DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM

PROJECT ON

BAIL AND BOND

SUBJECT: Their Significance and Evolution, Role of Sureties, Accused and

Relation with other Provisions in Cr.P.C.

BY

M. Eswar Brahmnand
Roll.no. 2017050
4th Semester
D.S.N.L.U

_______________________________________________
Damodaram Sanjivayya National Law University Nayaprastha, Sabbavaram,
Visakhapatnam - 531035
Table of Contents:
Abstract
Synopsis
1. Introduction
2. Evolution of Concept of Bail
3. Definitions & Detailed Explanations on Topic “Bail” & it’s Provisions:
4. Implementation of Bail System
4.1. Special Powers of High Court and Court of Sessions in granting bail.
4.2. Relation with other provisions in Cr.P.C and Bail under various sections in
Cr.P.C.
4.2.1 Bail under Section 124 Cr. P.C.
4.2.2. Bail under Section 309, Cr. P.C.
4.2.3. Bail to Lunatics- Section 330, Cr. P.C.
4.2.4. Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C.
4.3. Sureties
4.3.1. Bond of Accused and Sureties.
4.3.2. Death or Insolvency
4.3.3. Rejection
4.3.4. Discharge of Sureties
4.3.5. Bond from minor
4.4. Forfeiture and Cancellation of Bond
5. Present Scenario of Criminal Justice System
5.1. Role of Judiciary
5.2. Role of Executive-Bail given by Police officials
5.2.1 Arrest made without warrant
Conclusion and Bibliography
 CHAPTER-I
INTRODUCTION
The Popular meaning of word ‘bail’ is simply that it is the security given for the due
appearance of a prisoner in order to obtain his release from imprisonment. The word ‘bail’
has various connotations and as verb it means to deliver and arrested person to his surety’s on
their giving the requisite obligation or security his appearance. The noun ‘bail’ may refer
either to the obligation or the obligators.
In Black’s Law Dictionary the word bail as a noun has been defined as “A security such as
cash or bond especially security required by a court for the release prisoner who must appear
at a future date”. Bail as a verb means “to obtain the release of (oneself or another) by
providing security for future appearance” or to release a person after receiving such security
‘Bail’ in criminal proceedings means:

1. Bail grantable in or in connection with proceedings for an offence to a person who is

accused or convicted of the offence. (or)
2. Bail grantable in connection with an offence to a person who is under arrest for the offence
or for whose arrest for the offence a warrant, indorsed for bail, is being issued.”

MEANING OF BAIL:
The concept of bail has a long history and deep roots in English and American law. In
medieval England, the custom grew out of the need to free untried prisoners from disease
ridden jails while they were waiting for the delayed trials conducted by travelling justices.
Prisoners were bailed or delivered, to reputable third parties of their own choosing who
accepted responsibility for assuring their appearance at trial. If the accused did not appear, his
bailor would stand trial in his place. Eventually it became the practice for property owners
who accepted responsibility for accused persons to forfeit money when their charges failed to
appear for trial from this grew the modern practice of posting a money bond through a
commercial bondsman who receives a cash premium for his service, and usually demands
some collateral as well. In the event of non-appearance the bond is forfeited, after a grace
period of a number of days during which the bondsman may produce the accused in court.

OBJECTS OF BAIL
It is not the purpose of the criminal law to confine a person accused of crime before his
conviction. Bail, in criminal cases is, therefore, intended to combine the administration of
justice with the liberty and convenience of the person accused.
Administration of justice on the spot or immediately after the commission of a crime in
accordance with the fundamental principles of natural justice embedded in a fair and just
legal system is not feasible. This appears to be one of the reason for the evolution of the bail
jurisdiction in any legal system.

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

Further, bail is allowed to prevent confinement of innocent persons which would otherwise
result into a pre-trial punishment and to enable an accused person to prepare his defense to
the charge against him. The principle underlying release on bail is that an accused person is
presumed in law to be innocent till his guilt is proved and as a presumably innocent person,
he is entitled to freedom and every opportunity to look after his case, provided his attendance
is secured by proper security. It goes without saying that an accused person, if he enjoys
freedom, will be in a much better position to look after his case and to properly defend
himself than if he were in custody. Ordinarily a person accused of an offence which is not
very serious therefore, deserves the benefit of bail.

The consequences of pre-trial detention are grave. Defendants presumed innocent are
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 defense. Equally
important, the burden of his detention frequently falls heavily on the innocent members of his
family.

Bail or jail at the pre-trial or post-conviction stage belongs to the blurred area of the criminal
justice system and largely hinges on the hunch of the bench, otherwise called judicial
discretion. Personal liberty, deprived when bail is refused, is too precious a value of our
constitutional system that the crucial 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.

CHAPTER-II

EVOLUTION OF CONCEPT OF BAIL

The concept of bail can trace back to 399 BC, when Plato tried to create a bond for the
release of Socrates. The modern bail system evolved from a series of laws originating in the
middle ages in England.

Evolution in England

There existed a concept of circuit courts during the medieval times in Britain. Judges used to
periodically go? On circuit? To various parts of the country to decide cases. The terms
Sessions and Quarter Sessions are thus derived from the intervals at which such courts were
held. In the meanwhile, the under trials were kept in prison awaiting their trials. These
prisoners were kept in very unhygienic and inhumane conditions this was caused the spread
of a lot of diseases. This agitated the under trials, who were hence separated from the
accused. “This led to their release on their securing a surety, so that it was ensured that the
person would appear on the appointed date for hearing. If he did not appear then his surety
was held liable and was made to face trial. Slowly the concept of monetary bail came into
existence and the said under trials was asked to give a monetary bond, which was liable to get
forfeited on non-appearance.
In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that
no man could be taken or imprisoned without being judged by his peers or the law of the
land.

Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and
non bailable. It also determined which judges and officials could make decisions on bail.

In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the
right to the defendant the right to be told of the charges against him, the right to know if the
charges against him were bailable or not. The Habeas Corpus Act, 1679 states, “A Magistrate
shall discharge prisoners from their Imprisonment taking their Recognizance, with one or
more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall
appear that the Party is committed for such Matter offenses for which by law the Prisoner is
not bailable.”

In 1689 came “The English Bill of Rights”, which provided safeguards against judges setting
bail too high. It stated that “excessive bail hath been required of persons committed in
criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive
bail ought not to be required.”

Current Practice

In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position
of bail prevailing in England. It lays out that there is a general right to bail, except as
provided for under the First Schedule of the Act. While there are different grounds for
refusing the right to bail depending on the type of offence, for all imprison able offences the
two basic grounds are as set out by the O’Callaghan decision. But there is also the additional
ground that if the court is satisfied that there are “substantial grounds for believing” that the
defendant if released on bail will commit an offence while on bail, bail may be refuse.

Under section 5(3) of the Bail Act 1976 the court which withholds bail is required to give
reasons, so that the defendant can consider making an application1. In practice, however, the

1
Legislation has recently been enacted which, when brought into force, will require magistrates? courts and the
Crown Court to give reasons for their decisions where they grant bail after hearing representations from the
prosecutor in favour of withholding bail (Criminal Justice and Police Act 2001, s 129). Such a requirement has
the potential to promote thoughtful decision-making and the proper consideration of the risks that a defendant
might pose if granted bail.
reasons given by English courts on a variety of standard forms are frequently short and not
explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that
magistrates announce any decision to refuse bail merely by relating the grounds and statutory
reasons in short form2. English administrative law also requires that, where there is an
existing obligation to give reasons for a decision, the reasons given be clear and adequate,
and deal with the substantial issues in the case3.

The English courts use tick boxes for recording the grounds and the reasons for not granting
bail. There is a use of a standard pattern that which lists out the various reasons for not
granting the bail. These forms vary in their precise configuration, but in substance they are all
the same as all of them set out the grounds for refusing bail in one column, and a number of
possible reasons for the findings those grounds established in another column. The decision is
recorded by ticking the relevant box in each column. But the decisions recorded on standard
forms might be at risk of being characterized as “abstract” or “stereotyped”, and therefore
inadequate. The quality of the reasons given directly reflects the quality of the decision-
making process.

IN INDIA:

“The ethics and injunctions of ancient Hindu jurisprudence required inter alia, an expedient
disposal of disputes by the functionaries responsible for administration of justice. No laxity
could be afforded in the matter as it entailed penalties on the functionary’s4.Thus; a judicial
interposition took care to ensure that an accused person was not unnecessarily detained or
incarcerated. This indeed devised practical modes both for securing the presence of a
wrongdoer, as well as to spare him of undue strains on his personal freedom.”

During Moghul rule, the Indian legal system is recorded to have an institution of bail with the
system of releasing an arrested person on his furnishing a surety. The use of this system finds
reference in the seventeenth century travelogue of Italian traveler Manucci. Manucci himself
was restored to his freedom from imprisonment on a false charge of theft. He was granted
bail by the then ruler of the Punjab, but the koma released him on bail only after Manucci

2
Stone's Justices? Manual 2000, para 1-432
3
H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp 918-919.
4
Kautilya Arthshastra, IV ch. 9
furnished a surety5. Under Moghul law, an interim release could possibly be actuated by the
consideration that if dispensation of justice got delayed in one's case then compensatory
claims could be made on the judge himself for losses sustained by the aggrieved party6.”

“The advent of British rule in India saw gradual adaptation of the principles and practices
known to Britisher’s and was prevalent in the common law. The gradual control of the East
India Company’s authority over Nizamat Adalats and other fouzdary courts in the mofussil
saw gradual inroads of English criminal law and procedure in the then Indian legal system.
At this juncture of history, criminal courts were using two well understood and well defined
forms of bail for release of a person held in custody. These were known as zamanat and
mud/atka. A release could be affected on a solemn engagement or a declaration in writing. It
was known as muchalka which was an obligatory or penal bond generally taken from
inferiors by an act of compulsion. In essence, it was a simple recognizance of the principal of
bail. Another form of judicial release was a security with sureties known as zamanat, in
which the zamin (surety) became answerable for the accused on the basis of a written deed
deposited by him with the trying court. With discretionary powers vested in courts under the
doctrine of tazcer in Mohammedan criminal law, a decision on the issue of grant or refusal of
bail or the mode of release, did not pose much difficulty”. However, the form and contents of
the British institution of bail were statutorily transposed by the passing of Code of Criminal
Procedure in 1861, followed by its re-enactment in 1872 and 1898 respectively. In the
changed context of an independent Republican India, administrators of law and justice are
mandated to function in a manner that the constitutional equilibrium between the ‘freedom of
person’ and the ‘interests of social order’ are maintained effectively. “Ushering of democratic
social order necessarily required updating and streamlining of the then existing laws. As a
necessary corollary to the above, the Law Commission of India directed its attention towards
the existing procedural code and provisions governing the system of bail”.

Law Commission-41st Report:

“After having taken stock of the entire position, the Law Commission brought out its
recommendations in the 41st Report. These recommendations were considered and
incorporated by Parliament while fabricating the newer Code of Criminal Procedure, 1973,

5
William Irvine, II Mog/IIII India 198 (J907). Manucci’s travel account ofthe mid seventeenth century was
originally published in Italian and was translated later by William Irvine.
6
J.N. Sarkar, Muthal Administration in India 108(1920).
with the purpose of replacing the earlier one. In relation to provisions governing bail. The
Law Commission reiterated the need to preserve the basic and broad principles in regard to
bail and suggested modifications in the operational aspect of the system.

According to the Law Commission, the broad principles of the subject are: (i) bail is a matter
of right if the offence is bail able, (ii) bail is a matter of discretion if the offence is non-bail
able (iii) bail is not to be granted if the offence is punishable with death or imprisonment for
life but the court has discretion in limited cases to order release of a person. The Law
Commission also stated that even in respect of offences punishable with death or
imprisonment for life, the Session’s court and the High Court ought to have even a wider
discretion in the matter of granting bail7.”

CHAPTER-3

Definitions & Detailed Explanations on Topic “Bail” & it’s Provisions:

3.1 Types of Bail:

Bail is a kind of security that you provide to the law for them to release you. It is a surety that
you would be available in court as and when required in future. As mentioned before bail is
your right, it’s your right to freedom and you must apply for it. There are different categories
of bails applicable depending upon the type of charge against you.

Interim Bail – This bail is for certain period of time granted before hearing to the
prosecution.

Permanent Bail – This bail is permanent in nature and granted only after hearing to the
petitioner as well as the prosecution.

Bail before Arrest – It is granted when the court feels that the accused is falsely involved in
the case and an arrest would affect his honor and dignity badly.

Bail on Arrest – Under section 497 of Cr. Pc. Bail can be granted for both bailable as well as
non bailable offenses after the accused is arrested against a charge

7
Law Commission of India, 41st Report on tile Code of Criminal Procedure, Vol. J. p. 311 (969).
Protective Bail – A bail granted so that the accused can approach the provincial court for
getting a pre-arrest bail without touching its merit.

Directly approaching Superior Court – The superior courts can grant pre- arrest bail in
some appropriate cases directly if the accused has been deprived or prevented of approaching
lower courts.

Bail for the Convict – Once convicted, bail is granted to the accused even if the appeal for
the same is accepted if court finds that there are considerable grounds for his/her release.

Basic Interpretation of Sections Related Bail:

Sec-436 Bail able Offences:

The Purpose of bail the offences are classified into two categories 1. Bail able and 2. Non-
Bail able. Bail able are generally regarded as less serious than Non Bail able offences ‘Bail
able offence is defined in Clause-b Sec-2 of Cr.P.C to mean an offence which is shown as
bail able in 1st schedule of the Cr.P.C., or which is made bail able by any other law for the
time being in force; & Non- Bail able offence is any other offence Sec-436 provides for
granting bail in bail able cases in Sec-437 and 439 in Non bail able offences.

A person accused of a bail able offence is entitled to be released on bail pending his trial. A
person accused of committing a bail able offence cannot be taken in custody unless he is
unable or unwilling to offer bail or to execute personal bond. The court has no discretion,
while granting bail under this section, even to impose any condition except the demanding of
security with sureties.

As soon as it appears that the accused person is prepared to give bail, the police officer or the
court before whom he offers to give bail, is bound to release him on such terms as to bail as
may appear to the officer or the court to be reasonable. It would even be open to the officer or
the court to discharge such person on his executing a bond as provided in the section instead
of taking bail from him. In case of a bail able offence, instead of production, if the accused
person is willing to furnish bail, he has to be admitted to bail and released forthwith.
Right of arrested person of bail able offence to seek release from the police by offering bail
or from the Magistrate when produced before him, is absolute and cannot be curtailed or
abridged by any executive instructions or circulars.

Section 436 of the Code has to be read harmoniously with other provisions of the Code
particularly ss. 50, 56 and 57. Section 436 read with ss. 50, 56 and 57 of the Code clearly
gives effect to the constitutional mandate in Art. 22 of the Constitution which confers
fundamental right on person arrested to be informed of the nature of offence and the grounds
of his arrest. He shall not be kept in detention for unreasonably long period of time and 24
hours is only permissible justifiable maximum limit.

Conditions and Precedent and Considerations for Grant of Bail under the Section:

In Baswant’s case these conditions which are stated below are given:

“The section lays down three conditions that a person must satisfy before the question of
granting bail to him. They are:

 He has been accused of a bail able offence. .

 He has been arrested or detained without warrant by an officer- in-charge of a Police

Station or appears or is brought before a court .

 He is prepared to give bail at any time while in the custody of such officer or at any
stage of the proceedings before such court.”

Landmark Cases:

Moti Ram v State of MP 8

Moti ram committed a bail able offence and he was arrested by the police officer. The court
demanded Rs. 10000/- and one surety and they produced surety and bond. Magistrate rejected
them since surety and bond were out of jurisdiction. They appealed to high court via C.M.A
under Section 482. HC rejected on the grounds of lack of jurisdiction. Appealed to SC Justice
VR Krishna Iyer hold: Whether there is any provision in Cr.P.C. to release a person on
personal bond without surety when the person is an under trail convict?

8
(1978) 4 SCC 47
Manhattan Bail project was also invoked here. A study was conducted on prisoners in US
prisoners. It concluded and recommended that prisoners can be released based on their
personal bond without surety. It was founded that prisoners are deeply rooted in to
community. Also, it was observed that Manhattan Bail Project suggestions were accepted and
implemented by the Government.

P.K. Shahji V State of Kerala9

He was released on bail with an amount of Rs 1000/-. Brother has been surety and magistrate
told neither his brothers nor his properties were not in Magistrate Jurisdiction. Accused
Pleaded before H.C. and H.C. up held the statement. The contention of learned Counsel for
the appellant that the appellant was in prison in connection with another case and that is why
he could not appear before the Investigating Officer, does not appear to be true as such a plea
was not raised before the learned Magistrate. The learned Counsel for the appellant only
contended before the learned Magistrate that he apprehended assault at the hands of the
police and, therefore, he refrained from making himself available before the investigating
officer. The learned Magistrate rightly rejected this plea. The Order passed by the learned
Magistrate was correct and the High Court has rightly rejected the Revision filed by the
appellant.SC reduce bail amount to 1000/- and brother was accepted as the surety.

SECTION-437- NON BAIL ABLE OFFENCES:

The Cr.P.C. has conferred the power to grant bail on (1) An officer in-charge of police station
(2) Magistrate (3) Sessions Court and (4) High Court. The Supreme Court of India is not a
regular court for bail matters. The Supreme Court, however has got power to examine the
legality of bail orders passed by High Courts in exceptional circumstances in exercise of the
powers under Art.136 of the Constitution of India.

An officer in-charge of police station has been given power to release a person accused of
any bail able offence and some of the non-bai lable offences (other than the Punishable with
death sentence and life imprisonment) only. The power given to an officer in charge of police
station can be exercised only during first 24 hours from the time of arrest. Thereafter by
virtue of the constitutional mandate the officer in charge of police station has to produce an

9
(2006) 2 SCC (Cri) 174
arrested person before Magistrate and hence upon the production of the arrested accused
before Magistrate, the Police will lose its power to release accused on bail.

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

Session Court and High Court have power to release a person accused of any offence whether
punishable with death sentence or life imprisonment subject to the provisions of any special
law circumscribing the powers of the Sessions Court or the High Court. The powers of
Sessions Courts and High Courts to grant bail are almost unfettered. The only requirement is
that Sessions Courts and High Courts must exercise their power in lawful manner and the
discretion to grant (or) refuse bail should be exercised upon careful analysis of facts and
settle principles of law.

DISCRETION IN GRANTING BAIL IN CASES OF NON-BAILABLE OFFENCES:

Discretion in granting Bail -When any person accused of or suspected of the commission of
any “non-bail able offence” is arrested or detained without warrant by an officer in charge of
a police station or appears or is brought before a court, other than the High Court or the Court
of Session, he may be released on bail. (S. 437(1) the word “may” in the above provision
clearly indicate that the police officer or the court has got discretion in granting bail.
However, there are certain principles which should guide the police officers and the courts in
the exercise of this discretion. It should be noted at the outset that the object of detention
pending criminal proceedings, is not punishment and that the law favors allowance of bail,
which is the rule, and refusal is the exception10. While considering the question of bail in case
of “non-bail able offences”.

Generally while making a decision regarding grant of bail, the following circumstances are
taken into considerations:

10
Rao Harnarain Singh V State 1958 Cri.LLJ 563, 566
  The enormity of charge.
 The nature of the accusation.
 The severity of the punishment which the conviction will entail.
 The nature of the evidence in support of the accusation.
 The nature and gravity of the circumstances in which the offence is committed.
 The position and status of the accused with reference to the victim and the witnesses.
 The danger of witness being transferred with.
 The livelihood of accused fleeing from justice.

In State v. Captain Jagjit Singh11 a three Judge Bench of the S.C., while cancelling the bail
granted by the H.C.in a prosecution for conspiracy and u/s. 3, 5 of Official Secrets Act, 1923,
opined that the H.C. should have taken into account various consideration such as nature and
seriousness of the offence, the character of the evidence, circumstances which are peculiar to
the accused, a reasonable possibility of the presence of the accused not being secured at the
trial¸ reasonable apprehension of witnesses being tampered with, the larger interests of the
public or the state and similar other consideration which arises when a court is asked for bail
in non-bail able offence.

Cancellation of bail:

According to Section 437(5), any court which has released a person on bail under sub-section
(1) or sub-section (2) of Section 437 may, if it considers to custody it necessary to do so,
directs that such person be arrested and committed The power to cancel bail has been given
to the court and not to a police officer. Secondly, the court which granted the bail can alone
cancel it.

The bail granted by police officer cannot be cancelled by the Court of Magistrate. For
cancellation of the bail in such a situation, the powers of the High Court or Court of Session
under Section 439 will have to be invoked.

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is
quite another. It is easier to reject a bail application in a non-bail able case than to cancel a
bail granted in such a case. Cancellation of bail necessarily involves the review of a decision
already made and can by and large be permitted only if, by reason of super evening

11
1962 SCR (3) 622.
circumstances, it would be no longer conducive to a fair trial to allow the accused to retain
his freedom during the trial. However bail granted illegally or improperly by a wrong and
arbitrary exercise of judicial discretion can be cancelled even if there is absence of
supervening circumstances. Such a case can be appealed against rather than seeking
cancellation. If there is no material to prove that the accused abused his freedom the court
may not cancel the bail.

The court has been given power and discretion to cancel the bail, but the section does not
give any guidance as to when and how the discretion is to be exercised. In Public Prosecutor
v. George Williams12 , the Madras High Court pointed out five cases where a person granted
bail may have the bail cancelled and be committed to jail:

i) Where the person on bail. during the period of the bail, commits the very same
offence for which he is being tried or has been convicted, and thereby proves his
utter unfitness to be on bail;
ii) If he hampers the investigation as will be the case if he. bail, forcibly prevents the
search of places under his control for corpus delicti or other incriminating things;
iii) If he tampers with the evidences as by intimidating the prosecution witnesses,
interfering with the scene of the offence in order to remove traces or proofs of
crime. in if he runs away to a foreign country, or goes underground, or beyond the
control of his sureties; and v) if he commits acts of violence, in revenge against
the police and the prosecution witnesses and those who have booked him or are
trying to book him

The fact that before an order (releasing the accused on bail) was passed under Section 167(2)
the bail petitions of the accused were dismissed on merits, is not relevant for the purpose of
taking action (cancellation of bail) under Section 437(5). Nor is it a valid ground that
subsequent to release of the accused persons under Section 167(2) a challan was filed by the
police.

There is no absolute bar against an informant to move for cancellation of bail under Section
439(2). “Yet the considerations which weigh with the court to exercise powers at the instance
of a private person are. the factors necessary to be considered when the application is mad the
State, the additional factors of whether the order granting bail her resulted in gross

12
1952 CriLJ 213,214
miscarriage of justice, is wholly an abuse of the process of law and whether there is any real
threat or risk to the informant or his party due to the accused being at large.”

The Supreme Court has categorically ruled that the High Court's power under Section 439(2)
could be exercised not only at the instance of the State or the Public Prosecutor.29 The
court’s observations are self explanatory. It said it is not disputed before us that the power so
vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is
it disputed that the said power can be exercised SUO MOTTO by the High Court.

Prahlad Singh Bhati v. NCT,Delhi13

It was ruled that merely because the accused was initially granted anticipatory bail for a
lesser offence, that would not entitle him to be granted regular bail under section 439 when
later he is found to be involved in a graver offence.

Magistrates can grant the bail only when there is no reasonable ground to believe that the
accused is guilty of offence punishable with sentence of death or life imprisonment unless the
accused is covered under section 437(1). If the offence is exclusively triable by session’s
judge the magistrate should direct the accused to approach the Sessions Court.

SECTION- 438 - ANTICIPATORY BAIL:

Interpretation:

Where any person has reason to believe that he may be arrested on Accusation of having
committed a non-bail able offence, he may apply to the High Court or the Court of Session
for a direction under this section that in the event of such arrest he shall be released on bail;
and that Court may, after taking into consideration, inter alia, the following factors, namely:-

1) The nature and gravity of the accusation;

2) The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(3) The possibility of the applicant to flee from justice; and

13
(2001) 4 SCC 280
(4) Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not
passed any interim order under this sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in such application.

(I-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a
notice being not less than seven days notice, together with a copy of such order to be served
on the Prosecutor and the Superintendent of Police. To give the pubic prosecutor reasonable
opportunity of being heard when the application shall be finally heard by the court.

(I-B) The presence of the applicant seeking anticipatory bail shall be obligated at the time of
final hearing of the application and passing of final order by the court, if on application made
to it by the P.P. The court considers such presence necessary in the interest of justice.

(b) Meaning.-The words "anticipatory bail" are not found in Section 438 or in its marginal
note. In fact "anticipatory bail" is a misnomer as it is not bail presently granted in anticipation
of arrest. When the court grants "anticipatory bail”, what it does is to make an order that in
the event of arrest, a person shall be released on bail. Manifestly there is no question of
release on bail unless a person is arrested, and, therefore, it is only on arrest that the order
granting "anticipatory bail becomes operative. The section, however, makes no distinction
whether the arrest is apprehended at the hands of the police or at the instance of the
Magistrate. The issuance of warrant by the Magistrate against the person justifiably gives rise
to such an apprehension and well entitles a person to make a prayer for “anticipatory bail”.
Issuance of a summon for appearance also entitles an accused to apply for “anticipatory
bail”.Only when the offence is a non-bailable offence, the applicant apprehending arrest may
apply for Anticipatory bail. Therefore, where the offence is bailable, Section-438 Cr.P.C.
cannot be invoked was held in Muthu Swami vs State of Kerala14.”

The expression ‘Anticipatory Bail’, is not used in Section 438. “It is not understood as
granting bail in Anticipation of arrest. But, Bail is granted directing his release in the event of

14
1980 Cri. LJ 1021
his arrest. There is no release on bail until he is arrested. Anticipatory Bail comes into
operation only on the arrest of the accused. ‘Anticipatory Bail’ is a miss manner in law. The
object of Section 438 is to avoid the rigors of jail of innocent person and thereby the personal
liberty of the individual part in jeopardy on flimsy and frivolous ground by unscrupulous
persons was held in Balchand Jain vs State of M.P15”

“In Gurubaksh Singh Sibbia vs State of Punjab16 following guidelines, has been laid
down:

(a) The distinction between an ordinary bail and anticipatory bail in that the former being
after the arrest means release from custody of police, the latter being in Anticipation of arrest
in effective at the very moment of arrest.

(b) The High Court and Sessions Court has given wide rules, discretionary - left free in the
use of their judicial discretion to grant bail on the facts and circumstances of the case.

(c) The court must apply its own mind to decide the question without learning it to be decided
by the Magistrate under Section 437 as and when occasion arises.

(d) Apprehension of arrest should not be vogue. The applicant must show by disclosing
specific facts and events that he has reasons to believe, the existence of power by the court
and not vogue apprehension that he may be arrested for a non-bail able offence to that the
court may take care to specify the offence or offences in respect of which alone the order will
be effective and not a blanket order.

(e) An order of bail can be passed confirming to the requirements of the section and imposing
suitable condition without notice to the Public Prosecutor but notice to him should be issued
forthwith and the question of bail be examined in light of respective contentions of the
parties.

(f) The operation of the order should not be limited to a period of time.

15
(1976) 4 SCC 572
16
AIR 1980 SC 1632
(g) If the proposed accusation appears from some ulterior motive to injure and humiliate the
applicant the order for Anticipatory bail would generally made. If it appears likely that he
will free from justice, order would not be made.

(h) Filing of FIR is not a condition precedent to the exercise of power under section 438
which can however, be exercised even after filing of the FIR so long applicant is not arrested.

(i) An order of Anticipatory Bail does not in any way directly or indirectly take away from
the police that right to investigate. One of the usual conditions imposed in that the applicant
shall make himself available for interrogation by a Police Officer.”

Anticipatory bail is of two types - Firstly, immediate release on bail in the vent of arrest,
secondly, to fix a date or limited period when the applicant makes an application to a
competent court for grant of regular bail.

As, Anticipatory bail does not ensure till the end of trial but it must be limited duration since
the regular court cannot be by passed.

ANTICIPATORY BAIL WITH CONDITIONS:

 That the person shall make himself available when the police officer is going to
interrogate him whenever required.
 That the person shall not directly or indirectly bring any threat to witnesses or those
who are having facts related to the case.
 That person shall not leave India without taking permission from the Court.

CANCELLATION OF ANTICIPATORY BAIL

Neither Sec- 438 nor any other section in the Code makes any clear provision as to whether
the order granting anticipatory bail can be cancelled even before the regular bail is actually
granted. However, it has been held that when Section-438 permits the making of an order and
the order is made for granting anticipatory bail, it is implicit that the court making such an
order is entitled upon appropriate consideration to cancel or recall the same.17 Anticipatory
bail granted to a husband in a case allegedly involving dowry death came to be cancelled by

17
State of Maharashtra v. Vishwas Shripati Patil 178 Cri LJ 1403, 1405 (Bom)
M.P. H.C.18 following the S.C. decision not to grant anticipatory bail to persons involved in
dowry death cases as a matter of course.19

SECTION- 439:

Section 439 deals with special powers of High Court or Court of Sessions regarding bail:

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

(a) That any person accused of an offence and in custody be released on bail, and if the
offence is of the nature specified in sub-section (3) of Section 437, may impose any condition
which it considers necessary for the purposes, mentioned in that sub section;

(b)That any condition imposed by a Magistrate when releasing any person on bail be set aside
or modified;

Provided that “The High Court or the court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the court of session or which,
though not so triable, is punishable with imprisonment for life, give notice, of the application
for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion
that it is not practicable to give such offence.”

Section 439(1) is a new provision making it more stringent to get bail in capital offence. The
restrictions under Section-437(1) of Cr.P.C. have no application to Sessions Court acting
under section 439. “Sessions Court can release on bail and accused even with reasonable
belief of his being guilty of offence power under section 439 is exclusive and independent of
Section 437. But considerations for grant of bail in both are one and the same.”

18
Chain Singh Dhakad v. Hargovind, 1991 Cri LJ 3 (MP).
19
Samunder Singh v. State of Rajasthan (1987) 1 SCC 466.
 DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

PROJECT ON

BAIL AND BOND

SUBJECT: Their Significance and Evolution, Role of Sureties, Accused and

Relation with other Provisions in Cr.P.C.

BY

A.J.L. NIKHIL KALYAN REDDY

Roll. No. 2017126
4th Semester
D.S.N.L.U
 _______________________________________________

Damodaram Sanjivayya National Law University Nayaprastha, Sabbavaram,

Visakhapatnam - 531035

CHAPTER-IV

IMPLEMENTATION OF BAIL SYSTEM:

4.1.SPECIAL POWERS OF HIGH COURT AND COURT OF SESSIONS IN
GRANTING BAIL:

(a) In case of appeal against conviction- Section 389(1) provides that “pending any appeal
by a convicted person, the appellate court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed against be suspended and, also if he
is in confinement, that he be released on bail or on his own bond”

The analysis of the above rule shows that the appellate court can exercise the power to grant
bail only if:

1) The person asking for release on bail is a convicted person,

2) He is in confinement, and

3) His appeal against the conviction is pending.

It is interesting to see that the decisions of the Supreme Court have been properly
incorporated in the amendment effected to Section 389. The new proviso obliges the
appellate court to hear the prosecution before a person who has been convicted of an offence
punishable with death or life imprisonment or for a term of not less than 10 years, is granted
bail. If by any chance he has been released the prosecution is entitled to file an application for
cancellation of his bail.
The question whether the appellate court while exercising its powers under Section 389(1)
can suspend the execution of sentence as well as the conviction pending an appeal preferred
by a convicted person has been answered in the affirmative20.The Madhya Pradesh High
Court in Gopal v. State of M.P21.has stated that an application for bail and suspension of
sentence under Section 389 is a class by itself maintainable only in a pending appeal. This is
an integrated part of the appeal.

Irrespective of whether the offence is bail able or non-bail able the release of the convicted
person on bail is entirely at the discretion of the appellate court. The discretion, however, is
to be exercised judicially and the appellate court is required to record reasons for granting
bail. In the matter of granting bail, the appellate court should inter alia consider 1) whether
prima facie ground is disclosed for substantial doubt about the conviction. And also 2)
whether there is any likelihood of unreasonable delay in the disposal of the appeal22.

The need for granting bail or other similar relief to make appeal meaningful has been
reiterated by the Supreme Court in Bhagwan Rama Shinde Gosai v. State of Gujarat 23 In
this case the appellant was convicted and sentenced under Section 392 read with Section 397
IPC. His prayer to the High Court for suspension of sentence pending appeal was declined.
His alternative request for expeditious hearing of appeal was also declined by the High Court.
On appeal the Supreme Court declared that appeal would become meaningful only if it is
either heard expeditiously or granted suspension of sentence.

The practice in the Supreme Court as also in many of the High Courts has been not to release
on bail a person who has been sentenced to life imprisonment for an offence under Section
302 IPC. This practice was evolved on the basis that once a person has been found guilty and
sentenced to life imprisonment, he should not be let loose, so long as his conviction and
sentence are not set aside, but the underlying postulate of this practice was that the appeal of
such person would be disposed of within a measurable distance of time, so that if he is
ultimately found to be innocent, he would not have to remain in jail for an unduly long
period. The rationale of this practice can have no application where the court is not in a
position to dispose of the appeal for five or six years. Therefore, so long as the appellate court
is not in a position to hear the appeal of an accused, within a responsible period of time, the

20
B Sundara Rami Reddy v. State 1990 Cri. L.J 167 All
21
(2011) 6 SCC 354
22
Babu Singh v. State of U.P 1978 I SCC 579.
23
(1999) 4 SCC 421
court should ordinarily, unless there are cogent grounds for acting otherwise, release the
accused on bail24. The Supreme Court has also taken the view that delay in hearing appeal
alone is no ground to grant bail.

The power to grant bail conferred by the above rule [S. 389(1)] on an appellate court may be
exercised also by the High Court in the case of an appeal by a convicted person to a court
subordinate thereto. [S. 389(2)]

(b) In case of an appeal against acquittal.-According to Section 378 an appeal against an

order of acquittal can be made only to the High Court. The appeal is to be made by the State
or under certain circumstances by the complainant if the order of acquittal has been passed in
complaint case.

When an appeal is presented under Section 378 (that is an appeal against an order of
acquittal), the High Court may issue a warrant directing that the accused be arrested and
brought before it or any subordinate court, and the court before which he is brought may
commit him to prison pending the disposal of the appeal or admit him to bail.2595 [S.390]

An interesting question was raised in Omprakash Tekchand v. State of Gujarat26. The

question was whether a trial court could issue directions on the accused persons who were
acquitted by it to furnish bail bonds which would remain in force for a year from the date of
acquittal with a view to ensure their presence in the High Court should an appeal against
acquittal be filed. The Gujarat High Court responded to this question thus:

The power under Section 390 of the Code can be exercised only after the appeal is presented
and not before it. Therefore, when the High Court itself cannot direct arrest of a person
acquitted or admit him to bail until appeal is presented against his acquittal, it obviously
cannot direct the trial Court to arrest such accused or admit him to bail even though he is
acquitted by the trial Court.

The precautionary measure envisaged by the Gujarat High Court is now reflected in Section
437-A discussed earlier.

24
Harbhajan Singh v. State of Punjab 1977 Cri. L.J. 1424
25
Amin Khan v. State of Rajasthan (2009) 3 SCC 776.
26
(1998) 3 GLR 2031.
The Supreme Court while granting special leave to appeal against an order of acquittal on a
capital charge has, by virtue of Article 142 read with Article 136, to exercise the same
powers which the High Court has under Section 390. Whether in the circumstances of the
case, the attendance of the accused respondent can be best secured by issuing a bail able
warrant or non-bail able warrant is a matter which rests entirely in the discretion of the court.
Although the discretion is exercised judicially, it is not possible to computerize and reduce
into immutable formulae the diverse considerations on the basis of which this discretion is
exercised. Broadly speaking, the court could take into account the various factors such as the
nature and seriousness of the offence, the character of the evidence, circumstances peculiar to
the accused, possibility of his absconding, larger interests of the public and State. In addition,
the court may also take into consideration the period during which the proceedings against
the accused were pending in the courts below and the period which is likely to elapse before
the appeal comes up for final hearing in the appellate court27.

Here the court has full discretion in the matter of bail and it is immaterial whether the offence
is bailable or non-bailable. The discretion is of course to be used judicially. The Division
Bench of the Orissa High Court has held that the order of acquittal passed in favor of the
accused petitioner does not alter his status as an accused against whom a capital charge is
made, and that it is neither the practice nor is it desirable that in such cases the accused
should be at large whilst his fate is being discussed in the court28. However, the Full Bench of
the Punjab High Court after considering the decision of the Orissa High Court took a
different view and observed, “the true rule should be that the accused-respondents in State
appeals against their acquittal on capital charges are normally eligible to be released on bail
during the pendency of such appeals unless for grave and exceptional reasons the court
directs their detention in custody”29.

Powers of the Courts of Revision to Grant Bail:

Sec- 397 (1) provides:

The H.C. or any Sessions Judge may call for and examine the records of any proceedings
before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or propriety of any findings, sentence
27
State of U.P v. Poosu (1976) 3 SCC 1
28
State v. Badapalli Adi ILR 1955 Cut 589.
29
State of Punjab v. Bachittar Singh, 1972 Cri LJ 341, 346.
or order, recorded or passed and as to the regularity of any finding, sentence or order,
recorded passed, and as to the regularity of any proceedings of such inferior court, and may
when calling upon for such record, direct that the execution of any sentence or order be
suspended, and if the accused is in confinement, that he be released on bail or on his own
bond pending the examination of the record.

As in case of appeal, here also, the court exercising revisional jurisdiction has full discretion
in the matter of bail. The discretion is to be used judicially having regard to all the
circumstances of the case.

Power to grant bail where a reference has been made to the H.C.:

The criminal court has to decide about the constitutional validity of any enactment, it can
make a reference to H.C. for the decision. A Court of Session or Metropolitan Magistrate
may refer for the decision of the H.C. any question of law which might have arisen in the
proceedings before it or him [S. 395(2)].

Any court making a reference to the H.C. as mentioned above under Sec. 395(1) or Sec.
395(2) may, pending the decision of the H.C. thereon, either commit the accused to jail or
release him on the bail to appear when called upon. [S.395 (3)].The court has complete
discretion in the matter of bail and discretion shall be exercised according to the well-
established principles of using discretion judicially.

4.2 Relation with other provisions in Cr.P.c and various legislations.

Section-436 and its relations:

“A mere perusal of the Section will make it abundantly clear that when a person accused of a
bailable offence is arrested or detained without a warrant by the Officer-in-charge of the
Police Station or appears or is brought before the court and he is prepared at any time while
in the custody of such officer or at any stage of the proceedings before such court to give bail
such person shall be released on bail. These provisions are mandatory and the police officer
or court has no discretion in the matter at all. So, when a person other than a person accused
of a non-bailable offence is arrested and if he is prepared to give bail, he shall be released on
bail as this provision is mandatory. The Police Officer has no discretion at all to refuse to
release the accused on bail so long as he is prepared to furnish surety.”
“When a person is arrested by the Police for a bailable offence he has to be produced before
the Magistrate having jurisdiction on the case subject to the provisions as to bail. But before
he is produced before a Magistrate, if the accused is prepared to give bail, the Police Officer
concerned has to release him on bail”.

“Where, however, at the stage while the accused is in police custody he is not prepared to
give bail, he has to be produced before the Magistrate within 24 hours as provided in Section
57 of Criminal Procedure Code. When he is produced before the Magistrate and is prepared
to give bail, he shall be released on bail. The Magistrate can authorize his detention in the
police custody for the purpose of investigation and he is competent in respect of bailable
offences to impose a condition that the accused should appear before the police”.

“A person arrested without a warrant could not be detained by the police for more than 24
hours. If the police officer considers it necessary to detain such person for a longer period for
the purpose of investigation, he can do so only after obtaining a special order of Magistrate
under section 167(3) as in further relation with Sec-167(2) the total period of detention of a
accused which a Magistrate can authorize shall not exceed:

(i) Ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term not less than ten years and

“(ii) Sixty days where the investigation relates to any other offence. On the expiry of the said
period of ninety days or sixty days, as the case may be, the accused person shall be released
on bail if he is prepared to and does furnish bail. .
This, however, does not mean that detention of the accused beyond the period of 60 or 90
days as the case may be, is illegal and therefore a ground for bail. The Magistrate can
authorize detention beyond the above mentioned maxima: but if the accused during this
period furnishes bail he has to be released on bail. There is however no scope for the
inference that the accused shall be deemed to have been released on bail on the expiry of the
above maxima making further detention automatically illegal”.

While setion-436 gives an arrested person a right to bail, Section-50(2) makes it obligatory
for a Police Officer arresting such a person without a warrant to inform him of his right to be
released on bail. He is bound to be released on bail immediately when he was prepared to
give bail.
Section-437 & its Relation:

“A person covered by sub-section (i) clause (ii) may be released on bail if such person is
under the age of sixteen years or is a woman or sick or infirm. The court may also release
such person on bail if it satisfied that it is just and proper to do so for any other reasons and
this is explained in the detailed way in the following manner”:

A. Under the age of sixteen years:

“According to Section (2) (k) of the Juvenile Justice (Care and protection of children) Act,
2000 a person who has not completed the age of eighteenth year is called a juvenile.

The first provision in Section 437 has almost become redundant for the courts created under
the Criminal Procedure Court because the juvenile has to be produced before the juvenile
court and their bail and custody will be governed by section 12 of this Act”.

SECTION-12 BAIL OF JUVENILE:

“When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is
arrested or detained or appears or is brought before a Board, such person shall,
notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or
in any other law for the time taking in force, be released on with or without surety but he
shall not be so released if there appear reasonable grounds for believing that the release is
likely to bring him into association with any known criminal or expose him to normal,
physical or psychological damages or that his release would defeat the ends of justice”.

“When such person having been arrested is not released on bail under sub-section (1) by the
Officer-in-Charge of the Police Station such officer shall keep him to be only in an
observation home in the prescribed manner until he can be brought before a Board. When
such person is not released on bail under sub-section (1) by the Board it shall, instead of
committing him to prison, make an order sending him to an observation home or a place of
safety for such period during the pendency of the inquiry regarding him as may be specified
in the order”.
In case of Armit Das v. State of Bihar30 the Supreme Court held that the determination of
the age of the accused will be taken on the date of his appearance or production before the
Juvenile Court.

In case Sheela Barse vs Union of India the Supreme Court of India observed that if a child
is a national assert, it is the duty of every state to look after the child to ensure full
development of its personality. That is why, all the statutes dealing with children provide that
a child should not be kept in jail. Even apart from the statutory prescription it is elementary
that a jail is hardly a place where a child should be kept. There can be no doubt that
incarceration in jail would have the effect of drafting the development of the child exposing
him to baneful influences, coarsening his conscience and alienating him from society.

Section-437 sub section-(6) has to be read along with Section 167(2) Criminal Procedure
Code which explains “procedure when investigation cannot be completed in twenty four
hours” and has also to be read along with Section 309 Criminal Procedure Code which
explains “power to postpone or adjourn proceedings”.

Section-167 of Cr.P.C. “operates at a stage when a person is arrested and either an

investigation has started or is yet to start, but it such that it cannot be completed within 24
hours as envisaged under section 57 of the code, Section 309 on the other hand, indicates that
investigation has already begun and sufficient evidence has been collected raising a suspicion
that the accused person may have committed the offence and further evidence may be
obtained, to enable the police to do which are remand to jail custody is necessary. The fact
that Section-309 occurs in the Chapter dealing with enquiries and trials does not mean that it
does not apply to cases in which the process of investigation and collection of evidence is
still going on. If a challan is filed before the expiry of the maximum period for which an
accused can be detained in custody under section 167, Criminal Procedure Code further
remand to custody can be detained in custody under section 167 Criminal Procedure Code
further remand to custody can be ordered under Section 309. The Magistrate, however,
cannot postpone the release of an accused under proviso (a) to Section 167(2) after the expiry
of 90 days or 60 days, as the case may be, just to enable the police to file the challan and to
alter the detention under section 167 to one under section 309, Criminal Procedure Code. If
the accused of his own or on being told of his right by the Magistrate is prepared to furnish

30
AIR 2001 SC 3575
bail, the Magistrate must order the accused to be released on bail without waiting for the
challan and must release him, when bail is furnished”.

“Sub-section (2) of Section 167; Criminal Procedure Code makes it obligatory on the
Magistrate to release the accused on bail if he is prepared to and furnish bail after the period
of 90 days, when the investigation relates to an offence punishable with death, imprisonment
for life or imprisonment for a term not less than ten years and 60 days, where the
investigation relates to any other offence. Sub-section (6) of Section 437 Criminal Procedure
Code on the other hand, operates at a stage when the trial has already committed and it is
apprehended that the trial may not be concluded within a period of 60 days from the first date
fixed for taking evidence in the case and in that event the accused if he is in custody, during
the whole of the said period, shall be released on bail but the Magistrate has power to direct
otherwise from which he shall have to record his reasons in writing”.

In a case Satya Narayana’s Case expressed the view that right of bail for default of
investigation agency the accused in connection with non-bailable offence has the right to be
released on bail under the following circumstances:

 If the offence is punishable with imprisonment for a term of 10 years or more and the
investigation by the police is not completed within 90 days or If the offence is
punishable with punishment for a term of less than ten years and the investigation is
not completed within 60 days.
 The period of 90 days or 60 days shall be counted not from the date of arrest, but from
the date of first production of the accused before the Magistrate, i.e. from the date of
remand order passed by the Magistrate. So the initial period of 24 hours in police
custody after arrest of the person shall be excluded whole computing the total period
of 90 days or 60 days for. The purpose of grant of bail as per legislative mandate
under section 167 Criminal Procedure Code.

BAIL UNDER VARIOUS SECTIONS:

4.2.1. Bail under Section 124 Cr. P.C.:

“When a person for whose appearance a summons or a warrant has been issued either on
account of the unfitness of his surety or his sureties or on account of the unwillingness of
such surety or sureties to act as such, and that person appears or is brought before the
Magistrate, the Magistrate may allow him to give for the unexpired portion of the term of
such bond, fresh security of the same description as the original security. Sections 121 to 124
deals with the proceedings to be taken subsequent to orders passed under section 106 or
section 117. An order passed under section 124, for the purposes of section 118 to 123 is
deemed to be order made under section 106 or section 117 as the case may be. Therefore,
where an order for furnishing security is for six month and a surety has been discharged on
account of his unfitness or unwillingness, the Magistrate has no choice but to take the person
in custody and refer the case to the Sessions Judge or the High Court as the case may be. The
question of his release on bail during reference will be governed by other provisions of the
code. At that stage the Magistrate making the reference is powerless to grant bail”.

4.2.2 Bail under Section 309, Cr. P.C.

“The scope of section 309 Cr. P.C. is different from the old and corresponding section 344
Cr.P.C. As held in Natabar Parida Vs. State of Orissa31, section 309 is attracted only after
Magistrate takes cognizance of offence. During this period Magistrate may admit the accused
to bail doubtlessly. Even during the interregnum between the period of submission of charge
sheet and commitment to Courts of Session, Magistrate can grant bail to accused or remand
him to custody”. .

4.2.3. Bail to Lunatics: Section 330, Cr. P.C.

“Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been
vested with great powers and wide discretion in the matter of grant or refusal of bail. Section
330, Cr.P.C. does not speak of bailable or non- bailable offences. The nature of offence and
the severity of punishment awardable for the commission of a particular offence are not
matters to be considered when the question of release on security of a lunatic arises. A
Magistrate may release a person of unsound mind on bail even though he is charged of an
offence of the most heinous type and may refuse bail in bailable case if he is of the opinion
that bail should not be allowed. An accused of unsound mind may be released on security,
irrespective of the offence with which he is charged not only on the finding by the court that
the accused is of unsound mind, but also prior to such finding, during the pendency of the
inquiry into his state of mind [section 328 (2)]”.

31
1975 SCC (2) 220
“The nature of security for release of a lunatic accused is different from the security for the
release of other persons, in that, in the former it is binding not only for appearance but also
for preventing the accused from causing injury either to himself or to any other person. But
any condition which is not specified in section 330, Cr.P.C. cannot be imposed and if the
Magistrate imposes any new condition, it is illegal and un force able. There are no words in
section 330 Cr. P.C., that security for appearance is confined to the duration of the inquiry or
trial. Security under this section is for appearance of the accused “when required before the
Magistrate or court or such officer as the magistrate or court appoints in this behalf since the
security under section 330 does not contemplate only appearance at the proceedings of the
inquiry or trial for the offence for which the accused is charged, it does not terminate with the
termination of the inquiry or trial. A person standing security may be called upon to produce
the person released on his security even after the trial has terminated. He will not be heard to
say that his undertaking came to an end with the termination of the trial”.

“There is yet another distinction between the execution of security under section 330 and
section 436 to 439 Cr. P.C. A bond executed under chapter XXXIII of the code (sections 436
to 439) is binding only with every date of hearing of such offence and for the purpose of
answering such charge. A surety does not undertake to be responsible for the attendance of
the accused to answer charges in respect of offences that might be committed at some future
date.46 When security is given under section 330 Cr.P.C. a surety not only undertakes to be
responsible for the attendance of the accused to answer charges in respect of offence or
offences already committed but also guarantees that he would prevent the accused “from
doing injury to himself or to any other person”. Thus the purpose of bail under section 330
Cr.P.C is different from the purpose of bail under sections 436 to 439 Cr. P.C”.

“There is a distinction between ordinary remand under section 167 or 309 Cr. P.C. on the one
m hand and under section 330 on the other. When the Magistrate opines that bail should not
be taken or if sufficient security is not given, Magistrate may order him to be remanded to
any safe custody in any place not necessarily judicial custody. That apart, on making order of
detention under section 330(2), it is mandatory that Magistrate must report his ordering
detention to State Government”.

4.2.4 Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C.
“The section contemplates post-conviction and pre-appeal period. Pending an appeal against
conviction appellate Court may release the convict on bail and High Court can exercise this
power when appeal lies to Sessions Court. So far as the court convicting the accused is
concerned, the court is bond to admit the accused to bail pending order passed by appellate
court or High Court when (a) the accused was already on bail and has been sentenced to
imprisonment for a term not exceeding three years; or (b) when the offence was a bailable
one”.

“Even on fulfillment of the condition court on convicting the accused may refuse bail if there
exists a special reason. Under this section an intention to present an appeal on the part of the
convicted person is sufficient reason to justify the release of a convicted person on bail. It
may further be noted that an order of bail under this section is for a limited period only and is
applicable only to “convicted” persons and not to those who are bound over”.

4.3 Sureties

4.3.1 Bond of Accused and Sureties.

Scope – “This contemplates furnishing of a personal bond by the accused person and a bond
by one or more sufficient sureties. It does not authorize a demand of cash security by a
Magistrate Section 445 provides for a concession to an accused person who is unable to
produce sureties. An accused person is entitled as of right to bail, provided the necessary
conditions prescribed by law are fulfilled, and his sureties cannot be rejected unless the police
officer or the court is not satisfied about either their identity, solvency or reliability.

Where in spite 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”.

Discretion - The discretion conferred on a Magistrate and nature of power conferred thereby
is a quasi-judicial discretionary power on a judicial authority. It is not a judicial act in the
sense in which the term is understood. Nor it is unbridled executive power. Where the
offence is bailable, conditions of release of bail should not be harsh and oppressive.

Details of bond –“Surety bond shall contain date and time for production of accused. It is not
requires by any provision that all the sureties should execute the bond printed at the back of
the form on which the accused executes the personal bond or that the accused must execute
as many bonds in identical terms as there are surety bonds by individual sureties. It is
imperative for those who are in charge of receiving bonds from accused and sureties to be
very careful in complying with the provisions of law since the bonds are to be strictly
enforced. If the time and place for the appearance of the accused is not mentioned and the
space for it in the form is left blank, the bond becomes vague and is void on that ground
Similarly, if the surety bond recites that the accused has to remain present “Wherever called
upon by the Police Station Officer”, it is vague and defective. Where the terms of bond are
clear that the Court on the date fixed, the failure of the surety to produce the accused renders
him liable to be proceeded against under this section”.

Amount of bond not to be excessive - Where the High Court directed the release of an
accused on bail to the satisfaction of the District Magistrate, and the latter demanded a cash
deposit as a condition contemplates the execution of a bond with sureties and under this
section the amount of the bond is not to be excessive and is to be fixed according to the
circumstances of each case.

Contract – “The contract of a surety and the contract of a person released on bail are
independent of each other. The surety promises to pay a certain sum of money if the person
accused does not appear at be no question of the surety making efforts to secure the
attendance of the person accused or his being badly treated by that person of his having made
all the necessary efforts which he could make. His is a simple contract. All he undertakes is
to pay a certain sum of money if a certain event does not occur, and if that event does not
occur, he must pay. This being so, a surety bond would be valid even though the person
accused does not himself sign the bond. But the Bombay High Court has dissented from this
view”.

Local Surety – “The Court cannot insist upon a local surety. It may in extra-ordinary cases
ask for the sureties which are easily available and at the same time ask for bringing a
certificate of solvency from the Tehsildar. It is not proper in every case to insist upon the
solvency certificate from the Tehsildar. Even an affidavit in the first instance should not be
refused, it shocks one's conscience to ask a mason to furnish sureties of Rs. 10,000/-. The
Magistrates must be given the benefit of doubt for not fully appreciating that our
Constitution, enacted by “We, the People of India”, is meant for the butcher, the baker and
candle-stick maker, the bonded labor and payment dweller. The accused person cannot be
compelled to furnish the surety bonds of person residing within the State”.
G. Cash Security - In bail bonds cash security cannot be demanded.

H. Bond of accused independent of sureties - Forfeiture of personal bond of accused is not

a condition precedent to forfeiture of bond of sureties, as the undertaking of sureties to secure
the attendance of the accused is quite independent of the undertaking given by the accused to
appear before the Court.

I. Surety by artificial person – “The whole object of execution of bonds by sureties is to

secure the presence of a person facing a trial. In accepting or rejecting a surety, the Court has
to see that the sureties are persons of sufficient financial ability and of sufficient vigilance to
secure the appearance and prevent absconding of the accused. Such an obligation of vigilance
cannot be effectively cast on a corporation or bank. The sureties must be such persons as can
in all cases be imprisoned in case of default and as such surety bonds cannot be executed by
artificial persons like Banks”.

Federal Bail Bonds: Theses bonds are issued when federal crimes committed out of the
boundaries of the state. These transactions are directly done with the court without
bondsmen. Both cash and property can be used for such bonds. For these kinds of bonds
valid assets are required.

Immigration bail bonds: These bonds are used only for non citizens and non residents
present in the United States. The proceedings of immigration bond are very complex. It is
most expensive type of bond.

4.3.2. Death or Insolvency:

“When any surety to a bond under this Code becomes insolvent or dies, or when any bond is
forfeited under the provisions of section 446, the Court by whose order such bond was taken,
or a Magistrate of the first class may order the person from whom such security was
demanded to furnish fresh security in accordance with the directions of the original order, and
if such security is not furnished, such Court or Magistrate may proceed as if there had been a
default in complying with such original order”.

4.3.3 Rejection of sureties:

1. “Under Sec-121 of Cr.P.C “A magistrate has a power to reject any surety which he had
already accepted and also the new ones”. On the ground that he is unfit to be as a surety to
the accused”.

2. Magistrate cannot solely reject a surety provided by accused but has to states the reasons
for rejecting the concerned surety.

3. If the Magistrate is satisfied, after considering the evidence so adduced either before him
or before, a Magistrate deputed under Sub-Section (1), and the report of such Magistrate (if
any), that the surety is an unfit person for the purposes of the bond, he shall make an order
refusing to accept or rejecting, as the case may be, such surety and recording his reasons for
so doing. .

4.3.4. Discharge of Sureties

Section-444 interpretation
(1) All or any sureties for the attendance and appearance of a person released on bail may at
any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the
applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing
that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender,
the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the
applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to
do so, may commit him to jail. Mr. Parkar Hasan Abdul Gafoor vs State of Maharashtra
& Others32 the petitioner stood surety for one Rajesh J. Trivedi for an amount of Rs.
3,00,000/-. This surety bond was executed on 27-8-1991 pursuant to the order of the Court by
which the accused was to be released on bail in the amount of Rs. 4,00,000/- out of which the
accused Rajesh Trivedi deposited Rs. 1,00,000/- and for the remaining amount of Rs.
3,00,000/- the petitioner stood surety.”
The case debated on whether the arrest of the accused had automatically discharged surety
bond. The surety bond was executed in 1991 and the notice of forfeiture was issued in 1996.
The facts showed that the accused had been arrested on non-bail able warrant in 1994 and
was thereafter released on the basis of the same surety. It was held that the magistrate ought

32
1999 (5) Bom CR 481
to have noticed surety regarding his continuance as surety to the accused. However, the
surety had not automatically discharged and hence, the revision against order of forfeiture
was not sustainable.

4.3.5. Bond from minor

When the person required by any Court, or officer to execute a bond is a minor, such Court or
officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

4.4. Forfeiture and Cancellation of Bond

Procedure in case of forfeiture of bond comes under sec 446 of this Code. This section talks
about a bond which is for appearance or for production of a property before a court. It must
be proved to the satisfaction of the court or any other court before which the case lies. Then
that bond has been forfeited. When sufficient cause is not shown and penalty is not paid, the
court may recover the same as penalty and fine may be imposed.

Mohammed Kunju And Another vs State Of Karnataka33

Mohan Dharma raj was accused under section 466,471of I.P.C read with registration of
Foreigners Act and Passport Act, 1967. He applied for the bail. Court asked for two sureties.
Mohammed Kunju and Another were produced as sureties. Court granted the bail for Rs
25000 (personal bond) and sureties were responsible for same amount. Sureties shall provide
his Bangalore address and shall not tamper the evidences. Accused need to obtain permission
from Commissioner of police of Bangalore city incase if he is willing to leave the city.
Accused applied before Metropolitan Magistrate to live in Mysore and granted on the
condition that attendance shall be given to Nasrabad Police Station once in a week and
attendance before Bangalore police once in a month. If he want to move from Bangalore,
Bangalore Commissioner of Police Permission is required. Nasrabad police filed that Mohan
Dharma raj did not attended before them. Court issued notices to Mohammed Dharma raj. As
he did not replied court issued notices to sureties, Sureties searched for him but could not find
him. Sureties were asked to pay the bond amount to the Court. Sureties appealed to H.C.

33
AIR 2000 SC 6, 2000 (1) ALD Cri 477
High Court dismissed the appeal. S.C. held that as long as the bond was not discharged, they
continue to be sureties irrespective of modification and remitted amount to Rs 20000/- each.

CHAPTER-V

Present Scenario of Criminal Justice System

5.1 Role of Judiciary:

In the correlation to our topic a reference to case Husainara Khatoon v. Home Secretory,
State of Bihar34, must be made in which release on personal bond of accused without surety
or monetary bail bond was brought to the question, because of inability of large number of
under court cited certain factors which should be kept in mind to determine whether the
accused has roots in the community or not because it will help in clarifying weather the
accused is likely to abscond or not. The following factors concerning the accused should be
taken into account:
1. “The length of his residence in the community.
2. His employment status, history and his financial condition.
3. His family ties and relationship.
4. His reputation, character, and monitory condition.
5. His prior criminal record including any record or 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 insofar as these factors are relevant to the risk of non -appearance and
8. Any other factor indicating the ties of the accused to the community or bearing on the risk
of will full failure to appear”.
The court felt that there was an urgent need for an explicit and a clear provision in the
criminal procedure code enabling the release, in appropriate cases of an under trial prisoner
on his bond without sureties and without any monetary obligation. In Anurag Baitha v.

34
AIR 1979 SC 1360
State of Bihar35, court observed that delay in hearing appeal bail application is an
independent factor, which has to be taken into consideration while considering the grant of
bail to the accused. The court stated that if the High court was not in a position to hear the
appeal of an accused within a reasonable period of time, it must ordinarily release the
accused on bail even to the extent in which capital charges are pending before the accused.
But a lacuna of time limit was left behind by the honorable court in the above judgment. In
Leti v. State36, however the lacuna of time limit left behind the honorable High court of
Patna in Anurag Baitha case was fulfilled. According to the honorable High Court of Odisha
in if an appeal is not disposed by the High Court within a period of three years, from the date
of filling the appeal, the accused should be released on bail, for first on the temporary period
of three months. Further the specified interim period could be extended in accordance to the
behavior or performance of the convict till the date on which the appeal is disposed.

5.2. Role of Executive-Bail given by Police officials:

“The Code of Criminal Procedure 1973 confers wide powers upon Police of making arrest. In
addition to the power of arrest, the Code bestows upon police powers parallel to the
magistrate to release an arrested person on bail. In Morit Malhotra v. State of Rajasthan37 ,
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 reasoning in the Supreme Court decision in Free Legal Aid Committee, Jamshedpur
Vs. State of Bihar38, where in 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 in the nature of the 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”.

35
AIR 1978 Pat. 274 (FB).
36
71 CLT 813.
37
1991 CriLJ 806
38
AIR 1982 SC 1463
“An interesting question arose in Haji Mohamed Wasim v. State of U.P39 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 not 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 was reasoned as:

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 in cases where the
sufficient evidence is only that of a bail able offence, in which eventually 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 trail, which power was
otherwise restricted to grant of bail by him during pendency of committal proceedings under
clause (a) of section 209 (6)”.

“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 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 has 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 an echo of these remarks
continues to be heard till today”.

39
1992 CriLJ 1299
“The power of a Police Officer, to release on bail a person accused of an offence and taken
into custody by him, may be divided under two heads:

(a) When the arrest was made without any warrant; and

(b) When the arrest was made in pursuance of warrant of arrest.

Power of police to grant bail under head (a) may be gathered from Sec. 42, 43, 56, 59, 169,
170, 436, 437 and Schedule I Column 5 of the Code. The powers of police to grant bail under
head (b) are controlled by directions endorsed under Section 71 of the Code. Section 81 of
the Code however, allows a police officer to take bail when the person arrested or produced
before him has been accused of the commission of a bail able offence even though warrant of
arrest does not contain any direction to that effect. In case of non-bail able offence the
endorsement on the warrant has to be strictly followed. Endorsement on warrant however
should be by name”.

5.2.1. Bail when arrest made without warrant

(i) Bail under section 42 Cr. P.C.:

Sections 41 and 42 Cr. P.C. are the only sections under which a police officer may arrest a
person for non-cognizable offence. But this power can be exercised under the conditions
specified in the section. Section 41 enumerated nine categories of cases in which a police
officer may arrest a person without an order from magistrate and without a warrant. The
powers of the police to arrest a person without a warrant are only confined to such persons
who are accused or concerned with offences or are suspects thereof. A person who is alleged
to have been in possession of an illicit arm once upon a time, can neither be called presently
an accused nor a suspect thereof.

Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address
or gives a name and address which the police officer considers to be false. If those particulars
are within the knowledge of the police officer, neither the question of arrest nor the question
of bail will arise. As soon as name and address has been ascertained the police officer cannot
detain him, if he is willing to execute the necessary bonds. If for any reason, the true name
and address of the arrested person cannot be ascertained with 24 hours, the provisions of
Sections 56 and 59 will come into operation. A special feature of this section is that the bond
of an offender who is not a resident of India shall be secured by the surety or sureties whose
residence is in India. No similar restriction as to the residence of a surety is to be found in the
other provisions of the Code.

The power to arrest and to release on bail can be exercised by any Police Officer not
necessarily by an officer-in-charge of the Police station because this section has been enacted
to provide for a particular non cognizable offence does not put any restrictions on the power
of a Police Officer to enlarge a person on bail after the correct name and residence have been
ascertained.

(ii) Bail under section 43 Cr. P.C.:

The Code of Criminal Procedure provides for the arrest of person by a private person also
though his powers of arrest are very limited. A private individual may arrest a person only
when: 1. He is proclaimed offender (or)

.
2. He in his presence commits a non-bailable and cognizable offence. After the arrest has
been made the arrested person should be, without unnecessary delay handed over to a police
officer, or in his absence, be brought to the nearest police station.

The question of bail will depend upon what opinion the police officer forms about the person
brought before him: .
1. If there is no sufficient ground to believe that the arrested person has committed any
offence, he shall at once be released. .
2. If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him and then the normal procedure of investigation,
determination of the question whether a non-bailable case is made out or not and the
desirability of release on bail etc. will arise. .
3. If there is reason to believe that he has committed a non-cognizable offence he shall be
released as soon as his name and residence have been ascertained as provided under Sec-42
Criminal Procedure Code. A chowkidar, not being a police officer is not entitled to receive
person arrested under this section.10 But where a chowkidar is a police officer as under the
Chota Nagpur Rural Police Act, (Act I of 1914) he can received a person arrested under
section 59, Criminal Procedure Code (old) and detain him in custody .
(iii) Bail under sections 56, 57 and 59 Cr. P.C.:

Sec-56 mandates that a police officer affecting an arrest without warrant must take or send
the offender arrested, before a magistrate having jurisdiction in the case of before the officer
in charge of a police station.

But in Sec-56, there is an inbuilt provision authorizing police officer to admit the arrested
offender to bail, but power of the police officer is subject to the provisions herein contained
as to bail. Sec-56 of the new Code corresponds to Sec-60 of the old Code. Explaining Sec- 60
M.P. High Court observed:

“The provision in Sec-60 that the arrested person shall be taken before Magistrate having
jurisdiction subject to the provisions as to bail only refers to the powers of the police to grant
bail. If the police in its discretion do not think it fit to allow bail to arrested person, then they
have to take him or send the person arrested before a magistrate having jurisdiction in the
case, Sec-S61 (i.e. new section 57) is concerned solely with the question of the period of
detention by the police of a person arrested without warrant”. Section 57 provides that person
arrested not to be detained more than twenty four hours. The intention of the legislature is
that an accused person should be brought before a Magistrate competent to try or commit
with as little delay as possible. Sec-57 is pointer to the intendment to uphold liberty and to
restrict to the minimum curtailment of liberty. Sec-59 provides that no person who has been
arrested by a police officer shall be discharged except on his own bond, or on bail, or under
special order of a magistrate. Under Sec-56 & 59, the Legislature has used words “Police
Officer”.

Conclusion and Bibliography: