CHAPTER-IV
RIGHT TO BAIL IN BAILABLE OFFENCE UNDER
SECTION 436
Cr. P.C.
The word “Bail” means the security of a prisoner’s
appearance for trial. The effect of granting bail is, accordingly not to get
the prisoner free from jail or custody, but to release him from the custody of
Law and to entrust him to the custody of his sureties who are bond to produce
him at his trial at a specified time and place. Grant of bail is a rule and
refusal is an exception. A person accused of a bailable offence has the right
to be released on bail. Bail in case of bailable offences is compulsory. In the
matter of admission to bail the Code of Criminal Procedure makes a distinction
between bailable & non-bailable offences. The grant of bail to a person
accused of non-bailable offence is discretionary. But a person accused of
bailable offence at any time while under detention without a warrant at any
stage of the proceedings has the right to be released on bail in view of
section 436 Cr. P.C. 1973. When the offence is bailable and accused is prepared
to furnish bail, police officer has no discretion to refuse bail. Even when a
person suspected of committing a bailable offence is produced before a
magistrate and he is prepared to give bail, Magistrate has no option but to
release him on appropriate bail. Magistrate cannot refuse to accept surrender
and to bail out an accused against whom a petition or complaint of bailable
offence has been filed. The offence when is bailable, bail has to be granted.
If the offence is non-bailable further considerations arise. While adjudicating
a bail application detailed examination of evidence and elaborate documentation
of the merits of the case is however to be avoided.
4.1 Section 436 Cr.
P.C.
(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 ay time while in the
custody of such person shall be
released on bail:
Provided that such officer or court if
he or it thinks fit may (may and shall if such person is indigent and is unable
to furnish surety instead of taking bail) from such person discharge him on his
executing a bond without sureties for his appearances as hereinafter provided:
(Explanation – where a person is unable
to give bail within a week of the date of his arrest it shall be sufficient
ground for the officer or the court to presume that he is an indigent person
for the purpose of this proviso.)
Provided further that nothing in this
section shall be deemed to affect the provisions of sub-section (3) of section
116 [or section 446A.]
(2)
Notwithstanding anything contained in sub section (1) where a person has failed
to comply with the conditions of the bail-bond as regards the time and place of
attendance the court may refuse to release him on bail when on a subsequent
occasion in the same case he appears before the court or is brought in custody
and any such refusal shall be without prejudice to the powers of the court to
call upon any person bond by such bound to pay the penalty thereof under
section 446.
In
Morit Malhotra v. State of Rajasthan,
the accused was granted bail under section 436 by the police. But when he
appeared before the court he was advised to take bail from the court. He
challenged the orders in the Rajasthan High Court which ruled that it is not
necessary for an accused to get bail granted by the court if he has already
been granted bail by the police. The court drew support from the Supreme Court
decision in Free Legal Aid Committee,
Jamshedpur Vs. State of Bihar, wherein it was ruled
that in a sessions case if the magistrate has granted bail, the accused
need not seek bail from the court of sessions.
Having regard to the nature of relationship of the
person on bond with the court and the powers conferred on the court under
section 436, it appears that the above ruling may not be generally followed by
the courts.
An interesting question arose in Haji Mohamed Wasim vs. State of
U. P. before the Allahabad High Court as to the validity of bail
granted by police officers. In this case the accused who was on bail granted by
police preferred nor to appear before the court. The trial court issued a non
bailable warrant which came to be challenged by the accused under section 482.
The court ruled that he has to take fresh bail from trial court. It reasoned:
The power of a police
officer in-charge of a police station to grant bail and the bail granted by him
comes to an end with the conclusion of the investigation except incases where
the sufficient evidence is only that of a bailable offence, in which eventuality
he can take security for appearance of the accused Before the magistrate on a
day fixed or from day to day until otherwise directed. No parity can be claimed
with an order passed by magistrate in view of enabling provision contained in
clause (b) of section 209….under which the committal Magistrate has been
empowered to grant bail until conclusion of trial, which power was otherwise
restricted to grant of bail by him during pendency of committal proceedings
under clause (a) of section 209.
The real situation, as it obtains today in the
society, is amply clear that police discretion is not always being properly
exercised in the matter of arrest. The citizens are being deprived of their
liberty and the police have become a kind of terror for the citizens because of
their undue harshness with the public in general and the suspects in
particular. The newspapers are replete with examples of police high-handedness.
It is a matter of common knowledge that in order to extract information from a
suspect, the police beat a person in the course of investigation, in custody to
the extent that sometime an accused person even
succumbs
to injuries. On many occasions departmental inquiries have been conducted; but
these have been used mainly to cover up the taint. Furthermore, instances are
known where in order to secure conviction of an accused; the police have
concocted the whole prosecution story and have tutored the witnesses to
implicate innocent persons. Such police activities once led a high court judge
to form an opinion that police is itself an organization of goondas, although
the remarks were expunged later by the Supreme Court. Even then no echo of
these remarks continues to be heard till today.
4.2 Scope and
Application
‘Bail’ connotes the process of procuring the release
of an accused charged with certain offence by ensuring his future attendance in
the court for trial and compelling him to remain within the jurisdiction of the
court. Where a person who is arrested is not accused of a non-bailable offences
no needless impediments should be placed in the way of his being admitted to
bail. In such cases the man is ordinarily to be at liberty and it is only if he
is unable to furnish such moderate security, if any as is required that he
should remain in detention. The section is imperative and under its provision
the magistrate is bound to release the person on bail or recognizance. But bail
means release of a person from legal custody; it presupposes that he is in
custody. Person who is under no such restraint cannot be granted bail. The
fundamental principal of our system of justice is that a person should not be
deprived of his liberty except for a distinct breach of law. If there is no
substantial risk of the accused fleeing there is no reason why he should be
imprisoned during the period of his trial. The basis rule is to release him on
bail unless there are circumstances suggesting the possibility of his fleeing
from justice or thwarting
the
course of justice. When bail is refused it is a restriction on personal liberty
of the individual guaranteed by Article 21 of the Constitution and therefore,
such refusal must be rare. Where delay take place in the disposal of criminal
proceedings the accused ought not to be kept in custody for an inordinately
long time and must be released on bail except when under extremely rare
circumstances it is not possible to do so.
Appearance under this section includes voluntary
appearance. When he so surrenders is in judicial custody of the court and the
magistrate cannot reject the bail on the ground that the person was neither
arrested nor had been summoned by court order of Magistrate has granted interim
bail the interim bail would subsist so long as the fresh bail application is
not decided by the Magistrate. As offence under sections 8/21 NDPS Act is
bailable offence.
Where inspite of bail granted the accused is not
released on bail immediately due to procedural formalities held the delay in
releasing the accused on bail, stood explained.
The power to grant bail given by sections 436 and
437 of the Code vests in the Court before whom an accused appears and is
brought. The expression “Court” means the Court which has power to take
cognizance of the case. A Court which has only the power to remand under
section 107 is not a competent Court for granting bail. Similarly as Executive
Magistrate has no jurisdiction to grant bail except in respect of offences
punishable with fine and or imprisonment up to three months. In relation to a
person not accused of such offences the Magistrate, who has jurisdiction to
take cognizance has power to grant bail even when the
4.3 Bail is a
Security for Appearance
Bail in its fundamental concept is a security for
the prisoner’s appearance to answer the charge at a specified time and place.
It is natural and relevant for any Court to consider such security in relation
to and in the light of the nature of the crime charged and the likelihood or
otherwise of the guilt of the accused there under. At any early stage when
accused asks for bail, the Court has necessarily to act on a reasonable and
intelligent anticipation which ex-hypothesis must, to a certain extent, be
problematical because the trial has not run its course. 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 charge 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 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.
4.4
Considerations for Grant of Bail
The first duty of the Court in granting or refusing
bail would be to see whether there is possibility of the accused being
available to trial and also whether there is any possibility of accused jumping
out the bail. Where an accused was granted bail in a case arising out of police
report and subsequently a
complaint
with additional charges have been filed, accused may be directed to surrender
and then apply for bail in respect of additional charges. Once the accused had
incurred the liability of the forfeiture of the earlier bonds, he is not
entitled to bail as a matter of right, even in bailable cases. Where after the
grant of bail in bailable offence, subsequently non-bailable offence is added
the accused would not be allowed to remain on the same bail bonds, fresh bail
application would be referred for non-bailable offence.
4.5 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.
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 stage. It
does not terminate the proceedings or decides a point for decision in the case
and therefore is not a final order.
4.6 Notice on
Bail Application
Whenever an application
for remand of accused is moved on behalf of prosecution, it has to be prepared
for the opposition to the same and for a prayer for the release of the accused
on bail. The application for the remand and the bail application are bound to
be taken together at one and the same time without
further
postponement of the hearing of either of them. No notice on bail application in
such a case is necessary.
4.7 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 apolice 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 offence.
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.
When a bail application is moved before the
subordinate Courts, the same shall be disposed of the same day. Power under
Section 436 should be exercised sparingly by the High Court.
Instructions were issued by the High Court in regard
to disposal of application for bail by the subordinate Courts.
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. When a police officer makes an arrest under Section 41
he is bound to give the 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. In Superintendent and
Remembrancer of Legal Affairs, Bengal Vs. Jairali, the decision
in the matter of the petition of Daulat Singh, 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. From the words
“italicsed” it is clear that if 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 in Section 437.
Under old Section 93-A an internal Court receiving a
warrant from an external Court could execute it only within the limits of its
jurisdiction. It could not forward the warrant to another Court for execution
beyond the local limits of its jurisdiction. When therefore the Chief
Presidency Magistrate of Calcutta who received a warrant from an external Court
in Srinagar for execution sent it to the Commissioner of Police for execution
beyond the local limits of his jurisdiction and ordered the accused to furnish
bail for appearance before the Srinagar Court, it was held that since the Chief
Presidency Magistrate had no jurisdiction to get
the
warrant executed outside the limits of his jurisdiction his order for bail was
bad.
1.
See Sections 42 (2) 43 (3), 56, 59, 169,
170, 436 and 437 for powers of police officers to release on bail;
2.
Sections 71, 81, 88, 167, 187, 389, 390,
330, 339, 340, 436 and 437 for the general powers of Court to release on bail
3.
Section 395 for bail by a Metropolitan
Magistrate on making a reference;
4.
Sections 397, 400, 439, 440 for powers
of Session Judge to release on bail; and
5.
Sections
389, 439 and 440 for powers of the High Court.
It is largely the facts of a case
that incline a Court to grant bail.
4.8 Leaving
Decision as to Sufficiency of Bail to Police Illegal
The practice of leaving
to the police the decision as to the sufficiency of bail, when bail has been
ordered by the Court, is contrary to law. The duty of deciding as to its
sufficiency or otherwise is with the Court itself and not with the police,
though the Court may call for a report from the police.
4.9 Bail Bond
Without Sureties: Need for a Clear Provision:
Where a person at the
time of his arrest, holds a very high position under the Government of India,
it is a fit case in which a personal bond would be deemed enough.
4.10 Heavy
Amount not to be Demanded
Bail covers both release on one’s own bond and one’s
bond with surety or sureties. What surety amount should be demanded is
dependent on several variable factors. Heavy amount should not be demanded as
surety amount. There is no provision in law to insist that surety must hail
from within the district where
the
Court is situate. When the accused is not likely to abscond and has his roots
in the community, he can be safely released on personal bond. Enquiry into
solvency of the accused can become a source of harassment and often result in
deprivation of liberty and should not be insisted upon as a condition of
acceptance of the personal bond.
Where sureties are insisted on, ordinarily due
weight should be given to the affidavits produced by the surety and an inquiry
or insistence on a solvency certificate must be the exception rather than the
rule.
In the under noted case the Supreme Court has laid
down the guiding principles when accused can be released on personal bond
without sureties. The observations may be perused with advantage:
“If the Court is satisfied, after taking
into account, on the basis of information placed before it, that the accused
has his roots in the community and is not likely to abscond it can safely
release the accused on his personal bond. To determine whether the accused has
his roots in the community which would deter him from fleeing, the Court should
take into account the following factors concerning the accused:
1.
the
length of his residence in the community;
2.
his
employment status, history and his financial condition;
3.
his
family ties and relationships;
4.
his
reputation, character and monetary condition;
5.
his prior criminal record including any
record of prior release on recognizance or on bail;
6.
the identity of responsible members of
the community who would vouch for his reliability;
7.
the nature of the offence charged and
the apparent probability of conviction and the likely sentence in so far as
these factors are relevant to the risk of non-appearance; and
8.
any
other factors, indicating the ties of the accused to the community
bearing on the risk and willful
failure to appear.
“If
the Court is satisfied on a consideration of the relevant factors that the
accused has his ties in the community and there is no substantial risk of a non
appearance, the accused may as far as possible be released on his personal
bond. Of course, if facts are brought to the notice of the court which go to
show that having regard to the condition and background of the accused his
previous record and the nature and circumstances of the offence, there may be a
substantial risk of his non-appearance at the trial, as for example, where the
accused is a notorious bad character or a confirmed criminal or the offence is
serious (these examples are only by way of illustration), the court may not
release the accused on his personal bond and may insist on bail with sureties.
But in the majority of cases, considerations like family ties and relationship,
roots in the community, employment, status, etc. may prevail with the court in
releasing the accused on his personal bond and particularly in cases where the
offence is not grave and the accused is poor or belongs to a weaker section of
the community, release on personal bond could, as far as possible, be
preferred. But even while releasing the accused on personal bond it is
necessary to caution the Court that the amount of the bond which it fixes
should not be based merely on the nature of the charge. The decision as regard
the amount of the bond should be an individualized decision depending on the
individual financial circumstances of the accused and the probability of his
absconding. The amount of the bond should be determined having regard to these
relevant factors and should not be fixed mechanically according to a Schedule
keyed to the nature of the charge. Otherwise, it would be difficult for the
accused to secure his release even by executing a personal bond. The inquiry
into the solvency of the accused can become a source of great harassment to him
and often result in denial of bail and deprivation of liberty and
should not, therefore, be insisted upon as condition
of acceptance of the personal bond. We have no doubt that if the system of
bail, even under the existing law, is administered in the manner we have
indicated in this judgment, it would go a long way towards relieving hardship
of the poor and help them to secure pretrial release from incarceration.
“There is an urgent need for a clear provision
undeniably. The thousands of under trial prisoners lodged in Indian prisons
today include many who are unable to secure their release before trial because
of their inability to produce sufficient financial guarantee for their
appearance. Where that is the only reason for their continued incarceration
there may be good ground for complaining of individual’s discrimination. The
more so under a constitutional system which promises social equality and social
justice to all of its citizens.”
4.11 Bail and
Detention in Custody in Cases under Chapter VIII
Section 436 does not merely refer to an accused
person but generally to “any person other than a person accused of a
non-bailable offence who appears or is brought before a court”. The proviso to
section makes it clear that the substantive part of the section applies to
section 116 (3). Section 116 has to be read with section 111 which in turn
refers to Sections 107, 108, 109 and 110. The order contemplated by Section 111
is a preliminary order which is followed by an enquiry under Section 116. That
section directs that when the order under Section 111 requires security for
good behaviour, the procedure prescribed for conducting trials in the warrant
case should be followed save that no charge need be framed. Pending the
completion of the enquiry, the Magistrate is invested with power to direct the
person concerned to execute a bond forthwith with or without sureties, for
maintaining good behaviour until the completion of the enquiry. The proviso to
section 436 (1) refers to this power of the Magistrate and leaves if unaffected
by anything that is said in that section. There is therefore no doubt at all
that this section authorizes the Magistrate conducting an enquiry under Section
116, to release the person concerned in the enquiry on bail with or without surety
or
ensure his attendance in Court. The proviso to this
section excludes the operation of its substantive part and empowers the
Magistrate in his discretion to detain a person who is sent to him under
Section 107 by a Magistrate not empowered to proceed under sub-section (1) of
that section. This section, however, can have application only during the
pendency of criminal proceedings whether in regard to an offence or under
Chapter VIII of the Code, and it has no application once a person has been
convicted of a substantive offence or has been ordered under Section 118 to
furnish security.
Where the police reported to the joint Magistrate
that a person was a bad character and a champion of thieves and receiver of stolen
property, the Magistrate directed evidence to be adduced as to such person’s
general character and summoned him to show cause why he should not be required
to give security for good behaviour for one year. On the same day the person
appeared in answer to the summons and several witnesses were examined by the
prosecution who gave evidence as to his general bad character by repute and of
specific acts of bad livelihood. The case was then adjourned to the following
day in order to allow the accused person to produce his witnesses to character
and he entered into a personal recognizance of Rs.500/- to appear on the
adjourned date. It was held that the Magistrate was empowered to take a
personal recognizance from the accused person for his appearance at the
adjourned hearing.
Where a person was
neither arrested under Section 107 Cr. P.C., nor sent up to the sub-Divisional
Magistrate but was arrested under the proviso to Section 113, it was held that
the Magistrate had no jurisdiction to refuse bail.
Since the Magistrate is responsible for the
maintenance of public peace within his jurisdiction, when he has made an
interim order against a person committed by him to custody on the ground that
such an order is necessary for preserving the public peace, it should not be
lightly interfered with by a higher authority like the Court of Session. No
doubt, if there is anything irregular or
illegal in the order it is the bounden
duty of the Sessions Court to give relief to a private citizen who is
injuriously affected by the order.
The provision to sub-section (1) of this section
deals with the power of a court when a person appears or is brought before it
and is prepared at any time to give bail. Where the offence is a non-bailable
one, the proviso certainly cannot control the provision of Section 439.
The discretion of the Court in granting bail to the
petitioners was disputed on the premises that security proceedings had been
initiated against the petitioners. It would be difficult at pretrial stage to
determine whether those proceedings are well measured or is a mere measure to
influence the Court to withdraw the concession of bail. Adequate safeguards
otherwise in the form of interim security under Section 116 of the Code of
Criminal Procedure could be asked for at the pain of which the petitioners
could be confined. In the circumstances, the concession of the bail should not
have been withdrawn abruptly after the grant of bail within a span of just ten
days.
4.12 Conditional
Bail
The Court or the police officer has to grant bail to
an accused in a case relating to a bailable offence. Bail has, therefore, to be
granted to the accused in such cases, and any condition in the order granting
the bail, other than the one for attendance of the accused, would, therefore,
be illegal. In respect of
bailable offences, a Magistrate cannot impose a condition that the accused
should appear before the police.
The Rajasthan High Court while rejecting the prayer
for cancellation of bail however imposed condition for a short period of one
week that the non-petitioner Nos. 1 and 2 should appear before the Investigating
Officer for further interrogation. The said non-petitioners were not to leave
the town during the week and were to present themselves for interrogation
before the Investigating Officer
or such Police Officer and at such time during the
week, as they may be directed by the Investigating Officer. Non-petitioner Nos.
1 and 2 could leave after seeking permission of the Investigating Officer. With
these conditions the application for cancellation of bail was rejected.
The condition that a
person accused of a bailable offence has to surrender his pass-port is not a
term as to bail and therefore cannot be imposed by a Magistrate under Section
436.
But the High Court can
restrict the appellant’s departure from India. These terms and conditions do
not fetter inherent powers of the High Court.
4.13 Money may
be Deposited Instead of Executing Bond
The law does not contemplate or authorize a Magistrate
to demand a cash deposit as a condition precedent to the release of the
prisoners or accused persons on bail. The provisions of Section 441 of the Code
prescribe that the amount of every bond should be fixed with due regard to the
circumstances of the case and should not be excessive. But Section 445 permits
of a deposit of a sum of money or Government Promissory Notes, except in the
case of a bond for good behaviour, in lieu of executing a bond.
There is no provision for asking the accused to
furnish cash bail and such an order was set aside.
4.14
Bond should be by Accused and not by Agent when Personal Attendance of Accused
Dispensed with
Where the personal attendance of an accused person
is dispensed with a recognizance bond, if deemed necessary, should be taken
from him and not from his agent though he may appear by agent and if the agent
neglected to attend when the case was called on, the recognizance bond might be
held forfeited and the accused made liable for the payment of the penalty.
4.15 Bail Bond
Executed Before Police Officer
A bail bond executed before a Police Officer on
account of the fact that the person, involved in a bailable offence, should be
released as his detention in custody, if he is prepared to offer bail, will be
contrary to law. So a bail bond executed before a police officer is not for the
appearance before the police because a person accused is an offence, during
investigation, is made an obligation to make himself available before the
police officer for investigation and for that, strictly speaking, no bail bond
is required to be furnished and that being so, the bail bond so furnished
before the police officer, in such circumstances, is definitely for appearance
before a court where definitely such person involved in a bailable offence, is
required to appear if and when charge-sheet is submitted and the process of
trial takes place. Primarily, power for forfeiture of the bail amount and its
realization falls within the jurisdiction of a Court and on that basis also the
bail bond, so furnished before the police officer, is meant for appearance
before a Court and any action for the breach of conditions of the bail bond is
to be taken by the concerned Court in which the bail or undertakes to produce
the accused when required.
The police have no power to require an accused
person released on bail to appear before them. They can only require the
accused person to appear before the Magistrate at the time and place mentioned
in the bond. Once police has released an accused on bail after taking bonds for
appearance before the Court, on the submission of charge-sheet, the accused
need not be asked to file fresh bail bonds.
4.16 Order on
Bail Application, Effect of
An order on a bail
application does not finally determine the guilt or innocence of a person
accused or convicted of an offence. All that such an order postulates is that
pending an enquiry or trial, and in the case of a convicted person, pending an
appeal by him, it is not absolutely necessary that his liberty
should
be curtailed. Such an order is not a judgment. An order refusing to release the
petitioner on bail will not prevent the hearing of a fresh application for
bail. When a rule is issued by the High Court and proceedings stayed and,
therefore, a fortiori, when there is an order for bail, the Magistrate on
receiving
reliable
information therefore should stay his hands then and there.
The power conferred by Section 437(5) Cr.P.C. to
cancel bail and re-arrest accused is expressly limited to cases in which the
accused has been released under section 437 Cr.P.C. and the provisions of
Clause(5) of this section have no application to an accused person who has been
released on bail under Section 439.
4.17
Cancellation of Bail, Granted under this Section
Section 436 (2) of the Cr. P.C. lays down that where
a person had 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 subsequent occasion in the same case he appears before the Court or is
brought in custody. Therefore, it cannot be said that orders passed by the
Judicial Magistrate, for further remand to custody is in any away without
jurisdiction. In such circumstances, it cannot be held that the custody of the
accused is illegal.
The Supreme Court has recognized the power to cancel
the bail granted under section 436 in exercise of the inherent powers of the
High Court. The Supreme Court has observed that the Code makes no express
provision for the cancellation of a bail granted under Section 436.
Nevertheless, if at any subsequent stage of the proceedings, it is found that
any person accused of a bailable offence is intimidating, bribing 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 sub section (2) of section 439
confers upon the High Court or the Court of Session power to cancel bail in
regard to cases of persons accused of any offences where such persons were
admitted to bail under this chapter, though ordinarily a Magistrate has no
power under the Code to cancel the bail of the accused persons who are on bail
in bailable offences.
When an accused has
been released under section 436 and later a non bailable offence is added, even
then the bail granted cannot be cancelled. Bail can be cancelled only either
under section 439 (2) or Section 437 (5).
Once bail is granted under Section 436 and a
charge-sheet for a non bailable offence also is filed, bail cannot be cancelled
unless there is misuse of the liberty granted.
When bail has been granted in a case instituted by
the police, on a complaint case being filed in regard to certain other offences
alleged to have been committed in the course of the same transaction, the
accused has to apply and get bail in regard to the later also.
But in case an order has been made for releasing a
person on bail and it is later found that such order is either based on some
misapprehension or being otherwise infirm, is likely to prejudice the interest
of administration of justice, then this provision of law seems to amply empower
the Courts mentioned therein to make a suitable order canceling the order of
release on bail so as to protect and safeguard the cause of justice. This
provision necessarily implies jurisdiction in
the Court concerned to cancel an order even before
the person in question has been actually released, and it is not intended to
prohibit the court from canceling the order of release on bail before it is
executed.
The accused was on bail in a case pending against
him under section 376/511 Penal Code and it was fixed for evidence of
prosecution on 8th August 1974. He
had gone out to meet his relative and fell ill there and was under the
treatment of the Officer-in-charge of the Civil Hospital. He sent a telegram on
7th
August 1974 to the court informing about his illness. The Court on 7th
August 1974 issued non-bailable warrant for arrest of the accused and on 8th
August the bail bond of the accused and surety bond of the surety were
cancelled. It was held that there was no justification for the Sessions Judge
to issue non bailable warrants against the accused on the 7th
August 1974. In his order, dated 7th
August 1974 it was mentioned that no medical certificate has been forwarded. A
medical certificate could not be sent along with the telegram. The accused fell
sick on the 7th August, 1974
and therefore, the medical certificate could not reach the Court on the same
day. No opportunity was given to the accused to show cause why his bail bond
should not be cancelled. The Sessions Judge had already issued non bailable
warrant of arrest against the accused on the 7th
August; therefore there was no justification for him to forfeit the bail bond
and the surety bond on 7th
August before hearing the accused. The order of the Sessions Judge was
accordingly set aside. When an accused on bail absconds he forfeits the
concession to remain on bail.
Where the applicant in
revision is on bail, on the dismissal of the revision application it is not
necessary to pass a specific order that he should surrender to his bail because
bail is itself only granted till such time as orders are passed on the revision
application.
4.18 Disposal of
Bail Application Same Day
When the offences are bailable there is no reason
why the bail application should not be disposed by the Special Judge same day
and it is expected that the bail application filed by the accused shall be
disposed of the same day.82
The distinction between bailable and non-bailable offence is that in respect of
the former there is a right to be released and in respect of the latter it is
discretion of the Court (J & K Criminal Procedure Code). The bail
application of the accused should be disposed of the same day when the accused
surrenders and applies for bail. Till the disposal of the bail application, the
Court can grant interim bail for a short period.
Where an accused person
surrenders before the Court for the purpose of bail, the Court should not delay
the disposal of the application on frivolous grounds.
If the State cannot provide for adequate machinery
for dispensing justice quickly, the State cannot be heard to say that the
applicants should be kept in custody without trial up to such a long time.
4.19 Power of
Magistrate
The powers of the Magistrate in granting bail are
not governed by the Court which has jurisdiction to try the case; rather are
governed by the punishment prescribed for commission of the crime. A Magistrate
has no jurisdiction to grant bail only in such case where the prescribed
punishment is imprisonment for life or death penalty. The Magistrate is
empowered to grant bail in the case of an offence under section 366 IPC, where
the punishment is that of 10 years.
The Court has discretion in the matter; it may
release accused by taking only a personal bond without insisting surety for the
appearance. The insistence of
the personal bond and
surety is essentially a matter of discretion and within the jurisdiction of the
Court.
In regard to a bailable offence Magistrate is not
competent to impose condition. The accused has a right to be enlarged on bail.
The imposition of condition in bail order that accused shall appear before the
investigating officer once in three days was held unsustainable and hence set
aside. The condition that a person accused of bailable offence has to surrender
his passport in Court is not a term as to bail and therefore cannot be imposed
by a Magistrate. The Supreme Court has held that unnecessarily inhibitive
condition ought not to be imposed while granting bail. An order rejecting
surety because he or his estate was situated in a different district was held
to be discriminatory and violate of Article 14 of the Constitution.
4.20 Effect of
Execution of Bail Bonds Before Police
There is no provision
in the Code for asking an accused already released on bail by the police
officer to furnish fresh bail and bonds. Where bail bonds submitted before the
police officer for purposes of appearing before the Court have already been
given, fresh undertaking for the same effect is not to be asked for. Bail and
bonds should ordinarily be for appearance not only before the Court of
Magistrate but also if the case is triable by the Court of Session before the
Court of Session unless there are particular reasons for not doing so.
4.21
Cancellation of Bail by Magistrate
In an Orissa case it has been held that Magistrate
has power to cancel bail, be the offence bailable or not, the deciding factor
being whether the accused
by
his behaviour and conduct forfeited the concession shown to him. Affirming the
decision it was held the power to forfeit bail bond is inherent in any court
and when circumstances justify the court is competent to cancel the bail which
was granted earlier. The question is not whether the offence is bailable or
non-bailable. The determining feature is whether the accused by his behaviour
and conduct has forfeited the concession shown to him. It has been held,
however, in a Patna case that Magistrate has no power to cancel bail in
bailable offence. High Court or Sessions Court may so cancel. A person accused
of bailable offence when is committed to custody by reason of his bond being
forfeited cannot claim to be released on the ground of the bailability of the
offence, for his commitment to custody is not for reason of the fact that he is
alleged to have committed a bailable offence but by reason of a judicial order
forfeiting his bond is a consequence of the conduct of the accused showing
pending trial be should not be at large. As to forfeiture of bond when the bond
is for appearance, the fact of accused’s failure to appear on the date fixed
operates to the bond being forfeited forthwith.
That on such forfeiture the accused bailed out even
in bailable offences entails the risk of the bail bond of surety cancelled gets
statutory affirmation by the insertion of section 446-A, Cr. P.C. by section 6,
Cr. P.C. (Amendment) Act, 1980 coming into force with effect from September 23,
1980.Section 446-A, Cr. P.C. 1973 prevails over the compulsory bail provision
in section 436 Cr. P.C., 1973. Section 446-A provides that for breach of a
condition a bond furnished for release on bail in bailable offence may stand
forfeited and cancelled. And once this is done no such person shall be released
only on his own bond, in that case, if the police officer or the court, as the
case may be, for appearance before whom
the bond was executed, is satisfied that there was
no sufficient cause for the failure of the person bound by the bond to comply
with its condition. Subject to other provisions of the Code of Criminal
Procedure the accused may be released in that case upon execution of fresh
personal bond for such sum of money and bond by one or more of such sureties as
the police officer or the court, as the case may be, thinks sufficient.
4.22 Power to
Cancel Bail in Bailable Offences must be Used Sparingly
While holding that the High Court in exercise of its
inherent powers under S. 561-A of Cr. P.C. (of 1898) could cancel bail granted
to an accused in a bailable offence, the Supreme Court held that this inherent
power has to be exercised sparingly, carefully and with caution and only such
exercise is justified by the tests specifically laid down in the section
itself. The Supreme Court further observed that after all, procedure, whether
criminal or civil, must serve the higher purpose of justice; and it was only
when the ends of justice were put in jeopardy by the conduct of the accused
that the inherent power could and should be exercised in cases as in the
instant case.
4.23
Cancellation of Bail where Accused Absent Himself
In
Panna Lal v. R.K. Sinha, it was contended that
the applicant was accused of a bailable offence for which he had already been
granted bail under the provisions of Section 496 Cr. P.C. (of 1898) [equivalent
to S. 436 of Cr. P.C. of 1973], which was an absolute and indefeasible right;
therefore the Sessions Judge had no jurisdiction to cancel his bail and order
his arrest in spite of the fact that he had absented himself and had failed to
attend the court. Relying upon the decision of the Supreme Court in Talab Haji Hussain v. Madhukar
Purshottam Mondkar, it was held by the Allahabad High
Court that in the said case the Supreme Court had made it abundantly
clear that if an accused has abused his bail (by not attending the Court or
otherwise ) his commitment to custody thereafter is not by reason of the fact
that he was charged of a bailable offence; on the other
hand, his subsequent commitment to the custody is on
the ground that he has forfeited his bail. It was held that in such a case the
accused could not fall back upon his original right under Section 496 Cr. P. C.
(of 1898) [equivalent to S. 436 of Cr. P. C. of 1973] which had ceased to be
applicable to his case, because of his default.
It was further held by the Allahabad High Court that
it was true that the Supreme Court in the said Talab Haji Hussain case had also remarked that there was no
specific provision for the cancellation of the bond and re-arrest of a person
accused of a bailable offence; but this remark was evidently with reference to
the powers of an appellate or revisional authority, like the High Court, and
that it was not meant to cover the case of first instance which had initially
granted bail as there was a specific provision in Section 92, of Cr. P. C. (of
1898), conferring a right of cancellation of bond and re-arrest of the
offender. It was also observed by the High Court that it appeared that in said
Talab Haji Hussain case, the provisions of Section 92 of Cr. P. C. (of 1898)
had not been brought to the notice of the Supreme Court. Accordingly, the High
Court held that, in the instant case, on failure of the application to appear
before the Session Judge, the latter who had initially granted bail, was fully
competent to issue warrants against the applicant to enforce his attendance
before him, irrespective of the fact that the applicant was originally charged
of a bailable offence. It was held that in such a case the accused was ordered
to be arrested because of his default and forfeiture of the personal and surety
bonds, by failing to attend the court on the date fixed in the case.
Accordingly, it was held that the Sessions Judge had full jurisdiction not only
to issues warrants for the arrest of the defaulting applicant but also to
commit him to custody.
4.24 After
Cancellation, can Accused Demand Bail Again as of Right?
In Talab
Haji Hussain v. Madhukar Purshottam Mondkar, where the High
Court in exercise of its inherent powers had cancelled bail granted to the
accused in a bailable offence, it was contended that the provisions of S. 496
of
Cr. P.C. (18980 [ equivalent to S. 436 of Cr. P.C.
of 1973] were plainly inconsistent with the exercise of inherent power by the
High Court under S. 561-A of Cr. P. C. (of 1898) [ equivalent to S. 436 of Cr.
P.C. of 1973] against the instant case, that despite the order of cancellation
of bail passed by the High Court, the accused would be entitled to move the
trial Court for bail again and the trial Court would be bound to release him on
bail because the right to be released on bail recognized by S. 496 of Cr. P.C.
(of 1898) was an absolute and an indefeasible right; that despite the order of
the High Court, that right would still be available to the accused; and that in
such a scenario, the order passed for cancellation of bail using inherent
powers would be rendered ineffective and that itself would show that there was
a conflict between the exercise of the said power and the provisions of S. 496
of Cr. P.C. (of 1898). Terming the said argument attractive, the Supreme Court
held that a close examination of the provisions of S. 496 of Cr. P. C. (of
1898) {equivalent to S. 436 of Cr. P.C. of 1973] would show that there was no
conflict between its provisions and the exercise of the inherent jurisdiction
under S. 561-A of Cr. P. C. (of 18980 [equivalent to S. 436 of Cr. P.C. of
1973]. The Supreme Court further observed as under (sections mentioned in the
following para are from the old Cr. P. C. of 1898) :
“In dealing with this
argument it is necessary to remember that, if the power under S. 561-A is
exercised by the High Court, the bail offered by the accused and accepted by
the trail Court would be cancelled and the accused would be ordered to be
arrested forthwith and committed to custody. In other words, the effect of the
order passed under S. 561-A, just like the effect of an order passed under S.
497(5) and S. 498(2),would be not only that the bail is cancelled but that the
accused is ordered to be arrested and committed to custody. The order
committing the accused to custody is a judicial order passed by a criminal
Court of competent jurisdiction. His commitment to custody thereafter is not by
reason of the fact that he us alleged to have committed a bailable offence
at
all; his commitment to custody is the result of a judicial order passed on the
ground that the he has forfeited his bail and that his subsequent conduct
showed that, pending the trial, he cannot be allowed to be at large, Now, where
a person is committed to custody under such an order, it would not be open to
him to fall back upon his rights under S. 496, for S. 496 would in such
circumstances be inapplicable to his case. It may be that there is no specific
provision for the cancellation of the bond and the re-arrest of a person
accused of a bailable offence; but the does not mean that S. 496 entitles such
an accused person to be released on bail, even though it may be shown that he
us guilty of conduct entirely subversive of a fair trial in the Court. We do
not read S. 496 as conferring on person accused of a bailable offence such an
unqualified, absolute and an indefeasible right to be released on bail.”
In this regard, the Supreme Court further held that
under S. 498(1) of Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of
1973], the High Court or the Court of Session may, even in the case of persons
accused of bailable offences, admit such accused persons to bail; and that if a
person accused of a bailable offence is admitted to bail by an order passed be
the High Court or the Court of session, the provisions of sub-section (2)
become applicable to his case; and under these provisions the High Court or the
Court of Session is expressly empowered to cancel the bail granted by it and to
arrest the accused and commit him to custody. The Supreme Court thus held that
the result was that with regard to a class of cases of bailable offences
falling under S. 498(1) of Cr. P.C. (of 1898), even after the accused person
are admitted to bail, express power had been conferred on the High Court or the
Court of Session to arrest them and commit them to custody; that clearly then
it could not be said that the right of a person accused of bailable offence to
be released on bail could not be forfeited even it his
conduct
subsequent to the grant of bail was found to be prejudicial to a fair trial.
4.25 Release on
Bail on Later Date in Challenge to Cancellation of Bail
In a case, the accused was being tried for a
bailable offence. The High court, in the exercise of the inherent jurisdiction,
cancelled the bail granted to him earlier by the Magistrate. On appeal, the
Supreme Court held that the High Court had cancelled the previous bail orders,
as it found that the accused was intimidating and tampering with certain German
citizen whom the prosecution intended to examine as witnesses. In view of the
normal practice of the Supreme Court not to re-examine findings of fact in a
appeal under Article 136 of the Constitution, the Supreme Court hearing full
arguments declined to interfere with the findings of the High Court. However,
as the High Court had given liberty to the accused to move the High Court on or
after a particular date for a fresh order a bail, and as the delay in the
examination of the witnesses was being caused entirely by the laches of the
prosecution, the supreme Court directed that the accused be released on bail on
the said particular date, whether or not the prosecution witnesses were
examined by that date.
4.26 Conversion
of Case from Bailable to Non-Bailable Offence
In the case of Hamida
v. Rashid, bail had been granted to the accused for offences under
Ss. 324,352 and 506 IPC ( which were bailable offences) on the day of their
arrest itself. Subsequently, the victim succumbed to the injuries and died
after which the offence was converted into S. 304 IPC. The accused filed a
petition under S. 482 before the High Court seeking a direction to allow them
to continue on same bail even after the conversion of the offence into S, 304
IPC. The High Court accepted their prayer. On appeal, the Supreme court held
that the accused could have applied for bail afresh after the offence had been
converted into one under Section 304 IPC. They deliberately did not do so and
filed a petition under section 482 Cr. P. C. in order to circumvent the
procedure where
under they would have been required to surrender as
the bail application could be entertained and heard only if the accused were in
custody. It was held that as no order adverse to the accused had been passed by
any court nor was there any miscarriage of justice or any illegality, in such
circumstances, the High Court committed manifest error of law in entertaining a
petition under Section 482 Cr. P. C. and issuing a direction to the subordinate
court to accept the sureties and bail bonds for the offence under Section 304
IPC. It was observed that the effect of the order passed by the High Court was
that the accused after getting bail in an offence under Sections 324,352 and
506 IPC on the very day on which they were taken into custody, got an order of
bail in their favour even after the injured had succumbed to his injuries and
the case had been converted into one under Section 304 IPC without any court
examining the case on merits, as it stood after conversion of the offence. The
procedure laid down for grant of bail under Section 439 Cr. P. C., though
available to the accused, having not been availed of, the exercise of power by
the High Court under Section 482 Cr. P.C. was clearly illegal. Accordingly, the
aforesaid order passed by the High Court was set aside.
In the aforesaid case of Hamida v. Rashid, in a petition under S. 482 Cr. P.
C., the High Court had allowed the continuation of the same bail which was
granted to accused in a bailable offence even after its conversion into an
offence under S. 304 IPC. While setting aside the said order, the Supreme Court
held that in spite of its repeated pronouncements that inherent power under
Section 482 Cr. P. C. should be exercise sparingly with circumspection in rare
cases and that too when miscarriage of justice is done, the High Court
entertained the petition under Section 482 Cr. P. C., the ultimate result where
of was that the order of bank granted in favour of the accused for an offence
under sections 324,352 and 506 IPC ensured to their benefit even after the
offence had been converted into one under section 304 IPC and also subsequently
when charge had been framed against them under section 302 read with Section 34
IPC. The accused did not remain in custody even for a single day nor did they
approach the Court of Chief
Judicial
Magistrate or sessions Judge for being granted bail under section 304 or 302
IPC, yet they got the privilege of bail under the aforesaid offences by virtue
of the said order passed by the High Court. Highlighting that the dockets of
the High Court are full and there is a long pendency of murder appeals in the
High Court from which the instant case had arisen, the Supreme court held that
ends of justice would be better served if valuable time of the High Court is
spent in hearing those appeals rather than entertaining petitions under Section
482 Cr. P. C. at an interlocutory stage which are often filed with some oblique
motive in order to circumvent the prescribed procedure, as was the case in the
instant case, or to delay the trial which would enable the accused to win over
the witnesses by money or muscle power or they may become disinterested in
giving evidence, ultimately resulting in miscarriage of justice.
In a case, the accused were arrested for the
commission of bailable offence and accordingly they were released on bail by
the Magistrate. Subsequently, the charge was altered and S. 307 IPC was
included which is non-bailable and exclusively triable by the Court of Session.
Only on that ground the police arrested the accused without the bail being
cancelled by the Court. In other words, the police did not move the Court to
cancel the bail, making out a case that they are required for an offence under
S.307, IPC. Therefore, the arrest by the police itself was illegal.
Subsequently when the accused were produced before the Magistrate, the
Magistrate also did not look into the fact that they were released by the same
Court on earlier occasion in the same crime number. Therefore, before remanding
the accused, the Magistrate ought to have considered whether their bail
application should be cancelled or not. Without cancelling the bail which was
granted by the same Court and remanding the accused without assigning any
reasons, the said order was illegal. If the police is allowed to arrest the
accused who has been released on bail by the Court, it will lead to disastrous
consequences as the police will be able to arrest the same accused under the
same crime number by altering the section, making it a non-bailable offence.
Therefore, it is absolutely necessary that before the accused is re-arresting
in the same crime
number,
if he is released on bail, the prosecution has to seek cancellation of bail
making out prima facie case for non-bailable offences or for arresting him in
view of the serious nature of the offence, etc. In the event the bail is
cancelled by the Court either under S. 437(5) or S. 439(2), Cr. P.C., as the
case may be, the accused can be arrested. In the event the accused is
re-arrested and produced before the Magistrate, it is incumbent on the
Magistrate to look into all the material particular and after being satisfied
only, he may pass orders according to law.
In Nathuram
v. State of Rajasthan, initially a case under ss. 447, 323 IPC was
registered against the petitioners. However, subsequently, Ss. 307 and 325 IPC
were also added to the case. They approached the High Court under S. 482 Cr. P.
C. alleging that by addition of these section, the bailable offence was
converted into an non-bailable offence and their right to bail had been
divested by the police due to that reason. The High Court refused to intervene
in the matter on the ground that so long as the investigation proceeds in
conformity with the mandates of the Cr. P. C., the domain of investigation
circumscribed by the provisions of the Cr. P. C., on attempt should be made by
the Court to stifle or impinge upon the progress of the progress of the
investigation unless the salient features of illegality, irregularity, or mala
fide, misuse of power by the police conscientiously persuades the Court to
believe that personal liberty of the citizen is at stake at the hands of
arbitrary exercise of power by the State machinery. Moreover, it was clarified
that on the apprehension of arrest by the police, the citizens have the right
to move for anticipatory bail for the reasons available to them in the facts
and circumstances.
4.27 Under-Trial
Prisoners Languishing in Jail in Bailable Offences
In Hussainara
Khatoon (IV) v. Home Secy., State of Bihar, the Supreme Court
noticed that there were several under-trial prisoners who were charged with
bailable offences but who were still in jail presumably because no application
for
bail had been made on their behalf or being too poor
they were unable to furnish bail. The Supreme Court observed as under in this
regard:
“It is not uncommon to
find that under-trial prisoners who are produced before the Magistrate are
unaware of their right to obtain release on bail and on account of their
poverty, they are unable to engage a lawyer who would apprise them of their
right to apply for bail and help them to secure release on bail by making a
proper application to the Magistrate in that behalf. Sometimes the Magistrates
also refuse to release the under-trial prisoners produced before them on their
personal bond but insist on monetary bail with sureties, which by reason of
their poverty the under-trial prisoners are unable to furnish and which,
therefore, effectively shuts out for them any possibility of release from
pretrial detention. This unfortunate situation cries aloud for introduction of
an adequate and comprehensive legal service programme, but so far, these cries
do not seem to have revoked any response.”
Calling for the setting up of a nationwide legal
service programme to provide free legal services to the poor, the make it
possible to reach the benefits of the legal process to them, to protect them
against injustice and to secure to them their constitutional and statutory
rights, the Supreme Court held that when Article 21 provides that no person
shall be deprived of his life or liberty except in accordance with the
procedure established by law, it is not enough that there should be some
semblance of procedure provided by law, but the procedure under which a person
may be deprived of his life or liberty should be “reasonable, fair and just”.
The Supreme Court further observed that a procedure which does not make
available legal services to an accused person who is too poor to afford a
lawyer and who would, therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as “reasonable, fair and just”. The
Supreme Court held that the right to free legal services is an essential ingredient
of “reasonable, fair and just” procedure for a
person accused of an offence and is implicit in the guarantee of Article 21.
This is a constitutional right of every accused person who is unable to engage
a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation and the State is under a mandate to
provide a lawyer to an accused person if the circumstances of the case and the
needs of justice so required, provided of course the accused person does not
object to the provision of such lawyer. Accordingly, in the instant case, the
Supreme Court directed the State to provide lawyer as its cost to the
under-trial prisoners, charged with bailable offences, when they were to be
produced before the Magistrates on the next remand dates, for the purpose of
making an application for bail.
As mentioned earlier, it may be pointed out that S.
436 of Cr. P.C. has been amended subsequently by Act No. 25 of 2005 to ensure
that a poor person does not have to remain in custody in a bailable offence due
to not being able to furnish sufficient sureties. This offers a solution at
least for a part of the problem highlighted in the aforesaid Supreme Court
judgment. It is also pertinent to mention that “legal aid”, a free legal
service to poor persons, has also become quite established by now.
4.28 Issuance of
Non-Bailable Warrant in a Bailable Offence
In a case, the offence alleged against the accused
were under Sections 341, 323 and 506, IPC which were all bailable. They were
released on bail accepting cash surety offered by them. While granting bail the
Magistrate had not imposed any conditions nor he had given any date for the
accused to appear before the Court. However, subsequently, even before the
charge-sheet was filed, the Magistrate took up the case and directed to issue
non-bailable warrant against the accused. It was held that the Magistrate cannot
issue non-bailable warrant according to his whims and fancies without assigning
any specific reason for doing so. It is incumbent on the Magistrate to satisfy
himself as to whether non-bailable warrant will have to be issued under the
compelling circumstances. If the
accused failed to appear before the Court on the
date fixed by the Court for his appearance be one of the reasons for the
Magistrate to issue non-bailable warrant. Accordingly, the said order of the
Magistrate directing issuance of a non-bailable warrant was set aside.
4.29
Section 436-A: 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 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;
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
that one half of 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 minimum period of punishment.
Provided for the
said offence under that law.
“Explanation – In computing the period
of detention under this section for grant of bail the period of detention
passed due to delay in proceedings caused by the accused side be excluded.
New section 436A
inserted by the Cr.P.C. (Amendment) Act 2005 (25 of 2005) enforces w.e.f.
23.6.2006 vide Notification No. S.). 923 (E) dated 21.6.2006.
There had been instances, where under-trial
prisoners were detained in jail for periods beyond the maximum period of
imprisonment provided for the alleged offence. The new Section 436A inserted in
the Code by Cr.P.C. (Amendment) Act, 2005 (25 of 2005) provides 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 shall be
released on his personal bond, with or without sureties.
It is also proposed to
provide 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
offence.
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.
No such person shall in any case be detained during
the period of investigation, inquiry or bail for more than the maximum period
of imprisonment provided for the said offence under that law.
Bail is a right and refusal is an exception.
However, the courts can impose the conditions while granting bail. But the
conditions should not be unreasonable. Courts have also power to cancel bail.
But power to cancel bail in non-bailable offences must be used sparingly. It is
the duty of the Magistrate to dispose of the bail application as early as
possible.
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