When may bail be taken? When bail may be taken even in case of a non-bailable offence? Has the court of Sessions or High Court special powers regarding bail?

Question: When may bail be taken? When bail may be taken even in case of a non-bailable offence? Has the court of Sessions or High Court special powers regarding bail? [U.P.C.J. 2000, UPAPO 2002, BIHAR J 1979]

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Answer

The word bail has been coined from the French word ‘bailer’, which means to deliver or give. The tentative release of an accused from custody is termed bail. In other words, bail is the security for the accused person.

The term ‘bail’ is nowhere defined in the Criminal Procedure Code, 1973. However, bail provisions have been provided in CrPC under sections 436-450. The first schedule of CrPC also defines which offences are bailable and which are not. Generally, non-bailable offences are more heinous crimes.

Section 436 of CrPC deals with provisions for bail in bailable offences.

Section 436: In what cases bail to be taken-

“(1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A (Inserted. by Act 63 of 1980).

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.”

This provision is mandatory in nature, and the police or the court has no discretion over it.

Bail in Non-Bailable Offence

Section 437 of CrPC deals with provisions for bails regarding non-bailable offences. It is based purely on the discretion of the court (other than the High Court and Sessions court).

This section gives the Court or a police officer the 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 imprisonment for life. But (1) a person under the age of 16 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.

When a person is charged with a non-bailable offence, but it appears in the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry. The same may be done after the conclusion of a trial and before judgment is pronounced if the person is believed not to be guilty of a nonbailable offence. As a safeguard, the section provides for review of the order by the Court, which has released the person on bail.

The Court should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the interest of the public or the State and similar other considerations before granting the bail.

A Magistrate can grant bail only when there is no reasonable ground to believe that the accused is guilty of the offence punishable with a sentence of death or life imprisonment unless he is covered by the provisos to section 437(1). Merely because the accused was initially granted anticipatory bail under section 438.

Section 439: Special powers of High Court or Court of Session regarding bail

“(1) A High Court or Court of Session may direct-

• that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
• that any condition imposed by a Magistrate when releasing a person on bail is set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

This section gives unfettered discretion to the High Court or Court of Session to admit an accused person to bail, but that discretion must be exercised judicially. The power of the High Court and of a Court of Session to grant bail is not fettered by the restrictions contained in section 437. In every case, the cumulative effect of all the combined circumstances must weigh with the Court, and those considerations are far too numerous to be classified or catalogued exhaustively.

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