CHAPTER – III

CLASSIFICATION OF OFFENCES AND BAIL

MECHANISM

3.1 INTRODUCTION

The Criminal Procedure Code has classified offences into two groups, namely
bailable and non-bailable depending on the gravity of the offences and the
punishment.1 The main provision relating to bail in bailable cases is contained
in Section 436, and relating to non-bailable cases is given in Section 437, the
Criminal Procedure Code of 1973.2 The classification of offences into the two
categories of bailable and non-bailable offences may be explained on the basis
that bailable offences are generally regarded as less grave and serious than non-
bailable offences. On this basis it may not be easy to explain why, for instance
offences under Sections 477, 477A, 475 and 5063 of the Indian Penal Code
should be regarded as bailable whereas offences under Section of 379 should
be non-bailable. However, it cannot be disputed that Section 486 Criminal
Procedure Code recognizes that a person accused of a bailable offence has a
right to be released on bail.4

The classification has been made for the obvious reason that seriousness and
gravity of the charge and the severity of the punishment awardable are very
probable factors which are likely to tempt an accused person either to tamper
with the prosecution evidence or to abscond in order to escape the punishment.
If a person is arrested for an offence which is non bailable, in that case court
has discretion to can grant bail. The definition of a non-bailable offence
appears in Section 2 (a) of the Code.5 Which provides that “Bailable offence”

1
The Criminal Procedure Code, 1973.
2
Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal).
3
Indian Penal Code, 1860.
4
Talab Haji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 at p. 378 : 1958 SCR 1226 :
1958 Cri LJ 701.
5
Supra note 1.

59
means an offence which is shown as bailable in the first schedule or which is
made by any other law for the time being in force and “non-bailable offence”
means any other offence.6 Although Non-bail offences not defined directly in
the code but in the definition of bailable offence itself and using word any other
offence‟ make it clear that the offences which not declared bailable are non-
bailable.

3.2 MEANING OF BAIL

Bail simply the process of releasing a person which may be on his personal
bond or on some security, bail is the post arrest process and before trial. In the
criminal procedure code bail is not defined anywhere, but classification of
offences into bailable and non-bailale offences made expressly or may be made
after examining the gravity of offences. Grave offences to be made non-
bailable, where bail not to be granting as a right but to be granted on examining
certain factors by exercising the judicial discretion by courts on some just and
human grounds.7

3.3 CLASSIFICATION OF OFFENCES

3.3.1 Bailable Offence

Bailable offence means an offence, which has been categorized as bailable, and
in case of such offence, bail can be claimed, subject to fulfilment of certain
conditions, as a matter of right under Section 436 of The Criminal Procedure
Code, 1973. In case of bailable offences, the Police is authorised to give bail to
the accused at the time of arrest or detention. As defined under Section 2(a) of
the code – bailable offence means an offence which is shown as bailable in the

6
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/13/13_chapter%207.pdf
7
P.V. Ramakrishna, Law of Bail, Ninth Edition, Universal Law Publishing, p. 40.

60
First Schedule, or which is made bailable by any other law for the time being in
force; and non-bailable offence‖ means any other offence.8

3.3.2 Non-bailable Offence

Non-bailable means an offence in which bail cannot be granted as a matter of

right, except on the orders of a competent court. In such cases, the accused can
apply for grant of bail under Section 437 and 439 of code.9 Grant of bail in a
non-bailable offence is subject to judicial discretion of the Court, and it has
been mandated by the Supreme Court of India that “Bail, not Jail” should be
the governing and guiding principle.

3.4 OBJECTS OF BAIL

It is not the object of the criminal law to confine a person accused of crime
before his conviction. Bail, in criminal cases is, therefore, intended to combine
the administration of justice with the liberty and convenience of the person
alleged accused. Administration of justice on the spot or immediately after the
commission of a crime in accordance with the fundamental principles of
natural justice embedded in a fair and just legal system is not feasible. This
appears to be one of the reasons for the evolution of the bail jurisdiction in any
legal system. The release on bail is crucial to the accused as the consequences
of pre-trial detention are against the principle of presumption of innocence. If
release on bail is denied to the accused, it would mean that though he is
presumed to be innocent till the guilt is proved beyond reasonable doubt, he
would be subjected to the psychological and physical deprivations of jail life.
The jailed accused loses his job and is prevented from contributing effectively
to the preparation of defence. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family.10 As far as the
administration of justice is concerned after the registration of crime, it takes

8
Section 2(a) of The Code of Criminal Procedure Code, 1973.
9
The Code of Criminal Procedure, 1973.
10
Moti Ram v. State of M.P., AIR 1978 SCC. Para 12.

61
time to complete the investigation and thereafter, it takes even longer to
conclude the trial. It is a matter of common experience that the judicial
machinery, particularly in India, is ill-equipped to provide a speedy trial to the
accused in conformity with well-established principles of criminal
jurisprudence. The question, whether an accused should be kept in the prison or
set free pending investigation and trail, is a matter of great concern in every
criminal case where the accused is under arrest. An accused person cannot be
detained in judicial custody for a long time by refusing him bail if the legal
system is not in a position to provide a speedy trial. The inability of the judicial
system to provide an expeditious trial to the accused should always be kept in
mind while dealing with the issue of bail. Keeping a person behind bars
without providing him a quick trial is quite incongruous to the concept of
personal liberty, which is a basic human right. The under-trial prisoner,
therefore, cannot be allowed to suffer in jail for an indefinitely long time.11

The intention of legislature is to speed up trial without unnecessarily detaining

a person as an under trial prisoner. This provision applies only to a case triable
by a magistrate and not to a case committed to the sessions for trial. The
intention behind the provision is that trial should be concluded within a period
of 60 days from the first date fixed for evidence.12

In bail applications, generally, it has been laid from the earliest times that the
object of bail is to secure the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither punitive nor preventive.
Deprivation of liberty must be considered a punishment, unless it can be
required to ensure that an accused person will stand his trial when called upon.
The courts owes more than verbal respect to the principle that that punishment

11
Babu Mulla v. State of M.P., 1978 Cr LJ 1846 (MP) (p. 1847) : 1978 MPLJ 623.
12
Didarsingh v. State of Jharkhand, 2006 (1) East. Cr.C. 259 at p. 260.

62
begins after conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty.13

Criminal Courts have been eternally faced with the dilemma as to whether or
not to grant bail in offences of non-bailable nature. On the one hand, is the
question of personal liberty of a citizen, while on the other, is the question of
public interest. Interestingly, the concept of freedom in a political State in a
wider sense was explained by Justice H.R. Khanna in the case of ADM
Jabalpur v. Shivakant Hukla14, it was held that freedom under law, is not
absolute freedom. It has its own limitations in its own interest, and can properly
be described as regulated freedom. In the words of Ernest Barker,

(1) The truth that every man ought to be free has for its other side the
complementary and consequential truth that no man can be absolutely
free.

(2) That the need of liberty for each is necessarily qualified and conditioned
by the need of liberty for all.

(3) That the liberty in the State, or legal liberty, is never the absolute liberty
of all.

(4) That the liberty within the State is thus a relative and regulated liberty.

(5) That a relative and regulated liberty, actually operative and enjoyed, is a
liberty greater in amount than absolute liberty could ever be – if indeed
such liberty could ever exist, or even amount to anything more than
nothing at all.15

13
Sanjay Chandra v. Central Bureau of Investigation, 2012 Cr.L.J. 702 at p. 709 (S.C.): 2012(1)
S.C.C. (Cr.) 26 (2012).
14
ADM Jabalpur v. Shivkant Shukla, AIR (1976) 2 SCC 521.
15
Ramdev Sahani v. State of Bihar, 2014 Cr LJ 2605 (pat) : 2014 (1) PLJR 670.

63
3.4.1 Bail not to be Arbitrary

Bail or jail at the pre-trial or post-conviction stage belongs to the blurred area
of the criminal justice system and largely hinges on the hunch of the bench,
called judicial discretion. Personal liberty, deprived when bail is refused, is too
precious a value of our constitutional system that the crucial power to neglect,
it is a great trust exercisable, not casually but judicially, with lively concern for
the cost to the individual and the community. 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.16
Bail is granted to secure the presence of the person charged with crime at his
trial or at any other time when his presence may lawfully be required and to
force him to submit to the jurisdiction and punishment imposed by the court.
Bail is never denied for the purpose of punishing a person accused of crime.
The principal aim of bail is removal of restrictive and punitive consequences of
pre-trial detention of an accused.17 Bail should not be refused only on the
ground that the detune is trying to come out on bail and there is enough
possibility of his being bailed out. But if there is possibility that the detune if
bailed out, is likely to commit activities prejudicial to the maintenance of
public administration than bail may be refused.18

3.5 BAIL PROVISIONS IN BAILABLE AND NON-BAILABLE

OFFENCES

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 a non-bailable offence is discretionary under Section 437,
and the person released on bail may again be arrested and committed to
custody by an order of the High Court, the Court of Session and the court

16
Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429
(para1) (1978) 1 SCC 240.
17
State of Rajasthan v. Balchand, 1977 AIR 2447, 1978 SCR (1) 535.
18
Shashi Aggarwal v. State of Uttar Pradesh, 1988 1 SCC 436.

64
granting the bail. The High Court and the Court of Session may release any
person on bail and by a subsequent order cause any person so admitted to bail
to be arrested and committed to custody. Whereas person accused of a bailable
offence is treated differently. He may at any time while under detention
without a warrant and at any stage of the proceedings before the court before
which he is brought he has a right under Section 436 of Code, to be released on
bail. The Criminal Procedure Code, 1973 makes no express provision for the
cancellation of a bail granted in bailable offences. Nevertheless, if at any
subsequent stage of the proceedings, it is found that any person accused of a
bailable offence is intimidating, bringing or tampering with the prosecution
witnesses or is attempting to abscond, the High Court has the power to cause
him to be arrested and to commit him to custody for such period as it thinks fit.
This jurisdiction springs from the overriding inherent powers of the High Court
and can be invoked in exceptional cases only when the High Court is satisfied
that the ends of justice will be defeated unless the accused is committed to
custody. This inherent power of the High Court exists and is preserved by
Section 482 of the Code. The person committed to custody under the orders of
the High Court cannot ask for his release on bail under Section 436 of Code.
But the High Court may by a subsequent order admit him to bail again.19

Whenever an application for bail is made to a Court, the first question that it
has to decide is whether the offence for which the accused is being prosecuted
is bailable or otherwise. If the offence is bailable, bail will be granted under
Section 436 of the code with or without surety but if the offence is not bailable,
further considerations arise and the Court have to decide the question of grant
of bail in the light of those further considerations 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
19
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ 1576 at p. 1577.

65
other considerations which arise when a court is asked for bail in a non-bailable
offence.20

3.6 BAIL IN BAILABLE OFFENCES-SECTION 436

A reading of Section 436(1)21 of the code would clearly indicate, that in the
first instance, a person charged of a bailable offence is entitled to bail as a
matter of right in all bailable offences when an accused is arrested and detained
without warrant by the officer in charge of the police station or appears or
brought before the Court and is prepared at any time, while in custody or at any
stage of the proceedings before the court to furnish bail, such person shall be
released on bail. Right to seek bail in respect of bailable offences is a matter of
right. The value of the bond and the nature of the sureties is the only discretion
vested in the Court. The proviso to the provision also makes it very clear that
the officer-incharge in his opinion or the Court in its opinion, in their discretion
will release the person by only taking a personal bond without insisting the
surety for the appearance. The provision also makes it clear that grant of bail
need not necessarily be by the Court only. The police officer has also
jurisdiction to release the person on bail with or without surety.22

Bail under Section 436(1) is as a matter of right the area of discretion being
that the court may release the person merely on executing a bond without
surety for his appearance instead of taking bail from such a person when a
person is indigent and is unable to furnish surety.23

The provisions of Section 436 apply to any person other than a person accused
of a non-bail able offence. It, therefore, follows that this section applies to any
person accused of bailable offences. The provisions of the sections are very
wide and they cover all persons other than those accused of non-bailable

20
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/9/09_chapter%203.pdf.
21
Section 436 of the Code of Criminal Procedure, 1973.
22
Chowriappa Construction v. Rabindranath Acharya, 1978 Cr.L.J.. 864 at p. 867 (Orrisa): 1978 Cut.
L.T. 348.
23
Sushil Suri v. State, 2006 (3) R.C.R. (Cr.) 355 at p. 358 (Del.).

66
offences. The only exception is given in the second provision to the section,
which says that nothing in the Section 436 shall be deemed to affect the
provisions of Sub-section (3) of, Section 116 or Section 446A.

Section 436 enjoins a duty on the police officer to release such a person on bail
if he is arrested or detained without warrant by an officer-in-charge of a police
station, and on the magistrate, if he offers a bail at any stage of the proceeding
before the said court. The scheme of Section 436 appears to be that at any stage
prior to the proceeding before the court, it would be the power of the officer-in-
charge of the police station to release such a person on bail and if such person
is not prepared to offer bail at that stage, then at a subsequent stage, he can still
offer the bail before the magistrate at any stage of the proceedings. The duty
enjoined upon the police also finds support from Section 50(2) of the court.
Any other construction of Section 436 (1) would necessarily lead to an absurd
situation where two separate authorities will be exercising the same power,
could not have been the legislative intent. The situation where two separate
authorities can exercise the same power are not foreign to the Code inasmuch
as there are provisions which give concurrent jurisdiction to two authorities,
but in the case of Section 436(1) there does not appear to be any intention of
the legislature to give concurrent powers to the police officer and the
magistrate.24 According to Article 21 of the Constitution of India, no person
shall be deprived of his life or personal liberty except according to procedure
established by law.25

3.6.1 Maximum Period for which an under Trial Prisoner can be Detained

Under Section 436A provides for maximum period for which an under trial
prisoner can be detained. Where a person has, during the period of
investigation, inquiry or trial under this Code of an offence under any law (not
being an offence for which the punishment of death has been specified as one

24
Romeshbhai Amrital Chhatral v. State, 1983 (2) Crimes 186. (Page no. 76 PV).
25
Article 21, Constitution of India, 1950.

67
of the punishments under that law) undergone detention for a period extending
up to one-half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on his personal bond
with or without sureties under Section 436A.26

Provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such
person for a period longer than one-half of the said period or release him on
bail instead of the personal bond with or without sureties: Provided further that
no such person shall in any case be detained during the period of investigation
inquiry or trial for more than the maximum period of imprisonment provided
for the said offence under that law.

Explanation. In computing the period of detention under this section for

granting bail the period of detention passed due to delay in proceeding caused
by the accused shall be excluded.

There have been instances, where under-trial prisoners were detained in jail for
periods beyond the maximum period of imprisonment provided for the alleged
offence. As remedial measures Section 436A has been inserted to provide that
where an under-trial prisoner other than the one accused of an offence for
which death has been prescribed as one of the punishments, has been under
detention for a period extending to one-half of the maximum period of
imprisonment provided for the alleged offence, he should be released on his
personal bond, with or without sureties. It has also been provided that in no
case will an under-trial prisoner be detained beyond the maximum period of
imprisonment for which he can be convicted for the alleged offender. The
provisions of this section cast a statutory duty upon the officer in charge of the
police station to release on bail a person who was involved in a bailable
offence. The power to release either on bail or on a personal recognizance i.e.
bonds without sureties extends to the time the accused is in the custody of such
26
Section 436A inserted by Act 25 of 2005, (w.e.f. 23-6-2006).

68
officer. The right of the accused to be released arises only when the person
under arrest or detention is prepared and able to give bail. He cannot be taken
into custody unless he is unable or unwilling to offer bail or to execute a
personal bond.27 Recently it was held by the Apex Court that the subordinate
Courts should have to follow the guidelines regarding speedy disposal of bail
application.28

3.7 WHEATHER CONDITION CAN BE IMPOSED IN BAILABLE

OFFENCES

A release on bail in bailable offence is without condition. The accused cannot

be compelled to appear before the police since such condition would be
repugnant to Section 436. A police officer should grant bail on furnishing a
reasonable amount of surety. An improper refusal of bail is in violation of a
duty cast upon him. It has been held in In re District Magistrate,
Vizagapatnanr29, that in bailable offence the discretion is to be restricted to the
demand of security to ensure the presence of the person when required him to
do so. The Allahabad High Court has held that there is no discretion in law to
impose conditions for grant of bail except with regard to security and sureties.30

While releasing a person concerned with commission of a bailable offence

whether the Court is entitled to impose certain conditions was one of the main
issues recently dealt with and answered by Gujarat High Court in Shantilal
Javerchand Jain v. State of Gujarat31, the Court held that it can impose
relevant conditions while releasing an accused alleged to be guilty of a bailable
offence as there is no specific restriction in code on the court‟s power to
impose relevant conditions. The Court held that the conditions are normally

27
The Crown v. Makhan Lal, 48 Cr. L. J. 656.
28
Hussain and Anr. v. Union of India, (Crl. No. 348 of 2017) available at http://mpsja.mphc.gov.in/
Joti/pdf/LU/criminal%20trial%20guidelines.pdf.
29
A.I.R. 1949 Mad. 71; see also Tn re Appalaakonda, A.I.R. 1942 Mad. 740.
30
Rex v. Genda Singh, A.I.R. 1950 All. 525.
31
Shantilal Javerchand Jain @ Shantilal Zhaverilal Jain v. State of Gujarat, 2012(1) GLR 902 (paras
11, 12, 13).

69
imposed in order to strike a balance between the right of accused and the right
of the prosecution. The accused is released on bail to avoid unnecessary
confinement at the same time the right of the prosecution is preserved or
protected to secure the presence of the accused for the purpose of trial. The
court is under an obligation to strike a balance between the two conflicting
claims. On the one hand, the society to be shielded from hazards of
misadventures of a person who is alleged to have committed crime, and on the
other hand, the fundamental canon of criminal jurisprudence that a person to be
presumed to be innocent till he is found guilty, and the aspect of liberty-which
is one of the most important basic human right, which require consideration. In
other words, even if such liberty is required or curtailed or regulated, it has to
be with utmost care that it balances the individual right and the rights of the
society as a whole. Admittedly, there is no statutory provision which suggest
that no such condition can be imposed.32

3.8 POWER TO REFUSE BAIL

Sub-section (2) of Section 436 empowers the court to refuse bail to an accused
person even if the offence is bailable, where the person granted bail fails to
comply with the conditions of the bail bond. Such refusal will not affect the
powers of the Court to forfeit the bond and recover penalty from the surety as
laid down by Section 446. Even in bailable offence the Court has power to
refuse to release a person on bail. The person committed to custody under the
order of the High Court cannot ask for his release on bail under this section, but
the High Court may by subsequent order admit him to bail again. 33 An order
granting or refusing bail is interlocutory. Order refusing bail is not a final
order. Bail may be refused at one stage but may be granted at a later stage in
the same proceedings. It can be even rescinded or modified or cancelled at any

32
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis. p. 47.
33
Rati Pal Bhanji Mithani v. Asst. Collector of Customs, AIR 1967 SC 1639: 1967 CrLJ 1576.

70
stage. It does not terminate the proceedings or decides a point for decision in
the case and therefore is not a final order.34

3.8.1 Who may be Released on Bail

A person who is accused of a bailable offence will be entitled to a bail under

this section. He will be entitled to bail if-

a. He is accused of a bailable offence.

b. He is arrested or detained without warrant by an officer-in-charge of a

police station or appears or is brought before a Court;

c. A complaint or a police report of a bailable offence is made against him,

or he is suspected of having committed such an offence35.

But even though the offence is bailable, bail will not be granted if the accused
stultifies the process of the Court or breaks his bond of appearance.36 When a
bail application is moved before the subordinate Courts, the same shall be
disposed of the same day.37 Power under Section 436 should be exercised
sparingly by the High Court.38 Instructions were issued by the High Court in
regard to disposal of application for bail by the subordinate Courts. 39 Bail can
be taken by the police officer who has arrested or detained the person
concerned or by the Court before whom the person appears or is brought.
Under Section 440, the High Court or the Court of Session may in any case
direct that the bail required by a police officer or magistrate be reduced.40
When a police officer makes an arrest under Section 41 he is bound to give the

34
K.P. Vasu v. State, AIR 1975 Ker. 15.
35
State of Mysore v. Biswanath Rao, 1966 Cr.LJ 267 (1965) 1 Mys. LJ 365; 1965 Mad. LJ (Cr.) 849:
AIR 1966 Mys. 71.
36
Joseph D. Kattampilly v. State of Kerala, 1970 Kerala 521.
37
Babu Ram v. State, 1988 A Cr. R. 464.
38
Kedar Nath Tiwari v. State of U. P., (1987) 1 Crimes 641; 1987 All. LJ 572; 1987 All. Cr. R. 289;
1988 (25) ACC 2.
39
Mahendra Pal Singh v. State of U.P., 1989 A.W.C. 1406; Rajendra v. State, 1989 A.Cr.R. 96; 1989
All. LJ 223 Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at 380.
40
Talab Haji Husaain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376.

71
person arrested the option of the bail and bail bond should be not excessive but
in accordance with position in life occupied by the person arrested.41 In
Superintendent and Remembrances of Legal Affairs, Bengal v. Jairali42, the
decision in the matter of the petition of Daulat Singh43, was doubted and it was
held that there was no indication in that section that the police are bound, after
arrest, to inform the persons arrested that they are entitled to be released on
bail. But Section 56 lays down that a police officer making an arrest shall,
without unnecessary delay and subject to the provisions herein contained as to
bail take or send the person arrested before Magistrate having jurisdiction in
the case or before the officer-in-charge of a police station. The police officer
effecting an arrest is an officer-in-charge of a police station and if the offence is
bailable, such officer shall release the arrested person on bail when the arrested
person is prepared to give bail. If, however, the police officer arresting a person
is not an officer-in-charge of a police station, then the arrested person has to be
produced before the officer-in-charge of a police station, as required under this
section. In all cases in which the offence as alleged against the person arrested
is non-bailable, such person shall be produced before a magistrate under
Section 167. Provision for bail in such a case is made under Section 437.

3.9 GRANT OF BAIL BY MAGISTRATE UNDER SECTION 437

The Criminal Procedure Code, 1973 has conferred the power to grant bail on-

(1) An officer-in-charge of police station.

(2) Magistrate

(3) Sessions Court

(4) High Court

41
In the matter of the petition of Daulat Singh, ILR 14 All. 45 at 47; see also Wadhawa Singh v.
Emperor, AIR 1928 Lah. 318.
42
AIR 1974 SCR 3 348.
43
ILR 14 ALL 45.

72
The Supreme Court of India is not a regular court for bail matters. The
Supreme Court however, has got the power to examine the legality of bail
orders passed by High Courts in exceptional circumstances in exercise of the
power under Article 136 of the Constitution of India.44

An officer-in-charge of police station has been given power to release a person

accused of any bailable offence and some of the non-bailable offences (other
than the offence punishable with death sentence and life imprisonment) only.
The power given to an officer in charge of police station can be exercised only
during first 24 hours from the time of arrest. Thereafter, by virtue of the
Constitutional mandate, the officer-in-charge of police station has to produce
an arrested person before magistrate under Section 57 and hence upon the
production of the arrested accused before magistrate, the police will lose its
power to release the accused on bail.

The magistrate is given the power to release a person accused of all bailable
offences and most of the non-bailable offences once an arrested accused is
produced before him or where accused voluntarily appears before him. The
powers of magistrate are much wider as compared to the powers of an officer
in charge of police station. Though, theoretically, officer in charge of police
station is invested with the power to release a person accused of a non-bailable
offence, in practice, the issues of granting bail by an officer in charge of police
station to an accused alleged to have committed non-bailble offences hardly
arise.

Sessions Courts and High Courts have the power to release a person accused of
any offence whether punishable with death sentence or life imprisonment,
subject to the provisions of any special law circumscribing the powers of the
Session‟s Court or the High Court. The powers of Session‟s Court and High
Courts to grant bail are almost unfettered. The only requirement is that
Session‟s Court and High Courts must exercise their power in a lawful manner
44
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 49.

73
and the discretion to grant or refuse bail should be exercised upon careful
analysis of facts and settled principles of law.45

Section 437, makes provision for bail in case of a non-bailable offence. Sub-
Section (1) of Section 437 states that when any 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 or appears or is brought
before a Court other than the High Court or Court of Session, he may be
released on bail. It uses the phrase, “a Court other than High Court or Sessions
Court”. In other words, it speaks of the power of magistrate to grant bail in case
of non-bailable offence. Section 437(1) further states that a person accused of a
non-bailable offence 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 or where such offence is a cognizable offence
and he had been previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a cognizable offence
punishable with imprisonment for three years or more but not less than seven
years. The aforesaid restriction on the powers of magistrate is lifted in the
proviso. The proviso states that the restriction on the power of magistrate will
not apply where the accused is under the age of 16 years or is a women or is
sick or infirm. It also provides that magistrate may release such excluded
category of accused on bail if it is satisfied that it is just and proper so to do for
any other special reason. What could be the reason is not provided in the
section and it depends on the facts and circumstances of each case. In practice,
release of an excluded category of accused on bail for special reasons under the
proviso hardly takes place.46

It is made clear in Section 437(1) that merely because an accused person may
be required for being identified by witnesses during investigation shall not be
45
Ibid.
46
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, p. 50.

74
sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail gives an undertaking that he shall comply with such directions
as may be given by the Court.47

Section 437 mandates that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more, be released on bail by the court under
this sub-section without giving opportunity of hearing to the public prosecutor.

Section 437(2) envisages a contingency where the officer or court during

investigation, inquiry or trial forms a reasonable belief that the accused has not
committed a non-bailable offence, but there are sufficient grounds for further
inquiry into his guilt. When such belief is formed the accused shall, subject to
the provisions of Section 446A and pending such inquiry, be released on bail,
or, at the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance.48

Section 437(4) makes it mandatory for the officer or the magistrate to record
reasons in writing while releasing any person on bail under Sub-section (1) or
Sub-section (2) shall record in writing his or its reasons or special reasons for
so doing.49

Section 437(3) vests power in a magistrate to impose relevant conditions while

releasing an accused on bail. When a person accused or suspected of the
commission of an offence punishable with imprisonment which may extend to
seven years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of Indian Panel Code or abetment of, or conspiracy or attempt to
commit any such offences, is released on bail under Sub-section (1), the Court
shall impose conditions.

47
Section 437 of the Code of Criminal Procedure, 1973.
48
Ibid.
49
Ibid.

75
(a) that such person shall attend in accordance with conditions of bond
executed under this chapter,

(b) that such person shall not commit an offence similar to the offence of
which he is accused, or suspected, of the commission of which he is
suspected, and

(c) that such person shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the Court or to any
police officer or temper with the evidence, and may also impose, in the
interest of justice, such other conditions as it consider necessary.

It impliedly means that where an accused is suspected of the offence other than
stipulated hereinabove, it is discretion of magistrate to impose or not to impose
the conditions.

Section 437(5) makes provision for cancellation of bail by the same court. An
officer has no such power to cancel bail granted by him. The provisions states
that any court which has released a person on bail under Sub-section (1) or
Sub-section (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit him to custody.50

Section 437(6) makes provision for release of an accused on bail if a trial is

delayed beyond 60 days from the first date fixed for taking evidence subject to
condition that the accused should be in custody during the whole period of 60
days. Though usually such statutory release on bail is to be ordered, the
magistrate may for good reasons refuse to release the accused on bail under this
sub-section.51

50
Ibid.
51
Ibid.

76
Section 437(7) states that if, at any time after the conclusion of the trial of a
person accused of a non-bailable offence and before judgement is delivered, the
court is of opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence, the Court shall release the accused, if
he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.52

Thus, a well-balanced procedure has been prescribed under Section 437 for bail
in respect non-bailable offences. If there is reason to believe that the accused
has not committed any non-bailable offence, he is entitled to bail. If the trial is
delayed beyond 60 days from the date fixed for taking evidence for no fault of
accused, the accused is usually entitled to bail. A women accused, an accused
below 16 years of age or an accused who is old, sick, or infirm may be released
by the magistrate irrespective of the fact that the offence is punishable with
death sentence or life imprisonment. The provision is also made for releasing
accused of an offence punishable with death sentence or life imprisonment
after recording special reasons in writing by the magistrate.53

The scheme of The Criminal Procedure Code, 1973, mainly provides that bail
will not be extended to a person accused of the commission of a non-bailable
offence punishable with death or imprisonment for life, unless it is apparent to
such a court that that it is incredible or beyond the realm of reasonable doubt
that the accused is guilty. The enquiry of the magistrate placed in this position
would be akin to what is envisaged in State of Haryana v. Bhajanlal54 that is,
the alleged complicity of the accused should, on the factual matrix than
presented or prevailing, lead to the overwhelming, incontrovertible and clear
conclusion of his innocence. The Criminal Procedure Code, 1973 severely

52
The Code of Criminal Procedure Code, 1973.
53
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, pp. 50, 51.
54
State of Haryana v. Bhajan Lal, (AIR, 1992) SCC 335 1192 AIR SCW 237.

77
curtails the powers of the magistrate while leaving that of the Court of Sessions
and the High Court untouched and unfettered.55

3.9.1 Detailed Analysis of Section 437

Section 437 deals with the powers of an officer-in-charge of police station and
magistrate to grant or refuse bail.

A close reading of Section 437 leads to the following result:

When any person accused of or suspected of any non-bailable offence is-

 Arrested or

 Detained without warrant by an officer in charge of a police

station or

 Appears or is brought before a Court other than the High Court or

Court of Session.

He may be released on bail, but-

(i) Such person shall not be so released if there appear reasonable grounds
for believing that he has been guilty of an offence punishable with death
or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable

offence and

(a) He had been previously convicted of an offence punishable with death,

imprisonment of life or imprisonment for seven years or more or

(b) He had been previously convicted on two or more occasions of a non-

bailable and cognizable offence.56

55
Sundeep Kumar Bafna v. State of Maharashtra, AIR 2014 SC 1745: 2014 (4) SCALE 215: 2014 Cr
LJ 2245.

78
However, any person from the above excluded category may be released on
bail by the magistrate if such person is under the age of 16 years or is a woman
or is sick or infirm.

Provided further that for any other special reasons the Court may release a
person referred to in (i), (ii) on bail if it is satisfied that it is just and proper to
do so.

Mere fact that an accused may be required for being identified by witnesses
during investigation shall not be sufficient ground for refusing bail if he is
otherwise entitled to be released on bail and gives an undertaking that he shall
comply with such direction as may be given by the Court.

Section 437 is concerned only with the court of magistrate and an officer –in-
charge of police station. It expressly excludes High Courts and Court of
Session.

There is a noticeable trend in above provisions of law that even of such non-
bailable offence a person need not be detained in custody for any period more
than it is absolutely necessary. If there are no reasonable grounds for believing
that he is guilty of such an offence.57

Accused facing allegations of committing non-bailable offence other than

offence punishable with death or life imprisonment is usually released on bail
unless other overwhelming factors relevant for refusing bail are in existence.58

There are certain overriding considerations that need to be borne in mind.

Whenever a person is arrested by the police for such an offence, there should
be materials produced before the Courts to come to a conclusion as to nature of
the case he is involved in or he is suspected of. If at that stage from the

56
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, pp. 51-52.
57
Gurucharan Singh (Delhi Administration) v. State, AIR 1978 SC 179 (paras 18 to 23): 1978 Cr.LJ
129 (1978) 1 SCC 118.
58
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, p. 52.

79
materials available there appears reasonable grounds for believing that the
person has been guilty of an offence punishable with death or imprisonment for
life, the Court has no other option than to commit him to custody, at that stage,
the Court is concerned with the existence of the materials against the accused
and not as to whether those materials are credible or not on the merits. In other
non-bailablecases, the Court will exercise its judicial discretion in favour of
granting bail subject to Sub-section (3) of Section 437, if it deems necessary to
act under it. Unless exceptional circumstances are brought to the notice of the
court which may defeat proper investigation and a fair trial, the Court will not
decline to grant bail to a person who is not accused of an offence punishable
with death or imprisonment for life. It is also clear that when an accused is
brought before the Court of a magistrate with the allegation against him of an
offence punishable with death or imprisonment for life, he has ordinarily no
option in the matter but to refuse bail, subject, however, to the first proviso to
Section 437(1) The Criminal Procedure Code, 1973 and in a case where the
magistrate entertains a reasonable belief on the materials that the accused has
not been guilty of such offence, this will however, be an extra ordinary
occasion since there will be some materials at the stage of initial arrest, for the
accusation or for strong suspicion of commission by the person of such an
offence.59

3.9.2 Scope and Application of Bail

Section 437 gives the Court or a police officer power to release an accused on
bail in a non-bailable case, unless there appear reasonable grounds that the
accused has been guilty of an offence punishable with death or with
imprisonment for life. But (1) a person under the age of sixteen years (2) a
woman; or (3) a sick or infirm person may be released on bail even if the
offence charged is punishable with death or imprisonment for life. Where a
person is charged with a non-bailable offence, but it appears in the course of

59
Ibid., p. 53.

80
the trial that he is not guilty of such offence, he can be immediately released on
bail pending further inquiry. The same may be done after the conclusion of a
trial and before judgment is pronounced, if the person is believed not to be
guilty of a non-bailable offence. As a safeguard the section provides for review
of the order by the Court which has released the person on bail. The power of
the Magistrate under this section cannot be treated at par with the powers of the
Sessions Court and the High Court under Section 439. The basic rule may
perhaps be tersely put as bail not jail except where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or creating
utter troubles in the shape of repeating offences or intimidating witnesses and
the like by the petitioner who seeks enlargement on bail from the Court. Grant
of bail is the rule and its refusal is an exception. But while granting it the Court
has to be satisfied that the order to be passed is in the interest of justice. The
provisions of Code do not contemplate either granting of a bail on the basis of
an assurance of a compromise or cancellation of a bail for violation of the
terms of such compromise. Having granted the bail under the said provision of
law, it is not open to the trial Court or the High Court to cancel the same on a
ground alien to the grounds mentioned for cancellation of bail in the said
provision of law. Furlough and parole are two distinct terms now being used in
the jail Manuals or laws relating to temporary release of prisoners. When a
prisoner is on parole his period of release does not count towards the total
period of sentence while when he is on furlough he is eligible to have the
period of release counted towards the total period of his sentence undergone by
him.60

3.10 LEGAL ASPECTS OF THE BAIL MECHANISM

The significance of bail system in the administration of criminal justice is to be

understood in relation to the fact that the advantage of being released on bail is
statutorily denied altogether in most of the capital offences. In complex cases,

60
Courts need to be Litigant-centric and Citizen Centric rather than Judge-centric and State-centric.

81
where discretion is to be exercised to grant release on bail, Courts must look to
prescribed legislative standards. These standards arc to be found in Section 437
and in the First Schedule (col. 5) of the code.61 To sift offences as „bailable‟
and „non-bailable‟ a legislative guideline is provided in Section 2(a) of the
Code of Criminal Procedure, 1973 as well as the First Schedule appended
thereto. Section 2(a) of the code purports to define „bailable offence‟. The
words merely explain that it is “an offence which is shown bailable in the First
Schedule, or which is made bailable by any other law for the time being in
force”; and that „non-bailable‟ offence means any other offence”. Classification
of offences under the code is highly unsatisfactory. The First Schedule shows
that the classification has been done in two parts. Part I deals with offences
under the Indian Penal Code. Part II deals with the offences under other laws.
The tabular details in part I of the First Schedule indicate the kinds of offences
in column I.62 Further in the column 5 of the table, itemised offences of the
Indian Penal Code have been enumerated and are characterised as bailable or
non-bailable. Since part II covers the entire gamut of penal laws, other than the
Indian Penal Code, it is not possible to enumerate all statutory offences in
column I of the Table (part II), as has been done in case of offences under the
Indian Penal Code (in part I). Thus, instead of mentioning offences in part II,
column I, the code has adopted a method of providing general description and
nature of punishments prescribed by the legislature for numerous offences. It is
with the help of the punishment prescribed for offences enacted in other laws,
that the bailable or non-bailable nature of the offence has to be determined.
Thus, part II (First Schedule) seeks to formulate that the bailable or non-
bailable character of an offence under other laws, is to be determined, by the
nature of punishment appended to it by the legislature while enacting a
particular statute. The prescribed punishment of imprisonment ranging from a
period of three years or above, lead to designate an offence as non-bailable.
Those which carry prescriptions for punishments below the period of three
61
The Code of Criminal Procedure, 1973.
62
Ibid.

82
years arc termed as bailable. A scheme natisation is apparently discernible in
legislative classification of the offences in the code. Its rationale, however, is
totally unclear, except that legislative wisdom has chosen to do so.63

3.10.1 Discretion in Grant or Refuse Bail

The matter for bail is largely a matter of discretion but such discretion has to be
exercised not arbitrarily but judiciously on the basis of norms which by now
have become fairly established. Grant or refusal of bail, is not dependent on the
whim and caprice of the Court and extra judicial consideration do not play a
role in such a decision. The Court does not have any right to refuse bail to the
accused person in order to make them believers if they are atheist by
temperament.64

In bailable offences the right to claim bail granted under Section 436 of the
code is an absolute and indefeasible right. There is no question of discretion in
granting bail as words of Section 436 are imperative. There is no manner of
doubt that bail in bailable offences can be claimed by accused as of right and
the officer or the Court, as the case may be, is bound to release the accused on
bail if he is willing to abide by reasonable conditions which may be imposed on
him.65

3.10.2 Power to Grant of Bail in Non-Bailable Offences

Unlike a bailable offence where bail is a matter of right under Section 436
grant of bail for a non-bailable offence under Section 437 (or, for that matter,
even under Section 439), is a matter of discretion. The grant of bail in non-
bailable cases is generally a matter in the discretion of the authorities in
question. The grant of bail in respect of a person accused of or suspected of the

63
14.139.60.114:8080/jspui/bitstream/123456789/671/11/Bail%20Mechanism.pdf by DC Pandey -
2015.
64
Rupa Santa v. State of Orissa, 2010 (87) A.I.C.873 at p. 874.
65
Rasikalal v. Kishore, (2009) 43 O.C.R. 28 at p. 31 (S.C.): 2009 (2) A.I.R. (Cr.) 50 (S.C.): A.I.R.
2009 S.C. 1340.

83
commission of any non-bailable offence, is a matter of discretion and under
Section 437 of the Code, if there is no prohibition otherwise and if the
guidelines for enlarging on bail are satisfied, then, the Magistrate in his
discretion may release such person on bail. It thus gives the jurisdiction that
contains a discretion which must be utilized judicially. It is stipulated that bail
may not be denied only on the ground that the accused is required for getting
him identified by the witnesses. Certain conditions can be annexed to the
liberty and in certain contingencies liberty already granted can be snatched by
cancellation of bail. In addition to these provisions, there is a ban even on such
discretionary power of the Magistrate when there appear reasonable grounds
for believing that the accused has been guilty of an offence punishable with
death or imprisonment for life in which case, the Magistrate has no jurisdiction
and power to release the accused on bail as it is well emphasized by the use of
the words “but he shall not so release”. Exception to this general ban finds
place in the proviso relating to young persons or sick or infirm persons or
women. Bail is a matter of right if the offence is bailable. In the case of a non-
bailable offence, bail is a matter of judicial discretion.

Bail shall not be granted by the Magistrate if the offence is punishable with
death or imprisonment for life if he is of the view that there appear reasonable
grounds for believing that the person concerned accused of or suspected of the
commission of the offence has been guilty of the offence, provided that he
may, in his discretion that he may, in his discretion, grant bail to a woman or a
minor under the age of sixteen years or a sick or infirm person.

In a case involving a non-bailable offence, a Court may impose reasonable

conditions besides fixing of the bail amount for the attendance of the accused.
Discretion has to be exercised in granting bail in cases not punishable with
imprisonment for life or death unless there may be some reasons for not
exercising such discretion in favour of the accused. Such reasons should be
mentioned in the order while refusing bail. In cases of under-trials charged with

84
commission of an offence or offences the Court is generally called upon to
decide whether to release him on bail or to commit him to jail.

The decision has to be made mainly in non-bailable cases, having regard to the
nature of the crime, the circumstances in which it was committed, the
background of the accused, the possibility of his jumping bail, the impact that
his release may make on the prosecution witnesses, its impact on society and
the possibility of retribution, etc.66

3.10.3 Surety’s Liability and Forms of Bond

Section 436 says that any person, other than a person accused of a non-bailable
offence is arrested or detained without warrant or appear or is brought before a
court, shall be released on bail if he is prepared to give bail. The word „bail‟ in
the context means bail with surety. The section nowhere states that a person
released on bail must give a bond himself. The person giving bail enters into a
contract with a penalty clause to produce the accused person before the Court
when called upon to do so. The person giving bail is the principal. The person
for whom bail is given is the subject of the contract. If the person giving bail
fails to perform his contract, then the penalty clause may be put into operation
against him, although it is not necessary to exact the penalty in full.67

The terms of a bond or bail bond executed under to Section 436 of The
Criminal Procedure Code, 1973 should be in accordance with Forms 3 and 28
of Schedule 11 of Code68, as the case may be. The forms indicate what the
contents of a bond with sureties should be. Where the bond is not in accordance
with the form the person executing the same incurs no legal liability by
executing it. The form also indicates what the contents of a bond with sureties
should be.69

66
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/13/13_chapter%207.pdf
67
Indar v. Emperor, (1941) ILR Lah 519: AIR 1940 Lah 339: 42 PLR 411: 41 Cr LJ 598: 190 IC 688.
68
The Second Schedule Form No. 11, 12, 13 of The Code of Criminal Procedure, 1973.
69
Wadhwa Singh v. Emperor, AIR 1928 Lah 318: 29 Cr LJ 491: 109 IC 219.

85
Third party‟s bond whether can be taken a police officer acting under Section
436 of The Criminal Procedure Code, 1973 has the power to demand a bail
from a person arrested or to accept his own bond without sureties. But under no
provision of law can the police officer take a third party‟s bond for such
person‟s appearance.70

Agreement to Indemnify Surety, if Enforceable in Law An agreement to

indemnify a person standing bail is illegal. There is nothing in Section 445
which would justify an inference different from the English law on the
question.71 The English law on the subject has been laid down in Consolidated
Exploration & Finance Co. v. Musgrave72, that any indemnity given to bail a
person whether by the so person bailed or by another is illegal. The principle of
this English ruling has been followed in Prosanna Kumar Chakravarty v.
Prakash Chandra Dutt73 and Bhupati Chandra Nandy v. Golam Ehihar
Choudhury.74

The English law on the subject has been briefly put in Halsbury‟s Laws of
England thus: Where the defendant in a criminal case has been ordered to find
bail, a promise given either by him or by a third person to indemnify his surety
against liability on his recognizance is illegal because it deprives the public of
the protection which the law affords for securing the appearance or good
behaviour of the defendant.75

But a contrary view has been held in Dula Ram v. Akhey Raj76 on the ground
that Section 445 permits the court or officer to allow a person required to

70
Wadhwa Singh v. Emperor, AIR 1928 Lah 318: 29 Cr LJ 491: 109 IC 219.
71
Laxmanlal Konakkirti Pandit v. Muishankar Pitambardas Vyas, ILR 32 Bom 449: 10 Bom LR 553.
72
(1900) 1 Ch D 37: 16 TLR 13: 69 LJ Ch 11.
73
28 IC 560.
74
24 CWN 368: AIR 1920 Cal 498: 56 IC 539; Meherulla v. Sariatulla, ILR 57 Cat 1993: 34 CWN
388: AIR 1930 Cal 596: 127 IC 774; Fateh Singh v. Sanwal Singh, ILR 1 All 751; Sunder Singh v.
Kishan Chand, (1899) Punj Rec 1.
75
Halusbury Law of England, Vol. 9, 4th Edn., para 399, p. 271.
76
AIR 1952 SCC.

86
execute a bond with or without sureties to deposit a sum of money or
government promissory notes in lieu of executing such bond.

Sufficiency of Bail The decision whether the bail is sufficient or not rests with
the court and court alone. But the court generally calls for a report from the
police. That does not mean that the decision lies with the police.77

Proviso 1. The first proviso to Section 436 of The Criminal Procedure Code,
1973 makes an exception to the main part of the section with regard to giving
bail by a person arrested or detained without warrant or is brought before a
court. The exception contained therein enacts that such officer-in-charge of a
police-station or court if he or it thinks fit may, instead of taking bail from such
person, discharge him on his executing a bond without sureties for his
appearance as hereinafter provided. This discretion of the officer-in-charge or
court becomes mandatory if the person arrested is an indigent person.
Explanation to this subsection further enables the officer-in-charge or court to
presume such indigent status of the person arrested jails to obtain bail within 7
days of his arrest. The bond so executed by him must conform to the provisions
of Sections 440 and 441 of The Criminal Procedure Code, 1973.

Proviso 2. Section 436 enacts, that nothing in the section shall be deemed to
affect the provisions of Sub-section (3) of Section 116 or Section 446A. The
exercise of the powers under Sub-section (2) of Section 116 is subject to two
conditions, namely: (a) the magistrate considers that immediate measures are
necessary for the prevention of breach of the peace; and (b) the reasons in
support of the consideration are recorded in writing. If these two conditions are
complied with the order may be passed at any time during the period
commencing from the date when the order is passed till the disposal of the
inquiry.78 Bonds with or without sureties are called for from the persons against

77
Queen-Empress v. Gayitri Prosunno Ghosal, ILR 15 Cal 455.
78
Satyaranyan Gautavet v. State, (1967) ILR Cut 14: AIR 1967 on 133: 1967 Cut LT 386: 1967 Cr LJ
1166; Jagannath Bisoi v. State, (1965) ILR Cut 65: 1965 Cut LT 777: (1965) 2 Cr LJ 830; Upendra
Nath Kanungo v. State, AIR 1966 on 75: 1966 Cut LT 742: 1966 Cr LJ 432.

87
whom proceedings under Chapter VIII are brought after the termination of the
proceedings, but Sub-section (3) of Section 116 makes provision for making an
interim order for calling for bond with or without sureties during the tendency
of the proceedings. Sub-section (3) of Section 116 makes provisions to the
effect that until the bonds are executed, or in default of their execution, the
person against whom proceedings are being taken may be detained in custody
till the inquiry is concluded.79

Sub-section (2) Sub-section (2) of Section 436 enacts an exception to the

substantive part of the main part of Sub-section (1) of the section. It says that
where a person has failed to comply with the conditions of the bail bond as
regards the time and place of attendance, the Court may refuse to release him
on bail, when on a subsequent occasion in the same case he appears before the
court or is brought in custody, and any such refusal shall be without prejudice
to the powers of the court to call upon any person bound by such bond to pay
the penalty thereof under Section 446. A new provision has been introduced
thus cancellation of bail, application if necessary no application is required on
behalf of any party for cancellation of bail as it is the duty of the court to do so
under Sub-section (5) of Section 437 under proper circumstances. Thus, if the
complainant brings the matter to the notice of the Court the latter can pass an
order cancelling the bail under the said Sub-section.80

Who can file an application under Sub-section (2) of Section 437 in a case
started on a private complaint, the complainant may file an application for
cancellation of bail bringing to the notice of the Court the grounds for such
cancellation. In a police case it is for the State to move for cancellation of bail,
but there is nothing in Section 437(5) prohibiting the complainant in a police
case from applying for cancellation. Though no private person is entitled to be
heard in support of such an application, when such an application is made, it is
open to the High Court to hear him in support of his application. In a
79
Tara Chand v. State, (1968) Del LT 735.
80
Bohre Singh v. State, AIR 1956 All 671: 1956 All LJ 646: 1956 All WR (HC) 530: 1956 Cr LJ 671.

88
cognizable case challenged by the police, it was the function of the State to
question the order of bail if it considered that the said order was unjustified, but
when the State does not think it fit to come in revision against the order, it may
be that in exceptional cases a revision by a private person is entertained. 81 The
High Court can act suo-motu under its revisional powers when it comes to its
notice that an inferior court has acted beyond its jurisdiction and in the exercise
of its revisional powers it can cancel the bail granted by such inferior Court. 82
In directing the re-arrest of the accused person who had been admitted to bail it
can act suo-motu or on an application by the State or a private complainant.
The High Court will, of course, be loath to interfere with the exercise of the
direction by the sessions judge. But if the order granting bail is erroneous, it
will set aside the order.83

3.10.4 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 custody
when he surrenders before the court and submits to its directions.84 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.85 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. 86

81
Devilal v. Ganpat, AIR 1951 Raj 94: 52 Cr LJ 631: (1951) 20 ITR 214.
82
Public Prosecutor v. G. Manikya Rao, AIR 1959 AP 639: 1959 Andh LT 514: (1959) 2 Andh WR
47: 1959 Mad LJ (Cr) 543: 1959 Cr LJ 1398.
83
Harminder Singh v. Sarvajit Singh, (1971) 73 Punj LR 76.
84
Niranjan Singh v. Prabhakar Rajaram, AIR 1980 SC 785; 1980 Cr.LJ 426; Phool Chand v. State of
Rajasthan, 1983 Raj. Cr. Cas. 190: 1983 Raj. L.W.294: 1983 Cr.LR (Raj) 336; Ram Kishan Misra v.
State of U.P., 1986 All. LR. 607: 1986 All Cr. R. 8: 1986 All. Cr.C. 29.
85
Lakhan Singh v. State of Rajasthan, 1987 R.L.W. 610.
86
Thakur Hariprasad v. State of A.P., 1976 An. LT.445.

89
3.10.5 Functional Aspects of Bail

An arrested person can be released on bail only after his matter has been duly
processed through a judicial mind.87 The functional aspect of bail is to facilitate
dispensation of criminal justice in a manner that it is not harsh and keeps the
judicial system of an even keel. The exercise of judicial discretion may thus
call for an examination of social realities as may smoothen the criminal process
for attaining just ends. Thus an accused placed in a position of indecency or
infirmity or any other kind of disability may favorably be included in the
exercise of judicial discretion for grant of bail. On the other hand, the
possibility of the accused absconding or his tampering evidence, or his
repeating the offence may justifiably negotiate chances of his release.88

3.10.6 Legal and Statutory Aspect of Bail Mechanism

Bail is a post arrest remedy aimed at the release of the arrested suspect till the
date of his trial. The mechanism of bail can be best understood by studying the
components that particularly go into every bail decision namely:

1. The circumstances leading to the arrest and detention of a person.

2. The factors for arriving at the bail decision like police record relating to
the offence, its bailable or non bailable nature, the furnishing of the
requisite security by the accused, need for surety and so on.

3. And, lastly interpreting the law relating to bail.89

A look into the First Schedule shows that the classification has been done in
two pars. Part 1 deals with offences under the Indian Penal Code. Part II deals
with the offences under other laws. The tabular details in part 1 of the First

87
Emperor v. Naga San, HEWA, 28 Cr. L. J. 776 (FB) (Rangoon).
88
K. N. Jaglekar v. Emperor, 33 Cr. L. J. 94 (FB) (At) State of Rajasthan v. Bal Chand, AIR 1997 SC
2447, 2448.
89
https://www.google.co.in/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=law%20
relating%20bail

90
Schedule indicate the kinds of offences in column 1. Further in column 5 of the
Table, itemized offences of the Indian Penal Code have been enumerated and
are characterized as bailable or non bailable. Section 436 of the Code makes it
clear that when a person other than a person accused of a non bailable offence,
is arrested and if her is prepared to give bail, he shall be released on bail. This
provision is mandatory.90

An analysis of provisions of Section 437 suggests that the grant of bail in

bailable cases needs to satisfy the following conditions, namely (a) the person
has been accused of a bailable offence; (b) such person has been arrested or
detained without a judicial warrant, by an officer in charge of a police station
or is brought before a Court; and (c) such person is prepared to give bail at any
time when he is in the custody of such officer, or he is prepared to do so at any
stage of the proceeding before such Court. A release on bail in bailable
offences is without condition. The accused cannot be compelled to appear
before the police since such condition would be repugnant to Section 436.91 A
police officer should grant bail on furnishing a reasonable amount of surety.92
An improper refusal of bail is in violation of a duty cast upon him. It has been
held in re District Magistrate, Vizagapatnam93 that in bailable offence the
discretion is to be restricted to the demand of security to ensure the presence of
the person when required him to do so. The Allahabad High Court has held that
there is no discretion in law to impose conditions for grant of bail except with
regard to security and sureties.94 There are some conditions put under Section
437 wherein you can ask for bail even if you committed non-bailable offence.
In non-bailable cases, bail is not the right but the discretion of the judge if
regards the case as fit for the grant of bail, it regards imposition of certain

90
https://www.google.co.in/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=law%20
relating%20bail
91
Public Prosecutor v. Raghurawiah, (1957) MLJ (Cri) 609.
92
1868 Punjab Ref. (Crl.) No. 2.
93
AIR 1949 Mad 77. See also in re Appalaakonda AIR 1942 Mad. 740.
94
Rex v. Genda Singh, AIR 1950 All 525.

91
conditions as necessary in the circumstances. Section 437(3) elaborates the
conditions set by the law to get bail in non-bailable offences.

The sub-section says that when a person accused or suspected of the

commission of an offence punishable with imprisonment which may extend to
seven years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or
conspiracy or attempt to commit, any such offence, is released on bail under
sub-section (1). However, for that the Court has power to impose any condition
which it considers necessary.

„Any Person’ and ‘Any Case’ – Meaning of The words „any person‟ have
been used in Sections 436, 437, 438 and 439 of the Code of Criminal
Procedure, 1973. The expression „any person‟ means a person accused or
suspected of the commission of the offence and has been arrested or detained,
or who is required to surrender to custody under an order of arrest against
him.95 The expression includes all the accused whether their case is bailable on
conviction or not. The words „any case‟ mean all cases irrespective of the fact
whether or not an appeal lies on conviction.96

„At any Stage of the Proceedings’ – Meaning of The expression means before
or after the commencement of trial.97 The expression has been used in a wide
sense and not in a restricted sense of a judicial proceeding, which has been
defined in Section 2(i) to include any proceeding in the course of which
evidence is or may be legally taken on oath.98 Thus, when an accused appears
or is brought before the Court there should be proceedings of some sort even
though neither charge-sheet nor complaint is made against him.99 The judge has
the power to grant bail when the applicant is in the lock-up under arrest and it

95
P.V. Ramakrishna, Law of Bail, Ninth Edition, Universal Law Publishing, p. 80.
96
State v. Om Prakash, 1973 Cr LJ 824 (HP): (1972) 2 Sim LJ (HP) 317.
97
Queen v. Chocha Rai, (1874) 6 NWPHCR 366.
98
Section 2(i) of the Code of Criminal Procedure, 1973.
99
Satyahari Choudhury v. State, AIR 1953 Cal 661: 1953 Cr LJ 1540.

92
is not necessary, in order to invest the judge with such jurisdiction, that the
accused person must be brought before the Court.100 There can be no manner of
doubt that from the very moment of the arrest of the accused person by the
police, the magistrate has the power to consider the question of his release on
bail and his orders in this respect are subject to revision by superior courts.101
The magistrate has the power under Section 436 to release a person on bail
even before the police investigation.102

„Any person other than person accused of a non-bailable offence‟ the

expression means a person who is not accused of a non-bailable offence.
Section 436 of the Code, therefore, operates in a case when a person is accused
of a bailable offence, and becomes inoperative when a person is accused of a
non-bailable offence.103 The legislature has classified offences for the purpose
of bail into bailable and non-bailable. The right of bail has been accorded to the
accused only in case of non-bailable offences.104 „Bailable offence‟ means the
offence which is shown as bailable in Schedule I, or which is made bailable by
any other law for the time being in force; and „non-bailable offence‟ means any
other offence.105 Again, „offence‟ means any act or omission made punishable
by any law for the time being in force and includes any act in respect of which
a complaint may be made under Section 20 of the Cattle Trespass Act, 1871.106
It has already been noticed that Section 436 of the Code is not limited to
persons accused of a non-bailable offence and is applicable to Chapter VIII of
the Code except the provisions specifically excluded.107

The definition of the word „offence‟ given in Section 2(n) of the Code does not
come to play where a different intention appears from the subject or context.108

100
Achhaibar Missir v. Emperor, AIR 1929 All 614: 30 Cr LJ 718.
101
Sunder Singh v. Emperor, ILR 12 Lah 16: AIR 1930 Lah 945: 32 Cr LJ 339: 129 IC 481.
102
Waryam Singh v. Croum, AIR 1923 Lah 663: 26 Cr LJ 167.
103
Supra note 93.
104
State of Orissa v. Damodar Pentia, (1971) 37 Cut LT 629: ILR 1971 Cut 808.
105
Section 2(a), the Criminal Procedure Code, 1973.
106
Section 2(n), the Criminal Procedure Code, 1973.
107
Syed Chunnarshah v. State of Maharashtra, 1971 Mah LJ 237.
108
Udit Prasad Singh v. Supru Kisan, 25 Pat 806: AIR 1947 Pat 381.

93
The words „any law‟ do not include the offence under the penal Code but they
include all offences made punishable under local or special laws. 109 When an
Act makes provisions for imposition of fine for a certain act the latter is an
offence because an act or omission is an offence only when it is made
punishable by any law for the time being in force.110 It is the act which is made
punishable that constitutes the offence and not the transaction in which the act
is done.111

„Arrested or detained without warrant by an officer-in-charge of a police

station‟ there is a difference between a summons and a warrant. A summons is
addressed to the person whose attendance is required, but a warrant is not an
order served on any person, it is simply an order to the police to arrest a person.
A warrant, which always implies personal arrest and restraint, is not to be
issued when a summons to attend would be sufficient the ends of justice. 112 A
police officer may, in accordance with Schedule I, or under any other law for
the time being in force, arrest without warrant in a cognizable case for a
cognizable offence. Under Schedule I to the Code, offences under other laws
punishable with imprisonment for three years or upwards, but less than seven
years are cognizable offences.113 The phrase „or under any other law for the
time being in force‟ therefore has reference to such offences as are punishable
with imprisonment for less than three years, but are specified as offences for
which the police may arrest without a warrant, that is offences which but for
the special provision would not be cognizable under the Code.114

It has already been notice in Chapter II, supra that Section 41(1) sets out nine
different circumstances in which a police officer may, without an order from a
magistrate and without a warrant arrest a person. Sections 41(2), 42, 151 and

109
Amirt Saheb Balamiya Patil v. Emperor, ILR 42 Born 406: AIR 1918 Bom 150.
110
Pulin Krishna v. Sishupati Chakravorty, AIR 1953 Cal 85: 1953 Cr LJ 294: 56 Cal WN 585.
111
Jiwa Ram v. Gangoli, (1949) ILR All 715: AIR 1949 All 392: 50 Cr LJ 595.
112
Queen v. Womesh Chunder Ghosh, 5 WR 71.
113
P.V. Ramakrishna, Law of Bail, Ninth Edition, Universal Law Publishing, p. 81.
114
A.K. Jain v. Union of India, (1970) 2 SCWR 59: 1970 Cr LJ 367: AIR 1970 SC 267; Maganlal
Bagdi v. Emperor, AIR 1934 Nag 71: 35 Cr LJ 1097: 150 IC 623.

94
432(3) of the Code confer similar powers on the police officer. Section 55 of
the Code confers powers on an officer-in-charge of a police station or any
officer making an investigation under Chapter XII to require any officer
subordinate to him to arrest without a warrant any person who may lawfully be
arrested without a warrant. Section 43 of the Code also authorises a private
person to arrest any person under the circumstances mentioned in the said
section. A perusal of those sections enumerated above will show that in each
case of arrest without a warrant the person arrested is accused of having
committed or reasonably suspected to have committed or being about to
commit or likely to commit some offence or misconduct.115

Arrest consists of actual seizure or touching of a person‟s body with a view to

his detention. The pronouncing of words of arrest is not an arrest, unless the
person sought to be arrested submits to the process and goes with the arresting
officer.116

Section 46 provides how an arrest is to be made. Sub-section (1) of Section 46

enacts that in making an arrest the police officer or other officer making such
arrest shall actually touch or confine the body of the person to be arrested,
unless there is a submission to the custody by word or action.117

The law authorises no informal detention or restraint of any description by the

police. All informal detention or restraint by a police officer in the course of an
investigation is either illegal arrest or wrongful restraint or confinement, and
keeping a person in a condition of restraint without previously arresting him is
not only illegal, but it is a gross and unwarrantable breach of the powers
entrusted to the police officers. Authority given to arrest by Section 41(1)
implies authority to detain but it is illegal to keep a man in a condition of

115
Sohoni, Code of Criminal Procedure, Vol. I, 19th Edn., 1991, p. 238.
116
Halsbury‟s Laws of England, Vol. II, 4th Edn., p. 73, para 99.
117
K.N. Cheriyan v. D Johnson, (1969) Mad LJ (Cr) 765.

95
restraint without arresting him.118 Section 57 of the Code provides that no
police officer shall detain in custody a person arrested without warrant for a
period longer than is reasonable under the circumstances of the case, and such
period shall not, in the absence of a special order of a magistrate under Section
167, exceed twenty-four hours exclusive of the time necessary for the journey
from the place of arrest to the magistrate‟s Court.119 It has been observed by the
Supreme Court that the language of Article 22(1) and (2) of the Constitution
indicates that the fundamental right conferred by it gives protection against
such arrests as are effected otherwise than under a warrant issued by a court. In
other words, there is indication in the language of Article 22(1) and (2) that it
was designed to give protection against the unauthorised act of the executive or
other non-judicial authority.120

„Arrested or detained‟ spoken of in Section 436 of the Code must be by an

officer-in-charge of a police station although a police officer may arrest
without a warrant under Sections 41(1) and 151, and a private person may do
so under Section 43 of the Code. It has already been noticed in the foregoing
chapter that an „officer-incharge of a police station‟ includes, when the officer-
in-charge of the police station is absent from the station-house or is unable, due
to illness or other cause, to perform his duties, the police officer present at the
station-house who is next in rank to such officer and is above the rank of a
constable or, when the State Government so directs, any other police officer so
present.121

Police station means any post or place declared generally or specially by the
State Government, to be a police station, and includes any local area specified

118
Empress v. Madar, 1885 AWN 59 (FB).
119
Ajit Singh v. State, AIR 1970 Del 154: 1970 Cr LJ 1075.
120
State of Punjab v. Ajaib Singh, AIR 1953 SC 10 (15): 1953 Cr LJ 180: (1953) 4 SCR 254.
121
Section 2(o), Cr PC; Naginlal Nandlal v. State of Gujarat, (1%2) 1 Cr LJ 142: (1961) 2 Guj LR 664;
Tiran Mandal v. State, 1969 Cut LT 291; Ram Karan Dushadh v. State of Bihar, 1971 BLJR 493;
See also Chapter II.

96
by the state government in this behalf.122 A beat house cannot be said to be a
police station unless the State Government declares it generally or specially.123
Similarly, a police outpost is not a police station.124 Police station is the lowest
unit for the exercise of criminal jurisdiction, and as long as its limits fixed by
the notification of the State Government are not altered such station will
continue to exercise jurisdiction over the areas specified.125

„Appears or is brought before the Court‟ the word „appears‟ can only mean the
physical appearance of the accused and cannot be interpreted to mean
appearing through a pleader. The principle of the Criminal Procedure Code is
that the accused must attend the court in-person except in certain cases
specially set out in the Code such as Sections 205, 273 and 317. 126 It is also to
be recalled that the attendance of the accused in court can be dispensed with
only under the specific orders of court. The phrase „appears or is brought
before a Court‟ involves the idea that the accused is produced before the court
or has surrendered himself in obedience to a process of the Court. There is no
basis for the supposition that the appearance of a lawyer is tantamount to the
appearance of the accused without any warrant for the arrest of the accused
being issued.127

There is some divergence of opinion on the interpretation of the word „appears‟

in Section 436. One view is that the word „appears‟, in the context of the
section means appearance in obedience to a summons or bailable warrant or in
pursuance of an undertaking to appear contained in a bond executed by a
person when he is arrested and released by the police, does not refer to
voluntary appearance of the accused to whom no summons or warrant has been
issued or who has not undertaken so to appear. The other view is that the word

122
Section 2(5), Cr PC; Baidyanath Patnaik v. State, 1968 Cut LT 811: 1%9 Cr LJ 339: ILR (1968)
Cut 418; Tiran Mandal v. State, 1969 Cut LT 291.
123
Srimanta Manna v. State, AIR 1960 Cal 519: 1960 Cr LJ 1078.
124
Tiran Mandal v. State, 1969 Cut LT 291.
125
Ram Govind Singh v. Askrit Singh, AIR 1960 Pat 342: 1960 Cr LJ 1128: ILR 38 Pat 288.
126
The Criminal Procedure Code, 1973.
127
P.P. v. C. Manikyalrao, AIR 1959 AP 630 (641): 1959 Andh LT 855.

97
„appears‟ is wide enough to include voluntary appearance of a person accused
of an offence even where no summons or warrant has been issued against
him.128

The East Punjab High Court also held that in the case of a person not under
arrest, but for whose arrest warrants have been issued, bail can be allowed if he
appears in court and surrenders himself.129 The word „appears‟ in Sections 436
and 437 means the appearance of a person who is required to surrender to
custody under an order of arrest made against him and not the appearance of a
free person who is under no restraint and who merely apprehends a possible
arrest.130

A perusal of Sections 204, 244 and 251 makes it quite clear that the expression
„appears‟ is used whenever a Court issues a summons and the expression „is
brought‟ is used whenever a Court issues a warrant. Evidently, therefore, these
expressions have been used in the same sense in Section 437. The expression
„appears‟ could not have been used in Section 437 to mean appear once by a
pleader. The general principle is that an accused person must attend the court
in-person. Sections 205, 273 and 317 are exceptions to the general rule. In all
other cases the accused must be present in-person.131

The grant of bail to a person presupposes that he is in custody of the police or

the court or, if not already in such custody, is required to surrender to such
custody.132 Physical appearance of the person before the court is necessary
before a person is released on bail under this section. Appearing through
counsel cannot naturally result in even notional custody of the Court over the
person concerned. It may be that the applicant might give his address in the

128
State of Mysore v. Baswant Rao, AIR 1966 Mys 71: (1965) 1 Mys LJ 365: 1965 Mad LJ (Cr) 849:
1966 Cr LJ 267.
129
Amir Chand v. Crown, AIR 1950 EP 53: 51 Cr LJ 480: 51 Punj LR 330.
130
State of Madhya Pradesh v. Narain Prasad Jaiswal, AIR 1963 MP 276: 1963 MPLJ 429: (1963) 2
Cr LJ 375.
131
State of Punjab v. Datta, 1953 Cr LJ 105.
132
Varkey Pailey v. State of Kerala, 1966 Ker LT 968: AIR 1967 Ker 189: 1967 Cr LJ 1152.

98
application but there cannot be any undertaking that he would not move away
from the place. The word „appear‟ in this section and Section 437 does not
contemplate the appearance through counsel.133 The power of granting bail
given under Sections 436 and 437, vests in the court before whom an accused
appears and is brought. The expression „Court‟ here means Court which has the
power to take cognizance of the case. It does not mean a Court that has no
power to take cognizance and has only the power of remand.134

Bail, refusal of, where bailable warrant of arrest is non-bailable offence

issuance of bailable warrants cannot provide any guarantee of bail in a non-
bailable case, though it may be a relevant factor to be considered along with
others while deciding the question of bail under Section 439. Undoubtedly
where the offence was not bailable merely because the magistrate thought it
proper to issue bailable warrants the jurisdiction of the sessions judge to refuse
bail cannot be curtailed or fettered. Further, where tax evasion is prima facie of
very high value the question of bail should be considered seriously and it
should not be granted as a matter of course. Tax evasion of a high value
certainly jeopardises the entire economy of the country, and is an economic
crime of serious magnitude.

Leaving apart „anticipatory bail‟, which should normally be out of question,

even if the Court would have considered the original application for bail alter
arrest, the rejection, other things remaining the same, would have had an edge
over acceptance as „jail and not bail‟ should be the rule in such serious cases.135
Since there was an allegation against the accused that he is dealing illegally in
foreign exchange requiring heavy investigation and also that the accused is
dealing with terrorist activities, bail was refused.136

133
State of Uttar Pradesh v. Kailash, AIR 1955 All 98: 1955 Cr LJ 275: 1954 All LJ 471.
134
Singeshwar Singh v. State of Bihar, 1976 Cr LJ 1511: 1975 BBCJ 874; 1976 Pat LJR 243.
135
Income-tax Officer, Central Circle-I v. Gopal Dhamani, 1988 Cr LJ 1079 (1082) (Raj): (1987) 1 Raj
LR 859: 1987 Cr LR (Raj) 588: (1988) 35 Taxman 115: 1988 Raj LW 84.
136
Mool Chand v. State, through the Director, C.B.I., 1992 Cr LJ 2330 (SC): AIR 1992 SC 1618: 1992
AIR SCW 1731.

99
3.10.7 Procedure of Moving Application

Application to be made when any person is arrested or detained by a police

officer without a warrant, and the person so arrested is prepared at any time
while in the custody of such officer to give bail, he may apply to such officer
for releasing him on bail. If the person is brought before a court or where he
himself appears before the court, he may file an application before the Court
for grant of bail. The ground on which bail is sought must be clearly mentioned
in the application of bailor affidavit.137 The application must not contain
defamatory matter or grounds attacking the trying magistrate.138

3.10.8 Application may be made In-Person or through Advocate

The person arrested may himself make an application for the grant of bail, and
he may also be permitted by the court to argue his bail application in person. In
Emperor v. H.L. Hutchinson139, it was observed that an accused person has no
right under the law to be allowed to present an application for bail in-person
but it appeared desirable in the special circumstances of the present case that
such permission be given, and the applicant had, therefore, an opportunity of
presenting his case in-person. It, however, may not, always be possible for the
arrested person to present and argue his own bail application.

It is, therefore, necessary and desirable in the interest of justice that the arrested
person is allowed to take legal advice while he is in custody and present the
bail application through his lawyer.

Right of the accused to consult and to be defended by a lawyer of his choice the
right of an accused person to be defended by a pleader is given not only under
the Constitution of India but also under the Article 22(1) of the Constitution

137
Sri Chand v. Emperor, AIR 1934 All 815: 36 Cr LJ 184.
138
Cliree Curant (in re:), ILR 15 Born 485.
139
AIR 1931 All 356: 1931 All LJ 515: 134 IC 842.

100
provides that no person who is arrested shall be detained in custody without
being informed, as soon as may be, of the ground for such arrest nor shall he be
denied the right to consult and be defended by a legal practitioner of his choice.
Section 303 also provides that any person accused of an offence before a
criminal Court, or against whom proceedings are instituted under this Code,
may of right, be defended by a pleader of his choice. The provisions of Section
303 apply to cases not only of persons accused of an offence but also to
persons against whom proceedings were instituted under the Code in any court.
That section contemplates that the accused should not only be at liberty to be
defended by a pleader at the time the proceedings were actually going on but
also implies that he should have a reasonable opportunity of communicating
with his legal adviser for the purpose of preparing his defence unless there are
exceptional circumstances. Access to legal advisers of the accused should be
allowed before and irrespective of the charge-sheet.140 It has been observed by
the Supreme Court that the right conferred by Section 303 does not extend to
providing a lawyer by the State or the police or the magistrate. This is a
privilege given to him and it is his duty to ask for a lawyer and to engage one
himself or get his relations to engage one.

The only duty cast on the magistrate is to afford him the necessary
opportunity.141 The Court has no power to ask the accused to change his lawyer
nor can it forbid a duly qualified lawyer to appear on his behalf.142

Accused in police custody during investigation, his right to have access to legal
advice provisions of Sections 57, 167 and 303 and Section 40 of the Prisons
Act make it clear that the right of the accused to be at liberty should not be
curtailed unless it is absolutely necessary to do so, and that is why a person
arrested by a police officer is not allowed to be left in his custody for more than

140
Lelewalyn Evans (in re:), AIR 1926 Bom 551: ILR 50 Bom 741: 97 IC 801: 27 Cr LJ 1159.
141
Tara Singh v. State, AIR 1951 SC 441: 1951 Cr LJ 1491: 1951 SCR 729.
142
Imperatrix v. Shivram Gundo, ILR 6 Bom 14.

101
twenty-four hours and the very object of sending the person for remand along
with a copy of the case diary is to enable the magistrate to decide whether the
evidence collected by the police officer is sufficient to detain the accused in
custody any longer. The accused also will have the opportunity to engage his
lawyer to oppose the remand and to file a bail application before the Court.

3.10.9 Supreme Court’s Observations for Improvements in Bail Law

In Moti Ram v. State of M.P.143 the Supreme Court made the following
important observations for improvements in the laws relating to grant of bail:
“We leave it to Parliament to consider whether in our socialist republic with
social justice as its hallmark, monetary superstition, not other relevant
considerations like family ties, roots in the community, membership of stable
organizations, should prevail for bail bonds to ensure that the „bailee‟ does not
flee justice. The best guarantee of presence in court is the reach of the law, not
the money tag. A parting thought. If the indigents are not to be betrayed the law
including bail law, re-writing of many processual laws is an urgent
desideratum; and the judiciary will do well to remember that the geo-legal
frontier of the Central Codes cannot be disfigured by cartographic dissection in
the name of language or province.”

In matters of bail the test to be applied is the test of reasonable belief as

opposed to decision and conclusion which marks the ends of the trial. The
available materials for the Court in considering the question of granting bail are
the charges made, the attendant facts including the police report, facts stated in
the petition for bail and the grounds of opposition to the granting of that
petition. The release on bail does not change the reality and from that fact
alone, it cannot be said that he is not a person arrested for an offence. A person
released on bail is still considered to be detained in the constructive custody of

143
AIR 1978 SC 1594 at p. 1601 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 : 1979 SCR (1) 335 : 1978
SCC (Cri) 485.

102
the Court through his surety. He has to appear before the Court whenever
required or directed. Therefore, to that extent, his liberty is subjected to
restraint. He is notionally in the custody of the Court and hence continues to be
a person arrested. Even in spite of the fact that the accused had been released
on bail, he continues to be a person arrested on a charge of commission of an
offence.

The classification of offences into bailable and non-bailable offences and

recognizing the right of bail in bailable as a matter of right is definitely to make
the law regarding the bail reasonable. Only in respect of non bailable offences
bail is a matter of discretion of the concerned court. However of the offence is
punishable with death of imprisonment for life the magistrate before whom the
accused is produced or surrender cannot release him of bail except in certain
specified circumstances and for that purpose that the concerned magistrate has
to assign reasons for granting bail. However even in respect of offences
punishable with death or imprisonment for life the sessions judge and the High
Court have been given wider discretion in matter of bail all these provisions
have been made to make the bail law fair and reasonable. In Section 304 the
court has the duty to engage lawyer to every accused who seeks legal
assistance having no financial capability to engage a lawyer.144

Thus, the jurisdiction to grant bail has to be exercised on the basis of well
settled principles having regard to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the Court has to keep in mind the
nature of accusations, the nature of evidence in support hereof, severity of the
punishment which conviction will entail, the character, behavior, means and
standing of the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at the trial,

144
shodhganga.inflibnet.ac.in/

103
reasonable apprehension of the witnesses being tampered with, the larger
interests of the public or State and other similar considerations.

Thus, the power to grant bail in case of non-bailable offences is at discretion of

the Courts. The courts exercise this discretion in a cautious manner. A number
of factors and material circumstances are to be taken into consideration before
grant of bail. If cautious approach is not adopted the bail mechanism may be
misused and the accused on bail may pose a threat to society or may repeat the
offence also. The Supreme Court has laid down various principles in this
regard. These principles must be followed in true spirit by the lower judiciary
so that the dignity of the Courts may be properly held. While cancelling the
bail, all the surrounding factors must be considered by the courts. The facts and
circumstances should be of such a nature, which justify the cancellation of bail.

Thus, after fully analysing classification of offences and the mechanism of bail
researcher reach in the conclusion that policy consideration for grant of bail or
its refusal yet remains to be spelt out clearly and cogently both by the
legislature and by the Courts. In sum, a lack of thought and direction in the
composition of a useful bail mechanism has been basic reason for an erratic
functioning of the entire administration of criminal justice. In order to
streamline the same, there is an imperative need to systemize and streamline
the law relating to bail.

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