What actually bail means ? What is its object ?

No where defined in the Cr.P.C.. Security for appearance of the accused person on giving which he is released pending trial or investigation ------ Law Lexicon Procure the release of a person from legal custody by undertaking that he shall appear at the time & place of trial & judgement

Provisions of law relating to Securing appearance (bail etc.)

S. 2(a) Bailable & Non-Bailable Offences Sec. 42(2) Arrest by Police on refusal to give name and residence After ascertaining the true name & residence such person shall be released on his execution of bond with or without sureties, Sec. 50(2) Person arrested to be informed of grounds of arrest and of righ to bail 50(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Sec.167(2) A person who is in custody and charge sheet has not been submitted by the police within

(i) 90 days in a case where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. (ii) 60 days, where the investigation relates to any other offence. and, 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,

Various provisions of Bail

Sec. 169 - If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and try the accused or commit him for trial. Sec.436 Bail in a bailable offences Sec. 436A Maximum period for which an under trial prisoner can be detained Sec.437 Bail in non-bailable offences before criminal courts other then sessions court & High Court,

Various provisions of Bail

Sec.437A Amended section in the year 2009 Bail to require accused to appear before next appellate Court. Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court Sec.438 Bail in anticipation of arrest in non-bailable offences Sec.439 Bail in non-bailable cases before session court & High Court Sec. 440 Furnishing of Bail Bond Sec.389(1) Suspension of execution, if accused is in confinement, then he be released on bail Sec. 397(1) Suspension of execution or if accused is in confinement then he be released on bail, Sec. 415 Postponement of execution of sentence of death in case appeal to S.C.

Provisions of Bail & Bail-bond - 33

Section436 In what cases bail to be taken Section436A Maximum period for which an undertrial prisoner can be detained. Section437 When bail may be taken in case of non-bailable offence Section438 Direction for grant of bail to person apprehending arrest Section439 Special powers of High Court or Court of Session regarding bail Section440 Amount of bond and reduction thereof Section441 Bond of accused and sureties Section441A Declaration by sureties Section442 Discharge from custody Section443 Power to order sufficient bail when that first taken is insufficient Section444 Discharge of sureties Section445 Deposit instead of recognizance Section446 Procedure when bond has been forfeited Section446A Cancellation of bond and bail bond Section447 Procedure in case of insolvency or death of surety or when a bond is forfeited Section448 Bond required from minor Section449 Appeal from orders under section 446 Section450 Power to direct levy of amount due on certain recognizances

Cr.P.C. recognised Bailable & nonbailable offences only

Sec.2(a) Bailable Offences Which is shown bailable in First Schedule of Cr.P.C. or which is made bailable for any other law time being in force. In the First Schedule Entries II There are classification of offences against other laws were made

If punishment is for death, L.I. or I. > 7Yrs. Cognizable Non-bailable Triable by session If punishable with I. of 3yrs & < 7Yrs Cognizable cases Non-Bailable cases Triable be JMFC If punishable with I. < 3yrs or with fine only noncognizable Bailable Any Magistrate

Types of Bails

Pre Conviction Bails 50(2), 167(2), 436, 437,437A, 438, 439 of Cr.P.C., 1973
Post Conviction Bails 437A, 389(3), 389(1), 397(1) & 415 of Cr.P.C., 1973

S. 436 Cases other than those of non-bailable offences

When a person not accused of a non-bailable offences, he can as of right claim to be released on bail

When such person is arrested without warrant by an Officer in charge of P.S. When such person is detained without warrant by an Officer in charge of P.S. When such person appears before a court suo-moto When such person is brought before court by Police

Bail in Bailable cases - 436

436 (1) When any person accused of a bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, requests for bail, such person shall be released on bail But in case such person is indigent and unable to furnish security, then he be discharge him on executing a bond without sureties for his appearance instead of taking bail

But this provision is not applicable in case of Sec. 116(3) of Cr.P.C. or sec. 446A

116(3) Matter relating to executive magistrate U/S116(3) 446-A Cancellation of bail-bond

Bail in bailable offences in case he has been released U/S 436(1) but subsequently he failed to comply the conditions of bail-bond as to time and place of attendance

The court may refuse to release him on bail on a subsequent occasion in the same case and he may be brought into custody Any such refusal shall be without prejudice to the powers of the court to call upon an person bound by such bond to pay the penalty thereof U/S 446.

Bail U/S 436A -Maximum period for which an undertrial prisoner can be detained

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, He shall be released by the court on his personal bond with or without sureties: Provided that the court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.Explanation. - In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.".

Bail in Non-bailable Offences other than Session & H.C.- 437

437(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or without warrant by an officer-incharge of a police station 437(1) When any person accused of, or suspected of, the commission of any non-bailable offence detained without warrant by an officer-in-charge of a police station or

437(1) When any person accused of, or suspected of, the commission of any non-bailable offence appears before a Court other than the High Court or Court of Session
437(1) When any person accused of, or suspected of, the commission of any non-bailable offence is brought before a Court other than the High Court or Court of Session, In all the four situations that person (he) may be released on bail,

Person moved U/S 437 Shall not be released 437(1)(i)

But in the following circumstances such person shall not be released

437(1) (i) if accused is guilty of an offence punishable with death or imprisonment for life:
437(1)(ii) if such offence is a cognizable offence and accused previously convicted of an offence punishable with death, imprisonment, for life or imprisonment for seven years or more, for three years or more but not less than 7 years 437(1)(ii)Proviso Every such person shall not be released on bail without giving an opportunity of hearing to the Public Prosecutor.";

Proviso of Bail 437(2) & (3)

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of Section 446-A and pending such inquiry be released on bail] or, at the discretion of such officer of Court, on the execution by him. of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter 6, Chapter 16 or Indian Penal Code, 1860, or abetment of, or conspiracy or attempt to commit any such offence, is released on bail under sub-section (1), "the court may impose" and ending with the words "the interests of justice", shall impose the conditions,

Conditions imposed by Court U/S437(3)

(a) that such person shall attend in accordance with the conditions of the bond executed under this chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other, conditions as it considers necessary.".

Proviso of 437

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under 437 (1) or 437(2), may if it considers it necessary so to do direct that such person be arrested and commit him to custody. (6) If, in any case triable by Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the

whole of the said period be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.

Anticipatory Bail - 438

438(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, He may apply to the High Court or the Court of Session for bail ABP shall be considered on the following grounds:(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment or conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

438

438(1-A) Where the court grants an interim order, it shall forthwith cause a notice with a copy of bail order to the P.P. and the S.P., with a view to give the PP a reasonable opportunity on the application of bail 438(1-B) The conditions for ABP:(i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer: (iii) a condition that the person shall not leave India without the previous permission of the Court: (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

Points relating to anticipatory bail

No anticipatory bail after arrest Bail to be effective till conclusion of trial Interim order in anticipatory bail and notice to public prosecutor Order of no coercive steps

Bail is Discretion

Bail is matter of right if offence is bailable But bail can only be a matter of discretion if offences is non-bailable in nature. The scope of discretion is inversely proportion the gravity of crime. The scope of discretion is as below:

Court of S.C. > Court of H.C.>Court of sessions > Court of judicial officers > Police officers

41st LCR Pg. 316-318 Page 293 of the Cr.P.C. by R.V.Kelkar

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

439(1) A High Court or Court of Session may direct,439(1)(a) that any person accused of an offence and in custody be released on bail,

439(1)(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified ;
439(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Grounds for consideration U/S 437 & 439 are almost same

Nature & gravity of circumstances in which offence has been committed Position & status of accused with reference to victim and the witnesses Likelihood of accused fleeing from justice Repeat ion of the offence Tempering of witnesses Criminal antecedent of accused The health, age and sex of the accused The probality of accused committing more offences if released on bail Interest of societ AIR 1978 SC Guru Charan Singh Vs state AIR 1962 SC 253 State Vs Jagjit Singh

Cancellation of Bail

Power of cancellation of bail is vested in the court only and not to the police Rejection of bail & cancellation of bail are different matters In principle rejection of bail is easier than to cancellation of bail. Cancellation of bail means actually review of the a decision already made. Whether order of grating bail can be challenged under revisional jurisdiction ? 1988 Cr.L.J. 1434(All) Order granting bail being an interlocutory order can not be challenged under the revisionsal jurisdiction reliance placed on AIR 1977 SC 2185 Amar Nath Vs State of Haryana + AIR 1978 SC 47 Madhu Limaye Vs State of Maharastra + 1979 Cr.L.J. 718 All Bhola Vs State

Points for cancellation of Bail AIR 1951 Mad. 1042

Where person on bail has committed the same offence If accused hampers the investigation If accused tempers with the evidences If accused runs away to a foreign country or go beyond the control of his sureties If accused commits act of violence in revange, against the police and the prosecution witnesses and those who have booked him or are trying to book him.

Important points relating to bail

Order of speedy hearing when order refusing bail passed 1980 SCC(Cr.) 40 Bihar Legal Support Society Vs CJI Bail application can be moved when remand application is moved by the police Track of taking regular bail 437(P.O.) 437(J.O.) 439 (Ss. C.) 439(H.C.) S.C.

167(2) directly

Track of taking anticipatory bail 438 (Sc.C.) 438 (H.C.)

Bail by Appellate court

In case of appeal U/S 389(1) i.e. appeal against conviction

The person asking bail be a convicted person The person asking bail must be in confinement The appeal against conviction is pending

The court has two powers

Court can suspend the execution of sentence Court can grant bail to the accused person

Custody by appellate court

Sec. 378 Appeal against acquittal

Sec. 390 The H.C. may issue warrant directing that the accused be arrested and brought before it or any subordinate court and court may commit him to prison pending the disposal of appeal to admit him to bail.

Power to grant bail under reference

S. 395 Any court making reference to the H.C. may pending decision

Either commit the accused to jail Or released him on bail to appear when called upon

Release of bail after conviction before filing appeal 389(3) Cr.P.C. The court passing conviction may grant bail but for only for a limited period i.e. till appeal is filed and appellate court is moved for getting released on bail