 3 and therefore not bailable. The High Court, however, did not th the application for bail on this footing, forthe order itis s fall under Section 5. This was the basic error into which the High Court fell in dealing with the application for bail before igh Court should have considered the matter even if it did not oper at that stage to decide the question whether the offence was Under Section 3 or Section 5, on the assumption that the ease fell under Section 3 of the Act. It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstance which are peculiar to the accused, a reasonat 'y of the presence of the accused not boing secured reasonable apprehension of witnesses being tampered withthe larg of the public or the State, and similar other considerations. {as those indicated above have to be taker in anon-bailable offence, This, the High for it proceeded as if the Prosecuted might be a irt does not seem to have done, ence for which the respondent was being422 Criminal Law-Il ‘The only reasons which the High Court gave for granting bal inthis case were that the other two persons had been granted bail, that was no likelihood of the respondent absconding, he being well-connected, and that the trial ws likely to take considerable time. These are, however, not the onl 1s which should have weighed with the High Court jing whether }ould be granted in a non-bailable offence, is the nature of the offenc: the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 493, Decision: The respondent has been committed to the Court of Session: along with the other two persons under Section 120B IPC and under Sections 3 and 5 of the Act read with Section 120B. Prima facie therefore, a case has the respondent under Section 3 which is a non-baitabl offence. It is in this background that we have now to consider whether the order of the High Court should be set aside. Section 3 of the Act creates an offence which is prejudicial to the safety or interests of the State and relates ‘which is calculated to be or might be or iseful to an enemy. Obviously, the offence is of a very serious In these circumstances considering the isis not a case where discretion, which \der Section 439, should have been exercised ‘of the persons who were prosecuted were released on bai in favour of respondent ith the respondet order; but the case case inasmuch as the prose likely now that the of the High Court 1 set aside. Appeal uumstances. the 0 fent is erroneous and should be Law Relating to Bail 423 Monetary Bail is not an indispensable element of the MOTI RAM V. STATE OF MP ‘expression “bail” covers both release on sureties. When sureties should be demanded and what sum sh nullified indirectly by fixing too high the amount of bond or b furnished by the person secking release.] Facts: upreme Cot . he was also ordered t0 be satisfaction of the Chief Judicial Magistrate”. Conseque ordered that a surety to a sum of Rs. 10,000 be produces ner had not spelt out any details of such sort. The pet that huge sum or manage a surety of sufficient pros made an odd order refusing to ac because he and his assets the SC again to modify kd not procure ‘The Magistrate bond or pass any other order or direction” Legal Issues: (2) Can the Court, under the CrPC, enlarge, on his own bor sureties, a person undergoing incarceration for anon-bailable of either as undertrial or as a convict who has appealed or sought special Supreme Court» Observations (Justice Krishna Iyer) If mason and millionaire were teated alike, egregiou: Likewise, geographic allergy at the judi ‘of equal pros nota conglome:4024 Criminal Law-t In fact the grant of bail can be stultified or made impossible, inconvenient und expensive if the Courtis powerless to dispense with surety or to receive trict borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and ‘expensive. The problem is plainly one of human rights, especially freedom vis the lowly. That is why we have decided to examine the questi a wider perspective bearing in mind prisoner's rights in an international informing ourselves of the historical origins and contemporary speechless on such issues because pundits regard these small men’s causes art of academic monitoring of legislative performance has generated much controversy i ents may discriminate against poor people and ‘The Gujarat Committ Mr, Justice P.N, Bhagwati) deait wit “The bail system, as we see it ad factory and needs drastic change. Law Relating to Bail doubiful validity. There are several considerations which bail system causes ould not be able to furnish larly to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a larger majority of those who are brought before the Courts in criminal cases are so poor that they would find it ificult to furnish bail even in a small amount.” ‘The vice ofthe system is brought out in the Report: “The evil ofthe bail system is that either the poor accused has to fallback on touts and professional sureties for provi ial detention, Both these consequences are fraught with great hardship to the poor. In one poor accused is fleeced of his m sometimes has even to incur debts to make payment to them for securing his release; inthe other he is deprived of his lead to grave consequences, namel to the psychological and physical deprivations of jail life: of an opportunity to work to burden of his detention he is subject (2) he loses his job, ifhe has o contributing to the preparation of his defence; and (4) the public exchequer hhas to bear the cost of maintaining him in the. ‘The legal literature, Indian as well as Anglo-American, on bi jurisprudence lends countenance to the contention that release on b: ‘comprehensive enough to cover release on one’s own bond with or without sureties. Let us now examine whether there is anything 16 speaks of bail but the proviso makes contradist and ‘own bond without sureties’ , because even the proviso comes in ven here there is an Here, ‘bal’ suggests “with or without sureties’. And, “bail bond! in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and Woren. It cannot be that «small boy or pardanashin should be refused release and suffer stress and distress in prison unless sureties are hauled into a far-off court with obligation for frequent appearance: ‘Bail’ there suggests release,Criminal Law- pear when directed, not on the productio inguishes between bail and bond without deposit of money will do duty for bond “with or 441(1) of the Code may appear to be a stumbling block in the way of the ‘The slippery aspectis dispelled when we understand the import of Sect 389(1) of the Code. The court of appeal may release a convict on his own sureties, Surely, it cannot be that an under-trial is worse off t or that the power of the court to release increases when the not the court's status but the applicant's guilt status the Supreme Court's powers to enlarge a prisoner, as the 21, Rule 27 (Supreme Court Rules) show, contain no ‘The homet's nest of Part it popularly does, to mean, viz. a gen from custodia juris. Beari need not be provoked if we read * id lexically and in American Jurisprudence is expression used to describe judicial release in mind the need for liberal interpretation in indigents’s rights, we hold that bail covers both, release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables. Even so, poor men are, in monetary terms, indigents, ‘young persons, infirm individuals and women are weak categories and courts should bef releasing them on their own recognisances, put whatever “reasonable conditions you may. Bail 4A27 jocks one’s conscience 10 Article 14 protects all Indians qua Indian, wi Article 350 sanctions representation to any autho redress of grievances in any language used in the Union of India. Thi divagation has become necessary to still the judicial beginnings, and to to remember that the geo-l red by cartographic diss impossible by requiring the petitioner to execute sur much beyond what he can manage. To order an ordinary labourer to procure a surety in the sum of Rs, 10,0007 is just another way of denying the pi of bail to him, for a poor labourer cannot procure such a wealthy can he be said to possess properties worth that sum. It is aga) difficulties created by the rigid appli ie SC recommended Justice as ‘ensure that the bailee does not flee justice. The best guarantee of presence in Court is the reach of the law, not the money tag. Jurisdiction of the Magistrate to grant bail to a person who is arrested for an offence exclusively triable by a Court of Session PRAHLAD SINGH BHATI ¥, NCT, DELHI (Ratio: If the prescribed punishme 1001) 4 SCC 280 imprisonment for life Magistrate has no jurisdiction to grant bail unless the matter is covered by4A28 Cri Law-It the provisos attached to Section 437 of the Code. Thus, if the Magistrate has no occasion and in fact does not find that there were no reasonable » believe that the accused had not committed the offence punishable imprisonment for life, he shall be deemed to be having no mn to enlarge the accused on bail] ind accused (respondent/husband) were 1 is alleged to have been subjected to ill-treatment on ‘and for dowry. Huge amounts are stated to be paid by the (Prahlad Singh Bhati) to the accused, On 18.3.1999 accused is alleged to have brought the deceased to his parental house where he poured kerosene and burnt her alive in the presence of his parents, AS no case was ed against the accused, the appellant approached the higher authorities direction of DCP, a case was registered almost after 3 months on 3.6, 1999. The Investigating Officer recorded under Section 161. The Accused moved an a ierms of Section 438. As the bail ap, 1a was not seriously opposed ing agency, the Sessions Judge granted int 16.6.1999. However, while dismissing an application for cancel sion filed ageinst the esaid order has been dismissed by the High Court by passing a telegraphic to the effect “having considered the case before me Tam of the opinion that no ground has been made for c i order of the Magis has approached the S by a Court of Session ? Supreme Court's Observations: Under Section 437, when a 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 6 appears or is brought before a court, he may be released on bail by a court + than the High Court and Sessions subjects to the condition that he does Law Relating to Bail 4.29 ot reasonably appear to have been guilty of an offence punishable with death or imprisonment for lif ere is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Session yet it would be proper and appropriate in such a case that Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 in respect of a person who is suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In acase where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence pi imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. Powers of the Magistrate, le dealing with the applications for grant of bail, are regulated by the punishment for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment Jor life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437. The limitations ircumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction. Thus, in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Session, the Magistrate may, in his wisdom, refrain to exercise the powers of ig the bail and refer the accused to approach the higher courts unless he ied that there is no reasonable ground for bli rom the facts it uppears that even for an offence punishable inder Section 302 IPC, the accused was never arrested and he manipulated he prevention of his arrest firstly, by obtaining an ordes 438 and subsequently by a regular bail under Se.tion 437 from a Magistrate. While exercising the jurisdiction, apparently under Section 437, the MM appears to have completely ignored the basic principles governing the grant ‘The MM referred to certain facts and the provisions of law which Were not, in any way, relevant for the purposes of deciding the application for bail ina case where the accused was charged with an offence pui4030 Criminal Lawl ‘death of imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to he involved in the case of murder. ‘an aggravated crime. Instead of referring to the grounds which e the Magistrate adopted a wrong approach sry on allegedly finding that no grounds n of bail the Magistrate as also of the High Court being contrary set aside. SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL (Section 439) Landmark Supreme Court’s Judgment 1978: SC: Gurcharan Singh v. State (Delhi Admn.) Section 439 empowers the High Court or the Court of Session to ‘on bail 2 person accused of an offence and in custody. Section 439 reads as follows: “(1) A High Court or a 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 Magi te when releasing any person bait to a person who is accused of an affence whi the Court of Session or which, though not so triable is punishable wi Law Relating to Bail imprisonment for , give notice of the application for bai be recorded in writing, of op (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.” he cannot surrender through advocate and pray for bail, _ Ball Condition imposed by the Magistrate may be modified or set tion 439(1), the High Court or the Court of Session has been empowered to modify or set aside any condition imposed by the Ma; ‘while granting bail, if it fs found that condition imposed by the Magistr improper or unreasonable. offence is punishable: reasonable n¢ Interim bail: The Court may grant interim bail to an accused pending the hearing of the bail petition and may subsequently confirm itor even cancel i. But the fact that the accused was released on interim bail cannot be the ground for granting bail finally if on full consideration of all circumstances the bail is refused and interim bail is cancelled, ‘an accused person to bi ‘The SC opined that giving reasons is differ merits or demerits of a case and that examination of evidence and elaborate documentatio case has not to be undertaken. The court exercising should refrain from indulging in elaborate reasons in th the grant or refusal of bail because in that manner the principle ot