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CHAPTER-VII

SPECIAL POWRS OF HIGH COURT OR COURT OF SESSION


REGARDING BAIL
Special Powers have been conferred on High Court or court of session in Criminal
Procedure Code for Grant of 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.
7.1 Corresponding Old Law
This section corresponds to the latter half of sub-section (1) of section 498
of the 1898 Code, but the Proviso to sub-section (1) is new.
The later half of sub-section (1) of Section 498 of the 1898 Code
empowered the High Court or the Court of Session to grant bail, and so does subsection (1) of this section, but there is redrafting without any change of any
substance. That half of sub-section (1) of old Section 498 aforesaid read:
and the High Court or Court of Session may, in any case, whether there be
an appeal on conviction or not, direct that any person be admitted to bail..
The Proviso to sub-section (1) is new.

250

Sub-section (2) reproduces sub section (2) of the old section, but in a redrafted
form. That sub-section reads as:
(2) A High Court or Court of Session may cause any person who has been
admitted to bail under sub-section (1) to be arrested and may commit him to
custody.
7.2 Scope and Applicability
The powers under this section are wide enough to empower, the Court to
exercise its discretion to grant bail to an accused person when he appears and
surrenders himself in the Court even in anticipation of his arrest (J&K Criminal
Procedure Code).1 An arrested person released on bail does not cease to be
arrested person or accused person for the purpose of Sections 53 and 54. 2 The
Court may reject the bail application of the accused, but cannot prevent the
accused from exercising the right of bail. 3 Where an accused released on short
term or personal bond is in judicial custody he need not be sent to jail, before his
application under Section 439 Cr. P. C., is entertained and considered by the
Court.4 When the possibility of repetition of the offence cannot be ruled out in the
larger interest of the society, bail should not be allowed. 5
The powers of the High Court and the Court of Session under this section
are of a concurrent jurisdiction with that of a Magistrate. It is seen on a
comparison of Sections 437 and 439, that the High Court is invested with power
under this section, as a court of superior, appellate or revisional jurisdiction and
has vast powers to direct that any person be admitted to bail in any case. 6
There can be no doubt that sub section (1) deals with cases of persons
accused of bailable as well as non-bailable offences. Even in regard to persons
1
2
3
4
5
6

Kali Dass Vs. SHO, Police Station Reasi, 1979 Cr.LJ 345 (J&K)
Ananth Kumar Vs. State of A.P. 1977 Cr. LJ 1797 (AP)
Manloor Khan Vs. State of Bihar, 1999 Cr.LJ 5006: 1998 SCC (Cri) 1541: (1998) 8 SCC
368
Gyan Swaroop Gupta Vs. State of U.P. 1993 Cr.LJ 3895 (All).
Issak Ibrahim Sandil Sovda Vs. State of Gujarat, 2000 (3) Crimes 466 (Guj).
M. Hanumantha Reddy Vs. Government of Mysore, AIR 1953 Mys. 132 at 133; see also
Vasant Vinayak Bhagwat Vs. State, AIR 1951 M.B. 104: Jamini Mullick Vs. Emperor
LLR 36 Cal. 174 at 177: State (Delhi Administration) Vs. Vipin Kumar 1975 Cr.LJ 846 at
849 (Del).

251

accused of bailable offences, if the amount of bail fixed under Section 436 is
unreasonably high the accused person can move the High Court or the Court of
Session for reducing of that amount. Similarly, a person accused of a bailable
offence may move the High Court or the Court of Session to be released on bail
and the High Court or the Court of Session may direct either that the amount
should be reduced or that the person may be admitted to bail. If a person
accused of a bailable offence is admitted to bail by an on order passed by the High
Court or the Court of Session, the provisions of sub-section(2) become applicable
to his case; and under these provisions the High Court or the Court of Session is
expressly empowered to cancel the bail granted by it and to arrest the accused and
commit him to custody. The result is that this section applies not only to cases of
persons accused of non-bailable offences but also those accused of bailable
offences.7
If the Sessions Judge does not apply the tests which have necessarily to be
applied while considering an application under this section, the order passed by
him cannot be treated as one under Section 439. 8
This section gives an unfettered discretion to the High Court or Court of
Session to admit an accused person to bail, but that discretion

must

be

exercised judicially. The power of the High Court and of a Court of Session to
grant bail is not fettered by the restrictions contained in Section 437. 9 In every
case it is the cumulative effect of all the combined circumstances that must weight
with the Court and those considerations are far too numerous to be classified or
catalogued exhaustively. 10 In exercising its discretion under this section, the High
Court need not confine its attention to the question whether the prisoner is or is
not likely to abscond, as other circumstances may also affect the question of
granting bail to persons accused of having committed crimes of a grave and

7
8
9
10

Talab Haji Hussain Vs. Madhukar Pushottam Mondkar, AIR 1958 SC 376 at 380;
Juharmal Vs. State 1954 (Raj) 279
State of M.P. Vs. Laxminarayan, 1972 Jab. LJ 6.
Kirpa Shankar (1947) All 733: Shanti Lal (1995) Raj 566.
Sagri (1950) 30 Pat 115.

252
serious nature.11 The principles underlying Sec.437 Cr.P.C. are to be kept in
view.12 The previous conviction of an accused for a heinous crime punishable
with imprisonment for life, his involvement in other crimes and the quantum for
punishment for the offences in which the applicant is seeking bail are all relevant
factors to which the Court should consciously advert while taking a decision in
the matter of enlargement on bail. 13 The Courts must not be too liberal in granting
bail particularly when bail is asked for with regard to a serious crime like
murder.14 There is greater justification for denying bail to persons charged of high
corruption as from such persons there is a danger of sub-version of evidence
against them by the use of money power. 15 Where an offence is not bailable the
Court has to decide the question of grant of bail in the light of such considerations
as the nature and seriousness of the offences, character of the evidence,
circumstances which are peculiar to the accused, a reasonable possibility of
presence of the accused not being secured at the trial, reasonable apprehension of
witness being tampered with, the larger interest of the public or the State and
similar other considerations.16
Bail is not to be withheld merely as a punishment, and the requirements as
to bail are merely to secure the attendance of the accused at the trial. The test is to
be applied by reference to the following considerations amongst others; (1) the
nature of the accusation; (2) the nature of the evidence in support of the
accusation; (3) the severity of the punishment which conviction will entail; (4) the
character of the sureties, that is to say, whether they are independent or
indemnified by the accused; (5) the character and the behaviour of the accused.
Any allegation that the accused is tampering or attempting to tamper with

11
12
13
14
15
16

Narendra Lal Khan (1908) 36 Cal 166, 170, Jamini Mulick (1908) 36 Cal 174,177
Gurcharan Singh Vs. State (Delhi Admn) 1978 Cr.LJ 129: AIR 1978 SC 179; (1978) 2
SCR 358; Sangappa Vs. Karnataka 1978 Cr.LJ 1367 (Kant)
Ram Pratap Yadav Vs. Mitra Sen Yadav (2003) 1 SCC 15: 2003 SCC (Cri) 1: 2003 (1)
Crimes 132 (134, 135) (SC).
Amar Singh Vs. State, 1985 Cr.LJ 550 (Del).
Onkar Chand Vs. Punjab 1978 Cr.LJ 44 (P&H).
State Vs. Captain Jagat Singh, AIR 1962 SC 253: (1962) 1 Cr.LJ 215

253

witnesses and thereby obstructing the course of justice would be a very cogent
ground for refusing bail.17
There are many considerations which are to be taken into account in
granting bail. The two paramount considerations are likelihood of the accused
fleeing from justice and his tampering with the prosecution evidence which relate
to ensuring a fair trial of the case in a Court of justice. 18
7.3 Concurrent Jurisdiction
Although under this section concurrent jurisdiction is given to the High
Court and Sessions Court, the fact that the Sessions Court has refused to bail
under this section does not operate as a bar for the High Court entertaining a
similar application on the same facts and for the same offence. However, if the
choice was made by the party to move first the High Court and the High Court has
dismissed the application, then the decorum and the hierarchy of the Courts
require that if the Sessions Court is moved with a similar application on the same
facts, the said application be dismissed. 19 Where bail petition of the accused is
pending in the High Court, the accused cannot pursue his bail application
simultaneously before the Court of Sessions. 20
7.4 Power of the High Court is Independent
Even after a bail application is rejected by the Court of Session, a person
in custody can move the High Court for bail under Section 439 (1), 21 because in
such cases the High Court is not exercising any revisional power, but exercises a
special power.22
After the High Court rejected a bail application, the Court of Session can
entertain a bail application of the same accused, if any substantial grounds for bail
arose after such rejection. On the other hand if the fresh application was meant to
17

18
19
20
21
22

Krishna Chandra Jagti, (1927) Pat 802, 803; Jayendra Saraswathi Swamigal Vs. State of
Tamil Nadu, (2005) 2 SCC 13; 2005 Cr.LJ 883 (888) (SC); State through CBI Vs.
Amarmani Tripathi 2005 Cr. LJ 4149 (4155) (SC)
Gurcharan Singh Vs. State (Delhi Admn) 1978 Cr.LJ 129: AIR 1978 SC 179; (1978) 2
SCR 358;
Devi Dass Roghu Nath Naik Vs. State, 1987 (3) Crimes 363; 365: 1989 Cr.LJ 252 (Bom)
Mahendra Singh Vs. State of U.P. 1997 (4) Crimes 470 (All).
Hari Shankar Vs. State of M.P. 1980 Jab LJ 805: 1981 Cr.LR (MP) 33.
Vijay Narain Vs. State, 1976 CLR 68 (H.P.)

254

overcome the earlier order of rejection of bail by the High Court, judicial decorum
requires that the Court of Session should direct that accused to approach the
High Court.23 Another application on the same facts and for the same offence can
be made to the HighCourt.24
In view of the special facts of the case, the accused was permitted to
appear before the Chief Judicial Magistrate, Allahabad, instead of appearing
before the Munsif-Magistrate Haridwar, and take orders on his bail application
before the former.25
7.5 Lower Court should be Moved First
It is a recognized, and in any event a convenient, principle that where two
forums have concurrent jurisdiction the lower one should be approached at the
first instance, unless the party concerned gives special reasons for a direct
approach to the higher such as extreme urgency of a momentous question of
general public policy.26 It is true that the usual practice is that a person desiring
bail should first approach the lower Court but this practice is not inflexible,
because this section gives unlimited judicial discretion to the High Court in the
matter of granting bail. There is no bar to the High Court entertaining a bail
application directly if peculiar circumstances exists. 27 Though relief is available
for

canceling bail under Section 437 (5) by approaching the very Court which

granted it, in special circumstances the party can approach the Court of even
higher jurisdiction.28
The High Court and the Sessions Court have concurrent jurisdiction and
although there is no hard and fast rule, it is desirable that the ordinary practice
should be that the lower Court should first be moved, being the Court which is
going to try the case and where an expression of opinion by the superior Court is

23
24
25
26
27
28

Virendra Singh Vs. Avdesh Kumar, 1983 (U.P.) Cr.LR 415; 1983 A. Cr.R.434: 1983
AWC 809.
Baghirath Ghusai Patel Matha Vs. State of M. P. 1980 MPLJ 373 at 375.
Ram Preet Singh Vs. State of U.P (1990) 1 Crimes 531 (All).
State Vs. Jagan Singh, AIR 1952 V. P. 87 at 88
Abdul Karim Khan Vs. State of M. P. AIR 1960 MP 54 at page 55.
Thakur Hariprasad Vs. State of A.P. 1976 An LT 445: 1977 Cr.LJ 471.

255
likely to prejudice the trial.29 But where the Court of Session rejected a previous
application for bail, before the challan had been submitted on the ground that the
offence was of a nature which would not admit of the petitioners release on bail,
the approach to that Court on an application after the challan would be a mere
formality which ought to be dispensed with.30
7.6 Not Controlled by Section 437
The powers of High Court or Court of Session under this section are not
controlled by Section 437 (1). 31 Although the provisions of Section 437 do not in
terms control the provisions of this section, but those nonetheless constitute one
of the relevant considerations, amongst others, for the judicial exercise of the
powers for granting bail by High Court or the Court of Session, in cases of
non-bailable offences, where there appear reasonable grounds for believing that
the accused is guilty of an offence punishable with death or imprisonment for life
or with imprisonment for a term of seven years or more. 32
7.7 Limitations under Section 437 Inapplicable to Sessions Court and High
Court
The powers of the Sessions Court and the High Court under this section in
the matter of granting bail are not circumscribed by the limitation imposed under
Section 437 (1). Even then, it would not be proper for High Court to grant bail to
the accused on collateral considerations that they are all poor agriculturists and
their entire family would be subjected to starvation. 33
7.8 Person Seeking Bail Must be in Custody
No person accused of an offence can move the Court for bail under
Section 439 unless he is in custody. Such a person can be stated to be in judicial

29
30
31
32
33

Sayad Pir Mohi-ud-din Lal Badshah Vs. Emperor, AIR 1938 Lah 762 at 763; Indar Das
Vs. State, AIR 1951 HP 31. Mathew Zacharia Vs. State of Kerala, 1974 Ker. LT 42.
Vasant Vinayak Bhagwat Vs. State, AIR 1951 MB 104, at 104, 105: 52 Cr. LJ 565.
In re. Sasti Charan Mondal, 1974 Cr.LJ 1326 (Cal-DB); Ram Pratap Yadav Vs. Mitra
Sen Yadav, 2003 (1) Crimes 132 (135) (SC).
In re. Sasti Charan Mondal, 1974 Cr.LJ 1326 (Cal-DB)
Shivarame Gowda Vs. State of Karnataka, 1991 Cr.LJ 1008, 1016 (Kant.)

256
custody when he surrenders before the Court and submits to its directions. 34 If the
person is not in police custody because he happens to be in the judicial custody in
another State, then he cannot be deemed to have been arrested. Hence, his
application for bail is liable to be dismissed. 35 The bail of the petitioner was
cancelled by the Sessions Judge and without surrendering he applied to the High
Court for the cancellation of the order of the Sessions Judge. The High Court
refused to consider his application as he was not in custody. 36
The Magistrate rejected the prayer for bail, as the applicant did not appear;
an application; an application was moved through a counsel claiming appearance
for the accused. Held, the pleader may represent any accused person and during
hearing or trial the absence can be condoned on one or many dates, but a pleader
cannot be deemed to have surrendered for the accused. That being the position,
the application under Section 482 Cr. P.C. was summarily rejected as there was
nothing wrong in the order of the Magistrate. 37
A person was arrested but he escaped from the police custody; charges
under the Penal Code and the Arms Act were frame against him; he filed bail
application in the High Court alleging that there was danger to his life as his
district Court and hence he approached the High Court. The High Court held that
the bail application was not maintainable because there is no provision for
surrender in the Cr. P.C. before the High Court. If the High Court accepts
surrender it cannot remand the accused to custody. As far as Rule 10, Chapter
XVIII of the Allahabad High Court Rules is concerned two pre-conditions are to
be fulfilled before a bail application be considered e.g. the first being a copy of
the order of the Sessions Judge and the second is that he has surrendered. 38
34

35
36
37
38

Niranjan Singh Vs. Prabhakar Rajaram, AIR 1980 SC 785; 1980 Cr.LJ 426; Phool
Chand Vs. State of Rajasthan, 1983 Raj. Cr. Cas. 190: 1983 Raj. L.W.294: 1983 Cr.LR
(Raj) 336; Ram Kishan Misra Vs. State of U.P., 1986 All. LR. 607: 1986 All Cr. R. 8:
1986 All. Cr.C.29
Lakhan Singh Vs. State of Rajasthan, 1987 R.L.W. 610
Thakur Hariprasad Vs. State of A.P., 1976 An. LT.445.
Kirpa Shanker Vs. State of U.P., 1984 All. Cr. R.114 at 115: 1984 UP Cr.R.7 (1)
Seroman Singh Vs. State of U.P. 1983 All. L.J. 1286 at 1290: 1983 All.Cr. R. 493.

257

Discretion: Meaning of What is discretion? Discretion when applied to a


Court of justice, means sound discretion guided by law. It must be governed by
rule, not by humor. It must not be arbitrary, vague and fanciful, but legal and
regular, and in the case of granting bail the discretion of the Judge must be
exercised not in opposition to, but in accordance with, the established principles
of law. In granting bail, the Judge has to consider whether a prima facie case
has been or has not been made out by the prosecution.
If a prima facie case has been made out by the prosecution and if there
appear a reasonable grounds for believing that the person accused has been guilty
of an offence punishable with death or imprisonment for life, he shall not be
released on bail pending disposal of the case, unless extraordinary circumstances
intervene favouring the accused. 39
7.9 When Bail May be Granted by High Court or Court of Session
There is no ban against the High Court of the Court of Session granting
bail to persons accused of an offence punishable with death or imprisonment for
life. Still that Court will have to take the several considerations enumerated by the
Supreme Court in this case.40 Though both the High Court and the Court of
Sessions have concurrent power, normal practice is to move the latter first. The
High Court would directly entertain an application only in exceptional cases or
under special circumstances. 41
Bail should not be granted by the High Court suo motu422 Whether a bail
petition has been moved in a co-ordinate Court should be mentioned in the
application for bail. It is also the duty of the Court to obtain a statement about that
fact before exercising its power.43 Court of Session means the court presided
over by the Sessions Judge.44
39
40
41
42
43
44

State Vs. Veerapandy, 1979 Cr.L.J. 455 at 458 (Mad)


Gudikanti Narasimhlu Vs. Public Prosecutor, AP, AIR 1978:SC 429: 1978 Cr.LJ 502;
Gurcharan Singh vs. Delhi Administration, AIR 1978, SC 179: 1978 Cr.LJ 129
Mutum Chooba Singh Vs. State of Manipur (1985) 1 GLR 286
Dara Gaddi Vs. State of Bihar (1986) 4 SCC 564
Harbans Signh Vs. State of Punjab, (1986) 13 Cr. LT 264: (1987-1) 91 PLR 103; Hari
Mohan Dixit Vs. State of M.P. 1986 Cr,LR 211 (MP)
Rajesh Chandra Vs. State of Rajasthan, 1986 R.L.W. 667 (Raj.)

258

There is no hard and fast rule when bail may be granted by the High
Court, and though the discretion of the High Court is unfettered, that discretion
has to be exercised judicially.45 The High Court can exercise its powers under this
section uncontrolled by the restrictions mentioned in Section 437. 46 But even so,
the power has to be exercised judicially and not arbitrarily. 47
There cannot be an inexorable formula in the matter of granting bail. The
facts and circumstances of each case will govern the exercise of discretion in
granting or canceling bail.
The two paramount considerations are: Likelihood of the accused fleeing
from justice and his tampering with prosecution evidence.48
If an objection is raised on behalf of the State that the accused persons are
likely to abscond or tamper with the prosecution evidence, such a contention
should be considered on merits. If no such objection is raised, an assumption
should not be made against the accused that the accused persons may abscond or
may tamper with the prosecution evidence. 49
Even after rejection of a bail application by High Court, the Court of
Session may entertain and consider an application for bail of the same accused
provided new substantial grounds for bail have arisen since the last order of
rejection of bail and a reasonably long interval has also elapsed. While dealing
with such a bail application, the Sessions Court should be circumspect and bear in
mind the question of propriety and judicial decorum. If it feels that passing an
order of bail in the face of an earlier order of rejection of bail by the High Court,
would appear to over-step the limits of propriety and judicial decorum, it should

45
46

47
48

49

Paras Ram Vs. State, AIR 1951 H.P. 13


Ram Chand Vs. Emperor, AIR 1929 Lah. 284, 30 Cr.LJ 1129; Kirpa Shanker Vs.
Emperor., AIR 1948 All. 26: 48 Cr. LJ 941: Champa Lal Vs. State, AIR 1952 M.B. 189
(FB); State Vs. Shantilal, AIR 1955 Raj.141
Ram Chand Vs. Emperor, AIR 1929 Lah. 284
Raj Kumar Sharma Vs. Delhi Administration, 1978 Cr.LR (SC) 1: 1978 SC Cr.R.143;
Dilip Shankar Koli Vs. State of Maharashtra, 1981 Cr.LJ 500 (Bom): 1981 Cr.LR. (Mah)
241
Ramchandra Kanthari vs. State of Orissa (1984) 57 Cut. LT 303 at 304

259

direct the accused to approach the High Court for bail. This kind of exercise of
discretion will also be conducive to clean administration of justice. 50
Various principles have been enunciated in different cases, and some of
them may be summarized as below:
(i)

The law presumes the accused person to be innocent till his guilt is
proved. He should be allowed an opportunity to look after his own
case, unless the circumstances are such that he should not be
released on bail.51

(ii)

Generally it is the rule to allow bail, rather than to refuse bail, and
bail ought not to be held as punishament. 52

(iii)

The fact that the offence is a serious one does not afford a
sufficient ground to refuse bail.53

(iv)

The principle to guide the Court is the probability of the accused


appearing to take his trial,54 and not his supposed guilt or
innocence.

(v)

If bail has been granted to one accused, other accused in the same
case similarly placed are entitled to be released on bail. 55

(vi)

In a serious offence such as murder, bail will be refused if there are


reasonable grounds for believing that the accused is guilty. 56

(vii)

The fact that the charge-sheet has not been submitted against the
accused is a factor to be taken into consideration. 57

50
51
52
53

54
55
56
57

Virendra Singh Vs. Avdesh Kumar, 1983 All. Cr. R. 434 at 437: 1984 All LJ 283
Sant Ram Vs. State, AIR 1952 J&K 28. 1952 Cr.LJ 1223: State Vs. Surinder Singh
Kairon (1966) 68 Ounj. LR (Delhi) 46: 1966 Cr.LJ 863
Nagendra Nath Vs. King-Emperor, AIR 1924 Cal 476: Emperor Vs. Gulam Mohammad,
AIR 1925 Lah. 510; Ram Chandra Vs. state, AIR 1952 MB 203: 1953 Cr.LJ 17
Abraham Bali vs. Emperor, AIR 1925 Oudh 489; 26 Cr.LJ 1286: Fazal Nawaz Jung Vs.
State of Hyderabad, AIR 1952 Hyd 30: 1952 Cr.LJ 873: Warrier Vs. State of Kerala,
1964 Ker. LT 595.
Public Prosecutor Vs. M. Sanyasayya Naidu, AIR 1925 Mad. 1224; Rao Harnarain
Singh Sheoji Singh Vs. State, AIR 1958 Punj. 123
Ngangom Iboton Singh Vs. Union Territory of Manipur, AIR 1969 Manipur 6.
Ngangom Iboton Singh Vs. Union Territory of Manipur, AIR 1969 Manipur 6.
Prafulla Kumar Pradhan Vs. Pabaneswar Subudhi, 1989 Cr.LJ 2016 (Ori.)

260

(viii) That the accused has been previously convicted is no bar to grant
bail.58
In murder cases the High Court will sparingly exercise its discretion in
favour of granting bail under this section. It is in very strong and exceptional
cases, one such a case being that the life of the accused person is in danger, which
fact is established by medical evidence, that the discretion will be exercised in
granting bail.59 That in a murder case bail is not opposed by the Public Prosecutor
is not a ground to grant bail.60 That the prosecution opposes the granting of bail is
not a ground by denying bail.61
As the medical certificate did not categorically state that the injury on the
victim was dangerous, the accused was granted bail. 62
Detailed examination of the evidence and elaborate documentation of the
merits should be avoided while passing orders on bail application.63
In the instant case under the Official Secrets Act, the bail granted to an
accused by the High Court was cancelled by the Supreme Court on the ground
that the High Court was wrong in observing at this stage even before the
commencement of trial, that there would not be sufficient evidence to convict the
accused.64 Bail was granted to the accused as at this stage it was not apparent that
the accused committed murder. Bail should not be refused in order to give time to
the prosecution to make up its mind.65 While dealing with the question of bail the
court is not to conduct a preliminary trial and to see if the evidence is such that
the accused is bound to be convicted or acquitted. All that has to be seen is
whether there is some material to connect him with the crime. The question of
sufficiency of the evidence and reliability of the witnesses cannot be debated in
these proceedings as that would be a matter which will require the consideration
58
59
60
61
62
63
64
65

Shambhu Singh Vs. State of Rajasthan, 1989 Cr.L.R. (Raj.) 192


Mirajuddin Vs. State, 1970 Cr.L.J. 1497: AIR 1970 J & K 169.
Bachinar Singh Vs. Jit Singh, 1975 RLR 491; Ratikrishna Nanda Vs. State of Orissa
(1982) 54 Cut. L. T. 555.
Sheikh Salim Sheikh Baboo Vs. State of MP, 1985 MPLJ 65.
Bhim Sain Vs. State of Punjab, 1979 CLR (P&H) 74.
Niranjan Singh vs. Prabhakar Rajaram, AIR 1980 SC 785; 1980 Cr.LJ 426
State Vs. Jaspal Singh Gill, 1984 Cr.LJ 1211 (SC)
Abdul Mohsin Albahouth Vs. State (1985) 2 Crimes 526.

261
of the court at the time of the trial. 66 The matters which the court may take into
consideration in the case of non-bailable offences are the nature and seriousness
of the offence, the character of the evidence, circumstances which are peculiar to
the accused, reasonable apprehension of witnesses being tampered with and the
larger interests of the public and the State. 67
7.10 Direct Bail Application to High Court
There is absolutely no want of jurisdictional competence for the High
Court to consider and exercise powers in an application for bail anticipatory bail
under section 438/439 Cr.P.C. at the first instance. Following the statutory
procedural self imposed rule of restriction, a High Court shall not ordinarily (and
except under exceptional circumstances) exercise its powers under sections 438
and 439 Cr.P.C. without and before the Sessions Court having concurrent
jurisdiction is moved for identical relief. 68 A person suspected of any non-bailable
offence cannot be allowed to frog leap the Magistrate and Sessions Judge and
make an application for bail directly to the High Court.69 It is legitimate to
suppose that the High Court or Court of Sessions will be approached by an
accused only after he has failed before the Magistrate and after the investigation
has progressed throwing light on the evidence and circumstances implicating the
accused.70
Only in exceptional circumstances bail application can be filed directly in
the High Court.71 The applicant has the right to choose forum and he can
approach the High Court direct for bail. The High Court would not refuse bail on
66
67
68
69
70

71

Padam Sain Vs. State (1967) 69 Punj. LR 40.


Padam Sain Vs. State (1967) 69 Punj. LR 40; Mohd. Hussain Vs. State, 70 Bom. LR 247;
1968 Cr.LJ 1231; 1968 Mah.LJ 505: AIR 1968 Bom.344.
Usman Vs. Sub Inspector of Police (2003) 2 Ker LT 594; 2003 Cr.LJ 3928 (3935) (Ker)
Mathew Zacharish Vs. State of Kerala, 1974 Cr.LJ 1198 (Ker-DB)
Gurcharan Singh Vs. State (Delhi Administration) AIR 1978 SC 179: 1978 Cr.LJ 129
(1978) 2 SCR 358; Usman Vs. Sub Inspector of Police (2003) 2 Ker LT 594; 2003 Cr.LJ
3928 (3935) (Ker)
Shivasubramonham Vs. State of Kerala, AIR 2002 Kant HCR 1069:2002 Cr.LJ 1998
(2002) (Kant)

262

the mere ground that the accused should first file bail petition before the Sessions
Judge concerned.72
7.11 Whether Delay in Trial A Ground for Bail?
The provisions of Sections 167, 209, 225 to 235, 309 and 317 spell out
that the Sessions trial must be expedited and concluded within a reasonable short
period. If the accused is detained indefinitely because of the protraction of trial he
is entitled to the protection of Article 21 of the Constitution and deserves to be
released on bail.73
If the trial is not concluded speedily it amounts to making the accused
suffer punishment before he is convicted. In such a case bail is to be granted. 74
Delay was not caused because of prosecution. Hence, bail was not
granted.75 When there is gross delay in the commencement of trial, the remedy is
not to release the accused on bail. The proper course is to direct the trial Court to
take up the trial with utmost expedition and endeavour to conclude the trial within
a specified time.76
If the trial against an accused is not concluded within a reasonable time, it
amounts to a violation of the right of speedy trial guaranteed to him under Article
21 of the Constitution and the accused is entitled to grant of bail. 77 Delay in trial
is no ground for bail in each case. Where the prosecution failed to examine
witnesses for two years, repeated eight adjournments, were taken bail was
allowed.78 Where there was delay of about 4 and 42 years in the trial charges were
under sections 302 etc., the accused was released on bail. 79 Where the trial was
not expedited in spite of duration issued by the Court, accused was aged 19-20
72
73
74
75
76
77
78
79

Bahan Vs. State of Kerala, 2004 Cr.LJ 3427 (3431) (Ker-DB)


Munna Vs. State of M.P.1990 Cr. LR (MP) 12: 1987 CrLR (Raj) 476
Nathu Vs. State of U. P. 1987 All LJ 1211: 1987 All Cr. Cas. 344, 1987 AWC 988
Daini Vs. State of M.P. 1989 Jab LJ 323
Shyam Sahu Vs. State (12984) 2 Crimes 426: (1984) 54 Cut.LT 331 (Ori): Kumud
Mahapatra Vs. Abhina Mallick, (1990) 69 Cut. LT 50
N. Chikkanna V. State of Karnataka 1992 Cr. LJ 2254: 1992 (1) Crimes 701, 703 (Kant)
Mohammad Mian Vs. State of U.P. 1993 Cr.LJ 2621 (All) Kanti Sardul Blarvad Vs.
State of Gujrat, 2004 (4) Crimes 407 (Guj) (Temporary bial granted for fixed period)
Om Parkash Vs. State of Rajasthan, 1996 Cr.LJ 819 (Raj.)

263
years, the accused was released on bail. 80 An accused cannot be kept in custody
for delay in completing in the trial. 81 In the absence of speedy trial of an accused,
the continuance of the accused in jail is nothing but an instance of making him to
undergo punishment before trial. 82 Looking to the long period for which the
accused has remained in custody and the trial is being delayed on account of
number of persons the accused can be released on bail.83 Where the case was
adjourned for two months on the submission of the public prosecutor that he had
illegible copies of challan papers, notwithstanding that the original papers were on
record, the accused is entitled to bail.84 Delay in commencement of trial is a valid
ground for releasing accused on bail. 85 Speedy trial is implicit in Art. 21 of the
Constitution and delay in trial is denial of justice. Where there is delay in trial,
and the accused has not contributed to the delay in trial, the accused is entitled to
be released on bail.86 Where the delay is caused by the accused himself, in the
instant case, clubbing of the cases at instance of the accused, the accused is not
entitled to bail.87 The delay in trial wholly due to congestion of the Court
calendar, unavailability of judges or other circumstances beyond the control of the
prosecutor,88 delay caused by the accused by legal advices which the prosecutor
has to counter,89 delay caused by orders, where induced by the Court or not, of the
80
81
82
83
84
85
86

87
88
89

Lokesh Bhardwaj Vs. State 1987 Cr.LR (Raj) 65; See also Mitu Singh Vs. State 1987
RCC 113 (Raj) (Accused released on bail)
Keshar Vs. State of Rajasthan, 1989 (3) Crimes 644 (Raj.)
Nathu Vs.State of U. P. 1987 (2) Crimes 564 (All.)
Tejveer Vs. State of Rajasthan, 1989 (2) Crimes 164 (Raj.)
Ramroop Singh Vs. State of MP, 1987 Cr. LJ 1256 (MP)
Virsa Singh Vs. State through CBI, 1992 Cr.LJ 164: 1991 (1) Crimes 608 (Del).
State. CBI/SPE, New Delhi Vs. Pal Singh (2001) 1 CC 247; Bipin Bantilal Panchal Vs.
State of Gujarat, AIR 2001 SC 1158; (2001) 3SCC 1; Gokul Singh Vs. State of M.P.
1999 Cr.LJ 3455 (MP).
Gokul Singh Vs. State of M.P. 1999 Cr.LJ 3455 (MP); Ram Kumar Vs. State of Rajasthan
(2002) 1 Raj LR 418 (2002) S Raj LW 1702.
Ram Kumar Vs. State of Rajasthan (2002) 1 Raj LR 418 (2002) 3 Raj.LW 1702; 2002
Cr. LJ 1923 (1926) (Raj.)
Ram Kumar Vs. State of Rajasthan (2002) 1 Raj LR 418 (2002) 3 Raj.LW 1702; 2002
Cr. LJ 1923 (1926) (Raj.)

264

Court necessitating appeals or revisions or other appropriate actins or


proceedings90, and delay caused by legitimate actins of the prosecutor, 91 would
entitle the accused to be released on bail. Where the accused in jail for more than
2 years, out of 75 witnesses, only 37 witnesses examined in the case so far the
examination of the remaining witnesses was likely to take time, accused was
released on bail on account of delay, 92 Where the accused had been in jail for
last 34 months, prosecution and not accused was responsible for the delay the
accused was released on bail.93
Where the accused prosecuted for offence under sections 302, 307 was in
jail for last six years, there was no progress in trial, there was also no possibility
of tampering with prosecution witnesses, bail was allowed. 94 Where the accused
had been in jail for about 5 years, half of the witnesses were yet to be examined, a
date was fixed for conclusion of the trial, on failure accused was to be released on
bail.95
Where in charge of murder, progress of the trial is slow, accused can be
enlarged on bail.96 Whenever the State opposes a bail application it has a
corresponding duty to ensure speedy trial and the Court shall also act
expeditiously.97 The paucity of time with the existing judicial machinery for not
trying the accused expeditiously, is no ground to refuse bail as it is against all
concept of human liberty and that in such circumstances the accused should not
be refused bail.98 The delay alone cannot be a cause for granting bail to an
90
91
92
93
94
95
96
97
98

Ram Kumar Vs. State of Rajasthan 2002 Cr. LJ 1923 (1926) (Raj.)
Rajendra Singh Vs. State of Rajasthan, 1998 Cr. LJ 2131 (Raj.) Ruldu Singh Vs. State of
Rajasthan, 1996 Cr. LJ 3176 (Raj.)
Ruldu Singh Vs. State of Rajasthan, 1996 CrLJ 3176 (Raj.)
Virsa Singh Vs. State, 1992 Cr. LJ 164 (Del.)
Darshan Singh Vs. State of Haryana 2004 Cr.LJ NOC 13 (P&H)
Gyan Prakash Vs. State of Rajasthan, 1991 Cr. LJ 1176 (Raj)
Mithun Vs. State of M. P. Cr.LJ 1100 (MP).
Munna Kamta Prasad Vs. State of M.P. 1986 (3) Crimes 429, 433 (MP).
Jagraj Singh Vs. State of U. P. 1991 (2) Crimes 728, 731 All.

265
accused.99 When the trial could not progress due to transfer of accused to another
jail the evil could be remedied by retransfer of accused instead of granting bail. 100
7.12 Bail Powers not to be Exercised in a Casual and Cavalier Fashion
The provisions of the Criminal Procedure Code confer discretionary
jurisdiction on criminal courts to grant bail to the accused pending trials or in
appeals against convictions. Since the jurisdiction is discretionary it is required to
be exercised with great care and caution by balancing valuable right of liberty of
an individual and the interest of the society in general. In granting or refusing the
bail, the courts are required to indicate, may be very briefly, the reasons for grant
or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier
fashion.101
Liberty of the individual is desirable, but also desirable is the need to
detect, investigate and prosecute these, guilty of any offence in the interest of the
public at large. Therefore, though the High Court or the Court of Session has got
enormous powers to give anticipatory bail for the entire period, such powers have
to be properly exercised either to grant absolute anticipatory bail or anticipatory
bail to the limited period or to dismiss the same following the guidelines as given
in the judgments of the Apex Court.102
7.13 Tests for the Exercise of Discretion to Grant Bail
For the exercise of the discretion to grant bail the universally approved
tests are whether, if released on bail the accused person is likely to abscond and
whether he is likely to misuse or abuse the privilege. If the answers to these
questions are in the negative, the accused shall have to be granted bail. If the
answer to either of these questions is the positive, bail shall have to be refused. In
examining the questions, the Court has to see the gravity of the charge, the nature
of the evidence available, the probability of the conviction and the likely sentence
99
100
101
102

Darshan Singh Vs. State of Punjab, 1987 (2) Crimes 223 (P&H).
Virsa Singh Vs. State through CBI, 1992 Cr.LJ 164: 1991 (1) Crimes 608; 1992 Cr.LJ
164 (Del).
Mansab Ali v. Irsan, (2003)1 SCC 632 at p. 633 : AIR 2003 SC 707 : 2003 SCC (Cri)
399.
Natturasu v. State, 1998 Cri LJ 1762 at p. 1780 (Mad.)

266

that may be awarded in the event of conviction and see whether these factors are
likely to induce the accused to flee away from the law or indulge in interfering
with the prosecution evidence. 103
7.14 Power under S. 439 is Wider than that Under s. 437
The powers of the High Court or the Court of Session under S. 439 of Cr.
P.C. are considerably wider than the powers of the Magistrate in S. 437 for the
reason that the limitation in S. 437 and the distinction drawn between nonbailable offences punishable with death or life imprisonment and other nonbailable offences with lesser penalty are non-existent in S. 439, nor is there the
condition that bail shall be refused if there appear reasonable grounds for
believing that the accused has committed an offence falling under the first
category. The discretion, therefore, in the 439 is wholly unfettered and is wide
enough to allow bail in any case even when charged with non-bailable offence of
a most serious character. The powers given in S. 439 are unfettered by any
limitation other then that which controls all discretionary powers vested in a
Court. Though the discretion is absolute the unfettered by restrictions of any kind,
like all discretionary powers, it has to be exercised judicially and on wellestablished principles. Therefore, though the discretionary power under S. 439 is
much wider than in S. 437(1) and is uncontrolled by the latter, the reasonable
limitations in S. 437 (1) which are founded upon a rule of prudence ought not,
ordinarily, to be departed from by the High Court or the Court of Session except
in special cases. The provisions of S. 437 (1) of the new Code (of 1973), like
those of S. 497(1) of the old Code (of 1898), do constitute one of the relevant one
of the relevant considerations amongst several others in the judicial exercise of
the powers of granting bail by the High Court or the Court of Session. 104
It is true that under S. 439 of the Code, the powers of High Court in the
matter of granting bail are very wide, even so where the offences alleged are nonbailable, relevant considerations have to be taken into account before deciding as

103
104

K. Narayanaswamy v. State of A.P., 1980 Cri LJ 588 at p. 591 (AP).


Sangappa v. State of Karnataka, 1978 Cri LJ 1367 at pp. 1370-71 (Kant).

267
to whether bail should be granted or refused in a non-bailable offence.105 The
High Court and the Court of Session have a wider discretion in granting bail even
in respect of offences punishable with death or imprisonment for life.106
Refusing bail in cases where the accused is concerned in serious offences
like murder and other offences punishable with death or imprisonment for life is a
rule for strict adherence only by the magistrates and not by the higher Court like
the Court of Session and the High Court. While S. 437, Cr. P.C. limits the
jurisdiction of the Magistrate in the case of offences punishable with death or
imprisonment for the except in the case of children, women, sick and infirm
persons, S. 439, Cr. P.C. does not prescribe any such limitation on the powers of
the Court of Session or the High Court. No doubt, even these higher Court cannot
grant bail indiscriminately or arbitrarily. The grant or refusal should be by proper
exercise of judicial discretion with reference to the facts and circumstances of
each case and it would be hazardous to lay down any hard and fast rule or
enumerate any particular kind of cases where bail should be or should not be
granted. In dealing with applications for bail the Court of Session or the High
Court will have to exercise judicial discretion in accordance with established
principles.107
Section 498 of Cr. P.C. (of 1898) [equivalent to S. 439 of Cr. P.C. of
1973)] deals with the three materials, namely (1) fixing the amount of bond; (2)
The power of the High Court and the Court of Session to admit any person to bail
in any case, whether there be an appeal on conviction or not; and (3) the power of
the High Court and the Court of Session to reduce the bail required by the police
officer or a Magistrate. It is true that Session 498 invests the Session Court and
High Court with wider power in the matter of granting or refusing bail. The power
there is not fettered by any of the conditions imposed in Section 497 of Cr. P. C.
(of 1898) [equivalent to S. 437 of Cr. P. C. of 1973]. The unfettered powers there

105
106
107

M.P. Ramesh v. State of Karnataka, 1991 Cri LJ 1298 at p. 1311 (Kant).


State of Orissa v. Md. Abdul Karim, 1984 Cri LJ 905 at p. 907 (ori) (1984) 57 Cut LT
281.
K. Narayanaswamy v. State of A.P., 1980 Cri LJ 588 at p. 591 (AP).

268

contemplated relate to the granting of bail in case, relating to offences punishable


with death or imprisonment for life, but it does not refer to anticipatory bail. 108
S. 498 of J & K Cr. P. C. (of 1989 Smvt.) [equivalent to S. 437 of Cr. P.
C. of 1973] empowers the High Court or the Court of Session in any case to
direct that any person be admitted to bail. No guidelines or limitations have
been given in S. 498 by itself. However, S. 498 immediately follows. Ss. 496 and
497 of that Code [ equivalent to S. 437 of Cr. P. C. of 1973] which are the main
provisions dealing with bail and therefore it is manifest that the restrictions and
limitations placed in Ss. 496 and 497 are implicitly contained in S. 498 also. The
expression may in any case occurring in S. 498 governs only the language
following namely whether there be an appeal on conviction or not and does not
confer any independent wider power in the Session Court or the High Court to
grant bail. The expression does not enlarge the power of the court in the matter of
grant of bail. The provision of S. 498 are not unrelated to the general tenor of S.
497 and the legislature did not intend to imply in that section that the restrictions
imposed by Ss. 496 and 497 could be ignored. 109
A perusal of Section 437 of Cr. P. C. reveals that 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, is brought
before a Court or appears before the Court, the Court may release him on bail but
he shall not be so released if there appears reasonable grounds for believing that
he has been guilty of an offence punishable with death or imprisonment for life.
The powers or the High Court or a Court of Session in enlarging a person on bail
are, however, in their amplitude as provided in Section 439 of Cr. P. C. 110
7.15 Considerations for Grant of Bail in Non-Bailable Offence
The overriding considerations in granting bail which are common both in
the case of S. 437(1) and 439(1) Cr. P. C. of the new code are the nature and
gravity of the circumstances in which the offence is committed; the position and
108
109
110

Varkey Paily Madathikudiyail Pulinthanam v. State of Kerala, 1967 Cri LJ 1152.


Kali Dass v. Kalicharan, 1977 Cri LJ 486 at p. 490 (Del).
Sant Ram v. Kalicharan, 1977 Cri LJ 486 at p. 490 (Del).

269

the status of the accused with reference to the victim and the witnesses. The
likelihood, of the accused fleeing from justice, of repeating the offence, of
jeopardizing his own life being faced with a grim prospect of possible conviction
in the case, of tampering with witnesses; the history of the case as well as of its
investigation and other relevant grounds which, in view of so many variable
factors, cannot be exhaustively set out. 111
It is necessary for the courts dealing with application for bail to consider
among other circumstances, the following factors also before granting bail, they
are:112
(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 compliant.
(c) Prime facie satisfaction of the court in support of the charge.
In Jayendra Saraswathi Swamigal v. State of T.N.,113 it was submitted on
behalf of the respondent that the prohibition contained in Section 437(1)(i) Cr. P.
C. that the class of person mentioned therein shall not be released on bail, if there
appears to be a reasonable ground for believing that such person is guilty of an
offence punishable with death or imprisonment for life, is also applicable to the
courts entertaining a bail petition under Section 439 Cr. P. C. In support of this
submission, strong reliance was placed on the decision of the Supreme Court in
Kalyan Chandra Sakrar v. Rajesh Ranjan.114 Relying upon some other decided
cases,115 the Supreme Court observed that the considerations which normally
weigh with the court in granting bail in non-bailable offences, basically, are the
nature and seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused ; a reasonable possibility of the
presence of the accused not being secured at the trial; reasonable apprehension of
111
112
113
114
115

Gurcharan Singh v. State (Delhi Admn.), AIR 1987 SC 179 at p. 186.


State of Maharashtra v. Sitaram Papat Vetal, (2004)7 SCC521.
(2005)2 SCC 13 at pp. 21-22 : AIR 2005 SC 716 : 2005 Cri LJ.
(2004)7 SCC 528 : AIR 2004 SC 1866 : 2004 Cri LJ 1796 : 2004 SCC (Cri) 1977.
See, State v. Capt. Jagjit Singh, AIR SC 253.

270

witnesses being tempered with; the larger interest of the public or the State and
other similar factors which may be relevant in the facts and circumstances of the
case. The Supreme Court also clarified that the aforesaid case of Kalyan Chandra
Sarkar v. Rajesh Ranjan was decided on its own peculiar facts where the accused
had earlier made seven applications for bail before the High Court, all of which
were rejected except the fifth one which order was also set aside in appeal before
the Supreme Court; the eighth bail application of the accused was granted by the
High Court which order was the subject-matter of challenge before the Supreme
Court. The Supreme Court further clarified that the observations made in the
aforesaid Kalyan Chandra Sarkar v. Rajesh Ranjan case cannot have general
application so as to apply in every case including the instant case wherein the
Supreme Court was hearing the matter for the first time.
It is trite that among other considerations which the Court has to take into
account in deciding whether bail should be granted in a non-bailable offence is
the nature and gravity of the offence. 116 The considerations which normally weigh
with the court in granting bail in non-bailable offences, basically, are- the nature
and seriousness of the offence; the character of the evidence; circumstances which
are peculiar to the accused; a reasonable possibility of the presence of the accused
not being sec at the trial; reasonable apprehension of witnesses being tampered
with; the larger interest of the public or the State and other similar factors which
may be relevant in the facts and circumstances of the case. 117
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 the grant or refusal of bail. 118 One of the
considerations for granting bail in a non-bailable offence must be the gravity and
the nature of the offence.119

116
117
118
119

State of Maharashtra v. Ramesh Taurani, AIR 1998 SC 586 at p. 587.


State of Gujarat v. Sakinbhai Abdukgaffar /Shaikh,(2003)8 SCC 50 at p.56.
State of Orissa v. Rajendra Parsand Bharadia, (1994)5 SCC 146 at p. 151.
State v. Eslian, (2006)9 SCC 785 at p. 785 : (2006)3 Scc (Cri) 399.

271

The considerations which normally weigh with the court in granting bail
in non-bailable offences, basically, are-the nature and seriousness of the offence;
the character of the evidence; circumstances which are peculiar to the accused; a
reasonable possibility of the presence of the accused not being secured at the trial;
reasonable apprehension of witnesses being tampered with; the larger interest of
the public or the State and other similar factors which may be relevant in the facts
and circumstances of the case. 120 The Court before granting bail in cases
involving non-bailable offences, particularly where the trail has not yet
commenced, should take into consideration various matters such as the nature and
seriousness of the offence, the character of the evidence, circumstances which are
peculiar to the accused, a reasonable possibility of the presence of the accused not
being secured at the trial, reasonable apprehension of witnesses being tampered
with, the lager interests of the public or the State and similar other
considerations.121
Certain relevant considerations for grant of bail, though only illustrative
and no exhaustive-neither there can be any, are as under.122
(i)

While granting bail the Court has to keep in mind not only the nature of
the accusations, but the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in support of the
accusations.

(ii)

Reasonable apprehension of the witnesses being tampered with or the


apprehension of there being a threat for the complainant should also weigh
with the Court in the matter of grant of bail.

(iii)

While it is not expected to have the entire evidence establishing the guilt
of the accused beyond reasonable doubt but there ought always to be a
prime facie satisfaction of the Court in support of the charge.

(iv)

Frivolity in prosecution should always be considered and it is only the


element of genuineness that shall have to be considered in the matter o

120
121
122

State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003)8 SCC 50 at p. 56.


State v. Jaspal Singh Gill, AIR 1984 SC 1503 at p. 1505.
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002)3 SCC
598 : 2002 SCC (Cri)688.

272

grant of bail and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the
accused is entitled to an order of bail.
While granting bail the court has to consider the nature and gravity of the
circumstances in which the offence is committed; the position and status of the
accused with reference to the victim and witnesses; the likelihood of the accused
fleeing from justice, of repeating the offence, of jeopardizing his own life being
faced with the grim prospect of the possible conviction in the case, of tampering
with a witness; the history of the case as well as of its investigation and other
relevant grounds.123
Among other considerations, which a court has to take into account in
deciding whether bail should be granted in a non-bailable offence, is the nature of
the offence; and if 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 S. 498 of the Code of Criminal Procedure(of 1898). 124
It cannot be stated that the power of the High Court is unfettered and even
if no additional grounds are made out, bail should be granted as a routine. Had it
been so every accused instead of going to the Magistrate for grant of bail would
come straight to the Sessions Court or the High Court. That would rather render S.
437 Cr. P. C. defunct, at any rate, in most of the cases leaving those in which the
accused is infirm, a minor or a woman. That could not be the intention of the
Legislature.125
When bail is granted the court has to ensure that the accused would not
abscond and/or that he would not tamper with the evidence or witnesses. In the
instant case, the High Court did not apply its mind to this aspect at all; it did
advert to these matters and made no provisions in respect thereof. 126
The grant of bail is a rule and its refusal is an exception but while granting
bail the Court has to be satisfied that in a given case its grant is necessary in the
123
124
125
126

Pranchanan Mishra v. Digambar Mishra, (2005)3 SCC 143 at p. 148.


State v. Capt. Jagjit Singh, AIR 1962 SC 253 at p. 255.
M. P. Jayaraj v. State of Karnataka, 1977 Cri LJ 1724 at pp. 1724-25(Kant).
State of T. N. v. R.R. Gopal, (2003)12 SCC 237 at p. 241.

273

interest of justice. The basic question which must be present to the mind of the
Court while considering the question of bail is whether the grant of bail would
thwart the course of justice or would it further the course of justice. There cannot
indeed by any inflexible rule governing the grant of bail. Each case has to be
decided on its own facts. However, certain guidelines have been formulated by
the Court from time to time, which the Courts generally take into consideration
while considering the question of grant of refusal of bail. While considering the
question of grant or refusal of bail; the Court generally take into consideration:
(i)

the nature of the charge;

(ii)

the nature of the accusation;

(iii)

the nature of evidence in support of the accusation;

(iv)

the severity of the punishment to which the accused may be subjected;

(v)

the danger of the accused abusing the concession of bail by way of


absconding or tempering with the evidence;

(vi)

health, age and sex of the accused;

(vii)

the social position or status of the accused and complainant party; and last
but not the least;

(viii) whether the grant of bail would thwart the course of justice.
While the discretion of a court functioning under S. 437 of Cr. P.C. is
necessarily limited by the provision of the section, the considerations which
weigh with a court dealing with an application for bail under S. 439(1) of Cr. P.C.
would be many. It may not be possible to exhaust the different factors that may be
of relevance in assessing the question whether bail could be granted in a given
case. These may vary form case to case. Even the weight of the several factors
which are usually taken into account for determining whether bail should be
granted or not must vary form case to case. The nature and gravity of
circumstances in which the offence is committed, the position and status of the
accused with reference to the victim and the witnesses, the likelihood of the
accused fleeing from justice, of repeating the offence, of jeopardizing his own life
being faced with the grim prospect of possible conviction in the case and of

274

tampering with the witnesses are matters which have nexus to the consideration of
the bail application.127
While disposing of the bail applications, the Courts are supposed to be
guided prima facie by the allegations of the prosecution and need not and
invariably should not enter into defences which might be taken by the accused
unless those defences can throw a light about the genuineness or otherwise of the
allegations of the prosecution. If the above principles of law are kept in view
while disposing of the bail applications the scope of committing an error on the
part of the subordinate Courts becomes too remote. 128
While considering the bail applications, the Court should mainly consider
two aspects, the seriousness of the offence and the interest of the society at
large.129 The two paramount considerations viz., likelihood of the accused fleeing
from justice and his tampering with prosecution evidence relating to ensuring a
fair trial of the case in a Court of justice are relevant for grant of bail. It is
essential that due and proper weight should be bestowed on these two grounds
upon other factors. The Court shall take into consideration the important
circumstance to consider the application for bail whether accused will flee from
justice or tamper with the prosecution evidence in the event of bail. These are the
two important ingredients which are holding the field of granting bail even
today.130
7.16 Principles for Granting Bail
In State of Rajasthan v. Balchand,131 which related to a case of an appeal
filed in the Supreme Court against an acquittal order passed by the High Court,
the Supreme Court, speaking through KRISHNA IYER, J., laid down the
principle for bail by holding that the basic rule could perhaps be tersely put as
bail, not jail, except where there are circumstances suggestive of fleeing from
127
128
129
130
131

Unthaman v. State of Kerala, 1983 Cri LJ 74 at p. 76 (Ker) (FB).


Ramesh v. State of Haryana, 1997 Cri LJ 2848 at p. 2852 (P & H).
Livarsing Tejsing v. State of Gujarat, 2004 Cri LJ 465 at p. 467 (Guj).
M. Krishnappa v. State of Karnataka, 1992 Cri LJ 2648 at p. 2651 (Kant).
(1977)4 SCC 308 at pp. 308-9 : AIR 1977 SC 2447 : 1978 Cri LJ 195 : 1977 SC (Cri)
594. See also, E. Joseph v. Assistant Collector of Customs, Tuticorin, 1982 Cri LJ 559 at
p. 560 (Mad) : 1984 (15) ELT 84.

275

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 accused who
seeks enlargement on bail from the Court. The Supreme Court clarified that this
list was not exhaustive but only illustrative. It was further held that the gravity of
the offence involved, which is likely to induce the accused to avoid the course of
justice, must also weigh with the Court when considering the question of jail, and
likewise the heinousness of the crime should also be taken into account. While
granting bail to the accused in the instant case, it was further observed that any
possibility of the absconsion or evasion or other abuse could be taken care of by a
direction that the accused would report to the police station once every fortnight.
The overriding considerations in granting bail which are common both in
Section 437(1) and 439(2), Cr. P.C. are the nature and gravity of the
circumstances in which the offence has been committed, position and status of the
accused with reference to the victim and the witnesses, likelihood of the accused
fleeing from justice and tampering with witnesses etc. No list of exhaustive
grounds can be set out. Facts differ from case to case. 132
7.17 Considerations for Grant of Bail Under S. 439
It is true that under S. 498 of the Code of Criminal Procedure (of 1898)
[equivalent to S. 439 of Cr. P.C. of 1973] the powers of the High Court in the
matter of granting bail are very wide; even so where the offence is non-bailable,
before bail is granted in such non-bailable offence, various considerations have to
be taken into account, such as, nature and seriousness of the offence, the character
of the evidence, circumstances which are peculiar to the accused, a reasonable
possibility of the presence of the accused not being secured at the trial, reasonable
apprehension of witnesses being tampered with, the larger interests of the public
or the State, and similar other considerations which arise when a court is asked for
bail in a non-bailable offence.133
While considering the application for bail under S. 439, Cr. P.C., it is
necessary to take into consideration the two basic considerations. The first
132
133

Chandrawati v. State of U.P., 1992 Cri LJ 3634 at p. 3635 (All).


State v. Capt. Jagjit Singh, AIR 1962 SC 253 at p. 255 : (1962)1 Cri LJ 215 (1962).

276

consideration is whether the accused would take up the trial without hampering it
and the second is whether he would subject himself to the verdict of the Court.
The Court must also consider other factors, such as the serious nature of the crime
alleged to have been committed and the gravity of the circumstances under which
such an offence is alleged to have been committed; the position and the status of
the accused with reference to the victim and the witnesses; of repeating the
offences; of jeopardizing his own life being freed with a grim prospect of possible
conviction in the case and other relevant grounds. 134
The approach of the Court in considering an application for bail either
under Section 438 or Section 439 of the Code is to take into consideration the
twin aspects of concern for personal liberty of the individual and protect of
process of investigation and public interest. 135
The considerations which weigh with the Courts while granting bail either
under S. 438 or S. 439, Cr. P.C. are:136
(i)

The nature and gravity of the circumstances in which the offence is


committed;

(ii)

The position and the status of the accused with reference to the victim
and the witnesses;

(iii)

The likelihood of the accused fleeing from justice;

(iv)

The likelihood of the accused of repeating the offence;

(v)

The likelihood of the accused of jeopardizing his own life being faced
with a grim prospect of possible conviction in the case;

(vi)

The likelihood of the accused of tampering with witnesses;

(vii)

The history of the case as well as of his investigation; and

(viii) Other relevant grounds which may apply to the facts and
circumstances of a particular case.
For granting bail under Section 439, Cr. P.C., when the investigation or trial is
pending, following relevant considerations can be summed up, and these
134
135
136

A. Prasad v. State of Karnataka, 1982 Cri LJ 542 at p. 548 (Kant).


Surendra Kumar v. State of M.P., 1995 Cri LJ 1517 at p. 1519 (MP).
Sajjan Kumar v. State, 1991 Cri LJ 645 at p. 653 (Del).

277

considerations/guidelines

are not exhaustive and there may be other

considerations as well which may emerge from the facts and circumstances on
record of each case:137
(i)

The enormity of the charge or nature of the accusation;

(ii)

The severity of punishment which a conviction would entail;

(iii)

Nature of evidence in support of accusation;

(iv)

The danger of applicants absconding if he is released on bail;

(v)

The danger of witnesses for the prosecution being tampered with;

(vi)

The protracted nature of the trial;

(vii)

The period of detention of the accused;

(viii) Character, means and standing of the applicant;


(ix)

Previous conduct and behaviour of the accused in the Court;

(x)

Health, age and sex of the accused;

(xi)

Opportunity to the accused for preparation of defence and access to


counsel; and

(xii)

Danger of repetition of crime.

7.18 Factors to be Considered for Grant of Bail


It is also necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they are:138

The nature of accusation and the severity of punishment in case of


conviction and the nature of supporting evidence.

Reasonable apprehension of tampering with the witness or apprehension


of threat to the complaint.

Prima facie satisfaction of the court in support of the charge.


At the time of grant of bail, the Court is duty-bound to consider all the

statements recorded under Section 161 Cr. P.C., examine the gravity of the
137
138

Romesh Chandra v. State of H.P., 2002 Cri LJ 1031 at pp. 1032-33 (HP).
Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004)7 SCC 528 at pp. 535-36.

278

offence and also examine the question of possibility of the accused tampering
with the evidence and possibility of getting the attendance of the accused during
trial and then would be entitled to grant bail to an accused. 139
The graver the offence the heavier the punishment. A person having
reason to believe that a very severe punishment is likely to be imposed on him
may have an incentive to jump bail unlike a person who has been accused of a
crime, the punishment for which may not be heavy or a person who may think
that there may not be any likelihood of punishment however serious the charge
may be. One of the main factors which should deter the court from granting bail,
particularly in a case where a person is accused of an offence punishable with
death or life imprisonment is the prospect of his fleeing form justice, forfeiting the
bail bond. This is particularly so when the accused has been convicted and the
bail is moved pending the appeal. The question of tampering with the evidence
may not arise at that stage. It would be too much of a gamble to order bail as a
matter of course in a case where a person has been convicted of an offence
punishable with life imprisonment unless it be that regard being had to various
factors the court feels that the accused is not likely to flee from justice. 140
7.19 Bail Court not to Functions as Trial Court
A Court cannot conduct a mini trial at the time of considering a bail
application.141 At the stage of granting of bail, the Court can only go into the
question of the prima facie case established for granting bail. It cannot go into the
question of credibility and reliability of the witnesses put up by the prosecution.
The question of credibility and reliability of prosecution witnesses can only be
tested during the trial.142 The Court is not expected to go deep into the probative
139
140
141
142

Salim Khan v. Sanjai Singh, (2002)9 SCC 670 at p. 671.


Uthaman v. State of Kerala, 1983 Cri LJ 74 at pp. 76-77 (Ker) (FB).
Gharban Ali v. Intelligence Officer, AIR Intelligence Unit, NIPT, 1996 Cri LJ 2420 at p.
2422 (Bom).
Satisfh Jaggi v. State of Chhattisgarh, 2007 Cri LJ 2766 at p. 2768 : (2007)11 SCC 195:
(2007)56 AIC 202 (SC).

279

value of the material on record in bail matters. This is to be considered and taken
into account by the Trial Court at appropriate stage after evidence. 143
In a case relating to allegation of torture of wife, it was contended that
presumption under Section 113(b) of the Evidence Act is rebuttable and the
presumption existing in this case should have been considered at the time of
disposal of the bail petition. However, rejecting this contention, it was held that if
considering the evidence of all the witnesses available on record the bail Court
holds that the presumption has been rebutted then in fact the bail Court works as
the trial Court, which is not the business of the bail Court. 144
The Court while granting bail under Section 439 of the Code cannot go
into the details of evidence to find out whether the evidence will be sufficient in
establishing the guilt of the accused beyond reasonable doubt it being not relevant
consideration at such stage to ascertain the probability or improbability of the
prosecution case terminating in the conviction of the accused or not. While
deciding a bail application it is not desirable to dissect or pronounce on the
evidence otherwise in resorting to such a procedure the Court would be exceeding
the limits of its functions. The probability of the guilt or innocence of the accused
persons is not a relevant consideration while dealing with bail applications as the
question to determine is whether the prosecution will be able to produce prima
facie evidence in support of the charge and not evidence establishing the guilt of
the accused persons beyond a reasonable doubt. 145
7.20 Hearing Both Parties in Bail Matter is Essential
Hearing of both the parties at the stage of bail is almost an essentiality. By
granting an easy bail, or for that matter, interim bail, indirectly the State is
condemned. Therefore, State has a right to be heard in all cases, like bail, unless
in some exceptional cases, in which the court considers it proper to exempt itself
from this obligation. It was held that in the instant case, the Session Judge had not
mentioned any reason or exceptional circumstances which impelled him to pass
143
144
145

Foja Singh v. State, 2004 Cri LJ 4375 at p. 4377 (J & K).


Dronendu Jha v. State of Jharkhand, 2004 Cri LJ 2950 at p. 2952 (Jhar).
Sant Ram v. Kalicharan, 1977 Cri LJ 486 at p. 491 (Del).

280

the order for short term bail without hearing the counsel for the State; there was
not even a faint suggestion as to what were the compelling circumstances which
necessitated the grant of short term bail then and there. Normally in the heinous
crime bail applications are not taken up on the same day by the Sessions Judge as
reasonable opportunity is required to be afforded to the prosecution in view of the
proviso to sub-section (1) of Section 439 of the Code of Criminal Procedure; if
the hearing of the counsel for the State, in opposition, is to be dispensed with, the
court is required to record the reasons in writing for adopting such a course. 146
7.21 Second Application for Bail
Successive bail applications do lie. An order refusing an application for
bail does not necessarily preclude another. There being some new facts, the third
bail application was allowed. When an earlier bail application was rejected and a
second application is moved, it must be shown, in order to be released on bail,
that circumstances have changed after the rejection of the earlier application. The
convention that a fresh application for bail should be posted before the same
Judge who earlier dismissed an application for the same purpose is to be
followed.147 (See also Notes under Section 437). When the High Court has
rejected an earlier bail application, the trial court should not later grant bail unless
there are changes in the circumstances. 148 That documents under section 207 were
not supplied at the time of committing the accused for trial under Section 209 and
therefore the order of committal was bad and consequently the accused must be
released on bail, was rejected. Held, failure to supply the documents was only an
irregularity and not an illegality. 149
When the accused was brought before the High Court on 21.9.1983, the
application for bail under section 439 was in the office. It is a different matter that
under some misunderstanding the accused was not taken into custody on

146
147
148
149

Sudhindra Kumar Singh v. District and Sessions Judge, Allahabad, 1998 Cri LJ 1042 at
pp. 1044-45 (All).
State of Maharashtra Vs. Buddhikota Subha Rao, AIR 1989 SC 2292; Arvind Kumar
Jasram Gupta Vs. State of Gujarat (1990) 1 Guj LR 623
H.C. Gaur Vs. Rakesh Vij (1990) 40 Del. LT 346; 1990 Cr.LJ 1586 (Del)
Mushtaque Ahmed Vs. State of U.P (1984) 1 Crimes 70 (All.)

281

21.9.1983 but it does not mean that the application which was moved on
21.9.1983 along with the accused in the Court cannot be considered on this
account that the accused was sent to judicial custody on 22.9.1983 and only a
fresh application for bail was required. The preliminary objection raised by the
Government Advocate was over-ruled.150
7.22 Jurisdiction of Sessions Court to Release on Bail Person Convicted by
itself Pending Appeal
Where a Sessions Judge, after convicting the accused, released them on
bail pending their appeal to the High Court, it was held that he had no jurisdiction
to do so, in spite of the use of the words any person in this section. The High
Court can do so, but not the convicting Court itself. The latter Court has given its
final opinion that the accused is guilty and deserves imprisonment. It cannot then,
consistently with the principle of finality indicated in Queen Empress Vs. C. P.
Fox,151 vary its own order by admitting the convicts to bail. The word any in the
section must be read, subject to the limitation that is implied in that principle. The
section indicates generally the powers of a Sessions Judge to release on bail all
prisoners, who, he thinks may be found to have been wrongly convicted, and
whose case he can either deal with himself or has power to refer to the High
Court. The section does not give him power in any way to alter or vary his own
order.152
But now it is well settled that the matter of granting bail to convicted
persons is governed by section 389 and not by this section. As to rulings under the
earlier Code, where the language employed was any accused person, see the
following decisions.153
Sub-section (3) of Section 389 empowers the Courts to grant bail even in
the case in which the accused has been convicted by them.

150
151
152
153

Balmukand Vs. State (1983) 2 Crimes 708 at 709 (Raj.); D. Danda @ Dandapani Vs.
State of Orissa (1984) 57 Cut. LT 394 at 397.
ILR 10 Bom. 176 (F.B.)
King-Emperor Vs. Basappa, 4 Bom. LR 55; see also Diwan Chand Vs. King Emperor,
15 PR 1908.
Queen Vs Thakur Prashad, ILR 1 All 151 (FB). Queen Vs. Kanta Sahu 23 WR 40

282

7.23 Cancellation of Bail: Sub-Section (2)


Prior to insertion of this sub-section by Act 26 of 1955 in the 1898 Code
doubts were expressed whether a

person who has been admitted to bail could

be caused to be arrested except in exercise of the inherent powers of the High


Court. It is to remove these doubts that this sub-section is so inserted.154
According to the accepted principles under the old Code, the High Court is not
devoid of any jurisdiction to deny bail to a person granted bail under the old
Code, if he is not facilitating proper conduct of the case before the Court. Subsection (2) of Section 498 of the old Code, therefore, authorized the sessions
Court or the High Court to arrest a person admitted to bail. It is practically like
Section 439 (2) of the new Code.155
The considerations for cancellation of bail are slightly different from those
for granting bail. Once an order for bail is passed, law immediately puts a
protective ring around it, so that it will not the cancelled without giving an
opportunity to the person for whose benefit it was made. Thus, an accused person
may be released on bail, or on his own bond or recognizance, or on deposit of
cash or Government Promissory Note in lieu of execution of a bond. In all these
cases there is the obligation of the accused to make himself available for trial.
Whether the Court will be satisfied with one or the other will depend upon the
facts and circumstances of the case and if the court is so satisfied it cannot be said
to have acted without jurisdiction. The cash deposit system is equally efficacious
as the other systems. Bail is not indirect way of punishment for an offence. While
canceling the bail more emphasis was given on the gravity of the offence.
In the instant case, the cash deposit system having been accepted by the
court, there was no reason for it to have changed its mind, and to that extent it
cannot be said that setting aside of the cash bail was legal. 156 This sub-section
confers upon the High Court or Sessions Court power to cancel bail granted under

154
155
156

See Report of the Joint Committee, para 43


Sukar Narayan Bakhia Vs. Rajnikant R. Shah, 1982 Cr. LJ 2148 at 2155: (1982) 23 Guj.
L.R. 317 (Guj.)
Gokul Das Vs. State of Assam, 1981 Cr. lJ 229 at 231, 232 (Gauh)

283
this Chapter.157 No fetter is put on the powers of the Sessions Court to cancel a
bail order by the statutory language employed in the section. The Sessions Judge
patently erred in taking the view that unless there are some new circumstances
taking place subsequent to the offender being released on bail, then only, the
Sessions Court can direct the arrest of the offender and to commit him to custody.
To read sub-section (2) of Section 439 of the new Cr. P.C. in such a manner
would be an obvious and perverse reading of the section, and such a reading of
the section would result into grave and patent miscarriage of justice. 158
It has, however, been recently held by the Supreme Court that under
Section 482 the High Court has inherent power to cancel the bail granted to a
person accused of a bailable offence and, in a proper case, such power can be
exercised in the interests of justice. Where a person is committed to custody under
such an order, it would not be open to him to fallback upon his rights under
Section 436, for that section would in such circumstances be inapplicable to his
case. The inherent power conferred on High Courts under Section 482 has to be
exercised sparingly, carefully and with caution and only where such exercise is
justified by the tests specifically laid down in the section itself. 159
While considering the question of grant or refusal of bail, the courts
generally take into consideration the nature of the accusation, the severity of the
punishment to which the accused may be subject, the danger of the accused
abusing the concession of bail, by way of absconding or tampering with the
evidence, and the nature of the offence and the character of the offender among
other grounds.160
Very cogent and overwhelming circumstances are necessary for an order
seeking cancellation of the bail. And the trend today is towards granting bail
because it is now well-settled by a catena of decisions of the Supreme Court that
the power to grant bail is not to be exercised as if the punishment before trial is
157
158
159
160

Talab Haji Hussain Vs. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at 379, 381
State of Gujarat Vs. Hirasing Kesarising Solanki, 1977 Cr.LJ 104 at 106 (Guj.): 1976
Guj.LR. 844
Pampapathy Vs. State of Mysore, AIR 1867 SC 286: 1967 Cr.LJ 287.
Ashok Kumar Binny Vs. State, 1982 Kash. LJ 363 at 367, 368.

284

being imposed. The only material considerations in such a situation are whether
the accused would be readily available for his trial and whether he is likely to
abuse the discretion granted in his favour by tampering with evidence.
If there is no prima facie case there is no question of considering other
circumstances. But even where 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. 161
When the accused have been let off or enlarged on bail, courts have to be
careful and cautious in exercising power of taking back the accused in custody
unless there is a reasonable apprehension that the accused would interfere and
pollute justice which warrants the cancellation of bail.162
The Court has no strike a balance between to necessities, namely,
necessity of not allowing the course of justice to be deflected and that of
allowing liberty to the accused until he is found guilty. 163
Under Section 438 (1), the High Court or the Court of Session may, even
in the case of persons accused of bailable offences, admit such accused person to
bail or reduce the amount of bail demanded by the prescribed authorities under
Section 436. With regard to a class of cases of bailable offences falling under
Section 439 (1), even after the accused persons are admitted to bail, express
power has been conferred on the High Court or the Court of Session to arrest
them and commit them to custody. Clearly then it cannot be said that the right
of a person accused of a bailable offence to be released on bail cannot be forfeited
even if his conduct subsequent to the grant of bail is found to be prejudicial to a
fair trial.164
161
162
163
164

Bhagirathsinh Judeja Vs. State of Gujarat, AIR 1984 SC 372 at 373, 374; 1984 CrLJ
160; Kishan Lal Vs. State of Rajasthan, 1982 Raj.LW 415 at 418.
State Vs. Veerapandy, 1979 Cr. LJ 455 at 457 (Mad).
Khagendra Nath Bayan Vs. State of Assam, 1982 Cr.LJ 2109 at 2111: 1982 Gauh. LR
706 (Gauh.)
Talab Haji Hussain Vs. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at 380, 1958
Cr.LJ 701.

285

Section 439 is obviously intended to be invoked for cancellation of bails in


cases where the accused after his release on bail misuses his liberty or where his
re-arrest is considered necessary for akin reasons. In case this provision can be
invoked to set aside a lawful order passed under Section 167 (2) of the Code
directing the release of an accused person on bail, it would certainly amount to
complete frustration of the provisions of Section 167 (2) of the Code. A legal
order passed in compliance with the mandatory provisions of Section 167 (2) of
the Code would in this manner be made non est by invoking the powers conferred
on a High Court or Court of Session under Section 439 (2) of the Code. Bail
granted under the proviso to Section 167 (2) (a) by the Magistrate, cannot be
cancelled by him while committing the accused to the Court of Session for trial.
Such bail can be canceled only by invoking Section 437 (5). 165
The order of Sessions Judge granting bail which was a nullity cannot
subsist in the eyes of law and the Sessions Judge, Manipur, had complete
jurisdiction over the matter to entertain application for cancellation of bail. 166 It is
not correct to say that the Sessions Judge ought not to have entertained the
application filed by the prosecution under Section 439 (2), Cr.P.C. in so far as the
same relief could have been sought for under sub-section (5) of Section 437,
Cr.P.C. before the trial Magistrate. No doubt, it is a general rule of practice that
when the jurisdiction in regard to a particular matter is concurrently exercisable
by more Courts than one, the party should first approach the court of the lowest
jurisdiction. It is, however, well settled that in special circumstances, the party can
first approach even the Court of the higher jurisdiction and there is no legal bar
for such approach. In the instant case, the respondent has given satisfactory reason
for approaching the Sessions Court instead of the Court of the trial Magistrate. 167
Bail will not be cancelled merely because the order granting bail was not
proper or justified. Cancellation of bail will, on ultimate analysis, depend on
several other considerations, including the grounds of expediency, balance of
165
166
167

Walaiti Lal Vs. U.T. of Chandigarh, 1987 C.C.Cases 163 (P&H)


Ranveer Singh Vs. Desh Raj Singh Chauhan, 1983 All.LJ 1051 at 1055; 1983 All. Cr.R.
294.
Thakur Vs. Hariprasad Vs. State of A.P. 1977 Cr.LJ 471 at 475 (AP).

286
convenience and of justice. 168 Bail should not also be cancelled if there is not
even an affidavit in support of the allegations made. 169 When a bail is sought to be
cancelled, it could be done after calling upon the accused to show cause against
the proposal to cancel the bail.170 A Magistrate while committing the accused to
Sessions has no jurisdiction to cancel the bail already granted to them by the
Court of Session.171 An application for cancellation of bail bond should normally
be made to the Court of Session in the first instance. 172
Where a Court does not intend to order the accused to be arrested, Section
439 (2) does not apply.173 When an application is taken up under Section 439 (2),
the Court has to decide it on the facts and circumstances existing on the date it
disposes of that application.174 Once bail has been granted by the High Court
under Section 438 or Section 439, the trial Court cannot cancel that bail. It can
only recommend to the High Court for cancellation of bail. 175
The Sessions Judge did not get an endorsement made on the bail
application that a bail application is not pending in any other Court and granted
bail. In fact an application for bail was pending before the High Court. Bail was
cancelled and the accused was directed, if he so desired, to move a fresh bail
application.176 In the following cases177 the High Court refused to cancel the bail.
7.24 Application for Cancellation Can be Made by A Private Person:
An application for cancellation of bail can be moved even by a private
person. A relation of the deceased person can move an application for cancellation
of bail.178
168
169
170
171
172
173
174
175
176
177

178

Superintendent and Remembrances of Legal Affairs Vs. Amiya Kumar Roy Choudhury,
78, CWN 320.
Khaliq War Vs. State, 1974 Cr.LJ 526 (J&K).
Mangi Ram Vs. State of Bihar, 1979 BLJ 493.
Ramkrishan Vs. State, 1961 Raj. LW 146.
Public Prosecutor, Andhra Pradesh Vs. Rama, 1960 Audh.LJ 271.
State of Bihar Vs. Lok Nath, 1978 BLJR 101.
Nilamani Satpathy Vs. Jayashankar Bhoi, 1976 Cut.LT 165.
Lalla Ram Vs. State of M.P. 1988 Cr. LR (MP) (N) 142.
State through Smt. Malti Gaur Vs. State of U.P. 1990 Cr. LJ 1894 (All.)
Kewal Krishan Bajaj Vs. State of Haryana (1990), 3 Crimes 286 (P&H); Chhotelal Vs.
Ganpat Singh Dhurvey, 1990 Cr. LR (MP) 28; Surendra Singh Vs. State of Bihar, 1990
Cr.LJ 1904 (Pat); State of Maharashtra Vs. Arun Gulab Gawali, 1990 Cr.LJ 2171 (Bom.)
Jagram Vs. Ghamandi (1980) 5 Raj. Cr.C.364; Vijaya Kumar Vs. State of Haryana, 1981
Cr.LJ 838 (PH): 1981 Cr.LT 110 (P&H).

287

The widow of the deceased refused to accept the interim compensation


ordered by

the

Court.

The

application for cancellation by the private

person was rejected.179 There were no grounds to cancel the bail granted to the
accused, in an application moved by the private party. 180 Third parties including
the complainant in a police case have no right o intervene and oppose a bail
application moved by an accused.160
7.25 Cancellation of Bail by the Sessions Judge
The Court of Session has the power to cancel bail and order that the
accused on bail be rearrested and committed to custody. It is not necessary that
for the cancellation of bail some new circumstances must have taken place
subsequent to the offender being released on bail. 162
The cancellation of bail by the Sessions Judge on the ground that the
Magistrate could not have granted bail [as the proviso to sub-section (1) of
Section 437 did not apply] was upheld by the High Cout. 163 The Sessions Judge
has power to cancel the bail granted under Chapter XXXIII of the Cr. P.C. But he
has no power to cancel the bail granted under Rule 184 of the Defence of India
Rules.164
7.26 Anticipatory Bail also can be Cancelled
The High Court as well as the Court of Sessions has the power to cancel
anticipatory bail granted under Section 438, as under Section 439 (2) each of them
has been given power to cancel the bail given under this chapter. 181
Anticipatory bail granted by the Sessions Judge under Section 438 was cancelled
by the High Court.182 A fresh application for cancellation of anticipatory bail was
rejected as there were no fresh materials for canceling it.183

179
180
181
182
183

Ramrati vs. Ram Kishan (1984) 1 Crimes 1022 (Delhi).


Rajinder Parshad Vs Mahesh (1984) 1 Crimes 1024 (Delhi).
State of Maharashtra Vs. Vishwas S. Patil, 1978 Mah. LJ 746; 1978 Cr. LJ 1403: 80
Bom. LR 472.
State of Punjab Vs. Baldev Singh, 1981 Chand. Cr. C. 116 (P&H); Jai Ram Tewati Vs.
State of Bihar, 1986 BLJR 222.
State of Maharashtra Vs. Anil Baloba, 1982 Cr. LR (Mah) 179. 1983 Cr. LJ 1308 (Bom).
State of Orissa Vs. Babaji Nayak, 1989 Cr.LJ (NOC) 23 (Ori.)

288

7.27 Sessions Judge has no Power to Suspend the Bail Order Passed by the
Magistrate
There is no power in the Sessions Court under Section 439 to make an
interim order of cancellation of bail. The order which stays of suspends the
operation of the order of the Magistrate granting bail has the effect of temporary
cancellation of bail. Where bail is obtained by fraud, misrepresentation, etc. only
the High Court has the power to suspend that order under Section 482. 184
7.28 Revision Against Order Cancelling Bail
Revision application against an order canceling bail does not lie. 185 When
the prosecution has succeeded in proving its case that the respondent has
tampered with its witnesses and that there is a reasonable apprehension that he
will continue to indulge in that course of conduct if he is allowed to remain at
large, the evidence points in one direction only, leaving no manner of doubt that
the respondent has misused the facility afforded to him by the High Court by
granting anticipatory bail to him.186
7.29 Object Underlying Cancellation of Bail
The object underlying the cancellation of bail is to protect the fair trial and
secure justice being done to the society by preventing the accused who is set at
liberty by the bail order from tampering with the evidence in the heinous crime
and if there is delay in such a case the underlying object of cancellation of bail
practically loses all its purpose and significance to the greatest prejudice and the
interest of the prosecution. Once a person is released on bail in serious criminal
Cases where the punishment is quite stringent and deterrent, the accused in order
to get away from the clutches of the same indulges in various activities like
tampering with the prosecution witnesses, threatening the family members of the
deceased victim and also creates problems of law and order situation. 187

184
185
186
187

Yunus Hussain Rathod Vs. Asst. Collector of Customs (1990) 1 Bom C.R.449
Nilu Vs. State, 1983 Cr. LJ 1590 (Ori): (1983) 55 Cut LT 123.
State through Delhi Administration Vs. Late Sanjay Gandhi, 1978 Cr.LJ 952 at 958; AIR
1978 SC 961.
Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143 at pp.

289

Under the old Cr. P. C. of 1989, the Session Judge had no power to cancel
a bail and the general consensus of option of various High Courts was that it was
only the High Court which in exercise of its inherent powers under S. 561-A of
that Code could cancel the bail granted by the Court of Session Court may direct
that any person who has been released on bail be arrested and committed to
custody.
7.30 Power to Cancel Bail to be used very Sparingly
While canceling the bail the Court must always remain mindful and
careful and should exercise these powers very sparingly in most deserving and
appropriate cases only so that the Court which has exercised the powers very
sparingly in most deserving and appropriate cases only so that the Court which
has exercised the power to enlarge the accused on bail should not exercise this
power in a liberal and routine manner. The legislature while incorporating the
provisions for canceling of bail was aware that there may be cases in which the
accused enlarged on bail may misuse his position after being enlarged on bail, in
order to take care of that situation provisions have been incorporated in the
Criminal Procedure Code for cancellation of bail, so that the accused should
always remain under control and always remain careful that if he will breach any
of the conditions of bail imposed upon him while granting bail his bail can be
cancelled and he will be put in custody again. At the same time a heavy duty has
been cast on the Court that while deciding the cases of cancellation of bail the
Court should satisfy its judicial conscience and in order to satisfy the judicial
conscience the Court must see whether convincing ground exists for the
cancellation of bail, if these grounds exists only then and then the Court should
exercise this power vested in it. The Court should also bear in mind that after
releasing the accused on bail, the complainant party will keep some sort of grudge
against the accused who has been released on bail. Moreover the Court must
always remain very careful while exercise these powers in the case which relate to
the offences against the human body which are contained of the Indian Penal
Code. In such cases the trial court should also remain more careful and take care

290

that if any fact is brought to the notice of the trial Court that the witnesses are
being pressurized and threatened to turn hostile to the prosecution story, if it is
possible the Court on priority basis should record the statements of the witnesses
in order to remove any doubt and resolve the controversy. 188
Ordinary, the discretion of the lower Court in granting or refusing bail
would not be interfered. But, if the order suffers from irrelevant considerations,
which are not supported with any material on record, there should not be any
hesitation to interfere with such order to meet the needs of justice. 189
7.31 Criterion for Cancellation of Bail
While it is true that availability of overwhelming circumstances is
necessary for an order as regards the cancellation of a bail order, the basic
criterion, however, is interference or even an attempt to interface with the due
course to administration of justice and /or any abuse of the indulgence/privilege
granted to the accused. 190 Tampering with the evidence and threatening of the
witnesses are two basic grounds for cancellation of bail. 191
Before an order canceling the bail under S. 439(2) of the Code can be
passed it is necessary for the prosecution to show some act or conduct on the part
of the accused person from which a reasonable inference may be drawn that he
has tampered with the prosecution witnesses or has in any other manner misused
or abused the liberty allowed to him. The bail may also be cancelled if the
prosecution succeeds in showing that there is a reasonable apprehension that the
accused will interfere with the course of justice in case he is allowed to remain on
bail. The serious nature of the accusation against the accused is certainly a
relevant factor while considering his release on bail but once an accused person or
released on bail in spite of such nature of the offence, this factor by itself will not
justify the cancellation of the bail already granted without some supervening
circumstances of the type referred to above. 192
188
189
190
191
192

Surendra Kumar Patel v. State of Chhattisgarh, 2004 Cri LJ 988 at p. 91(Chhattis).


Madurai Ganesan v. State of T.N. 2004 Cri LJ 2736 at p. 2739(Mad).
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p.1478.
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p.1478.
Ramesh Kumar v. State of H.P.,1984 Cri LJ 1056 at p. 1056 at p. 1059(HP).

291

Normally bail when granted is not to be cancelled unless there are very
cogent and overwhelming circumstances. The grounds for cancellation of bail are
interference or attempt to interfere with the due course of administration of justice
or evasion or attempt to evade the course of justice, or abuse of the liberty granted
to the accused. Therefore the consideration for granting the bail are different than
the consideration which are to be weighed in mind at the time of considering the
application for cancelled and re-committed to the jail.193
(i)

Where while on bail he commits the very same offence for which he
was being tried or has been convicted;

(ii)

If the hampers the investigation;

(iii)

If the hampers the investigation;

(iv)

If he runs away to a foreign country or goes underground or beyond


the control of his sureties; and finally

(v)

If he commits acts of violence in revenge.

The liberty once granted to an accused by way of bail cannot be curtailed by


cancellation of bail, unless certain conditions are fulfilled. 194 The grounds for
cancellation of bail under Ss. 437(5) and 439(2) of the Code are identical. 195
The following legal principles, amongst others, would be relevant in the
matter of consideration of the question of cancellation under Section 439(2) of
Cr. P. C. by the High Court anticipatory bail granted under Section 438 or of
bail granted under Section 439(1) of Cr. P. C. by the Sessions Judge. 196
(i)

An order granting anticipatory bail under Section 438 or bail under


Section 439(1) of Cr. P. C. is amendable to appellate/revisional
scrutiny and may be cancelled if it was made in arbitrary or improper
(and not judicial) exercise of the discretionary power or was made
without application of mind or without consideration of all relevant
circumstances or was based upon irrelevant considerations or was
vitiated by any basic error of law or was otherwise perverse.

193
194
195
196

Ashok Kumar v. State, 1992 Cri LJ 3821 at p. 3822 (Del).


Ram Naresh Singh v. State of M.P., 1995 CriLJ.
Usha Devi v. State of Bihar, 2006 Cri LJ 4435 at p. 4439 (Pat).s
A.K. Murmu v. Prasenji Chowdhury, 1999 Cri LJ 3460 at p. 3468(Cal).

292

(ii)

An order granting bail may be cancelled in case new or supervening


circumstances arise after the release on bail such as abuse of the liberty
by hampering the investigation or tampering with witnesses or by
committing same or similar offence but existence of any supervening
circumstance following the grant of anticipatory bail or bail is not the
only criterion for cancellation of such bail.

(iii)

Although the discretionary power to cancel bail is extraordinary and is


to be exercised sparingly, nevertheless, it is meant to be exercised in
appropriate cases, however few those cases might be.

(iv)

Order granting anticipatory bail or bail must not tantamount to


interference with efficient exercise of statutory functions when dealing
with economic offences such as those under the FERA.

(v)

Advantage of custodial interrogation should be taken into account in


granting anticipatory bail or bail.

7.32 Opportunity of Hearing before Cancellation of Bail


Where the bail granted to an accused had been cancelled by the High
Court without giving prior notice to the accused, it was held that the accused
was entitled to hearing before the bail was cancelled. Accordingly, the High
Court order cancelling the bail was set aside and the matter was referred back
to the High Court for reconsideration after hearing both parties. 197
The accused who is on bail, should be heard before an order of
cancellation of bail is passed by the Court. The accused must be given notice
and opportunity of hearing before the bail granted to him is cancelled. 198 The
considerations for cancellation of bail are slightly different from those for
granting bail. Once an order for bail is passed, law immediately puts a
protective ring around it so that it will not be cancelled without giving an
opportunity to the person for whose benefit it was made. 199

197
198
199

Gurdev Singh v. State of Bihar, (2005) 13 SCC 286 at p. 286.


P.K. Shaji v. State of Kerala, (2005) 13 SCC 283 at p. 285.
Gokul Das v. State of Assam, 1981 Cri LJ 229 at p. 232 (Gau).

293

Before proceeding to decide whether to cancel the bail granted to the


accused it is incumbent upon the Magistrate to peruse the petition, to take
notice of the supervening circumstances and them to issue notice to the
accused to afford opportunity of being heard. After the notice and after
hearing the parties alone he should think of canceling the bail and issuing any
warrant of arrest.200 Once the police had filed a charge sheet in the case, the
Magistrate was not at all justified in entertaining any petition filed on behalf
of the private complainant and that too action upon it, behind the back of the
accused and canceling the bail granted to the petitioners-accused.201
7.33 Appeal to Supreme Court in Bail Matter
In State of Gujarat v. Salimbhai Abdulgaffar Shaikh,202 the appeal to the
Supreme arose out of a certificate granted by the Gujarat High Court under
Article 134-A read with Article 134(1)(c) and 134-A of the Constitution; that,
an order made in a proceeding arising out of an application for grant of bail is
not a judgment, final order or sentence; that, a judgment would mean any
decision which terminates a criminal proceeding pending before the court and
excludes in interlocutory order; that, in a criminal proceeding an order on an
application for bail is not a final order; that, the order in question was neither a
final order not imposed a sentence; that, therefore, the certificate issued by the
High Court should be cancelled and the appeal should be treated as
incompetent. The Supreme Court observed that there was force in these
contentions, but the settled practice of the Supreme Court was that if on the
face of it the Supreme Court was satisfied that the High Court had not
properly exercised the discretion under Article 134(1)(c), the matter may
either be remitted or the Supreme Court may exercise that discretion itself or
treat the appeal as one under Article 136. Therefore, the Supreme Court
decided to treat the instant appeal as a proceeding arising under Article 136 of
the Constitution.
200
201
202

Ramdoss v. State of T.N.,1993 Cri LJ 2147 at p. 2158(Mad).


Ganpati v. State of Mysore, 1972 Cri LJ 417 at p. 418 (Mysore).
(2003)8 SCC 50 at p. 54 : AIR 2003 SC 3224.

294

7.34 Power of High Court to Cancel Bail Granted by Session Court


There is no provision in the new Code of 1973 excluding the jurisdiction
of the High Court in dealing with an application under Section 439(2) of the
Code of cancel bail after the Sessions Judge had been moved and an order had
been passed by him granting bail. The High Court has undoubtedly
jurisdiction to entertain an application under Section 439(2) of the Code for
cancellation of bail notwithstanding that the Session Judge had earlier
admitted the accused person to bail. 203
Ordinarily, the High Court will not exercise its discretion under S. 439(2)
Cr. P. C. by canceling a bail granted by the Session Judge in favour of an
accused but if bail has been granted to an accused in a non-bailable offence
punishable with death or imprisonment for life in a manner which smacks of
arbitrariness, capriciousness or perversity, on the part of the Court of Session
granting such bail, the High Court has not merely the discretion but a duty laid
on it under S. 439(2) Cr. P.C. to cancel the bail and order the accused to be rearrested.204
Ordinarily the High Court will not exercise its discretion to interfere with
an order of bail granted by the Sessions Judge in favour of an accused. 205
7.35 Criteria for Bail at Appellate Stage
Following detailed relevant criteria for grant or refusal of bail were laid
down in Gudikanti Natasimhulu case206 by the Supreme Court in the case of a
person who has either been convicted and has appealed or one whose
conviction has been set aside but leave has been granted by the Supreme
Court to appeal against the acquittal:
(i)

The delicate light of the law favours release unless countered by the
negative criteria necessitating that course. The corrective instinct of
the law plays upon release orders by strapping on the them protective
and curative conditions.

203
204
205
206

State of Orissa v. Md. Abdul Karim, 1984 Cri LJ.


Imamuddin v. Ayub Khan, 1984 Cri LJ 117 at p. 121 (Raj).
Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 at p. 186 : (1978).
Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., AIR1978.

295

(ii)

Another relevant factor is as to 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.

(iii)

Another relevant factor is as to whether the course of justice would be


the thwarted by him who seeks the benignant jurisdiction of the Court
to be freed for the time being.

(iv)

The legal principal and practice validate the court considering the
likelihood of the applicant interfering with witnesses for the
prosecution or otherwise polluting the process of justice. It is not only
traditional but rational, in this context, to enquire into the antecedents
of a man who is applying for bail to find whether he has a bad record,
particularly a record which suggests that he is likely to commit serious
offences while on bail. In regard to habitual, it is part of criminological
history that a thoughtless bail order has enabled the bailee to exploit
the opportunity to inflict further crimes on the members of society.
Bail discretion, on the basic of evidence about the criminal record of a
defendant, is therefore not an exercise in irrelevance.

(v)

When the crime charged (of which a conviction has been sustained) is
of the highest magnitude and the punishment of it assigned by law is
of extreme severity, the court may reasonably presume, some evidence
warranting, that no amount of bail would secure the presence of the
convict at the stage of judgment, should he be enlarged.

(vi) The significance and sweep of Article 21 of the Constitution make the
deprivation of liberty a matter of grave concern and permissible only
when the law authorizing it is reasonable, even-handed and geared to
the goals of community good, and State necessity spelt out in Article
19. The consideration set out as criteria are germane to this
constitutional proposition. Reasonableness postulates intelligent care
and predicates that deprivation of freedom by refusal of bail is not for

296

punitive purpose but for the bi-focal interests of justice to the


individual and society affected.
(vii) Contrary factors need to be weighed to answer the test the
reasonableness, subject to the need for securing the presence of the
bail applicant. It makes sense to assume that a man on bail has a better
chance to prepare or present his case than one remanded in custody.
And if public justice is to be promoted, mechanical detention should
be demoted. The considerable public expense in keeping in custody
where no danger of disappearance or disturbance can arise, is not a
negligible consideration. Equally important is the deplorable
condition, verging on the inhuman, of the sub-jails, that the
unrewarding cruelty and expensive custody of avoidable incarceration
makes refusal of bail unreasonable and a policy favouring release
justly sensible.
(viii) Conditions may be hung around bail orders, not to cripple but to
protect. Such is the holistic jurisdiction and humanistic orientation
invoked by the judicial discretion correlated to the values of our
Constitution.
(ix) When a person, charged with a grave offence, has been acquitted at a
stage, the intermediate acquittal has pertinence to a bail plea when the
appeal before the Supreme Court pends. Having enjoyed the
confidence of the courts verdict once, the panic which might prompt
the accused to jump the gauntlet of justice is less. Again, the ground
for denial of provisional release become weaker when the fact stares
the court in the face that a fair finding, if that be so, of innocence has
been recorded by one Court. It may not be conclusive, for the
judgment of acquittal may be ex facie wrong, the likelihood of
desperate reprisal, if enlarged, may be a deterrent and his own safety
may be more in prison then in the vengeful village where feuds have
provoked the violent offence. Antecedents of the man and socio-

297

geographical circumstances have a bearing only from this angle. Police


exaggerations of prospective misconduct of the accused, if enlarged,
must be soberly sized up lest danger of excesses and injustice creep
subtly into the discretionary curial technique. Bad record and police
prediction of criminal prospects to invalidate the bail plea are
admissible in principle but shall not stampede the court into a
complacent refusal.
(x)

A circumstance of some consequence, when considering a motion for


bail, is the period in prison already spent and the prospect of the appeal
being delayed for hearing having regard to the suffocating crowd of
dockets pressing before the few Benches.

(xi) Heavy bail from poor men is obviously wrong. Poverty is societys
malady and sympathy, not sternness, is the judicial response.
7.36 Considerations for Grant of Bail Pending Appeal
Normally the grounds for suspending the execution of a sentence pending
appeal should be the same on which ultimately the sentences are set aside in
appeal, i. e., the merits of the case. The most relevant factor, therefore, for the
exercise of power of suspending the sentence is the degree of probability the
appeal stands of being finally allowed. Of course, the entire matter cannot be
considered at the stage of bail and the degree of probability has to be determined
on the basis of a prima facie satisfaction. Other factors relevant for the enquiry
will include such ancillary matters as the nature and gravity of the offence, and
the age and health of the accused. 207
The remaining of the accused on bail or in jail during trial in the court below
cannot be a relevant reason for suspending or not the execution of the sentence,
because this circumstance has no nexus with the execution or suspension of
sentence and, after conviction has been recorded, this circumstance stand
neutralized. After conviction the man in jail and the man on bail stand on the
same footing. If both are equally guilty there will be no justification for
207

Bhola v. State, 1974 Cri LJ 1318 at pp. 1319-20(All).

298

suspending the execution of the sentence awarded to a person who was on bail,
and permitting it to be executed against a person who had remained in jail. If the
chances of the appeal being allowed of the appellant in jail are greater than those
of the appellant on bail, it would be wrong to suspend the sentence against the one
who has remained free and not to suspend it against him who has already
remained in jail. For purposes of suspension of the sentence the classification of
the appellants on the basis of their being on bail and in jail would be
unreasonable.208
Similarly the period or extent of the sentence or the quantum of punishment
cannot be a relevant reason for its own suspension. It would be a relevant factor
only if the sentence can prima facie, be shown to be illegal, improper or
excessive, and not otherwise.209
The principle of irreparable injury on which the execution of civil decrees
is suspended pending appeal, can also be made applicable to substantive sentences
of imprisonment, as in such cases the injury will always be irreparable. 210
The best and probably the only guide for suspension of sentences in a
criminal appeal is the probability of the appeal being allowed. If the nature and
gravity of the offence is such in which bail is easily granted before conviction, a
lower degree of probability may be enough to suspend the execution of the
sentence, and in other cases a high degree of probability might be required for
directing the suspension of the sentence pending appeal. 211
It cannot be said that once a person is convicted, he must be found to be
guilty of commission of an offence and that would be sufficient to dismiss the
plea of bail, in which case a motion for bail would be a mere formality. It may not
be possible to exhaust the different factors that may be or relevance in assessing
the question whether bail could be granted or not in a given case. The nature and
gravity of the circumstances in which the offence is committed, the position and
status of the accused with reference to the victim and the likelihood of he accused
208
209
210
211

Bhola v. State, 1974 Cri LJ 1318 at pp. 1320(All).


Bhola v. State, 1974 Cri LJ 1318 at pp. 1320(All).
Bhola v. State, 1974 Cri LJ 1318 at pp. 1320(All).
Bhola v. State, 1974 Cri LJ 1318 at pp. 1320(All).

299

fleeing from justice are some of the matters, which have nexus to the
consideration of the bail application. The graver the offence the heavier the
punishment. A person having been convicted with severe punishment may have
an incentive to jump bail unlike a person who has been accused of a crime and
whose trial is not completed. The panic which might prompt the accused to jump
the gauntlet of justice is more having suffered imprisonment in the trial Court.
This is particularly so when the accused have been convicted for a grave offence
and with heavier punishment. The question of tampering the witnesses may not
arise at this appellate stage. 212
7.37 Recording of Reasons for Ordering Suspension of Sentence
Section 389 of the Code deals with suspension of execution of sentence
pending the appeal and release of the appellant on bail. There is a distinction
between bail and suspension of sentence. One of the essential ingredients of
Section 389 is the requirement for the appellate court to record reasons in writing
for ordering suspension of execution of the sentence or order appealed against. If
he is in confinement, the said court can direct that he be released on bail or no his
own bond. The requirement of recording reasons in writing clearly indicates that
there has to be careful consideration of the relevant aspects and the order directing
suspension of sentence and grant of bail should not be passed as a matter of
routine.213
The appellate court is duty-bound to objectively assess the matter amd to
record reasons for the conclusion that the case warrants suspension of execution
of sentence and grant of bail. In the instant case, the only factor which seems to
have weighed with the High Court for directing suspension of sentence and grant
of bail was the absence of allegation of misuse of liberty during the period the
accused was granted parole. The fact that during the pendency of the appeal the
accused was on parole goes to show that initially the accused was not given the
benefit of suspension of execution of sentence. The mere fact that during the
period of parole the accused had not misused the liberties does not per se warrant
212
213

State v. Mehoob Batcha, 1999 Cri LJ 5040 at pp. 5044-45(Mad).


Kishori Lal v. Rupa, 6SCC 638 at p. 639 : 2004 Cri LJ 3840.

300

suspension of execution of sentence any grant of bail. What really was necessary
to be considered by the High Court was whether reasons existed to suspend the
execution of sentence and thereafter grant bail. It was held that the High Court did
not keep the correct principle in view. The order directing suspension of sentence
and grant of bail was accordingly set aside. 214
One of the essential ingredients of Section 389 is the requirement for the
appellate Court to record reasons in writing for ordering suspension of execution
of the sentence or order appealed. If he is in confinement, the said court can direct
that he be released on bail or on his own bond. The requirement of recording
reasons in writing clearly indicates that there has to be careful indicates that there
has to be careful consideration of the relevant aspects and the order directing
suspension of sentence and grant of bail should not be passed as a matter of
routine. The appellate Court is duty-bound to objectively assess the matter and to
record reasons for the conclusion that the case warrants suspension of execution
of sentence and grant of bail.215
7.38 Reasons for Granting Bail Pending Appeal must be Objective
The appellate court is duty-bound to objectively assess the matter and to
record reasons for the conclusion that the case warrants suspension of execution
of sentence and grant of bail.216
From the provisions of Section 426 of Cr. P. C. (of 1898) [equivalent to S.
389 of Cr. P. C. of 1973], it is evident that the pendency of the appeal by itself is
not a ground for suspending the sentence. There has to be something beyond the
mere pendency of the appeal to justify the suspension of the sentence . Section
426 makes it imperative that before the appellant is directed to be set at liberty
reasons recorded in writing for suspension of sentence. The reasons for
suspending the sentence and granting bail, after the conviction has been recorded

214
215
216

State of Haryana v. Hasmat, (2004)6 SCC 175 at p. 177.


Gomti v. Thakurdas, 2007 Cri LJ 2431 at p. 2433(2007) 11 SCC 160.
State of Haryana v. Hasmat,(2004)6 SCC 175 at p. 177.

301

by a court, have to be objective reasons which would normally emanate from the
material on record.217
The appellant in order to get bail has to make out a case for the exercise of
the appellate courts direction by showing that reasons exist, for the suspension of
the sentence. After the court is satisfied that such reasons exist, it would proceed
to consider the question of granting bail to the appellant. Although practically the
decision about suspension of sentence and granting bail will be simultaneous, it
would involve two separate mental processes, one following the other. Each one
has to be based on objective reasons. 218
7.39 Bail Pending Appeal is Discretionary and not Automatic
Under Section 389, Cr. P. C., the convict-appellant can be released on bail,
by suspending the execution of sentence, by the Judges, in exercise of the powers,
discretionary powers, discretionary powers, irrespective of the offence being
bailable or not.
Thus High Court or Court of Session have been given special powers to
grant bail. However, the bail powers are not to be exercised in a casual and
cavalier fashion. The Supreme Court has laid down a number of tests and
guidelines in this regard to protect the liberty of the citizens.
---- o ----

217
218

Bhola v. State, 1974 Cri LK 1318 at p. 1319 (All).


Bhola v. State, 1974 Cri LK 1318 at p. 1319 (All).