CrPC – I (Online Examination)

Bail of Under Trial Prisoners

Submitted to Dr Asad Malik by Syed Umair Ahmed Andrabi for the fulfilment of academic
requirement of online examination (CrPC – I, VIIIth Semester)
Table of Contents
INTRODUCTION:.......................................................................................................................3
OBJECTIVE OF BAIL.................................................................................................................3
Sanjay Chandra v CBI..............................................................................................................................4
LEGAL PROVISIONS..................................................................................................................4
Provisions As To Bail And Bonds...........................................................................................................5
BAIL IN BAILABLE OFFENCES:..............................................................................................5
Vaman Narain Ghiya v. State Of Rajasthan.............................................................................................6
Amar Nath Singh v The State of Jharkhand.............................................................................................6
Deepak Khosla v state of NCT of Delhi & Ors..........................................................................................6
BAIL IN CASE OF NON-BAILABLE OFFENCE.........................................................................6
Shakuntala Devi v State of UP..................................................................................................................6
State of Rajasthan v. Balchand,................................................................................................................7
Babu Singh v. State of U.P.......................................................................................................................7
ANTICIPATORY BAIL.................................................................................................................7
Siddharam Satlingappa Mhetre v. State of Maharashtra..........................................................................7
BAIL ON DEFAULT....................................................................................................................8
Moti Ram v. State of M.P..........................................................................................................................8
State of U.P. v. Laxmi Brahman,..............................................................................................................9
INTERIM BAIL...........................................................................................................................9
Siddharam v State.....................................................................................................................................9
Deepak Bajaj v State of Maharashtra.....................................................................................................10
Kanhaiya Kumar v State of NCT of Delhi...............................................................................................10
BAIL AFTER CONVICTION.....................................................................................................10
Suddu kumar vs. State of Bihar..............................................................................................................10
Atul Tripathi V. State of UP....................................................................................................................10
CANCELLATION OF BAIL.......................................................................................................11
Ram Govind Upadhya Vs. Sudarshan Singh..........................................................................................11
R.J Sharma Vs. R.P. Patankar................................................................................................................11
Dolat Ram v. State of Haryana...............................................................................................................11
CONCLUSION...........................................................................................................................12
Bibliography...............................................................................................................................13
 “The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a
socially sensitized judicial process”.
– Justice V.R. Krishna
Iyer

INTRODUCTION:

Wharton’s Lexicon and Stroud’s Judicial Dictionary defines bail as “the setting free of the
defendant by releasing him from the custody of law and entrusting him to the custody of his
sureties who are liable to produce him to appear for his trial at a specific date and time.”

According to Halsbury’s Laws of England: “the effect of granting bail is not to set the defendant
(accused) free, but to release him from the custody of law and to entrust him to the custody of his
sureties who are bound to produce him to appear at his trial at a specified time and place. The
sureties may seize their principal at any time and may discharge themselves by handing him over
to the custody of the law and he will then be imprisoned.

The literal meaning of the word “bail” is surety. Bail, therefore, refers to release from custody,
either on personal bond or with sureties. Bail relies on release subject to monetary assurance either
one’s own assurance (also called personal bond / recognizance) or through third party sureties. The
Supreme Court has also reiterated this definition in the Moti Ram Case.

According to Black’s Law Dictionary, what is contemplated by bail is to “procure the release of a
person from legal custody, by undertaking that he/she shall appear at the time and place designated
and submit him/herself to the jurisdiction and judgment of the court.”. Bail has been defined in the
Law Lexicon as security for the appearance of the accused person on giving which he is released
pending trial or investigation. (Govind Prasad v. State of West Bengal)

OBJECTIVE OF BAIL
The objective of bail or purpose of bail has been put forth by various scholars, most of them being
on similar lines that firstly It helps assure reappearance of the accused and secondly. It prevents
the un – convicted individuals from suffering unnecessary imprisonment.
However, the leading authority which could be referred to for explaining the objective of bail in
detail is:
Sanjay Chandra v CBI.
It defined the objective of bail as follows-
n bail applications, generally, it has been laid down 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 preventative. 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 owe more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial
could be a cause of great hardship. From time to time, necessity demands that some un-convicted
persons should be held in custody pending trial to secure their attendance at the trial but in such
cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any person should be punished in respect of any
matter, upon which, he has not been convicted or that in any circumstances, he should be deprived
of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the
most extraordinary circumstances. Apart from the question of prevention being the object of a
refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper for any Court to refuse bail as a mark of
disapproval of former conduct whether the accused has been convicted for it or not or to refuse
bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

LEGAL PROVISIONS
The concept of bail emerges from the conflict between the police power to restrict the liberty of a
man who is alleged to have committed a crime, and presumption of innocence in favour of the
person accused of an offence. Bail is regarded as a mechanism whereby the State imposes upon the
community the function of securing the presence of the prisoners, and at the same time involves
participation of the community in administration of justice. The provisions relating to the grant of
bail are enshrined in Chapter XXXIII, under sections 436- 450 of Cr.P.C. Offences have been
classified into bailable and non bailable and “cognizable” and “non-cognizable”. Officer-in-charge
of police station, Magistrate, Sessions Court and High Court are empowered under Cr.P.C. to deal
with bail, imposing conditions on bail, cancellation of bail or anticipatory bail.
Provisions As To Bail And Bonds
Sec. 436: In What Cases Bail To Be Taken
Sec436a: Maximum Period For Which An Undertrial Prisoner Can Be Detained
Sec.437: When Bail May Taken In Case Of Non-bailable Offence
Sec.437a: bail Ta Require Accused to Appear Before The Next Appellate Court
Sec.438: Directions For Grant Of Bail To Person Apprehending Bail
Sec.439: Special Powers Or High Court And Court Of Session Regarding Bai
Sec.440: Amount Of Bond And Reduction Thereof
Sec.441: Bond Of Accused And Sureties
Sec.441A: declaration By Sureties
Sec.442: Discharge From Custody
Sec.443: power to order sufficient bail when that first taken is insufficient.
Sec.444: discharge of sureties
Sec.445: Deposit instead of recognizance
Sec.446: Procedure when bond has been forfeited

Sec.446A: Cancellation of bail and bail bond

Sec.447: Procedure in case of insolvency or death of surety or when a bond is forfeited
Sec.448: Bond required from minor
Sec.449: Appeal from orders under section 446
Sec.450: Power to direct levy of amount due on certain recognizance

BAIL IN BAILABLE OFFENCES:

Section 436 provides for the release on bail of a person accused of a bailable offense. Section 436
of Cr.PC is mandatory in nature and the court or the police has no discretion in the matter. Any
accused person arrested for a bailable offence willing to provide bail must be released. The only
discretion available with the police is to release the accused either on a personal bond or with
sureties. In cases where the accused is unable to provide bail, the police officer must produce the
accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of Cr.P.C.
Subsequently, when the person accused of an offense is produced before a Magistrate and is
willing to furnish bail, then the Magistrate must release the accused person and the only discretion
available is to release either on personal bond or a bond with sureties. The Magistrate cannot
authorize detention of a person who is willing to furnish bail with or without sureties even for the
purposes of aiding the investigation.

Rasiklal v. Kishore s/o Khanchand Wadhwan

The Supreme Court held that the right to bail for bailable offences is an absolute and in-
defeasible right and no discretion can be exercised as the words of s. 436 Cr.P.C are
imperative and the person accused of an offence is bound to be released as soon as the bail is
furnished.
Vaman Narain Ghiya v. State Of Rajasthan

The Hon'ble Supreme Court in Vaman Narain Ghiya v. State Of Rajasthan, observed The Court
has no jurisdiction when granting bail under section 436 CrPC, even to impose any condition
except demanding of security.
Amar Nath Singh v The State of Jharkhand

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 by virtue of section 436 (2) refuse to release him on bail, when
on a subsequent occasion in the same case he appears before the Court.
Deepak Khosla v state of NCT of Delhi & Ors

In Deepak Khosla v state of NCT of Delhi & ors Delhi High Court held that grant of bail to a
person accused of bailable offence is governed by the provisions of section 436 of the code of
criminal procedure, 1973. Bail in such cases is compulsory and a person accused of a bailable
offence if prepared to furnish bail has the right to be released on bail and the Court has no
discretion to deny bail.

BAIL IN CASE OF NON-BAILABLE OFFENCE

Provision, as to bail in case of non-bailable offence, is laid down in Section 437 of the code. This
section gives discretionary power to the Court (other than High court or Court of Session) to
release an accused on bail in a non-bailable case. It lists down circumstances when bail will not be
granted or when shall bail be granted with specific condition etc.
Shakuntala Devi v State of UP

court explained that word “may” has been used in Section 437 which should not be read as
mandatory rather it confer discretionary power on Court.
State of Rajasthan v. Balchand,

the Court opined: 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
other troubles in the shape of repeating offences or intimidating witnesses and the like, by the
Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but
only illustrative.
Babu Singh v. State of U.P.

Supreme Court opined: Personal liberty, deprived when bail is refused, is too precious a value of
our constitutional system recognised under Article 21 that the curial power to negate it is a great
trust exercisable, not casually but judicially, with lively concern for the cost to the individual and
the community. To glamorise impressionistic orders as discretionary may, on occasions, make a
litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or
convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law".
The last four words of Article 21 are the life of that human right.

ANTICIPATORY BAIL

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under a
non-bailable offence in India can apply for Anticipatory Bail under the provisions of section 438
of The Code of Criminal Procedure, 1973. The words anticipatory bail is neither found in section
438 nor in its marginal note.
Siddharam Satlingappa Mhetre v. State of Maharashtra

The court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra here discussed the
scope and ambit of anticipatory bail and said that principles regarding it has been laid down in the
Sibbia’s case should be followed by the court:

a. Section438 (1) is to be interpreted in light of Article 21 of the Constitution of India.

b. Filing of FIR is not a condition precedent to exercise of power under Section 438.

c. Order under Section 438 would not affect the right of police to conduct investigation.

d. Conditions mentioned in Section 437 cannot be read into Section 438.

e. Although the power to release on anticipatory bail can be described as of an

 "extraordinary" character this would "not justify the conclusion that the power must be
exercised in exceptional cases only."

The Supreme Court in also observed: the law of bail dovetails two conflicting interests namely,
the obligation to shield the society from the hazards of those committing and repeating crimes
and on the other hand absolute adherence to the fundamental principle of criminal
jurisprudence - presumption of innocence and the sanctity of individual liberty.

The Supreme Court emphasized that anticipatory bail is a device to secure the individual's
liberty, and neither a passport for the commission of crimes nor a shield against any and all
kinds of accusations likely or unlikely. History and object of introducing the provision of
anticipatory bail can be traced back to judgment of the Supreme Court in Balchand Jain v. State
of M.P and Gurbaksh Singh Sibbia case.

BAIL ON DEFAULT

Section 167(2) of the Criminal Procedure Code, 1973 empowers judicial magistrates to authorize
custody of an accused person in cases wherein investigation cannot be completed in twenty-four
hours. It provides for the maximum period of custody that can be authorized. It further contains a
mandate that if the investigation is not completed within the stipulated maximum period, the
accused is to be released on bail whatever may be the nature of accusation against him.

The object of this provision manifests the legislative anxiety that once a person’s liberty has been
interfered with, the arrest made without a warrant or a court order, the investigation must be
conducted with utmost urgency. Persons who are detained for committing an offence and
undergoing investigation are statutorily eligible for bail under Section 167(2) of Code after ninety
days where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for not less than ten years; and sixty days where the investigation is relating to any
other offence, if the investigating authorities fail to complete their investigation and file a charge-
sheet within this period.
Moti Ram v. State of M.P

In Moti Ram v. State of M.P this Court, while discussing pre-trial detention, held: The
consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the
psychological and physical deprivations of jail life, usually under more onerous conditions than are
imposed on convicted Defendants. The jailed Defendant loses his job if he has one and is
prevented from contributing to the preparation of his defence. Equally important, the burden of his
detention frequently falls heavily on the innocent members of his family, therefore it becomes
important that a person may be granted bail on default under section 167(2).

State of U.P. v. Laxmi Brahman,

Section 167(2) deals with powers of the magistrate to detain the accused in custody and release
him on bail on expiry of the statutory period. It is quite clear that power is conferred on the
magistrate to release the accused on bail under the proviso.

INTERIM BAIL
There is no express legal provision of ad-interim or interim bail. Section 439 CrPC is on the High
Court’s and the Sessions Court’s power to release the accused on bail in custody. Evident as it is
that Sections 436, 437 and 439 are repository of powers of the court to release the accused in
custody on bail. That’s post-arrest. As seen above, the newly substituted Section 438 expressly
provides for interim bail pending disposal of the plea for anticipatory bail. It’s a important
provision as the accused faces the threat of arrest before his application for the bail is decided.
Also, it’s consistent with the concept of fundamental right to life and liberty under Article 21 of
the Constitution of India. Interim bail may be granted when the court is satisfied that the object of
the. However, this kind of bail may be granted at any stage of a case by way of court’s inherent
power.
Siddharam v State
In Siddharam v State court held that there is no express provision for interim bail in Sections 437
or 439 CrPC. Of course Section 437(2) hints at such a power, but not in explicit terms. Even to
exercise the power there under, the Magistrate may order notice to the prosecution in which case
the accused under arrest can’t avoid detention in jail. Thus, the interim bail regime becomes
relevant even in post-arrest matters, leaving alone the interim bail provision in Section 438 CrPC.
Life bereft of liberty is without honour and dignity.
Deepak Bajaj v State of Maharashtra
court held that in the power to grant bail there is inherent power in the court concerned to grant
interim bail to a person pending final disposal of the bail application.

Kanhaiya Kumar v State of NCT of Delhi

in this case Kanhaiya Kumar, President of Jawaharlal Nehru University Students Union, was
granted interim bail for a period of six months on furnishing personal bond in the sum of
₹10,000/- and an undertaking.

BAIL AFTER CONVICTION

Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person can get a Bail
from appellate court after filing the criminal appeal. Section 389 (3) deals with a situation where
the trial court itself can grant a bail to convicted accused enabling him to prefer an appeal.
Suddu kumar vs. State of Bihar
The Patna High Court in Suddu kumar vs. State of Bihar has observed that if a prayer for
suspension of sentence and release of an appellant on bail, convicted of a capital crime and
sentenced to undergo imprisonment for life, it is to be considered favourably and he is ordinarily
allowed bail if he has completed seven years of incarceration in connection with such case before
conviction and after conviction, taken together when his appeal is not likely to be heard on merits
in near future, on the ground of possible delay in the disposal of the appeal.

Atul Tripathi V. State of UP

A Two Judge Bench of the Supreme Court, in Atul Tripathi V. State of UP discussed the scope and
ambit of Section 389 of Cr.P.C and issued the following Guidelines regarding the suspension of
Sentence during the pendency of Criminal Appeal.
a. The appellate court, if inclined to consider the release of a convict sentenced to
punishment for death or imprisonment for life or for a period of ten years or more, shall
first give an opportunity to the public prosecutor to show cause in writing against such
release.
b. On such opportunity being given, the State is required to file its objections, if any, in
writing.
 c. In case the public prosecutor does not file the objections in writing, the appellate court
shall, in its order, specify that no objection had been filed despite the opportunity granted
by the court.
d. The court shall judiciously consider all the relevant factors whether specified in the
objections or not, like gravity of offence, nature of the crime, age, criminal antecedents
of the convict, impact on public confidence in court, etc. before passing an order for
release

CANCELLATION OF BAIL

The basic criteria for cancellation of bail are interference or even an attempt to interfere with due
course of Justice or any abuse of indulgence/privilege granted to the accused.
Ram Govind Upadhya Vs. Sudarshan Singh

The power of the Court under the section to cancel bail can be invoked either by the state itself or
by any aggrieved party or even suo moto as held in the case of Puran vs. Ramvilas.

As per Section 437 (5) of Cr.P.C. any Court which has released a person on bail may, if it
considered it necessary so to do, cancel the bail and direct that such person be arrested and
committed to custody.

R.J Sharma Vs. R.P. Patankar

It is held that Magistrate ought to pursue the application for cancellation of bail and afford an
opportunity to accused to be heard.
Dolat Ram v. State of Haryana

The Hon'ble Supreme Court has held that once bail has been granted, it can only be cancelled
based on cogent and overwhelming circumstances. Proceedings for the cancellation of bail are not
in the nature of an appeal from the grant of bail, and therefore, a court must look for circumstances
that warrant cancellation of bail, such as interference or attempt to interfere with the due course of
justice, or abuse of concession of bail granted to the accused in any manner. Bail granted to an
accused with reference to bailable offence can be cancelled only if the accused (1) misuses his
liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3)
attempts to tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (5) attempts to flee to another country, (6)
attempts to make himself scarce by going underground or becoming unavailable to the
investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. These
grounds are illustrative and not exhaustive. However, a bail granted to a person accused of bailable
offence cannot be cancelled on the ground that the complainant was not heard.

CONCLUSION
The Criminal Procedure Code, gives only an outline of the provisions of bail, but most of the
work is done by the courts themselves. The judicial principles laid-down by the courts may be
changed by the courts also. As far as the meaning and definition of bail is concerned it has not
been statutory defined. Consequently, it continues to be understood as a right for assurance of
freedom against State imposed restrains of security of appearance of a person for his release.
Bail is generally a matter of judiciary discretion. While considering whether to grant or not to
grant bail, conflicting claims of undoubtedly liberty of the accused and the larger interest of the
society have to be taken note of. As far as the evolution and history of bail is concerned it has
gradually evolved in India. This is a very important instrument. The importance of instrument of
bail can be imagined from the fact that from the initial stage of accusation at police level to
Apex Court and right from direction for anticipatory bail to special powers of High Court and
Court of Session to grant bail and writ of Habeas corpus and certiorari have been provided to
restore the liberty of the individual

For the purpose of granting bail offences have been classified into Bailable and non-bailable
offences under Section 2 of the Criminal Procedure Code. The basic distinction in these offences
is that in bailable offences Bail can be claimed as a matter of right, whereas in non- bailable
offences it is at the discretion of the Courts whether to grant bail or not. While granting bail in
case of non-bailable offences various factors are to be taken into account by the Courts Today
the horizon of Human Rights is expanding. At the same time, the crime rate is also increasing.
Observing this, Supreme Court has been held that there is urgent need to make a balance
between personal liberty and investigational powers of Police. There can be no gain saying that
freedom of an individual must yield to the security of the state. However, not right can be
absolute and reasonable restrictions can be placed on them.
Bibliography

Statutes

The Code of Criminal Procedure, 1973

The Constitution of India, 1950

The Indian Penal Code, 1860

Books

R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998.

D. D. Basu, Criminal Procedure Code, 1973, Ashoka Law House, New Delhi, 2001

Other

Class Notes, Dr Mohd. Asad Malik, Professor concerned, CrPC – I .

Online resources

www.indiankaknoon.com

www.legalservicesindia.com

www.vakilno1.com

www.manupatra.com

www.lawcommissionofindia.nic.in

www.scconline.com

www.livelaw.in