UNIT 5

BAIL
• The provisions of bail have been introduced to restore liberty to the
arrested person without jeopardizing the objectives of arrest.
• No definition of Bail in code. Definition of bailable and non bailable
offences is available.
• Bail as per Black’s Law Dictionary is defined as “procure the release of a
person from legal custody, by undertaking that he/she shall appear at the
time and place designated and submit him/herself to the jurisdiction and
judgment of the court.
• Moti Ram and Other v. State of M.P 1978 AIR 1594 Justice Iyer laid down
that judges should be more inclined towards bail and not towards jail.
• Bail can be applied for even after its rejection by the court in first or
subsequent instances– Gama v State of UP 1987
WHEN RELEASE ON BAIL IS MANDATORY
1. Bailable offence S. 436
Where person accused of a bailable offence is arrested and detained without warrant
and is prepared to give bail, the police officer or court will have to release him on
bail.
The person can also be released on bond without sureties instead of bail.
If the person released fails to comply with the conditions of Bail regarding time and
place of attendance – court can refuse bail on subsequent occasion in same case
Indigent Person
Refusal to grant bail in contravention of S 436 will make detention illegal and
police officer can be held liable for wrongful confinement.
Section 436 A
• When an accused person has already undergone more than one half
of the maximum punishment provided for the alleged offence,
during investigation, inquiry or trial, then as per section 436 A such
accused shall be released on bail. The alleged offence should not be
punishable with death penalty.
• Hussainara Khatoon and others v. Home Sec, State of Bihar the
hon’ble Supreme directed the release of prisoners who had
undergone more than half of the imprisonment which could have
been granted if they were convicted.
2. Investigation not completed within time prescribed
A person arrested without warrant cannot be detained by police for more than 24 hours (S 57). Further
detention can only be done for the purposes of investigation after a special order from magistrate u/s 167.
After the expiry of 90/60 days u/s167 the accused shall be released on bail if he is prepared and furnish bail.
3. No reasonable ground for believing that accused is guilty of non bailable offence (S 437(2))
Where any person accused of commission of non-bailable offence is arrested without warrant by police or
brought before court. It appears to the officer or court at any stage of investigation, enquiry or trial , no
reasonable ground for believing that accused has committed non bailable offence. But sufficient ground for
further enquiry into his guilt – accused while pending such inquiry released on bail. Court/ officer should
record the reasons
4. Trial before magistrate not concluded within 60 days (437(6))
In any case triable by Magistrate, trial of accused of any non bailable offence is not concluded
within 60 days from the date fixed for taking evidence – if the person was in custody during whole
period – shall be released on bail – unless Magistrate otherwise direct for reasons in writing.
5. No reasonable ground for believing the accused guilty after conclusion of trial but before
judgment (437(7))
If after conclusion of trial but before judgment in non bailable offence if the court has reason to
believe that the accused is not guilty- release him on bond without sureties for appearance to hear
the judgment.
DISCRETION IN GRANTING BAIL IN
NON BAILABLE OFFENCES
• In non-bailable offences bail can be granted by magistrate only and police has no power to
grant bail.
• Bail in non bailable offences can’t be claimed as matter of right and it is in the discretion of
magistrate.
S 437 BAIL IN NON BAILABLE
OFFENCES
• When person accused of non bailable offence arrested without warrant or present before Court
other than HC or Sessions Court may be released on bail.
• ‘May’ indicates discretion. Following circumstances are taken into consideration while
deciding –
1. Enormity of Charge
2. Nature and gravity of circumstances in which offence is committed
3. Severity of Punishment in case of conviction
4. Nature of evidence in support of accusation
5. Position and status of accused with reference to the victim & witnesses
6. Danger of witnesses being tempered with
7. Likelihood of accused fleeing from justice
8. Health, age & sex of accused person
S 437 (1) EXCEPTIONAL CASES WHERE BAIL IS
NOT GRANTED IN NON-BAILABLE CASES

1. If there appear reasonable grounds for believing that accused has been guilty of an offence
punishable with death or imprisonment for life
2. If offence is a cognizable offence and accused had been previously convicted of an
offence punishable with death, imprisonment for life or imprisonment for seven years or
more
3. Accused had been previously convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or more but not less then seven years
Person can be released in above scenarios if under age of 16 yrs. or woman or is sick or infirm.
Person in point (2) and (3) can be released if just and proper for other special reason.
• 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.
• No person punishable with death, imprisonment for life or 7 yrs. or more be released on bail without
hearing to Public Prosecutor.
• When person accused of commission of offence punishable with imprisonment which may extend to 7
years or more or offence under chapter Offences against state, Offences affecting human body, offences
against property or abetment, conspiracy or attempt of above – shall impose conditions on bail –
1. such person shall attend in accordance with the conditions of the bond executed
2. person shall not commit an offence similar to the offence of which he is accused
3. 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 facts to court or police or
temper evidence
4. May impose any other condition necessary in the interest of justice.
• 437A
ANTICIPATORY BAIL
S 438 Discretion to grant bail to person apprehending arrest-
• When any person has reason to believe that he may be arrested on an accusation of a non-
bailable offence, he may apply to the High Court or the Court of Session for a direction that in
the event of such arrest, he shall be released on bail.
• The court may consider the following factors-
1. Nature and gravity of accusation
2. Antecedents of applicant including the fact of previous imprisonment on conviction by court
in cognizable offence
3. Possibility of applicant to flee from justice
4. Where the accusation is made with object of injuring or humiliating the applicant by having
him arrested.
Either reject the application or issue interim order for grant of bail
• where the High Court or the Court of Session, has not passed any interim order 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.
• Where the Court grants an interim order, 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.
• 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.
• When the High Court or the Court of Session makes a direction, it may include conditions in
the light of the facts of the particular case, including-
1. A condition that the person shall make himself available for interrogation by a police officer
as and when required;
2. 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;
3. A condition that the person shall not leave India without the previous permission of the
Court;
4. such other condition as may be imposed under sub- section (3) of section 437, as if the bail
were granted under that section.
• 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).
• Nothing in this section shall apply to any case involving the arrest of any
person on accusation of having committed an offence under sub-section (3) of
section 376 or section 376AB or section 376DA or section 376DB of the Indian
Penal Code
• S 439
• Cancellation of Bail
GURBAKSH SINGH SIBBIA AND ORS. VS. STATE
OF PUNJAB AIR 1980

• Laid down principles for anticipatory bail –

1. S 438(1) has to be interpreted in light of Art 21
2. Filing of FIR is not a condition precedent to exercise power under S 438
3. Order u/s 438 should not affect the right of police to conduct investigation
4. Conditions mentioned u/s 437 cannot be read into S 438
5. Although the power to release on anticipatory bail can be called as “extraordinary” character. This
would not justify the conclusion that power must be exercised in exceptional cases only. Power are
discretionary and has to be applied in light of circumstances of each case
6. Initial order can be passed without notice to PP. Later notice must be issued
7. The discretion u/s 438 should not be exercised in offences punishable with death or
imprisonment for life unless charge appears to be false or groundless
8. Where a legitimate case for the remand of the offender to the police custody u/s 167 can be
made out by the investigating agency or reasonable claim to secure information likely to be
received from offender u/s27 of IEA – S 438 should not be exercised.
SANJAY CHANDRA V CBI (2012)

• the Supreme Court granted bail to the accused in November, 2011 in Sanjay Chandra v. C.B.I.
(‘Sanjay Chandra’), recognizing that the right to life and personal liberty was the “most basic
of all fundamental rights”
• The Court held that the object of bail is to secure appearance of the accused at his trial. The
object of bail is not punitive. Hence, grant of bail is the rule and committal to jail, an exception.
Refusal of bail is a restriction on personal liberty of individual u/a 21
• The Court reversed the High Court’s order by stating that the “right to bail is not to be denied
merely because of the sentiments of the community against the accused”