BAIL:

THEORY &
PRACTICE
Khawaja Wajihuddin

WHAT DO WE EXPECT TO LEARN

Perception lock in grant of bail by a Magistrate

Grounds for grant of bail in non-bailable offences.
In what cases bail may be granted in case of noncognizable offence whether it can be claimed as a
matter of right.
Circumstances under which bail may be granted to an
accused?
Can bail be claimed as a right even in non-bailable
offences or even after conviction?
Principlesof grant of bail in non-bailable offences.
Principles of BBA

CONCEPT OF BAIL

bail grantable in or in connection with

proceedings for an offence to a person who is
accused or convicted of the offence, or
bail grantable in connection with an offence
to a person who is under arrest for the
offence or for whose arrest for the offence a
warrant (endorsed for bail)is being issued.
bail means bail grantable under the law
for the time being in force.

TERMINOLOGIES USED

Case of further inquiry/ Reasonable grounds to believe

Merits of the case / Prima facie case
Tentative assessment of record
Prohibitory clause
Benefit of doubt at bail stage
Delay in FIR
Judicial Discretion
Vicarious liabilities
Principle of consistency
Abscondance
Cross case
Medical Grounds and old age
Opinion of the IO
Alibi

PROVISION IN CRPC RELATING

TO BAIL

Regular / Post Arrest

Pre-arrest
Protective / Transit
Section 426: Suspension of sentence pending
appeal: Release of appellant on bail
Section 496: In what cases bail to be taken.
Section 497: When bail may be taken in nonbailable cases
Section 498: Bail before arrest

S 498-A (ACT XIII OF 1976):

Apply to section 497 & 498

Accused be in custody or present in court
A case ought to be registered against him
The order passed under section 498 would be
limited to a specific case only.

GRANT OF BAIL IN BAILABLE

OFFENCES

As Of Right
Determination Of Bailable Offences
Authority To Grant Bail
Following authorities may grant
the bail
Court of Law
An officer of the Court
Officer in charge of police station

CONDITIONS FOR GRANT OF

BAIL

Bailable Offence
Person Arrested Or Detained Without
Warrant
Appears Or Brought Before Court

FACTORS WHILE DECIDING BAIL

APPLICATION FOR OFFENCES
FOLLOWING IN PROHIBITORY CLAUSE
1.
2.
3.
4.
5.
6.
7.
8.
9.

Benefit of reasonable doubt

Identity of accused
Role attributed to each of accused and part
allegedly played by accused in occurrence.
His presence at spot
Question of vicarious liability
Allegation mentioned in FIR
Statements of prosecution witnesses recorded under
S.161, CrPC
Other incriminating material collected by
prosecution
Any plea raised by accused.

CASES OF FURTHER INQUIRY

1.
2.
3.
4.

5.

Accused coming to spot empty handed and not

attributed any overt act (1998 PCrLJ 578)
Enmity between the parties, injuries inflicted
with a blunt weapon. (1999 MLD 1352)
Role attributed contradiction during
investigation (1998 CrLJ 331)
Inconsistency in ocular evidence and medical
evidence (1998 PCrLJ 321) or ocular evidence
not supported by medical evidence (1998 SD 35)
Charge on exculpatory judicial confession (1998
Cr.LJ 336)

EXCEPTIONS TO GRANT OF BAIL

The court may refuse bail if it is satisfied that there are

substantial grounds to believe that the accused, if released on
bail, would:
Fail to surrender
Reoffend
Interfere with witnesses
Obstruct the course of justice (in relation to himself or other
person)
If the offence is indictable or triable either way and the court is
satisfied that he committed the offence while on bail
Custody is required for self-protection or his own welfare in child
or young person
If the accused is in custody serving a sentence
If custody can be justified to get sufficient information for
completing reports or inquiries

EXCEPTIONS TO GRANT OF BAIL

The accused need not be granted bail if:

Failed to surrender to custody while on bail
The court believes that, based on past failure, if
released he would fail to surrender to custody
The accused need to be kept in custody for selfprotection or welfare if child or a young person
Need not be granted bail if serving a sentence

GRANT OF BAIL IN NON-BAILABLE

OFFENCES U/SEC 497

CASES OF NON-BAILABLE OFFENCES

Non-bailable

offences may be categorized into the following

kinds
a)Offences not punishable with death, imprisonment for life
or imprisonment for ten years.
b)Offences punishable with death, imprisonment for life or
imprisonment for 10 years

General Rule
As

a general rule, bail shall not be granted in cases punishable

with death, imprisonment for life or for 10 years.

Exception

Where the person accused is under the age of 16 years

Any woman
Any sick person
Any infirm person

CANCELATION OF BAIL
Cancelation Of Bail U/Sec 497(5)
Grounds For Cancellation
1. If the bail granting order is patently illegal, erroneous,
factually incorrect and has resulted in miscarriage of
justice.
2. Some fresh facts or material has been collected by the
police during the investigation which may tend to
establish or point out the guilt of the accused.
3. That the accused misuses his liberty by indulging in
similar criminal activity
4. That he interferes with the course of investigation
5. That he attempts to temper with the prosecution
evidence.

CASES NOT WARRANTING

INTERFERENCE IN BAIL GRANTING
ORDER
1.

2.

3.

4.
5.

Common intention to be established at trial (2004 YLR

400)
Accused not shown to have misused concession of bail
(1999 PCrLJ 799)
Challan either complete or ripe for submission (1999
PCrLJ 883)
No independent evidence available (1999 PCrLJ 942)
If after appreciation over all facts and circumstances
of case it is found that accused is entitled to be
released on bail and order granting bail suffers from
on legal or factual infirmity of fundamental nature,
such an order would not be distrusted (1979 SCMR 91,
438)

MAIN INGREDIENTS OF PRE-ARREST

BAIL

Sparingly exercised in appropriate cases as

it is extraordinary concession
Court should avoid exercise of these
powers at random
A balance is to be kept and each case is to
decided on its own merits
Prosecution/complainant motivated to
causes irreparable injury to the reputation
and liberty.
Malafide
False involvement

MAIN INGREDIENTS OF PRE-ARREST

BAIL (CONT..)

Motivation of police on political

consideration.
Heinousness of offence by itself not
sufficient for refusal of bail.
Genuine apprehension of imminent arrest.
Petitioner should physically surrender to
the court.
Apprehension of harassment and under
irreparable humiliation by unjustified arrest.
It should be otherwise fit case on merits

COMPROMISE AT BAIL STAGE

1998 SCMR 466

Barish Alis case [PLJ 2002 Cr.C. Lah 1009]
Baz Muhammads case [2000 PCrLJ 553 FSC]
Syed Sabir Hussain Shah & anothers case
[1998 SCMR 466]
Rana Awais and others case [2001 PCrLJ 241
(Lah)]
Muhammad Nazir alias Jeeras case [PLJ 2001
Cr.C Lah 551 DB]

POST ARREST TRANSITORY BAIL

Accused nominated in Fir out
District & arrested in your
District

Against Accused a warrant issued by a

Court out District & arrested in your
District

under section 54 CrPC

Section 186, 187

Magistrate shall sent him to
that out District Magistrate
Or
If offence is bailable release
him on post arrest transitory
bail
Incase he issue warrant to his
arrest
Then should forward him to his
SJ (incase of non bailable
offence same bail rule)

Section 85, 86
Magistrate shall sent him to that
out District Magistrate
Or
If offence is bail able release him
on post arrest transitory bail
Incase Offence was non bail able
then SJ, can grant post arrest
transitory bail.

BAIL BOND

Attestation of Bail Bond

Confiscation
Surety discharge

HIDAYAT ULLAH KHAN VS THE

CROWN (PLD 1949 LAH 21)

Cornelius. J. --High Court has no inherent power of bail, resort

is to be made s 496, 497, 498, 426 CrPC
S 496, 497 prescribes cases for grant of bail,
while section 498 give a swiping power to grant
bail in any case
In proper case, u/s 498 CrPC a person
suspected of an offence for which he may be
arrested by police officer or a court shall be
admitted to bail.

THE CROWN VS KHUSHI MUHAMMAD

PLD 1953 FEDERAL COURT 170

Overrule Hidayat ullah khans supra case

A diversity of terminology does not
necessarily involves substantial difference in
meaning Liversidge vs Sir John Anderson 1941
AC 206
S 498 intended to supplement and complete
the provisions of section 497 and 498

1966 PLD SC 589 FULL BENCH

Approved Hiyat ullahs case and referred it.

Although Khushi Muhammads case was

considered

SHABBIR AHMAD VS THE STATE

PLD 1981 LAHORE 599

Deviation from Hidayat ullah case: presence

made mandatory. The concept of protective
blanket bail on account of the insertion of
section 498A CrPC is done away with.

GUDIKANTI NARASIMHULU AND ORS VS PUBLIC

PROSECUTORS, HIGH COURT OF . ON 6/12/1977

Equivalent citations: 1978 AIR 429, 1978

SCR (2)371
The issue of Bail or Jail et the pretrial
or post-convection stage-although largely
hinging on judicial discretion, is one of
liberty, justice, public safety and Burdon
of the public treasury, all of which insist
that a developed jurisprudence of bail is
integral to a socially sensitized judicial
process.

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