Académique Documents
Professionnel Documents
Culture Documents
Having regard in the nature of the relationship of the person on bond with
the court and the powers conferred on the court under section 436, it appears that
the above ruling may not be generally followed by the courts.
An interesting question arose in Haji Mohamed Wasim v. State of U.P.5
before the Allahabad High Court as to the validity of bail granted by police
officers. In this case the accused who was on bail granted by police preferred not
to appear before the court. The trial court issued a non-bailable warrant which
came to be challenged by the accused under section 482. The court ruled that he
has to take fresh bail from trial court.
It reasoned:
The power of a police officer in-charge of a police station to grant
bail and the bail granted by him comes to an end with the
conclusion of the investigation except in cases where the sufficient
evidence is only that of a bailable offence, in which eventually he
can take security for appearance of the accused before the
magistrate on a day fixed or from day to day until otherwise
directed. No parity can be claimed with an order passed by
magistrate in view of enabling provision contained in clause (b) of
section 209… under which the committal Magistrate has been
empowered to grant bail until conclusion of trail, which power was
otherwise restricted to grant of bail by him during pendency of
committal proceedings under clause (a) of section 209. 6
The real situation, as it obtains today in the society, is amply clear that
police discretion is not always being properly exercised in the matter of arrest.
The citizens are being deprived of their liberty and the police has become a kind
of terror for the citizens because of their undue harshness with the public in
general and the suspects in particular. The newspapers are replete with examples
of police high-handedness. It is matter of common knowledge that in order to
extract information from a suspect, the police beat a person in the course of
5
1992 Cr. L. J. 1299.
6
Ld. at 1302, see also Morit Malhotra Vs. State of Rajasthan 1991 Cr. L.J. 806.
62
7
Amin Vs. State, AIR 1958 293.
8
Kochu Kunjio Vs. State of Kerala (1962), Cr. L. J. 436, 1961 Ker. L. T. 577.
63
9
20 Cr. L. J 381, AIR 1999, All 160 (161).
64
After the arrest has been made the arrested person should be, without
unnecessary delay handed over to a police officer, or in his absence, be brought to
the nearest police station.
The question of bail will depend upon what opinion the police officer
forms about the person brought before him.
1. If there is no sufficient ground to believe that the arrested person has
committed any offence, he shall at once be released.
2. If there is reason to believe that such person comes under the provisions of
section 41, a police officer shall re-arrest him and then the normal procedure of
investigation, determination of the question whether a non-bailable case is made
out or not and the desirability of release on bail etc. will arise.
3. If there is reason to believe that he has committed a non-cognizable offence he
shall be released as soon as his name and residence have been ascertained as
provided under section 42 Criminal Procedure Code. A chowkidar, not being a
police officer is not entitled to receive a person arrested under this section.10 But
where a chowkidar is a police officer as under the Chota Nagpur Rural Police Act,
(Act I of 1914) he can received a person arrested under section 59, Criminal
Procedure Code (old) and detain him in custody. 11
(iii) Bail under sections 56, 57 and 59 Cr. P.C.:
Section 56 mandates that a police officer effecting an arrest
without warrant must take or send the offender arrested, before a
magistrate having jurisdiction in the case of before the officer
in charge of a police station.
But in section 56, there is an inbuilt provision authorizing police officer to
admit the arrested offender to bail, but power of the police officer is subject to the
provisions herein contained as to bail. Section 56 of the new Code corresponds to
section 60 of the old Code. Explaining section 60 M.P. High Court observed:
"The provision in section 60 that the arrested person shall be taken
before Magistrate having jurisdiction subject to the provisions as to
10
46 CWM 162, ILR 3 All 60.
11
33 Cr. L. J. 572, AIR 1932 Pat. 214.
65
bail only refers to the powers of the police to grant bail. If the
police in its discretion do not think it fit to allow bail to arrested
person, then they have to take him or send the person arrested
before a magistrate having jurisdiction in the case, Section 61 (i.e.
new section 57) is concerned solely with the question of the period
of detention by the police of a person arrested without warrant". 12
Section 57 provides that person arrested not to be detained more than
twenty four hours. The intention of the legislature is that an accused person
should be brought before a Magistrate competent to try or commit with as little
delay as possible. Section 57 is pointer to the intendment to uphold liberty and to
restrict to the minimum curtailment of liberty.13
Section 59 provides that no person who has been arrested by a police
officer shall be discharged except on his own bond, or on bail, or under special
order of a magistrate.
Under section 56 and 59, the Legislature has used words “Police Officer”.
(iv) Bail under section 169 Cr. P.C.
The section refers to the grant of bail not at the start but only on the
making of an investigation under Chapter XII of the Code. Till then bail is not
authorized under the provisions of this section. The power to release on bail a
person in custody vests in officer in charge of the police station or the police
officer making the investigation. Under section 36, Criminal Procedure Code, a
police officer superior in rank to an officer in charge of a police station can
exercise the same powers of investigation as can be exercised by an officer in
charge of the police station. Section 169 provides that if upon an investigation it
appears to the officer-in-charge of police station that there is no sufficient
evidence or reasonable ground of suspicion to justify the forwarding of the
accused to a magistrate, such officer shall release him on his executing a bond
with or without sureties as such officer may direct, to appear, if and when so
12
Gulam Mohammad Azimmuddin Vs. State, 1959, Cr. L. J. 600.
13
Mohd. Ahmed Yasin Mansuri Vs State of Maharashtra 1994 Crl.1854 (Bom.DB).
66
18
1875 Rat (91).
19
The Crown Vs. Makhan Lal 48 Cr. L. J. 656.
68
admits an accused to bail, it is mandatory for him to record the reasons or special
reasons in the case diary and preserve the bail bonds until they are discharged
either by the appearance of the accused in court or by the order of a competent
court.
For the purpose of bail in non-bailable offence, the Legislature has
classified them under two heads:
(1) those which are punishable with death or imprisonment for life;
(2) those which are not so punishable.
In case of an offence punishable with death or imprisonment for life a
station officer cannot enlarge a person on bail, if there appears reasonable grounds
for believing that he has been guilty of such offence. The age or sex or sickness or
infirmity of the accused cannot be considered by a police officer for the purpose
of granting bail. These matters may be taken in view by a court only. An officer-
in-charge of the police station may grant bail only when there are no reasonable
grounds for believing that the accused has committed a non-bailable offence or
when the non-bailable offence complained of is not punishable with death or life
imprisonment.
3.3 Bail by Police when arrest made in pursuance of warrant
The relevant provisions of Code of Procedure in connection with above
heading are confined in section 71 and 81 of Criminal Procedure Code.
(i) Bail under section 71 Cr. P.C.
A Police officer executing a warrant under this section cannot exercise any
power beyond those contained in the endorsement, so that if the arrested person is
to be released on his personal bond, a police officer cannot demand sureties from
the prisoner.20 It is a matter entirely in the discretion of the court issuing a warrant
under this section to give a direction for the release of the arrested person on bail
or not. Even in bailable offence, a court may not give such direction. 21 When a
person to arrested is not arrested until the date on which he has to attend the court,
the direction regarding the taking of bail lapses. But since the warrant itself
20
6 Cr. L. J. 275.
21
Lachhmi Narain Vs. Emperor 40 Cr. LJ 283, AIR 1939 All. 156.
69
remains in force under section 70 (2) Criminal Procedure Code, the person against
whom the warrant had been issued can be arrested even after the date on which he
was to be in attendance in court.22
This section makes it clear that a magistrate is competent to issue a
warrant of arrest for the production of a particular person before his own court
and not before a police officer. 23
A warrant directed to any Police Officer may also be executed by any
other Police Officer whose name is endorsed upon the warrant by the Officer to
whom it is directed or endorsed (Section 73 Cr. P.C.).
(ii) Bail under section 80 & 81 Cr. P.C.
When a warrant of arrest is executed out side the district in which it was
issued any police officer who is not a District Superintendent of police or the
Commissioner of Police may release an arrested person according to the
directions contained in the endorsement. But a District Superintendent of Police,
the Commissioner of Police in presidency town with in the local limits of whose
jurisdiction the arrest was made shall release on bail the arrested person, if the
offence is bailable and such person is ready and willing to give bail to their
satisfaction.
In short, when a warrant of arrest is to be executed within the district in
which it was issued or it is to be executed out side the district in which it was
issued a police officer has not to engage himself in the determination of the
question whether the arrested person is accused of a bailable or a non-bailable
offence. He has to comply strictly with the contents of the endorsement if
any. He cannot release a person on bail simply because the arrested person is
accused of a bailable offence. In case of a warrant which is executed out side the
district in which it was issued, the proviso to Sub Section (1) of Section 81
empowers a District Superintendent of Police or the Commissioner of Police
within the local limits of whose jurisdiction the person was arrested to release him
bail, if the offence is bailable, provided such person is ready and willing to give a
22
10 Cr. L. J. 479, 41nd case 31.
23
1 CWN 154: ILR 24 Cal. 320.
70
satisfactory security even though there was no direction by the court issuing the
warrant.
3.4 Bail by Magistrate
“Bail” remains an undefined term in the Code of Criminal Procedure 1973.
Nowhere else the term has been statutorily defined conceptually, it continues to
be understood as a right for assertion of freedom against state imposed restraints.
Since the U.N. Declaration of Human rights of 1947, to which India is a
signatory, the concept of bail has found a place within scope of human rights.
A right to get admitted to bail can lawfully be circumspected if the police
needs the arrested person any time for purpose of investigation of the case. The
Code of Criminal Procedure provides that a person suspected of having
committed a cognizable offence can be remanded to police custody. In case of
arrest without warrant, the request for remand in case of a suspect begins with a
formal arrest. Any person who is arrested by a police officer should be produced
before the Judicial Magistrate within 24 hours from the time of his arrest. If a
person commits a bailable offence, then the magistrate grant him bail but if he
commits any non-bailable offence, then it is on the discretion of the Magistrate
that whether bail should be granted to him or not. Section 59, 44 (1), 88, 167, 436,
437 etc. deals with powers of Judicial Magistrate to grant bail.
3.5 Bar of Discharge except on Bail under Section 59 Cr. P.C.
The first provision in the code which deals or appears to deal with the
power of a Magistrate to discharge an arrested person is contained in section 59,
Criminal Procedure Code. What the section lays down is that a person arrested by
the police cannot be discharged except: -
(i) on personal recognizance, or
(ii) on bail, or
(iii) under a special order of a Magistrate.
This section corresponds to section 63 of the old Cr. P.C. An interesting
question arises whether this section as it is worded confers any power on a
Magistrate to release a person on bail or, the section itself does not confer any
71
24
Gulam Mohammad Azimuddin v. State, 1959, Cr.LJ 600: AIR 1959 MP 147.
72
may be transferred for trial (note the change in present section 88 from old section
91). And the section is only applicable to persons who are present in court and
does not authorize a Magistrate to go to the house of a person and compel him to
execute a bond for appearance in court. 29
The requirements of this section are:
i.the person is present in court; and
ii.for his appearance the court can issue a summons; or
iii.for his appearance the court can issue a warrant.
It is in the discretion of the court to require a person to give a bond for
appearance with or without sureties. While the charge is pending, an accused
whether guilty or not must obey such bond. 30
3.8 Security for peace and bail under section 106 Cr. P.C.
The section authorizes the taking of security for keeping the peace. The
offences in which the section apply are:
i. Offences under Chapter VIII, Indian Penal Code, namely
offences against public tranquility e.g., section 141 to 160
except offences under sections 153-A, 153-B and 154 I.P.C.;
ii. Assault or using Criminal force or committing mischief;
iii. Any offence involving breach of peace;
iv. Criminal intimidation.
Security for keeping the peace can be required under this section when a
person is convicted of certain offences. In order to attract the provisions of this
section it is necessary:
i. that there must be conviction;
ii. that the conviction must be for one of the offences mentioned
in the section;
iii. that the conviction must be by a court mentioned in the section;
iv. that such court must be of the opinion that it is necessary to
bind over the accused to prevent the breach of peace.
29
37 Cr. L. J. 837: 163 Ind C. 413.
30
20 Cr. L. J. 384: AIR 1919 All 158.
74
The order, calling for the security must also be passed at the time of
passing of sentence on the accused and a convicted person is not entitled to a
show cause notice or a preliminary enquiry for the demand of security under this
section31. The one restriction on the powers of a court of a judicial Magistrate
or/and court of Sessions is that the term for which the security can be taken
cannot exceed three years and a complainant cannot be asked to give a similar
security for keeping the peace. 32 The power to demand security under section 106,
Criminal Procedure Code, is not confined to regular trials. Even if the accused has
been convicted in a summary trial, a call for security can be made. 33 An order
under this section must specify the amount of security required, otherwise the
order is bad. In fixing the amount of security, a Magistrate ought to consider the
status in life of the person concerned, so that he may have a fair chance to be able
to find security. When an order is for bond with sureties, the Magistrate cannot
direct that a particular person must be one of the sureties. 34 Sub-section (2) of this
section lays down that on the conviction being set aside, the order for security
also fails to the ground.35
3.9 Magistrates who can demand security under Chapter VIII of the Code
(Sections 107, 108, 109, 110, 116, 117):
Only an Executive Magistrate can demand security under these sections. It is only
section 106 which can be invoked by a Sessions Court or a Judicial Magistrate 1 st
Class who tried the case and convicted the accused.
Two important conditions are necessary for initiation of proceeding under
section 107 namely formation of opinion and existence of sufficient grounds for
proceedings. Order should not be passed mechanically. Drawing proceedings
merely on police report is bad. Imposition of an excessive amount of Rs.20,000 as
31
44 Cr.L.J. 639: AIR 1943 Mad 406: 25 Cr. L.J. 965: AIR 1924 All 230 (Contra):27
Cr.L.J. 1112: AIR 1927 Pat. 37.
32
Crown V. Kallen and others, 1902 Pun LR No.82 Cr.
33
7 Oudh Cas 338: 1 Cr. L.J. 1054.
34
19 Cr. L.J. 439: AIR 1918 All 95.
35
Gita Prasad Singh v. Emperor, 25 Cr.L.J. 919: 1925 Pat 17: Dalganjan v. Emperor,
25 Cr.L.J. 481: AIR 1924 ALL 696.
75
36
Kailash Singh v. State of Bihar, AIR 1983 Pat PLH (HC) 314: 1983 Cr.L.J. NOC 228
(Pat).
37
M.S.C. Rao v. State of Mysore, 1971 Mad LJ (Cr) 602: (1971) 2 Mys LJ:302.
38
Cninnaya Chottiar v. State of Mysore, 1970 Cr.L.J. 111: 1969 Mad LJ (Cr) 13.
39
1933 Cr. L. J. 813: AIR 1953 All 475.
40
Madhu Limaye v. S. D.M., (1970), 3 SCC 746: (1971).
76
(d) Pending the reference under section 122 (4), Criminal Procedure
Code.
(e) Pending appeal or revision.
The various stages at which the question of bail may arise have been
enumerated above. But, strictly speaking, at some of those stages the question of
bail ought not to arise at all and if the Magistrate orders the detention in
custody of a person because the latter is not able to give security to the
satisfaction of the Magistrate concerned, the detention is illegal. It cannot be
gainsaid that the question of release on security can arise only when a person can
be arrested on the basis of information furnished against him. If he cannot be
arrested, any order demanding security from him is illegal. It has been held that a
Magistrate is not competent to send any person to jail who is produced before him
after arrest unless he has been given express powers for the same under the
provisions of the code.41
3.11 Bail under Section 124 Cr. P.C.
When a person for whose appearance a summons or a warrant has been
issued either on account of the unfitness of his surety or his sureties or on account
of the unwillingness of such surety or sureties to act as such, and that person
appears or is brought before the Magistrate, the Magistrate may allow him to give
for the unexpired portion of the term of such bond, fresh security of the same
description as the original security. Sections 121 to 124 deals with the
proceedings to be taken subsequent to orders passed under section 106 or section
117. An order passed under section 124, for the purposes of section 118 to 123 is
deemed to be order made under section 106 or section 117 as the case may be.
Therefore, where an order for furnishing security is for six month and a surety has
been discharged on account of his unfitness or unwillingness, the Magistrate has
no choice but to take the person in custody and refer the case to the Sessions
Judge or the High Court as the case may be. The question of his release on bail
41
Criminal Miscellaneous Application No.1038of 1957 Prabhu Narain Singh and
Others v. State and Others decided on 23rd August, 1957 (Allahabad High Court).
77
during reference will be governed by other provisions of the code. At that stage
the Magistrate making the reference is powerless to grant bail. 42
3.12 Bail under Section 309, Cr. P.C.
The scope of section 309 Cr. P.C. is different from the old and
corresponding section 344 Cr. P.C. As held in Natabar Parida Vs. State of
Orissa,43 section 309 is attracted only after Magistrate takes cognizance of
offence. During this period Magistrate may admit the accused to bail doubtlessly.
Even during the interregnum between the period of submission of charge-sheet
and commitment to Courts of Session, Magistrate can grant bail to accused or
remand him to custody.44
3.13 Bail to Lunatics : Section 330, Cr. P.C.
Bail cannot be claimed as a matter of right for persons of unsound mind.
Courts have been vested with great powers and wide discretion in the matter of
grant or refusal of bail. Section 330, Cr.P.C. does not speak of bailable or non-
bailable offences. The nature of offence and the severity of punishment awardable
for the commission of a particular offence are not matters to be considered when
the question of release on security of a lunatic arises. A Magistrate may release a
person of unsound mind on bail even though he is charged of an offence of the
most heinous type and may refuse bail in bailable case if he is of the opinion that
bail should not be allowed. An accused of unsound mind may be released on
security, irrespective of the offence with which he is charged not only on the
finding by the court that the accused is of unsound mind, but also prior to such
finding, during the pendency of the inquiry into his state of mind [section 328
(2)].
The nature of security for release of a lunatic accused is different from the
security for the release of other persons, in that, in the former it is binding not
only for appearance but also for preventing the accused from causing injury either
42
12 Cr. L. J 410: 5 Sind. LR 87.
43
(1975) 2 SCC 220. 1975 SCC (Cr) 484: AIR 1975 SC:1465:1975 Cr.L.J.1212:1975
Cur.L.J. 420
44
State of U.P. v. Lakshmi Brahman (1983) 2 SCC 372. 1983 SCC (Cr) 489: 1983
Cr.L.J.839:AIR 1983 SC 439 overruling 1976 Cr.L.J. 118 (All).
78
to himself or to any other person. But any condition which is not specified in
section 330, Cr.P.C. cannot be imposed and if the Magistrate imposes any new
condition, it is illegal and unforceable.45 There are no words in section 330 Cr.
P.C., that security for appearance is confined to the duration of the inquiry or trial.
Security under this section is for appearance of the accused “when required before
the Magistrate or court or such officer as the magistrate or court appoints in this
behalf since the security under section 330 does not contemplate only appearance
at the proceedings of the inquiry or trial for the offence for which the accused is
charged, it does not terminate with the termination of the inquiry or trial. A person
standing security may be called upon to produce the person released on his
security even after the trial has terminated. He will not be heard to say that his
undertaking came to an end with the termination of the trial.
There is yet another distinction between the execution of security under
section 330 and section 436 to 439 Cr. P.C. A bond executed under chapter
XXXIII of the code (sections 436 to 439) is binding only with every date of
hearing of such offence and for the purpose of answering such charge. A surety
does not undertake to be responsible for the attendance of the accused to answer
charges in respect of offences that might be committed at some future date.46
When security is given under section 330 Cr.P.C., a surety not only undertakes to
be responsible for the attendance of the accused to answer charges in respect of
offence or offences already committed but also guarantees that he would prevent
the accused “from doing injury to himself or to any other person”. Thus the
purpose of bail under section 330 Cr.P.C is different from the purpose of bail
under sections 436 to 439 Cr. P.C.
There is a distinction between ordinary remand under section 167 or 309
Cr. P.C. on the one hand and under section 330 on the other. When the Magistrate
opines that bail should not be taken or if sufficient security is not given,
Magistrate may order him to be remanded to any safe custody in any place not
necessarily judicial custody. That apart, on making order of detention under
45
Narain Shankar v. Emperor, 35 Cr. L. J. 200: AIR 1933 Sind 267.
46
Mana V. Emperor, 25 Cr. L.J. 131: AIR 1924 Lah 622: 76 IC 227.
79
section 330 (2), it is mandatory that Magistrate must report his ordering detention
to State Government.
3.14 Bail for offence against Administration Of Justice : under section 340,
Cr. P.C.
When any Magistrate is of opinion, whether on application made to him in
this behalf or otherwise, that it is expedient in the interest of justice that an
inquiry should be made with regard to an offence punishable under sections 193,
194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, 228 of the Indian
Penal Code or any offence described in section 463 or punishable under section
471, section 475 or section 476 of IPC which appears to have been committed in
relation to a proceeding in that court, such court may, after such preliminary
inquiry, if any, as it thinks necessary, record a finding to that effect and make a
complaint thereof, in writing, signed by himself, and shall forward the same to a
Magistrate of the First Class having jurisdiction. After the court has recorded its
finding and decided to make a complaint, the power to detain in custody or
release on bail accrues to the complainant court under this section. If the offence
complained of is bailable the court may take sufficient security for the appearance
of the accused before the transferee Magistrate or if the alleged offence is non-
bailable, it may, if it thinks necessary so to do, send the accused to such
Magistrate in custody. But unless the court has finally made up its mind that a
complaint should be made it has no power to consider either that the offence
alleged is bailable or non-bailable or that the person should be taken in custody or
not.47 If a court has taken a person into custody illegally, that is to say, without
making a final order about filing a complaint the remedy of a prisoner is by way
of the writ of habeas corpus and not under section 439, Cr.P.C.
3.15 Bail for Contempt in presence of Court : under section 346, Cr. P.C.
When an offence, as is described in section 175, Section 178, 179, 180 or 228 of
I.P.C. is committed in the view or presence of a Criminal Court and that court,
instead of proceeding under section 345, Cr.P.C., considers that the person
47
Mohammad Khan V. Emperor, 45 Cr.L.J. 768: AIR 1944 Lah 328.
80
48
12 Suth WR (Cr) 18.
49
ILR 13 Bom 600.
50
ILR 10 Bom 185.
81
3.17 Bail to First offender etc. under section 360, Cr. P.C.
Sub-section (1) of section 360, Criminal Procedure Code, deals with the
power of a court or a Magistrate of the second class specially empowered by the
State Government in this behalf, to release a convicted offender on his entering
into a bond, with or without sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) as the Magistrate may direct,
and in the mean time to keep the peace and be of good behaviour. The Magistrate
thus has discretion either to punish the offender with imprisonment or release him
on probation of good conduct.
The proviso to sub-section (1) of this section lays down the procedure to be
adopted by a Magistrate of the second class not specially empowered by State
Government in this behalf, when such Magistrate is of opinion that the powers
conferred by section 360 Cr. P.C. should be exercised in favour of the convicted
person. An interesting question arises as to what should a Magistrate, who is not
competent to release a convict forthwith, do, when there are more than one
accused before him and he is of the opinion that one or more of them, but not all,
deserve the benefit under this section. It was held by the Madras High Court in re
Pitamanayaga Pandaram that such Magistrate should dispose of the case of the
other accused himself first and then submit the case of the accused who in his
opinion deserves the benefit of this section. 51 The same view was taken by the
Bombay High Court.52 In a later ruling by the same High Court it was held that
there is nothing in the language of either old section 562 or old section 380 which
prohibits a Magistrate of the second or third class sending up all the accused, the
whole case, and the entire proceedings to the Sub Divisional Magistrate in a case
where he suggests that action should be taken under section 562 against only one
or few of the accused persons.53
The limitation imposed upon a Magistrate of the second class by the
proviso to sub-section (1) are not applicable in a case in which a person is
51
44 Cr. L.J. 568: AIR 1943 Mad. 390.
52
Emperor Vs. Yessu, 2. Bom LR 449.
53
Palli Munisami, 48, Cr.L.J. 361: AIR 1948 Mad 86.
82
54
Murli Dhar V. Mahboob Khan. 26 Cr. L.J. 624, 1925, All 644: The King Vs. Maung
Thein Aung (Contra) 42 Cr. L.J.22, AIR 1940 Rang 280: 191 IC 712.
83
bail under this section is for a limited period only and is applicable only to
“convicted” persons and not to those who are bound over. 55
3.20 Bail while making reference under section 395 Cr. P.C.
When a Magistrate makes a reference under section 395, Criminal
Procedure Code, to the High Court for its opinion on the validity or otherwise of
any act, Ordinance or Regulation or, of any provision contained in an Act,
Ordinance or Regulation, he may, pending the decision of the High Court, either
commit the accused to jail or release him on bail to appear when called upon. The
Magistrate will exercise his discretion in favour of the accused or against him
according to the seriousness of the charge and severity of punishment provided in
that act, Ordinance or Regulation.
3.21 Bail During Revision Under Section 397 Cr. P.C.
The Sessions Court and the High Court in exercise of revisional power
can call for records of inferior courts for the purpose of satisfying himself as
to the correctness, legality or propriety of any finding, sentence or order recorded
or passed and as to the regularity of any proceedings of such inferior court. When
such revisional Court calls for the record of an inferior Court, he may direct that
the execution of the sentence or order be suspended and, if the accused is in
confinement, that he be released on bail or on his own bond pending the
examination of the record. The grant of bail pending revision is within the
discretion of the court concerned which must be guided by general considerations
on the merits of the case, the likelihood of the applicant absconding, the trivial
nature of the offence, the nature of punishment, etc. The revisional power by the
High can be exercised not necessarily on the application of the aggrieved parties
but also on own motion56. Despite right of appeal being available, High Court suo
55
Charan Mehto v. Emperor, 37 Crl. J. 155: AIR 1936 ALL 107: 13 Cr.L.J. 958: AIR
1930 Pat 274.
56
Ramesh Vs. A. P. Jhaveri (1973) 3 SCC 884: 1973 SCC (Cri) 565: AIR 1973 SC 84:
Mohammad Vs. State of Kerala, 1982 Cr. L.J. 1120: 1982 Ker. L.T. 105, Range Forest
Officer Vs. A V. Hegde, 1978 Cr. L.J. 1374.
84
motto can invoke the revisional powers on an illegal order being brought to its
attention.57
3.22 Bail under Section 437 Cr. P. C.
Section 437 deals with bail in bailable offence. Grant of bail is a rule and
refusal is an exception. A person accused of bailable offence has the right to be
released on bail. Bail in cases of bailable offences is compulsory bail. In the
matter of admission to bail the Code of Criminal Procedure makes a distinction
between bailable and non-bailable offences. The grant of bail to a person accused
of non-bailable offence is discretionary. But a person accused of bailable offence
at any time while under detention without a warrant at any stage of the proceeding
has the right to be released on bail in view of section 436 Cr. P.C. 1973. 58 Even
when a person suspected of committing a bailable offence is produced before a
Magistrate and he is prepared to give bail, Magistrate has no option but to release
him on appropriate bail. 59
3.23 Bail for non-bailable Offence: Under Section 437 Cr. P. C.
The provisions of section 437 empower two authorities to consider the
question of bail, namely (1) a “court” which includes a High Court and a Court of
Session, and (2) an officer-in-charge of the police station who has arrested or
detained without warrant a person accused or suspected of the commission of a
non-bailable offence. Although this section deals with the power or discretion of a
court as well as a police officer in charge of police station to grant bail in non-
bailable offences it has also laid down certain restrictions on the power of a police
officer to grant bail and certain rights of an accused person to obtain bail when he
is being tried by a Magistrate.
Section 437, Criminal Procedure Code, deals with the powers of the trial
court and of the Magistrate to whom the offender is produced by the police or
57
K. Nazeema Vs. State of Kerala, 1983 Cr. L.J. (NOC) 199 (Ker): 1983 Ker LT 579.
58
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939.
59
Kanubhai v. State of Gujarat, (1972) 13 Guj. LR 748; Union of India v. S.
Bhagwandas, 1969 Mad L.W. (Cr) 88.
85
the accused surrenders or appears, to grant or refuse bail to person accused of,
or suspected of the commission of any non-bailable offence. The words “or
suspected of the commission of” were inserted by the Code of Criminal Procedure
(Amendment) Act, 1955 (26 of 1955 Section 94 (a) (i). The words occur in the Cr.
P.C. 1973 too, so there is no distinction between person accused of the
commission of a non-bailable offence and a person suspected of the commission
of a non-bailable offence. Both of them have been put in the same category. But
the discretion of the court is controlled by two important limitations, viz:
i. Where the prosecution can satisfy the court that there are
reasonable grounds for believing that the accused is guilty of
the commission of a non-bailable offence which is punishable
with death or imprisonment for life, it, shall refused bail [sub
section (1)]
ii. Where the accused can satisfy the court that there are no
reasonable grounds for believing that he had committed any
non-bailable offence or where after trial and before judgment
the court is of opinion that the accused is not guilty of any
offence, the court has no option but to release him on bail [sub
section (2) and (7)].
Subject to the aforesaid limitations a court has an unfettered discretion to
grant bail. In session-committable case the Magistrate may require the accused to
furnish bail for appearance before the Sessions Court too. 60
This prohibition upon a magisterial power to enlarge one on bail where
there are reasonable grounds for believing that he has committed an offence
punishable with death or imprisonment for life, it based particularly on the object
60
Free Legal Aid Committee v. State of Bihar (1982) 3 SCC 389 (1): 1983 SCC (Cr) 62 (1).
86
61
State of Orissa v. Damodar, (1971) 37 Cut LT 629.
62
AIR 1978 SC 429 at p. 420 : (1978)1 SCC 240 : 1978 Cri LJ 502 : 1978 SCC (Cri) 115.
Also see, Babu Singh v. State of U.P., AIR 1978 SC 527 at p. 529 : (1978)2 SCR 777:
1978 Cri LJ 651 : (1978)1 SCC 579 : 1978 SCC (Cri) 133 ; A. Prasad v. State of
Karnataka, 1982 Cri LJ 542 at p. 545 (Kant); Mazahar Ali v. State, 1982 Cri LJ 1223 at
p. 1226 (J & K): 1982 Kash LJ 62.
87
dangerous and hardened criminal released on bail can do more harm to the society
by way of destroying the evidence, threatening the witnesses, evading the judicial
process or may be by committing more offences. The importance of this judicial
discretion cannot therefore be understated. One of the main reasons for the
uncertainty in the exercise of this judicial discretion in bail matters is the fact that
without going into the full details of the evidence, which in fact might not even
have been collected till that time in many cases as the case concerned might still
be under investigation, a Court has to decide whether a prima facie case exists
which then becomes a grey area in which different shades of opinion could be
possible.
Highlighting the need for caution while exercising the said judicial
discretion in bail matters, KRISHNA IYER, J., further observed that:
Personal liberty, deprived when bail is refused, is too precious a
value of our constitutional system recognized under Art 21 of the
Constitution that the crucial power to negate it is a great trust
exercisable not casually but judicially, with lively concern for the
cost to the individual and the community. … After all, personal
liberty of an accused or convict is fundamental, suffering lawful
eclipse only in terms of ‘procedure established by law’. The last
four words of Art. 21 are the life of that human right.”63
At the same time, His Lordship fully released that the exercise of this
judicial discretion was a difficult matter, which is clear from the following
observations: “The code is cryptic on this topic and the court prefers to be tacit, be
the order custodial or not. And yet, the issue is one of liberty, justice, public
safety and burden of the public treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial process.” 64
63
Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., AIR 1978 SC 429 at p.
430.
64
Ibid.
88
Speaking about the bail jurisdiction, in another case, 65 the Supreme Court
observed that the doctrine of Police Power, constitutionally validates punitive
processes for the maintenance of public order, security of the State, national
integrity and the interest of the public generally. Even so, having regard to the
solemn issue involved, deprivation of personal freedom, ephemeral or enduring,
must be founded on the most serious considerations relevant to the welfare
objectives of society specified in the Constitution.
3.25 Can Conditions be Imposed in Bailable Offence?
In the case of In re Kota APpalakonda,66 the accused were charged by the
police under Ss. 147, 148, 447, 324 and 323, IPC, all of which were bailable
offences. When they applied for bail, the Magistrate ordered their release on
condition that they should not enter on the disputed land till the disposal of the
case. However, it was held by the Madras High Court that the imposition of that
condition was illegal on the ground that if the condition was not fulfilled the
Court would have to refuse bail, which was not permitted in a bailable case under
S. 496, Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973]. It was
observed that with regard to non-bailable offences, there could be no objection to
imposing conditions of this kind, for the Magistrate had an option to grant bail or
to refuse bail and he had also the power under S. 497(5) of Cr. P.C. (of 1898)
[equivalent to S. 436 of Cr. P.C. of 1973] of causing persons so released to be
arrested and committed to custody, which sub-Section he would apply in case the
condition was not fulfilled.
S. 496, Cr.P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973]
envisaged an accused person being released on bail when the charge against him
is in regard to a bailable offence. The words used are “such person shall be
released on bail” thereby denoting that it is mandatory on the Magistrate to admit
65
Babusingh v. State of UP AIR 1987 SC 527 at p. 529.
66
44 Cri LJ 202 (Mad) : AIR 1942 Mad 740 : (1942)2 MLJ 553.
89
him in that behalf. He has no discretion to impose any conditions, the only
discretion that is left in him being only as to the amount of the bond or whether
the bail could be on his bond or with sureties. Any condition subject to which the
bail should operate infringes the provisions of S. 496. The bail under S. 496, Cr.
P.C. (of 1898) should be an unconditional one. The considerations that pertain to
an order under S. 497, Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of
1973] do not apply to the granting of bail under S. 496. In the former case, it is
the discretion of a Court to release the accused on bail or not and while releasing
the accused on bail it could impose certain restrictions. But the accused is entitled
to claim bail under S. 496. Accordingly, it was held that in the instant case, while
granting bail in a bailable offence, the accused could not be compelled to appear
before the Commissioner of Police, as it was a condition which was repugnant to
the terms of S. 496 Cr.P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973].
Consequently, the clause in that behalf cannot be restored as it was validly
deleted.67
3.26 Surrender of Passport While Granting Bail
In Hazari Lal Gupta v. Rameshwar Prasad,68 while ordering release of the
accused on bail, who was living and doing business in United Kingdom, the High
Court had put the conditions that he should surrender his passport and that he
would not leave without the permission of the Court. It was contended that
Sections 496, 497 and 498 of the Criminal Procedure Code (of 1898) [equivalent
to Ss. 436, 437 and 439 respectively, of Cr. P.C. of 1973] in relation to bail did
not confer any power on the court when granting bail to restrict the departure of
the accused from India by requiring him to surrender the passport. Rejecting the
said contention, the Supreme Court held that Sections 496, 497 and 498 of the
67
Public Prosecutor v. Raghuramaiah, (1957) 1 Mad LJ (Cri) 609 : (1957)2 Andh WR
393.
68
1972 Cri LJ 298 at p. 300 : AIR 1972 SC 484 : (1972)1 SCC 452 : (1972)2 SCR 666 :
1972 SCC (Cri) 208.
90
Criminal Procedure Code (of 1898) were not exhaustive of powers of the court in
regard to terms and conditions of bail particularly when the High Court under S.
561-A of the Criminal Procedure Code (of 1898) [equivalent to S. 436 of Cr. P.C.
of 1973] dealt with cases of this type. The apprehension of the accused jumping
bail could not be brushed aside. The Supreme Court observed that if the accused
wanted to retain the passport the court might not have granted him any bail; that
even the reduction of the surety was made in order to enable the accused to be
enlarged on bail; and that the reduction of surety was also on the consideration
that the accused would not leave India.
Police and the Magistrate have been given power to grant bail under
Cr.P.C. However, in bailable offences, bail can be claimed as a matter of right.
Police or Magistrate has no discretion in this regard. However, police uses
discretion in granting bail as the people are not aware of statutory provisions.
There is urgent need to impart awareness in this regard so that police may not
misuse its powers for extraneous considerations.
---- o ----