SOUTHEAST

UNIVERSITY
Department of law and Justice

Subject: The Code of Criminal

procedure, 1898
Assaignment On : Analyze The provision of
bail under the code of criminal procedure
1898.

Submited To : Arfan Ahmed

LL.M Coordinator, Southeast University

Department of law and Justice

Name: Md. Abdur Rahman Sayem

Id. 2016220300039
Batch 40th section: 1
PROVISIONS OF BAIL IN CODE OF CRIMINAL PROCEDURE,
1973 & OTHER SPECIAL STATUTE

Provisions of bail have been given in chapter 33 of the Criminal Procedure

Code, 1973. Sections 436 and 437 of the code have conferred the powers
of bail on officer in charge of police station and court of Magistrate, Here
the word “Court” means the court having jurisdiction over the area.

Thus while releasing a person on bail, the court has first to determine his
jurisdiction over the matter.

The powers of bail under section 436 and 437 of the Code have been
conferred on that court only which has a jurisdiction to take cognizance
and try the person accused of an offence. Allahabad High Court has also
the same view and held that bail order passed by court not having
jurisdiction to take cognizance and try the accused of such offence is bad
in law. In a Full Bench Case Patna High Court held that under section 437,
Magistrate having jurisdiction to take Cognizance and try such offence will
have power to grant bail.

Thus, for the purpose of ascertaining the jurisdiction of taking cognizance

or try such offence, court has to see:

1. Whether the accused has been detained in custody?

2. Whether the said offence, leveled against the accused is bailable or

non-bailable? with the position in society occupied by the person
released on bail. Demanding local surety or cash surety is improper
and illegal. But to avoid any criticism accused may he offer cash
security in place of bail bonds, cash surety is as much effective as
bail bonds.

3.1 UNCONDITIONAL BAIL: While granting bail in the bailable

offence, the officer or court has no power to impose any condition
except the demanding of security with surety. The conditions that will
the conclusion of trial accused shall not enter into the land in question
or accused shall not deliver any speech or make any demonstration
during bail, are illegal. Similarly accused cannot be bound down to
appear in court during pre-trial stage.
(i) Police Custody Remands:
If the accused is ready to furnish bail-bonds then the accused under
Section 167(2) of the code cannot be given on police custody remand in
bailable offences.
(ii) Refusal of bail in bailable offences:
Sub- section (2) of section 436 of the Code empowers the Court to
refuse bail in bailable offence if the person accused of a bailable offence
fails to comply with the conditions of bail bonds as regards time and
place at attendance. But the High Court or
Court of Session under section 439 (2) of the code is empowered to
order the arrest of a person already on bail in an offence including
bailable offence and commit him to custody canceling his bail bonds.
But the court of Magistrate has no such power.

The Magistrate or the Court of Session had no power to cancel bail in

bailable offence, yet the High Court had inherent power to cancel bail in
bailable offence granted to a person accused of on offence and in proper
case such power could be exercised in the interest of justice.124 Now
this power of High Court is given in section 482 of the Code

Once the application for cancellation of bail after hearing the parties has
been ejected then subsequent application should not been moved to
harass the accused without new material against him .

(iii) Notice:
There is no provision for any notice to be given to public prosecutor
before granting bail to a person accused in bailable offence.

(iv) Executive instructions inconsistent with Section 436 are

ultavires:
The executive instructions of District Supdt . of Police not to release on
bail the persons charged with bailable offence to all the subordinate
Sub-Inspectors is contrary to the mandatory provision of Section 436
and as such ultra vires and illegal.

(v) Security Proceedings:

Any person other than a person accused of non-bailable offence is to be
released on bail as a matter of right. But the second proviso of sub-
section (1) of section 436 excludes the provisions of section 116(3) Cr.
P.C. or Section 446-A of Cr.P.C. from the purview of Section 436. If a
person has been directed to furnish interim bond under S. 116(3) under
security proceedings, he can be taken into custody on his failure to
furnish the interim bond called under Section 116(3) Cr.P.C. Such
person cannot apply for bail under Section 436 Cr.P.C. He can be
released on his furnishing the interim bond as ordered by the
Magistrate.

The object of Section 446A Cr. P.C. is to deal with habitual criminals
and antisocial elements and those creating enmity between different
groups of communities. As soon as the bond is furnished under the
Code for the appearance of person in a case is forfeited for breach of
condition then the bond executed by such person as well as the bond, if
any, executed by one or more of his sureties shall stand cancelled
automatically and 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 reason for the failure of the person bound by the
bond to comply with its condition, then such person shall not be
released on his bond and he can be released subject to any other
provision of the Code upon execution of a fresh personal bond and or
sureties as the police officer or the court may deem fit. There is no
doubt that the provision of Section 446A is not affected in any way by
the provisions of Section 436 Cr. P.C.

3.2 Bail in Non-Bailable offences:

Section 437 of the Criminal Procedure Code lays down the provisions
regarding the circumstances under which the officer in charge of police
station or court other than. High Court or a court of session can release
any person accused of, or suspected of, the commission any non-
bailable offence when arrested or detained without warrant by an officer
in charge of police station, or appears or is brought before such court.

Distinction between Sec. 436 and Sec.437:

The Law Commission in its 41st Report has observed that the broad
principle adopted in the Code regarding bail are :
(i) Bail is a matter of right if the offence is bailable;
(ii) Bail is a matter of discretion if the offence is non-bailable;
(iii) Bail shall not be granted by the Magistrate if the offence is
punishable with death or imprisonment for life, but if the accused is a
woman, or a minor under the age of sixteen years or a sick or infirm
person, the court has discretion to grant bail; and
(iv) The court of Session and the High Court have as wider discretion in
granting bail, even in respect of offences punishable with death or
imprisonment for life;

All these above recommendations have been adopted in the Code of

Criminal Procedure. Bail in bailable offences is right of the accused
while in non-bailable offence it is discretion of the court or officer in
charge of police station.

There are two exceptions to this rule that under section 436(2) the court
may refuse bail if the accused released on bail in bailable offence fails
to comply with the conditions of bail with regard to time and place of
his attendance. Secondly the High Court and the Court of Session can
cancel such bail in bailable offence under Section
439(2) when the accused is tempering with the evidence or is likely to
abscond.

But the bail in non-bailable offences which is a discretion of court or

officer in charge of police station may be cancelled under Section
437(5) by the same court. But the power of police officer is restricted
one in this respect. The court or police officer in charge of police station
cannot grant bail in non-bailable offence if the offence is punishable
with death, life imprisonment or imprisonment of 7 years or more or the
accused has been previously convicted on two or more occasions of
non-bailable and cognizable offence except where the accused is under
the age of sixteen years, or is woman, or is sick or infirm person or
court is satisfied that it would be just and proper to release the accused
on bail.

Thirdly police officer is under a duty to grant bail to a person in bailable

offence but in non-bailable offences the police officer or court while
granting bail has to record his reasons for granting bail.

Lastly, unlike bail in bailable offences, the court may order for
imposing conditions other than fixing of the bail for the attendance of
the accused for which a specific provision is made in sub-section (3) of
Section 436.

At the time of considering bail application the court, generally has to

decide the question whether the accused should be released on bail or be
remanded into judicial custody. Thus bail in non-bailable offence is
discretionary one.

The system of courts with regard to bail in non-bailable offences is as

follows:-
1. The court of magistrate, which can grant bail under Section 437 of
the Code.
2. The Court of Session or High Court, which can grant bail under
Section 439 of the code.

Section 437
The provisions of Sec. 437 of the Code are applicable to the Court of
Magistrate only and the Court of Session and High Court are clearly
debarred to grant bail under this provision. While considering bail
application, the non-bailable offences are divided into two parts:-

Firstly , those non-bailable offences which are punishable with death or

imprisonment for life; and secondly all the rest non-bailable offences.
In the first category of offences, the officer in charge of police station or
the Magistrate is restrained from granting bail while in the second
category of offences; the
Magistrate has a judicial discretion to grant bail which ordinarily goes
in granting bail unless there is no exception to it. Magistrate while
granting bail may impose any condition u/s 437(3), necessary to ensure
his appearance in the court.

Now the question arises, whether the Magistrate has power to grant bail
in nonbailable offence which is exclusively tribal by the Court of
Session.

Allahabad High Court129 has observed that there is no limitation on the

power of the Magistrate to grant bail in session triable offences in the
provisions of the bail given in the code. Only limitation in such offences
is punishment prescribed in the law. This view had been reiterated by
the High Court in another case130 and the High Court held that powers
of 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 the offence. A Magistrate has no jurisdiction to grant bail
only in such case where the prescribed punishment is imprisonment for
life or death penalty. It was further held that the offences lying under
sections 363 and 366 are punishable with ten years imprisonment,
therefore Magistrate has power to grant bail131 and Magistrate should
dispose of the bail application, if possible on the same day.

Whenever police arrest and produce any person in any non-bailable

offence before a Magistrate to seek remand then it must put up
sufficient evidence or material before the court to establish the
complicity of the accused in the commission of crime. court has not to
see the merit and reliability of the evidence or material produced before
the Court. If the court after seeing the material comes to the conclusion
that the accused is guilty of an offence punishable with death or life
imprisonment then the Magistrate, ordinarily, has no option but refuse
bail to him and commit him to judicial custody. There are two
 exceptions to this rule.

(a) Magistrate may grant bail to an accused person in case the accused is
woman, minor person up to sixteen years of age or sick and infirm
person.
(b) Where the Magistrate has reasons to believe that accused has not
committed an some evidence remains available to establish the
complicity of the accused in the crime.
Now the question arises, whether in case of first exception bail is
mandatory or
Magistrate has to exercise judicial discretion. Allahabad High Court
does not hold it (the First proviso f Section 437(i) of the code)
mandatory provision to release an accused or bail

Now another question arises, who can be released on bail on the ground
of sickness or infirmity? Every infirmity or sickness does not entitle an
accused to be released on bail. The nature and seriousness of sickness or
infirmity, the suitability or otherwise of the remand to jail custody and
the availability of the necessary medical treatment and reasonable
amenities have to be taken into consideration along with other
circumstances before granting bail on the ground of illness. Where the
applicant was suffering from diabetes and blood pressure and proper
treatment was available, the applicant held was not entitled to bail on
that ground.

3.3 Whether custody of accused is necessary for bail:

The provisions of Code of Criminal Procedure wherein the powers of ail to
accused are given, lead us to the conclusion that no person can be enlarged
on bail unless he is in the detention or in custody. The concept of bail and
the provisions of bail in the code contemplate pretrial detention and
subsequent release from the custody. This detention may be either
voluntary or involuntary. When an accused surrenders before a court, then
detention is voluntary but when police arrests an accused, detention will be
said to be involuntary. Surrender of an accused is essential for considering
the bail application in a court. Person who is not in custody cannot be
released on bail. For the purpose of sections 436, 437 and 439, the
appearance of accused for the purpose of bail must be the personal
appearance and without such personal appearance bail application
Cannot be entertained

Where a person accused of or suspected of the commission of a non-

bailable offence appears before a Magistrate having jurisdiction and
surrenders or submits himself to the jurisdiction and orders of the court, he
would be in custody and although no process is issued against the person,
the Magistrate would be required to accept the surrender and deal with the
bail application of such person. In such a case, the person is under duress
and has placed himself under the power of restraint exercisable by the
court by his physical presence before the court and expressing his intention
to submit himself to the orders of the Court (1980 Cri. L.J. 426 (SC) Relied
on). The Hon’ble Supreme Court observed custody is physical control or at
least physical presence of accused in court coupled with submission to the
jurisdiction and orders of the court.

3.4 Provision Of Bail in other Special Statutes

In the Code of Criminal Procedure, the provision of bail shall not be
applicable where any different procedure with regard to bail is given by
any other laws like Narcotic Drugs and Psychotropic Substances Act and
TADA Act etc. This conclusion flows from the provision of Sections 4 and
5 of code of Criminal Procedure, 1973.

3.5 Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act,
1985) and the provision of bail.
The relevant provisions of bail in Narcotic Drugs and Psychotropic
Substances Act, 1985 are given in Sections 37 and 51 of the Act as well as
the provisions of bail given Sections 437 and 439 of the Code of Criminal
Procedure are applicable but are additional to them, and qualify the
provisions of Code, because the provisions of bail in the Act are not
exhaustive though stringent one. The Supreme Court in Narcotics Control
Bureau v. Kishan Lal observed that the powers of High Court to grant bail
under Section 439 Cr.P.C. are subject to the limitations mentioned in
section 37 of the Act. Section 37 of the Act provides further limitations in
grant of bail and the exceptions provided in the first proviso to Section 437
of the code are still applicable in such provisions given to Section 437 are
not limitations rather exceptions to the general principles of bail, therefore,
applicable in the grant of bail under the Act. Accused who was infirm and
minor found with the possession of 170 gms. Of heroin was granted bail.

The provisions of bail under 37 of the Act do not oust the provisions of
Section 167 of the Code. These provisions will be applicable only when
the application for bail is going to be considered on merit but if the charge
sheet or complaint has not been submitted within the time limit i.e. 90 days
as prescribed in Section 167(2) of the Code of Criminal Procedure, then
accused has to be released on bail. Thus it confirms the view that the
provisions of bail in the Act are in addition to the provisions of Code with
respect to bail, arrest, remand and search etc.

Section 51 of the Act confirms this view which is given as follows:- The
provisions of the Code of Criminal Procedure 1973 (2 of1974) shall apply,
in so far as they are not inconsistent with the provisions of this Act, to all
warrants issued and arrests, searches and seizures made under this Act.”
Bail shall be granted if the mandatory provisions of Sections 42 and 50 of
the Act are not followed. As the provisions of these sections with respect
to arrest, search and seizure without warrant and conditions of search of an
accused were held mandatory. A Police Officer on receiving information
with regard to an accused having contraband, he must give to accused an
option to be searched in the presence of Gazetted Officer or Magistrate.

Right given to the Accused under Section 50 of the Act is a valuable right
and if the accused is not informed of his right that his search could be
made before a Gazetted Officer or a Magistrate and if he so desires, be
taken to the nearest Magistrate. Violation of such right entitles the accused
for bail.143 The question of the violation of the mandatory provisions of
the Act could and ought to be considered at the stage of bail and pleas
thereof may not be brushed aside by mere observation that those will be
considered only during evidence or in the trial.
3.6 The Terrorist and disruptive Activities (Prevention) Act (TADA),
Act 1987
The bail provisions of TADA Act are contained in Section 20(8). It shows
that the provisions of Sub-Section (8) can be pressed into service when the
person whom is sought to be released on bail is accused of an offence
punishable under the Act or any rule made there under. In the matter of
granting bail to the accused charged with the offence punishable under the
Act a heavy burden has been cast by the legislature to be shouldered
proportionately on the Public Prosecutor and the court. If he does not
oppose the application for bail, he in that way shares a heavier burden with
a grave sense of responsibility and thereby absolves the court from
recording satisfaction that while a bail the offender was not likely to
commit an offence.

Bail Under TADA: duty of Designated Court:-

Sub-Section 8 of section 20 in terms places fetters on the power of a
Designated Court on granting of bail and the limitation, specified therein
are in addition to the limitation under the Cr. P.C. So Designated Court
should carefully examine every case coming before it for finding out
whether the provisions of the Act apply or not. A prayer for bail ought not
to be rejected in a mechanical manner.

Cancellation of bail by Designated Court:

If an accused is enlarged on bail, it may be cancelled by the Designated
Court, if the accused subsequent to bail acts in a manner prejudicial to the
security of the state.

Remand by Designated Court:

Sec, 20(4) makes section 167, Cr. P.C. applicable to TADA cases. So
obviously Designated Court in respect of delinquents under TADA Act has
power to order remand. Before passing such remand order, the court like
the Designated Court shall have first to find out whether on the material
placed before the court, prosecution has been able to show a prima facie
case under the Act against the person. In doing the court shall have to take
Section 167(2) of Code (i.e. sub-section (2) of 167 is concerned the
proviso read whenever the words “fifteen days” occur it shall be read as
“sixty days” and wherever the words “ninety days” occur it should be read
as “one hundred and eighty days” and whenever the word “sixty days”
occur it should be read as “one year”, read with section 20(4) of TADA,
therefore creates an indefeasible right in an accused person on account of
the “default” by the investigating agency in the completion of the
investigation within the maximum period prescribed or intended, as the
case may be, to seek order for his release on bail. In such situation court is
duty-bound to inform the accused of his right to seek bail and enable him
to make an application.

In view of the amendment (i.e. in 1993) the ninety days should be read as
“one hundred and eighty days.” So a TADA offender if the investigation is
not completed within one hundred and eighty days is entitled to
compulsory bail after the expiry of one hundred and eighty days from the
arrest. In view of the amendment effected by 1993 if it is not possible to
complete the investigation within one hundred and eighty days and the
public prosecutor makes a report indicating the progress of the
investigation and the specific reason for detention beyond above stated
period (i.e. 180 days), the Designated Court shall extend the said period of
one year.

So far as the bail provisions of TADA are concerned it overrides bail

provisions of the Code. Under Sec. 20(7) of TADA Act, exclusion of
benefit of Sec. 438 Cr. P.C. regarding anticipatory bail is not violation of
Art. 21. In addition to it, High Court should not normally entertain such
application, but in extreme circumstances its jurisdiction is not excluded.

Grounds for Granting bail:

Under Section 20(8), conditions for grant of bail are courts satisfaction
about existence of reasonable grounds for believing that accused is not
guilty of such offence and opportunity given to public prosecutor to oppose
such release on bail. These grounds are reasonable and not violation of Art.
21.

3.7 Conversation of Foreign Exchange and Smuggling Activities Act,

1974
(COFEPOSA Act, 1974) and bail under the same:
No court has power to release a person detained under the Act on bail or
parole, the provisions of Section 12(6) of the Act having non-obstante
clause excludes the power of court for grant of bail.

3.8 Maharashtra Control of Organised Crime Act, 1999 (MCOCA)

and
bail under it.
Section 21(4) of MCOCA does not make any distinction between an
offence which entails punishment of life imprisonment and an
imprisonment for a year or two. It does not provide that even in case a
person remains behind the bars for a period exceeding three years,
although his involvement may be in terms of Section 24 of the Act, the
court is prohibited to enlarge him on bail. Each case, therefore, must be
considered on its own facts. The question as to whether he is involved in
the commission of organized crime or abetment thereof must be judged
objectively. Only because some allegations have been made against a high
ranking officer, which cannot be brushed aside, may not by itself be
sufficient to continue to keep him behind the bars although on an objective
consideration the court may come to the conclusion that the evidences
against him are not such as would lead to his conviction. In case of
circumstantial evidence like the present one, not only culpability or mens
rea of the accused should be prima facie established, the Court must also
consider the question as to whether the circumstantial evidence is such
whereby all the links in the chain are complete.
In Abdulla Mohammed Pagarkar etc. it is stated:
“ Learned counsel for the State sought to buttress the evidence which we
have just above discussed with the findings recorded by the learned Special
Judge and detailed as items (a) to (e) in paragraph 5 and items (i) and (iii)
in paragraph 6 of this judgment. Those findings were affirmed by the
learned Judicial Commissioner and we are clearly of the opinion, for
reasons which need not be restated here, that they were correctly arrive at.
But those findings merely make out that the appellants proceeded to
execute the work in flagrant disregard of the relevant rules of the G.F.R.
and even of ordinary norms of procedural behaviour of government
officials and contractors in the matter of execution of works undertaken by
the government. Such disregard however has not been shown to us to
amount to any of the offences of which the appellants have been convicted.
The said findings no doubt make the suspicion to which we have above
adverted still stronger but that is where the matter rests and it cannot be
said that any of the ingredients of the charge have been made out.
Apart from the findings and evidence referred to earlier in paragraph, no
material has been brought to our notice on behalf of the State such as
would indicate that the bills or the summaries in question were false in any
material particular.”
. In C. Change Reddy and Others, it is stated:

“The learned counsel appearing for all the appellants also during the course
of their arguments were unable to point out any error in those findings and
according to them in the established facts and circumstances of the case,
the irregularities, administrative lapses and violation of the codal
provisions, could only have resulted in a departmental action against the
officials but criminal prosecution was not justified. Their argument has
force and appeals to us.”

Every act of negligence or carelessness by itself may not be misconduct.

The provisions of the said Act, therefore, must receive a strict construction
so as to pass the test of reasonableness.

It is, furthermore, trite that for the purpose of considering an application

for grant of bail, although detailed reasons are not necessary to be
assigned, the order granting bail must demonstrate application of mind at
least in serious cases as to why the applicant has been granted or denied
the privilege of bail.

In Kalyan Chandra Sarkar, SC. Court observed:

“18. We agree that a conclusive finding in regard to the points urged by
both the sides is not expected of the court considering a bail application.
Still one should not forget as observed by this Court in the case154,
“Giving reason is different from discussing merits or demerits. At the stage
of granting bail a detailed examination of evidence and elaborate
documentation of the merits of the case has not to be undertaken. That did
not mean that whilst granting bail some reasons for prima facie concluding
why bail was being granted did not have to be indicated.

We respectfully agree with the above dictum of this Court. We also feel
that such expression of prima facie reasons for granting bail is a
requirement of law in cases where such orders on bail application are
appealable, more so because of the fact, that the appellate court has every
right to know the basis for granting the bail. Therefore, we are not in
agreement with the argument with the argument addressed by the learned
counsel for the accused that the High Court was not expected even to
indicate a prima facie finding on all points urged before it while granting
bail, more so in the background of the facts of this case where on facts it is
established that a large number of witnesses who were examined after the
respondent was enlarged on bail had turned hostile and there are
complaints made to the court as to the threats administered by the
respondent or his supporters to witnesses in the case. In such
circumstances, the Court was duty-bound to apply its mind to the
allegations put forth by the investigating agency and ought to have given at
least a prima facie finding in regard to these allegations because they go to
the very root of the right of the accused to seek bail. The non-consideration
of these vital facts as to the allegations of threat or inducement made to the
witnesses by the respondent during the period he was on bail has vitiated
the conclusions arrived at by the High Court while granting bail to the
respondent. The other ground apart from the ground of incarceration which
appealed to the High Court to grant bail was the fact that a large number of
witnesses are yet to be examined and there is no likelihood of the trial
coming to an end in the near future. As stated herein above, this ground on
the facts of this case is also not sufficient either individually or coupled
with the period of incarceration to release the respondent on bail because
of the serious allegations of tampering with the witnesses made against the
respondent.”

In Jayendra Saraswathi Swamigal155, this Court observed: Para16. The

considerations which normally weigh with the Court in granting bail in
non-bailable offence have been explained by this court in Capt. Jagjit
Singh and Gurcharan Singh and basically they are - the nature and
seriousness of the offence; the character of the evidence; circumstances
which are peculiar to the accused; a reasonable possibility of the presence
of the accused not being secured at the trial; reasonable apprehension of
witnesses being tampered with; the larger interest of the public or thestate
and other similar factors which may be relevant in the facts and
circumstances of the case.”
In Kalyan Chandra Sarkar157, this Court observed:
“It is trite law that personal liberty cannot be taken away except in
accordance with the procedure established by law. Personal liberty is a
constitutional guarantee. However, Article 21 which guarantees the above
right also contemplates deprivation of personal liberty by procedure
established by law. In that process a person whose application for
enlargement on bail is once rejected is not precluded from filing a
subsequent application for grant of bail if there is a change in the fact
situation. In such cases if the circumstances then prevailing requires that
such persons to be released on bail, in spite of his earlier applications being
rejected, the courts can do so.”

It was, however, observed:

“While deciding the cases on facts, more so in criminal cases the court
should bear in mind that each case must rest on its own facts and the
similarity of facts in one case cannot be used to bear in mind the
conclusion of fact in another case.”
We are not oblivious of the fat that in certain circumstances, having regard
to the object and purport of the Act, the Court may take recourse to
principles of ‘purposive construction’ only when two views are possible.

3.9 The Juvenile Justice (Care & Protection of Children) Act, 2000
and bail to
Juvenile u/s 12.
As per Section 12 of the Juvenile Justice (Care & Protection of Children)
Act,2000, irrespective of the nature of the offence (bailable or non-
bailable), a juvenile in conflict with law cannot be denied bail by the JJ
Board.
3.10 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986
and bail
under the Act.
The special court constituted u/s. 8 of the U.P. Gangsters and Anti-Social
Activities (Prevention) Act, 1986 would be competent to try the offences
under both the special Acts. For trial of the substantive offence under IPC,
the ordinary courts may take cognizance while for an offence under the
1986 Act only special Court can hold the trial.

3.11 Bail under U.P. Control of Goondas Act, 1970

The contravention of Section 3 of the Act is punishable u/s. 10 of the 1970
Act which provides imprisonment upto three years but not less than six
months and as such as per Sec. 2(x) of the Cr. P.C. procedure for warrant
cases would apply. Judicial Magistrate has also jurisdiction to take
cognizance of the offences under the 1970 Act u/s 190 Cr.P.C. and has also
jurisdiction to try the cases as warrant case as the penalty provided u/s 10
of the 1970 Act is imprisonment upto three years but not below six months
and fine.

3.12 Bail under Essential Commodities Act, 1955

Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2of 1974) every offence punishable under Section 10-A of the EC
Act, 1955 shall be cognizable.

3.13 Bail under Prevention of Corruption Act, 1988

Some of the considerations for grant or refusal of bail for the offences
under the Prevention of Corruption Act, 1988 would be whether or not the
ingredients of Sec. 5 of the Act are fulfilled.160
These ingredients are----
(i) Misuse of power as public servant;
(ii) Obtaining any valuable thing or pecuniary advantage;
(iii) By corrupt or illegal means.

3.14 Bail under U.P. Prevention of Cow Slaughter Act, 1955

Slaughtering of cow in public gauge is a public offence and it offends
religious faiths of a section of society and such an act is liable to create
communal tension between two communities and would disturb the public
tranquility of the area and the harmony between the people of divergent
sections of the society would be shattered. Prevention of Cow Slaughter
Act, 1955 r/w. U.P. Prevention of Cow Slaughter Rules, 1964 and the
Prevention of Cruelty to Animals Act, 1960 as the attitude of the accused
appeared to create communal tension. Such incidents are not only of law
and order problem but detention of the accused under the provisions of
National Security Act, 1981 has also been upheld by the Allahabad High
Court.

3.15 Bail under U.P. Dacoity Affected Areas Act, 1983.

So far as the trial of offences under the provisions of U.P. Dacoity
Affected
Areas Act, 1983, Section. 6(2) of the U.P. Dacoity Affected Areas Act,
1983 is relevant.

3.16 Bail under SC/ST (Prevention of Atrocities) Act, 1989

Magistrate has got jurisdiction to grant bail for the offence u/s. 3(1)(x) of
the aforesaid Act irrespective of the fact that the offence is triable by the
Court of Sessions162, if the accused had allegedly committed offences u/s
323, 504, 506 IPC and 3(1)(x) of the SC/ST (Prevention of Atrocities) Act,
1989, as punishable with sentence upto five years and fine only.

3.17 Bail In Bihar Fodder Scam Cases Illustrative Cases

Where in a fodder scam case of Bihar against the accused, a former Chief
Minister of Bihar, charge-sheet had already been submitted and no further
investigation was pending in that case against him, the Supreme Court
allowed his release on bail, in the facts and circumstances of the case, on
certain conditions placing some specific restrictions on his entry in the
State of Bihar and on interference with the witnesses.
Where the accused had been in custody for about 15 months in connection
with a crime related to the fodder scam, moreover nearly 8 months time
had elapsed after the Supreme Court had rejected his earlier bail
application, it was brought to the notice of the Supreme Court that in
matters pertaining to fodder scam the Supreme Court had released on bail
those accused persons who were in jail for about six months or more in
these circumstances, the Supreme Court directed the accused-appellant to
be released on bail on certain conditions.

In a group of matters related to the fodder scam, the Supreme Court held
that it had been extending bail from time to time for a period of six months
in order to monitor the trial but it was not necessary to do so any further. It
was therefore ordered that the bail which had been granted by the Supreme
Court would continue for the duration of the case on the same terms and
conditions. However, the Supreme Court clarified that it would be open to
CBI to apply for cancellation of bail in accordance with law in the
Supreme Court; further that, if it was found that the petitioner was
deliberately protracting the trial or taking unnecessary adjournments then
that by itself would be ground for cancellation of bail.
In Laloo Prasad Yadav, relating to the fodder scam cases, the grant of bail
was opposed on the ground that the appellants were very powerful persons
and influential and if they were allowed to be at large they would tamper
with the evidence, threaten witnesses and impair the progress of the trial.
However, the Supreme Court noted that appellants were already in jails for
more than six months in connection with cases arising out of Bihar Fodder
Scam and that various accused involved in Bihar Fodder Scam cases were
being released on bail by orders of the Supreme Court, if such accused had
already been in jail for about six months. It was also observed that the
Supreme Court did not reject the bail application in respect of any one of
the accused arraigned in the said series of cases who had remained in jail
for six months and above merely on the ground that another offshoot case
of the main conspiracy had since been registered or even charge sheeted
against him. Moreover, the most serious of the offences pitted against the
petitioner was Section 13 of the Prevention of Corruption Act, 1988,
punishable with a maximum sentence of imprisonment for seven years.
Having considered the merits of the case including the fact that the
petitioners were in jail for a period of more than six months by then (which
partly included the pre-trial detention in other connected cases also) the
Supreme Court held that further detention of them as pre-trial prisoners
was not required and accordingly, the accused were released on bail on
stringent conditions.
In the case of “fodder scam” relating to alleged fraudulent withdrawal and
misappropriation of huge amount from District Treasury by accused
persons by presenting false bills, the prime accused while being in judicial
custody had allegedly conspired with Government officials to scuttle
enquiry/investigation. In view of the allegations being very serious in
nature relating to fraudulent withdrawal and misappropriation of huge
Government money, the High Court declined to grant bail to the
petitioners.

Thank u …..