BAIL PROVISIONS- JUDICIAL APPROACH

SUBMITTED BY:- SUBMITTED TO:-

RAGHAV SOOD MRS. K. K. GEETHA

BBA.LLB 6TH SEM LECTURER- CODE OF CRIMINAL PROCEDURE

WHAT IS BAIL?

• Bail is not defined in the code but although the offences in the Code have been classified as bailable and non-
bailable. Bail is to “procure the release of a person from legal custody, by undertaking that he shall appear at the
time and designated place and submit himself to the jurisdiction and Judgement of the Court”.

• Thus, bail is a procedure 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.
Govind Prasad v. State of West Bengal, 1975 CriLJ 1249
• The object of giving bail to the accused as the consequences of pretrial detention are grave. If release on bail is
denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond
reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. He(accused)
would lose his job and is prevented from contributing effectively to the preparation of his defence.
BAILABLE V/S NON-BAILABLE OFFENCE
• The Code has classified offences into bailable and non-bailable offences
• 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 offences
means any other offence.
• Laws under IPC which are punishable for three years or more have been considered as ‘non-
bailable’ offence and others which are punishable with less than three years imprisonment are
‘bailable offences’
• In case of bailable offence the accused arrested has the right to be released on bail. Section 50(2)
makes it obligatory for police officer while arresting to inform him of his right to be released on bail,
but in case of non-bailable offence it’s the court discretion to grant bail.
STATUTORY FRAMEWORK REGARDING BAIL

• Sec 436- In what cases bail to be taken

• Sec 436A- Max. period for which an undertrial prisoner can be detained
• Sec 437- When bail may be taken in case of non-bailable offence
• Sec 437A- Bail to require accused to appear before next appellate court
• Sec 438- Direction for grant of bail to person apprehending arrest
• Sec 439- Special powers of High Court or Court of Session regarding bail
• Sec 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 forefeiture of bond, death,
insolvency or discharge of sureties and other miscellaneous matters
• Sec 167(2)- When no formal chargesheet framed after 60 or 90 days in detention.
• Sec 389- Suspension of sentence pending the Appeal; release of appellant on bail
• Sec 390- Arrest of accused in appeal from acquittal
• Sec 395- Reference to High Court
• Sec 397- Calling for records to exercise power of revision
SEC 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, instead of taking bail from such person, discharge him on his executing a bond without
sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be
deemed to affect the provisions of sub- section (3) of section 116 or section 446A.
• (2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with 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.
•
HUSSAINARA V. HOME SECRETARY, 1980 1 SCC 81
• Bhagwati, J. observed that one of the reasons why our legal and judicial system continually denies justice
to the poor by keeping them for long years in pre-trial detention in our highly unsatisfactory bail
system. it suffers from property-oriented approach which proceeds on the erroneous assumption that
rise of monetary loss is only deterred against fleeing from justice.

 However, by Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was
amended to make a mandatory provision that if the arrested person is accused of a bailable offense is
an indigent and cannot furnish surety, the courts shall release him on his execution of a bond without
sureties. Legislature by Criminal Procedure (Amendment) Act, 2005 insertedSection
436A which lays down the maximum period for which an under trial prisoner can be detained.
BAIL IN CASE OF NON-BAILABLE OFFENCE
• Provisions, as to bail in case of non-bailable offence, is laid down in Section 437 of the code. This section
gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there
appear reasonable grounds that the accused has been guilty of an offence punishable with death or with
imprisonment for life.
• But (1) a person under the age of sixteen years (2) a woman; or (3) a sick or infirm person may be released
on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is
charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such
offence, he can be immediately released on bail pending further inquiry.
• The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is
believed not to be guilty of a nonbailable offence. As a safeguard, the section provides for review of the
order by the Court which has released the person on bail.The power of the Magistrate under this section
cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439.
• Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be
satisfied that the order to be passed is in the interest of justice. (Mazahar Ali v. State, 1982 CrLJ
1223, 1225 (J&K).
ANTICIPATORY BAIL: SECTION 438
 Anticipatory bail means bail in anticipation of an arrest.
 Any person who apprehends arrest under a non-bailable offence in India can apply for Anticipatory Bail
under the provisions of section 438 of The Code of Criminal Procedure, 1973. It is basically bail before
arrest, a person arrested cannot seek Anticipatory Bail, he would have to move for a regular bail.
 The words anticipatory bail is neither found in section 438 nor in its marginal note. In fact, anticipatory
bail is a misnomer. When a court grants anticipatory bail, what it does is to make an order that in the
event of arrest, the person shall be released on bail.

 The legislature in its wisdom incorporated this provision for grant of bail to a person apprehending
arrest is to prevent disgrace of being jailed or remaining in custody before he can be released on
bail. The old code of criminal procedure did not have any provision for the same and the
lawmakers realized that false and frivolous cases are filed against some people and such persons.
have to necessarily be arrested before they could seek bail. Thus a mechanism for preventing undue
harassment and disgrace from arrest and detention was devised.
 In the landmark Gurubaksh Singh Sibbia case, the apex court opined that “It is
conceptualized on the idea of protecting personal liberty guaranteed under the Constitution of
India”. This said, it is a discretionary power and is not a matter of right. The court would use the
discretion according to the facts and circumstances of the case and under stipulated guidelines.
CANCELLATION OF BAIL
• Rejection of Bail is different from the cancellation of bail. (Aslam Desai v. State of Maharashtra,
1992 AIR SCW 2621)
• The Code of Criminal Procedure, 1973 contains two provisions for cancellation of Bail. The first one is
laid down in Section 437(5) and the other in section 439(2). According to Section 437(5) “any court
which has released a person on bail under sub-section (1) or sub-section (2) of Section 437, may if it
considers it necessary so to direct such person to be arrested, and committed to custody”. Thus under
this section a Magistrate does not have an authority to cancel bail granted by a police officer.
• For cancellation of bail in such situation, power of the High Court or the Court of Session under Section
439(2) will have to be invoked. Section 439(2) lays down that a High Court or a Court of Session may
direct that any person who has been released on bail under this chapter be arrested and commit him to
custody.Thus the power given to the High Court and court of Session is very wide.
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