Professional Documents
Culture Documents
Dissertation
Dissertation
Research is essential collective work, where step is taken with all the caution
and care. As investigator I feel duty bound to mention my thanks to all those have
helped one in my research work. The acknowledgement usually turns out to be the
most pleasant part of the dissertation to write
This is because; it is a place where the investigator can make explicit his debt
to many people, who have helped to make the work possible. Thanks are works poor
expression of the deep depth of gratitude which once feels in one’s heart, yet there is
no better way to express it.
I am also thankful to Pro. (Dr.) Rajpal Sharma, Director, Institute of Law &
Prof. (Dr.) Sunil Yadav, Chairman, Department of Law Kurukshetra University for
their kind cooperative during the complete of this dissertation.
In last I would like to thanks my father, other family members and friends who
helped me and encourage me morally as well economically to fish this work.
(Prabhakar Sharma)
LL.M. Final Year
DDE Ref. No.:19239831
INSTITUTE OF LAW
SUPERVISOR’S CERTIFICATE
(Prabhakar Sharma)
LL.M. Final Year
DDE Ref. No.: 19239831
CONTENTS
Headings Page
No.
1. Certificate
3. Acknowledgement
Chapter-1 1-
11
INTRODUCTION
1. Philosophy of Bail
2. Concept of Bail
3. Meaning of Bail
4. Object of Bail
Chapter-2 12-
62
Chapter-3 63-
116
1. Unconditional Bail:
A. Police Custody Remand:
B. Refusal of bail in bailable offence
C. Notice:
D. Executive instructions in consistent with Section 43 are
ultravires:
E. Security Proceedings:
2. Bail in Non-Bailable Offences:
Chapter-4 117-
156
Chapter-5 157-
180
Chapter-6 181-
190
Bibliography
CHAPTER-1
INTRODUCTION
1. Philosophy of Bail
The institution of bail like any other branch of law has its own
philosophy and to understand the same it is necessary to go
through its various stages of development. In ancient period and
that too in uncivilized society one can hardly conceive the system
of bail while in the civilized society it has become the rule.
With the advent of British Rule in India, the common law rule
of bail was introduced in India as well and got statute recognition in
Codes of Criminal Procedure, 1861, 1872 and 1898.
2. Concept of Bail
History of the concept of bail has been briefly set out in a
publication on “Programme in Criminal Justice Reform, as quoted”
by Supreme Court: “The concept of bail has a long history and
deep roots in England 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 went 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 person to forfeit money when
their charges to appear for trial. From the grew modern practice of
posting money 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 day during which
bondsman may produce the accused in court”
Commenting on the aforesaid brief extract from the history of
the concept of bail, the Supreme Court, speaking through
KRISHNA IYER, J., observed as under “It sounds like a culture of
bounded labour, and yet are we to cling to it! Of course, in the
United States, since then, the bondsman emerged as commercial
adjunct to the processes of criminal justice, which, in turn, bred
abuses and led to reform movements like Manhattan Bail Project33.
This research project spurred the National Bail Conference, held in
1964, which in its crucial chain reaction provided the major
impetus to a reform of bail law across the United States. The
seminal statutory outcome of this trend was the enactment of the
Bail Reform Act of 1966 signed into law by President Lyndon B
3 Conducted by the Verna Foundation and the Institution of Judicial Administration at New York University
School of Law.
Johnson. It is noteworthy that Chief Justice Earl Warren, Attorney
General Robert Kennedy and other legal luminaries shared the
view that bail reform necessary. Indeed, this legislative scenario
has a lesson for India where much later Criminal Procedure Code
1973 has largely left untouched ancient provisions on this subject,
incongruous with the Preamble to the Constitution.”
It goes without saying that the following challenge put forth
by KRISHNA IYER, J., way back in 1978, to the researches and
jurists in India, Calling for conducting detailed research for
improvements in the prevailing bail system in India, has remained
largely unheeded.
“Hopefully one wish that socio-legal research project in India
were started to examine our current bail system. Are researchers
and jurist speechless on such issues because pundits regard
these small men’s causes not worth while? Is the art of academic
monitoring of legislative performance irrelevant for India? The
reforms carried out in bail jurisdiction in U.S. through the American
Act of 1966, stipulated, inter alia, that release should be granted in
non-capital cases where there is reasonable assurance that the
individual will reappear when required; that court should make use
of variety of release options depending on the circumstances; that
information should be developed about the individual on which
intelligent selection of alternatives should be based. The
Manhattan Bail Project, conducted by the Verna Foundation and
the Institution of Judicial Administration at New York University
School of Law, found that about 65% of the felony defendants
interviewed could be recommended for release without bail. Of 2,
195 defendants released in this way less than one per cent can fail
to appear when required. In short, risk of financial loss is an
insubstantial deterrent to fight for a large number of defendants
whose ties with the community are sufficient to being them court.
3. Meaning of Bail
Webster’s Dictionary defines bail as follows4:
“Bail is a security given for appearance of prisoner in order to
obtain his release from imprisonment; a temporary release of a
prisoner upon security; one who provide bail”.
Wharton’s Law Lexicon defines bail in the following manner:
“To set a liberty a person arrested or imprisoned, on security
being taken for his appearance on a day and at a place certain,
which security is called bail, because the person arrested or
imprisoned is delivered into hands of those who bind themselves
or become bail for his due appearance when required in order that
he may be safely protected from prison to which if they have, if
they fear his escape, etc, the legal power to deliver him.”
Stroud’s Judicial Dictionary defined “Bail” as followings5:
“Bail is when a man is taken or arrested for felony, suspicion
of felony, indicated of felony or any such case, so that he is
retrained of his liberty. And being by law bailable offered surety to
those which have authority to bail him, which sureties are bound
for him to the king’s use in a certain sum of money, or body for
body, that he shall appear before the justice of Gaole delivery at
the next session, etc.”
In Concise Oxford Dictionary and Chamber’s 20th Century
Dictionary, the meaning of the word “bail” has been explained as a
sum of money paid by or for a person who is accused for wrong
The institution of the bail has been made to keep the accused
available to answer the charge and in order to perform this function, the
institution of bail has been made to deliver the accused to safe custody
in aforesaid manner, but in all cases accused is assured of beneficial
enjoyment of freedom in regulated manner.
4. Object of bail
7 Supdt. And L.R. v. Amity Jumar Roy Chaudhary, (1974) Cal. W.N. 320
CHAPTER-2
15
Dilip Kumar v. State of U.P., 1989 All. L.J. 1204.
16
Malwati v. State of U.P., Crim. Misc. Writ Prtition No. -/1993d/0n 07.04.1993, All. H.C.
17
Dr. Vinod Narayan v. State of U.P., Crim. Misc. Writ Petition No. 3643/1992 decided on
01.02.1995(FB)(All.H.C.) 1995 ACC375 All. (F.B.)
18
Lateef v. State of U.P. 1990 All.L.J. 1396 All (DB).
19
K.K. Girdhar v. MS. Kathuria, 1989 Cr.L.J. 1094 Del.
20
Ranjeet Kumar alias Laddo Singh v. State of U.P. Crim. Misc. case No. 522/1994
21
Dr. Vinod Narayan v. State of U.P., 1995 ACC 375 All. (FB).
availability of record because State represents the society and every
crime is an offence against society.22
22
Dr. Vinod Narain (Supra)
23
Mata Palat v. Emperor AIR 1923 All. 479; 26 Cr.L.J. 4.
24
Section 437(5) Cr.P.C. 1973
court are still restricted where the offence is punishable with life
imprisonment or death sentence, but the police officer is at all, not
empowered to grant bail in such offences, while the court may grant bail
of accused is infirm or sick person or woman or person under the age of
sixteen years. Thus bail in non-bailable offence is not a rule like in
bailable offence. Thirdly unlike bailable cases, in the case of non-
bailable offence a Court may impose any condition other than fixing of
the bail for the attendance of the accused. Such conditions are legal.25
The basic difference between the two is that in the former case the
police officer has the power to arrest the accused under section 41 of
the Code of Criminal Procedure without a warrant and without any order
of the Magistrate while in the latter, except when accused refused to
give his name and address26, the police officer has no power to arrest
the person who has committed or is accused of committing a non-
cognizable offence unless the Magistrate has ordered so. The list of
cognizable offences and non-cognizable offences has been given in the
First Schedule of the Code of Criminal Procedure.
25
In re Sardamma, AIR 1965 A.P., 444.
26
Section 42 of Cr.P.C. 1973
27
Section 149 of Cr.P.C. 1973
cognizance of such crime28. However such officer appears to have
understood that situation so grave that it may go out of control then he
may arrest such person going to commit any cognizable offence. Further
police has been empowered under Code to arrest without orders from
Magistrate where he gets knowledge of design of the commission of
cognizable offence and prevention of the same otherwise appears to be
difficult. Such arrest shall not exceed a period of twenty four hours from
the time of his arrest except otherwise permissible under the provisions
of the Code of any other law for the time being in force.29 Thus it is clear
that under section 151police officer can detain such person only for
twenty four hour and if his further detention is necessary he shall have to
obtain order from the competent jurisdiction.
3. Detention in Custody:
28
Section 150 of Cr.P.C. 1973
29
Section 151 of Cr.P.C. 1973
sufficient, and in that case Magistrate or court, as the case may be shall
order for the safe custody of the accused on an appropriate place and
manner. Same shall be reported to State Government30. Subsequent to
it if such person ceases to be of unsound mind, the Magistrate or Court
may order for production of the accused to face trial31. On production of
accused again if the Magistrate or court finds him capable of making
defense, the trial shall be proceeded with32 but if the accused is found
still incapable of making defense their accused shall again be dealt with
according to the provision of section 330 of Cr.P.C.
30
Section 330 of Cr.P.C.
31
Section 331(1) Cr.P.C.
32
Section 331(1) Cr.P.C.
33
Section 340 (1) Cr.P.C.
4. Competent Officer for Grant Bail:
Under the Code, the officer in charge of police station and court
both have power to grant bail.
A. Bail by police
(I) When the true name and residence of the person arrested,
who is accused of non cognizable offence and committed the
same in the presence of such police officer, has refused
disclose his identity or has given believably false identity, is
ascertained {Section 42(2)}.
(II) Where the true name and residence of the person arrested
by the private person subsequently handed over in the
nearest police station is ascertained. If the said person is
accused of non-cognizable offence and has refused to
disclose his identity or has given believably false identity
{Section 43(3)}
(III) When the evidence is sufficient to make prima facie case
against the accused regarding the commission of an offence
{Section 169}
(IV) In All Bailable offences.
(V) In non-bailable offences if the offence is not punishable with
death, life imprisonment or imprisonment for seven years or
more or if the accused had not previously been convicted on
two or more occasions of a non-bailable and cognizable
offence. But Police Officer should give reason in granting bail
in the non-bailable offences. The power of a police officer to
grant bail cannot be curtailed by way of issuing executive
instruction34. The grant of bail to a person accused a non-
bailable offence by police officer is a discretionary one uner
section 437 Cr.P.C. But as soon as the officer in charge of
police station is satisfied during investigation that there are
sufficient grounds for believing that the accused has not
committed a non-bailable offence then at once accused
acquires the right to get bail35. But the officer in charge of a
police station while granting bail in non-bailable offence,
especially when the offence is punishable with death, or with
imprisonment for life or seven years or more, shall have to
give reasons for so doing.36
B. Bail by Magistrate
1. Bail by Executive Magistrate u/s. 44(1) Cr.P.C.
38
Hazi Mohd. Wasim v. State of U.P., 1992 Cr.L.J. 1299 ALL.
Such Magistrate, in case of granting bail, shall have to forward the bail
bonds to the court which issued the warrant
39
Section 117 of Cr.P.C.
power is valid only when judicial magistrate is not available. While
granting remand by Executive Magistrate he may release the accused
on bail in accordance with the provisions of section 436 and 436 of
Cr.P.C.
40
1978 UCE (Bom.) 499(504).
including voluntary appearance “as when a person accused of an
offence seeks bail by” appearing in Court, he is fact surrenders to the
custody of the court and the expression “appear” in that sense means
“present and surrenders” himself before the court. In such
circumstances there would be notional detention of the accused
person.41 Person not under restrain voluntarily appearing and
surrendering before court is not entitled to bail. Person(s) places
under restrain by arrest or otherwise cannot be granted bail.42 The
word “Court” under section 436 and 437 means the Court which has
jurisdiction to try the accused for the offence alleged to have
committed by him.43
(ii) Bail in the case of person of unsound mind tried before the
Court:-
41
1979 Cr.L.J. 345 (350).
42
Bharmar v. State of Orissa, 1981 Cr. L.J. 1957 (1059).
43
1975 Cr.L.J. 1249 (1254) (D.B.) Cal.
44
Section 330(1) Code of Criminal Procedure.
be released on bail.45 Under this provision the power to release a
person on bail in bailable offence is vested in the court.
Provided further that the Court may also direct that a person
referred to in clause (ii) be released on bail if it is satisfied that it is just
and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be
required for being identified by witness during investigation shall not be
45
Section 436(1) Code of Criminal Procedure.
46
Subs. By the Code of Criminal Procedure (Amendment Act, 1980 (63 of 1980) section 5 W.E.F. 23/09/1980
sufficient ground for refusing to grant bail if he is otherwise entitled to be
released in bail and gives an undertaking that he shall comply with such
directions as may be given the court.
47
Subs. By the Code of Criminal Procedure (Amendment Act, 1980 (63 of 1980) section 5 W.E.F. 23/09/1980
(ii) Where such person, being on bail, had been convicted for a
bailable offence.
Here the word “interim bail” mean the period till he presents an
appeal and get the order of bail form appellate court.-Section 398(3)
Cr.P.C.
48
Madhu Limaye v. Ved Murti, AIR 1971 SC 2486.
49
Madhu Limaye v. Ved Murti, AIR 1971 SC 2486.
50
Om Prakash v. State (1971) 77 Cr.P.C. 865 All.
Court has no inherent power to remand such person to custody in
case51 he defaults to execute bonds despite apprehension of non
appearance of such person.52 Supreme Court has held that court has no
inherent power to remand such person unless this power is conferred by
law. Thus there is a legal flow in the section 88 of the Code which
requires amendment in the Code and following provision be added in
section 88 Cr.P.C., “if such person does not execute bond with or
without sureties, the court may remand him to custody till the execution
of bonds or the purpose of appearance of such person extinguishes.
When a Magistrate of the 1st Class sees reason to believe that any
person within his local jurisdiction has committed outside such
jurisdiction (Whether within or outside India) an offence which cannot,
under the provisions of Section 177 to 185 (both inclusive), or any other
law for the time being in force, be inquired into or tried within such
jurisdiction but in under some law for the time being in force triable in
India, such Magistrate may enquire into the offence as if it had been
committed within such local jurisdiction and compel such person in the
manner hereinbefore provided to appear before him, and send such
person to the Magistrate having jurisdiction to enquire into or try such
offence, or, if such offence is not punishable with death or imprisonment
51
Vasudeo Ojha v. State of U.P. AIR 1958 All. 578
52
Kazim, (1901) ANN; Ram Chandra v. State, 1977 Cr.L.J. 1783; Natbar Parinda v. State, AIR 1971 SC 1465.
53
Vishwanath Jiloka v. I Addl. Munsif L.C.C. Bahriach, 1989 Cr. L.J. 2082.
54
Dr. Vinod Narain v. State, 1995 ACC 375 all (FB)
for life and such person is ready and willing to give bail to the
satisfaction of the Magistrate acting under this section, take a bond with
or without sureties for his appearance before the magistrate having such
jurisdiction (section 187(1) Cr.P.C.).
When there are more magistrate than one having such jurisdiction
and the Magistrate acting under this section cannot satisfy himself as to
the Magistrate to or before whom such person should be sent or bound
to appear, the case shall be reported for the Orders of the High court.
(Sec 187(2) Cr.P.C.)
Session judge has been conferred with the power to release a person
on bail in the following case:
The Supreme Court has observed that the trend today is towards
granting bail because it is now well settled by a catena of decision of this
court that the power to grant bail is not to be exercised as if the
punishment before trial is being imposed. The only material
consideration in such a situation are whether the accused be readily
available for his trial and whether he is likely to abuse the discretion
granted in his favor by tampering with evidence.58
55
Menka Ghandhi v. Union of India AIR 1978 SC 597.
56
Hussain-ara Khatoon v. State of Bihar AIR 1979 SC 1360.
57
A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225.
58
State v. Maksudan Singh, AIR 1986 pat. 38 (FB),
59
Full Bench of Patna High Court laid emphasis on sixth Amendment
to the U.S. Constitution and Art. 3 of European Convention on Human
Rights observing that in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial and everyone arrested and
detained shall be entitled to trial within a reasonable time or to release
on bail during the pendency of trial. It was further held that inordinately
prolonged and callous delay of ten years or more occasioned entirely by
the prosecutions default in the context of reversal of a clean acquittal on
a capital charge would be per se prejudicial to the accused. If an
accused is not committed to the Court of Session for a period of nine
months in spite of the fact that the case was taken up for hearing on
several dates by the Magistrate, Allahabad High Court60 held that there
was inordinate delay in the trial of the accused and therefore accused is
entitled to bail.
59
Bhagirath Singh Juday v. State of Gujrat, AIR 1984 SC 372.
60
Sita Ram v. State of M.P. 1987 Cr.L.J. 645 All.
61
Ramroop Singh v. State of M.P. 1987 Cr.L.J. 1256.
62
Shahzad Hasan Khan v. Ishtiaq Hasan Khan, Air 1987 SC 1613.
Mere fact after commitment of session trial case was not taken up for
one year would not entitle the accused to bail.63 In a case64Allahabad
High Court has held that accused will be entitled for bail if his case was
not committed for more than three and half year while accused was in
jail and FIR was lodged after 15 days and medical examination of the
prosecutor was conducted after forty days of the incident respectively.
Incarceration of accused in jail for nine months and failure of court to
commit the case to the Court of Session for no fault of accused would
entitle him for bail.65 But Hon’ble R.B. Lal J., of Allahabad High Court in a
case66 explained the observation of Supreme Court in Kadra Pahadia’s
Case67 “the reasonable period of trial cannot and should not exceed one
year for a session trial” should not be taken as laying down an absolute
and invariable rule for conclusion of session trial without having regard
to the nature of offence and other circumstances of such particular case.
This law laid down by Supreme Court in Kadra Pahadia’s Case provides
a guideline about the period of time during which session trial should
ordinarily conclude. However this does not mean that special
circumstances of a case which prolonged the period of trial are to be
ignored while considering the question of inordinate delay. The question
of inordinate delay in conclusion of trial of a case should be decided in
the light of its own facts and circumstances. Thus inordinate delay only
cannot become the sole criterion for granting bail68 if otherwise facts and
circumstances of a case are not favorable to the accused. It may
become one of the grounds for granting bail. A accused who has been in
jail for more than six years and trial did not conclude in spite of direction
63
Birendra Singh v. Advesh Kumar, 1984 ALL.L.J. 283.
64
Chintamani Tripathi v. State of U.P., 1991 All.L.J.681.
65
Narain Rai v. State, 1989 All.L.J. 272.
66
Virendra Singh v. Advesh Kumar 1983 A. Cr. R. 434 (439).
67
Kadra Pahadia v. State of Bihar, 1981
68
Hasan Abbas v. State of U.P., 1992 (3) Crimes 59.
of High Court and have been deprived of his personal liberty, was held
entitled to be released on bail.69 Trial did not commence even after 4 ½
years have passed and trial is not expected to commence in near future
and accused cannot be blamed for delay. Accused was held entitled to
bail.70
For the refusal of bail for any offence, proof of prima facie case and
sufficiency of evidence is necessary. Where there is no prima facie case
or sufficient evidence or material shown in the charge-sheet, them bail
should be granted on the assumption that when conviction cannot be
based on such evidence and material, how can bail be refused.
Where the investigating officer did not make any effort know the
cause of death and no statement was recorded of any witness giving the
identifying made appears to be slipshod and perfunctory, bail should be
granted in such case.80
74
Ishar Dass v. State of Haryana, 1981 Cri. L.J. 562
75
Bhyawal v. State of M.P. (1992) 3 Crimes 184 M.P.
76
Nanho v. State of M.P., (1993) 1 Crimes 1048 M.P..
77
Santu v. State of M.P., (1992) 3 j. Crimes 250 (251) M.P..
78
G. Shyamala v. State of M.P., (1993) 1 Crimes 730.
79
All. (1987) 1 All. Cri. L.R. 504 (P&H).
80
Ganapathi v. State, (1992) 3 Crimes 488 Mad.
81
Babu Singh v. State of M.P., (1985) 2 Crimes 259.
appearing to be a simple mute spectator of a crime like rape should be
granted bail.82
7. Interim Bail
A Seven Judges Full Bench of Allahabad High Court has held that the
Session Judge while considering a bail application under section 439
Cr.P.C. can grant interim bail till the final disposal of the bail application
subsequently. This will enable innocent persons to avoid going to jail
pending consideration of their bail application. The Supreme Court has
laid emphasis on the strict compliance of direction given in Amravati
case83 and held that it must be implemented in letter and spirit by
Session Courts in U.P..
82
R.M. Shrirao v. State od Maharashtra, 1992 Cr. L. J. 2641.
83
Smt. Amravati v. State of U.P. 2005 Cr.L.J. 755 (FB-All) & Som Mittal v. Government of Karnataka AIR 2008
SC 1126.
discretion of the court concerned to grant interim bail or not but
the power is certainly there.84
(ii) Grounds for refusing interim or regular bail
Based on a long line of judicial precedents of the apex and this
Court,85 some of the exceptional circumstances where the
Courts below would be justified in refusing interim or regular
bails.
Could be:-
(a) Where the Magistrate concerned is not empowered to grant
regular bail as there are reasonable grounds for believing his
complicity in offences punishable with death or imprisonment
for life or under the other circumstances enumerated in
Section 437 Cr.P.C.
(b) There is prima facie material to suggest the involvement of
the accused in a grave offence like murder, dowry death,
dacoity, robbery, rape, kidnapping for ransom, rape etc.,
unless it appears to the Session Court at the stage of initial
appearance itself that the accused appears to have been
falsely implicated for some bona fide reasons.
(c) The case involves and offence under U.P. Gangster Act and
in similar statutory provisions, where there are restrictions on
the Court power to grant bail.
(d) The accused is likely to abscond and evade the process of
law or where it is necessary to arrest the accused and bring
his movements under restraint to refuse confidence among
84
Deepak Bajaj v State of Maharashtra, (2008) 16 SCC 14 & Sukhwant Singh & others v. State of Punjab, (2009)
7 SCC 559.
85
Sheoraj Singh Alias Chuttan v State of U.P. & Others, 2009 (65) ACC 781 (All-DB). Also Circulated vide H.C.
Letter No. 15336/2010/Admin G-11 Dated 20/09/2010
the terror stricken victims and society at large and for
protecting witnesses.
(e) The accused is given to violent behavior, or is a habitual
offender and is likely to commit further offences unless his
movements are brought under restrain.
(f) There is prima facie material showing the involvement of the
accused in offences which are in the nature of the scam, or
in grave crimes against society or the nation such as dealing
in counterfeit currency, or in narcotic, psychotropic drugs or
spurious medicines etc.
(g) If the Public Prosecutor/Investigating officer can satisfy the
Magistrate/Court concerned that there is a bona fide need for
custodial interrogation of the accused regarding various
facets of the motive, preparation, commission and aftermath
of the crime and the connection of other persons, if any, in
the crime or for obtaining information leading to discovery of
material facts, it may constitute a valid ground for non
granting bail, and the Court in such circumstances may pass
order for custodial interrogation, or any other appropriate
order.
(h) If there is an apprehension that there may be interference
with the investigation or for any other reason competent
Magistrate/Session Court feels that it is not a fit case for
releasing the appellant on interim bail pending the hearing of
the regular bail.
(iii) No interim Bail in Serious Offences:
The order granting interim bail pending hearing of a regular bail
application may be passed in appropriate cases,86 but it ought
not to be passed where:
(a) The case involved a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused
and bring his movements under restrain to infuse
confidence among the terror stricken victims and society at
large and for protecting witnesses.
(b) The case involves an offence under the U.P. Gangsters Act
in similar statutory provisions.
(c) The accused is likely to abscond and evade the processes
of law.
(d) The accused is given to violent behavior and is likely to
commit further offences unless his movements are brought
under restraint.
(e) The accused is a habitual offender and unless kept in
custody he is likely to commit similar offence again.
(f) The offence is in the nature of a scam, or there is an
apprehension that there may be interference with the
investigation or for any other reason the Magistrate/Court
feels that it is not a fir case for releasing the appellant on
interim bail pending the hearing of the regular bail.
(g) An order of interim bail can also not be passed by a
Magistrate who is not empowered to grant regular bail in
offences punishable with death or imprisonment for life or
under the other circumstance enumerated in section 437
Cr.P.C.
86
Pradeep Tyagi v State of U.P. & others, 2009 (65) ACC 43 (ALL-D.B.).
(h) If the public Prosecutor/Investigating officer can satisfy the
Magistrate/Court concerned that there is a bone fide need
for custodial interrogation of the accused regarding various
facts of motive, preparation, commission of the crime and
the connection of other persons, if any, in the crime, or for
obtaining information leading to discovery of material facts,
it may constitute a valid ground for not granting interim bail,
and the Court in such circumstances may pass order for
custodial interrogation, or any other appropriate order.
(iv) No delay in release of accused where interim bail granted:
It is imperative for the Session Judge and Addl. Sessions
Judges to be circumstances enough in directing release of the
accused in appropriate cases, in which specified direction had
been issued by the High Court for releasing the accused on
interim bail pending hearing of regular bail by accepting the
bonds provisionally and no person who has been on interim bail
should be relegated to jail custody simply for purpose of
verification of sureties fails which they would make themselves
liable to be handled up….. The Session Judge/Addl. Session
Judges must invariably mention in their order in such cases that
the accused person must be released without least delay and
they should not be detained just for verification of sureties.87
8. Law of Parity:
87
Shiv Shyam Pandey v. State of U.P. 2009 (5) ALJ 70 & C.L. No. 28/2010/Admin G II Dated 18/09/2010
mean ‘equality in status’ and value etc. In shorter Oxford English
Dictionary 1936 ‘Parity’ has been stated to mean, “the state of condition
of being equal and on a level, equality, equality of rank or status’.
But the Supreme Court in case92 laid down that the consideration for
grant of bail are inter alia the position and status of the accused with
reference to the victim and the witnesses; livelihood of the accused
feeling from justice; of repeating offences; of jeopardizing his own life;
88
Ashok Kumar v. State of Punjab, AIR 1907 (7) SC109, Said Kahn v. State, 1990 A. Cr. R. 54.
89
Babu Singh v. State of U.P. AIR 1978 SC 527.
90
State v. Capt. Jagjit Singh, AIR 1962 SC 253: R.M. Singh v. State 1990 A. Cr. R. 806; Janga Singh v. State, 1990
A. Cr. R. 39 All.
91
Sunder lal v. State of U.P., 1983 AWC 148 All. (FB).
92
Gurucharan Singh v. Delhi Administration, AIR 1978 SC 179.
being faced with grim prospect of possible conviction in case; of
tempering with witnesses and the like. These are additional factors
which are to be judged in the case of individual accused and it may
make the cases of different accused distinguishable from each accused.
At the same time if there is no real distinction between the individual
case of accused then the principle of parity comes into play and if bail is
granted to one accused it should also be granted the other accused
whose case stands identical footing.93
The parity cannot be the sole ground for granting bail, even on
subsequent bail applications the court has to satisfy itself that on
consideration of material places, further developments in investigations
and other consideration for deciding applications for grant of bail.
93
Shobha Ram v. State of U.P., 1992 (29) ACC 59; Kallu v. State, 1989 AAWC 65; Ali Hussain v. State of U.P.,
1990 U.P. Cr. R. 93.
94
Nanha v. state, 1992 A.Cr.R. 570 ALL, (DB):1992(3) Crimes 885.
There is no hard and fast rule as to when bail should be granted. The
Supreme Court in case95 has observed, “the overriding considerations in
granting bail to which we adverted to earlier and which are common both
in the case of Section 437 (1) and Section 439(1) Cr.P.C. are nature and
gravity of the circumstances in which offence is committed the offence;
of tampering with evidence; the history of the case as well as of its
investigation and other relevant grounds which, in view of so many
variable factors, cannot be exhaustively set out.” Thus absences of
above factors have been recognized by the Supreme Court and High
Court Allahabad96 in granting bail. As Supreme Court97 further observe,
“we may repeat the two paramount considerations, viz. likelihood of the
accused from feeling from justice and tempering with prosecution
evidence relate to ensuring a fair trial of the case in a court of justice. It
is essential that due and proper weight should bestowed on these two
factors apart from others. There cannot be an inexorable formula in the
matter of granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or canceling bail.”
The Supreme Court also held in other case98 that if it if prima facie
established that the presence of the accused would not be readily
available or that he likely to abuse the discretion granted in his favor by
tampering with evidence, bail may be refused. Allahabad High Court
also in a case99 emphasized these two factors while considering the bail
application.
95
Gurucharan Singh vs. State 1978 Cr.L.J. 129:AIR 1978 SC; 179; M.P. Ramesh v. State of Karnataka, 1991(1)
Crimes 247 (258).
96
Rakesh Kumar v. State of U.P., 1992(2) Crimes 945.
97
1978 Cr.L.J. 129; AIR 1978 SC 179; M.P. Ramesh v. State of Karnataka, 1991(1) Crmies 247 (258)
98
Bhagirath Singh Judeja v. State of Gujrat, AIR 1984, SC 372.
99
Ram Kishor v. State, 1991 A. Cr.R. 378.
While considering the bail application the Court has to bear in mind
the nature and seriousness of the offence, the character of evidence, the
circumstances which are peculiar to the accused, the reasonable
possibility apprehension of the witnesses being tampered at the stage of
investigation or during trial and the larger interest of the public. Two
criteria viz. where the accused, in the event of his release will flee from
justice and whether he will tamper with evidence have to be answered
against the accused. Just because a co-accused was enlarged on bail is
no ground for the release of accused on bail.100 Court must exercise its
discretion on merit and facts of the case irrespective of the consent
given by the prosecutor for release on bail.101
100
Channuppa G. Anadadi v. State of Karnataka 1993 (1) Crimes.
101
Ibid.
102
Bhagbn Bhai v. State, 1993 ALL. Cr.L.J. 286.
103
1983 ALL. Cr.R. 619.
104
1984 Chand Cri. C. 395 (P&H).
105
(1998) 1 Rec. Cr. R. 144(2) (145) P & H.
of accused is not established106 or the identity of giving of single blow is
not clear, the accused will entitled to bail.
106
607 (1985) 1 ALL. Cr.L.R. 66 (1) P & H.
107
1989 U.P. Cr. R., 393 All. 1986 U.P., Cr. R. 217 All.
108
Neeraj v. State of U.P., 1991 All. L.J. 426 (429).
109
(1993) 2 Cru., Cri.R. 981 (ALL).
110
Ashak Hussain Allah Detha v. Asst. Collector of Customes.
Similarly when the accused has been illegally detained in jail for a
long period without seeking remand from a Magistrate, he will be entitled
to bail.111 But if the detention of accused at the time of consideration of
bail application is legal then illegality of his earlier detention will not
entitle the accused for grant of bail.112 Recording of statement of an
accused by coercion while he was in illegal detention may become one
of the grounds for granting bail.113 The Code does not contain any
provision entitling an accused merely on the ground and without more,
that his detention in prison was illegal. In order to obtain his release on
bail, the accused must show that his case was either covered proviso to
sub-section 2 of Section 167 Cr.P.C. or that he was entitled to bail under
the provision of Chapter XXXIII of the Code.114
111
Vimal Kumar Sharma V. State of U.P., 1995(1) AWC 425 All. (DB)
112
1993 U.P. Cr. R. 112.
113
Deva Ram. v. State Of Rajasthan, 1984 Cr.L.J. Noc 129 Raj. 1983 Cr.L.J. 1231 Raj.
114
Ashak Hussain Allah Detha v. Asst. Collector of Customes.
115
A. Narayan Reddy v. State of A.P., 1992 Cri. L.J. 630 A.P. (DB).
prison facing trial. Section 167(2) proviso provides that if it is not
possible to complete the investigation within a period of 60 days (or 90
days in the case of offence punishable with death or imprisonment for
not less than 10 years) then even serious case of ghastly types of
Crimes, the accused shall be entitled to be released on bail, on the
expiry of period from the date of arrest.116 The Completion of
investigation means submission of charge sheet.
Computation of Detention:
116
Natbar v. State of Orrisa, AIR 1975 SC 1465.
117
Hussainara v. State of Bihar, AIR 1979 SC1377.
118
Hussainara v. State of Bihar, AIR 1979 SC1377.
119
Devindrapal Singh v. Govt. of NCT, Delhi, S.C.C. (Cri) 5;l Dr. B.S. Panchal v. State of Gujrat, 1996 ACC (36)
126 (SC)
120
Shaukin v. State of U.P., 1996 ACC. 43 All; Mohd. Iqbal Madar Sheikh v. State of Maharashtra, 1996 (33)
ACC 136 (SC).
121
Satyanarayana v. State of A.P., AIR 198; SC 2130
Nature of commission of crime is to be taken into consideration while
disposing of a bail application in non-bailable offence. Long detention of
an accused in heinous crime cannot be said to be a sole ground for
granting bail in the absence of over act especially when the trial is in
progress.122 It may become one of the ground in those cases where
offences are not heinous.
The Supreme Court in a case123 held accused who was about twenty
years old at the time of commission of crime had undergone more than
nineteen years of imprisonment and has had to remain in jail for even
eight months more and his case was deferred by the Sentence Revising
Board on the ground of non-availability ground if his long detention in
jail.
Thus where the accused has been languishing in jail for a long period
which is more or less equal to the maximum sentence of an offence the
accused should be released on bail.
Where the application was facing a charge of Killing his own wife and
concealed here dead body, however evidence showed that on that
particular night accused had a talk with his wife in the backyard of his in
law’s house and the next morning the wife was found hanging on a tree
122
Bhagwan Bhai v. State, 1993 Cri.L.J. 286; Ram Bhagwan v. State of U.P., 1996 ACC 414, ALL.
123
Shri Nivas v. Delhi Administration (1982) 3 S.C.C. 209; AIR 1982 SC 1391.
in the rear of the house but there was nothing to connect the accused
with the crime, bail was granted.124
Similarly, where the accused was tried for causing damage to the
railway engine by putting his tractor on the railway track, accused was
charge sheeted only because he was the owner of the tractor while he
was not named in the F.I.R., accused was held entitled to bail on the
ground of lack of direct or circumstantial evidence against the
accused.125
Every litigant must come before the court with clean hands, if an
accused obtains bail by playing deception on the court, the court itseld
may recall such bail order.126
124
Sawan Lal v. State of M.P., 1993(3) Crimes 382(2) 382.
125
Brij Mohan v. State of Rajasthan, (1989) Crimes 213 Raj.
126
Cirijesh v. State, 1990 A.Cr.R. 462 All.
127
Free Legal Aid Committee, Jashedpur v. State of Bihar, AIR 1982 SC 1463.
128
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
prosecution witnesses have turned hostile, bail cannot to cancelled129
because it cannot justify the inference that the accused has won then
over. The witnesses have turned hostile must be having casual
connection130 with the subjective involvement of accused in getting
witnesses hostile. In the absence of the same bail one granted cannot
be cancelled. Thus this power must be exercised with due care and
circumspection in appropriate cases131 in judicious manner. It is punitice
action, hence should not taken lightly.132
But where the bail has been granted by the higher court in a
committal case then the court of Magistrate should not entertain the
application for cancellation of bail to maintain the judicial discipline
unless the bail order is not of temporary nature.135 This power may be
exercised suo motu or on moving application 136
129
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
130
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
131
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
132
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
133
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
134
Talab v. Mondkar, AIR 1958 SC 376; (1958) SCR 1226.
135
Seoti & other v. Rex, AIR 1948 ALL. 366.
136
Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureo, AIR 1990 SC 71.
The court has power to cancel the bail even before the arrested
person is actually released and the court or Magistrate who has released
on bail has power to cancel the same.
Once the accused has been enlarged on bail under section 167(2) in
spite of the fact earlier to it bail application was rejected, his liberty
cannot be curtailed and bail cannot be cancelled on the ground of
subsequent filling of charge-sheet137 Cut conditional bail granted under
167 (2) may be cancelled, subsequently even by another Magistrate who
comes to be in sensing of the case.138
137
Aslam Baba Lal Desai v. State of Maharashtra, AIR 1993 SC 1.
138
Dhena Suren v. The State, 1997 Cri.L,J, 781 Pat.
139
Shahzad Hasan Khan v. Ishtiaq Hasan Khan AIR 1987 SC 1613.
CHAPTER-3
Thus while releasing a person on bail, the court has first to determine
his jurisdiction over the matter.
The power of bail under section 436 and 437 of the Code have been
conferred on that court only which has a jurisdiction to take cognizance
and try the person accused of an offence.140 Allahabad High Court has
also the same view141 and held that bail order passed by the court not
having jurisdiction to take cognizance and try the accused of such
offence is bad in law. In a Full Bench Case,142 Patna High Court held
that under section 437, Magistrate having jurisdiction to take cognizance
and try such offence will have power to grant bail.
140
Sidheshwar Singh v. State of Bihar, 1976 Cr.L.J. 1151.
141
Randhir Singh v. Desh Raj singh Chauhan, 1983 All. L.J. 1051 All.
142
Syed Zafrul Hasan v. State, AIR 1986 Pat. 186.
With the position in society occupied by the person released on
bail.143
1. UNCONDITIONAL BAIL
While granting bail in the bailable offence, the officer or court has
no power to impose any condition except demanding of security
with surety. The conditions that till the conclusion of trial accused
shall not enter into the land in question146 or accused shall not
147
deliver any speech or make any demonstration during bail, are
illegal. Similarly accused cannot be bound down to appear in court
pre-trial stage.148
143
Buxi Sardari Lal v. Tehar Central Jail. 1968 Cr.L.J. 675; Moti Ram v. State of M.P., 1978 Cr.L.J. 1703; AIR 1978
SC 1594; 1978 S.C.C. (Cri.) 485.
144
Moti Ram (Supra)
145
Surendra Lal Das v. Latika Das, 1977 Cr. L.J. 485.
146
Kota Appal Knoda, 44 Cr.L.J. 1943 Page 202.
147
Rox v. Genda Singh, 51 Cr.L.J. 1950 Page 1377 (ALL).
148
Free legal Aid Committee v. State of Bihar, 1982 Cr.L.J. 1943 (SC).
149
Kanu Bhai Chagan Lal v. State of Gujrat, 1973 Cr.L.J. 533.
time and place at attendance.150 But the High Court or Court of
Session under section 439(2) of the code is empowered to order
the arrest of a person already on bail in an offence including
bailable offence and commit him to custody canceling his bail
bonds. But the court of Magistrate has no such power.
(iii) Notice:
There is no provision for any notice to be given to public
prosecutor before granting bail to a person accused in bailable
offence.
(iv) Executive Instructions Inconsistent with Section
436 are ultravires:
150
Suruk Narain Bhakhia v. Rajnikant, 1982 Cr.L.J. 2148.
151
Talab Hazi v. Madhukar, AIR 1858 SC 376.
152
Panna Lal v. R.P. Sinha, 1967 Cr.L.J. 980 All.
153
State of Maharashtra v. Anil Bolda, 1983 Cr.L.J. 1308.
The executive instructions of District Superintendent of Police not
to release on bail the persons charged with bailable offence to all
the subordinate Sub-Inspectors is contrary to the mandatory
provision of Section 436 and as such ultra vires and illegal.
154
State of Maharashta v. Anil Baloda, 1983 Cr.L.J. 1308
he can be released subject to any other provision of the code upon
execution of a fresh personal bond and or sureties as the police
officer or the court may deem fit. There is no doubt that the
provision of Section 446 A is not affected in any way by the
provisions of Section 436 Cr.P.C
2. Bail in Non-Bailable offences:
Section 437 of the Criminal Procedure Code lays down the
provisions regarding the circumstances under which the officer in
charge of police station or court other than High Court or a court of
session can release any person accused of, or suspected of, the
commission any non-bailable offence when arrested or detained
without warrant by an officer in charge of police station, or appears
or is brought such court.
Distinction between Section 436 & Section 437:
The Law commission in its 41st Report has observes that the board
principles adopted in the Code regarding bail are as below:
There are two exceptions to this rule that under section 436(2) the
court may refuse bail if the accused released on bail in bailable offence
fails to comply with the conditions of bail with regard to time and place of
his attendance. Secondly the High Court and the Court of Session can
cancel such bail in bailable offence under Section 439(2) when the
accused is tempering with the evidence or is likely to abscond.
Lastly, unlike bail in bailable offences, the court may order for
imposing conditions other than fixing of the bail for the attendance of the
accused for which a specific provision is made in Sub-Section (3) of
Section 436.
(1) The court of Magistrate, which can grant bail under Section 437 of
the Code.
(2) The court of Session or High Court, which can grant bail under
Section 439 of the code.
155
Pati Lal v. Asstt. Collector, AIR 1978 SC 1636.
Allahabad High Court156 has observes that there is no limitation on
the power of the Magistrate to grant bail in session triable offences in the
provisions of the bail given in the Code. Only limitation in such offences
is punishment prescribed in the law. This view had been reiterated by
157
the High Court in another case and the High Court held that power of
the Magistrate in granting bail are not governed by the court which has
jurisdiction to try the case, rather are governed by the punishment
prescribed for the offence, A Magistrate has no jurisdiction to grant bail
only in such case where the prescribed punishment is imprisonment for
life or death penalty. It was further held that the offences lying under
section 363 and 366 are punishable with ten years imprisonment,
therefore Magistrate has power to grant bail,158 and Magistrate should
dispose of the bail application, if possible on the same day.
156
Vijay Kumar v. State of U.P. 1989 All. W.C. 569 All (DB)
157
Aftab Ahmed v. State of U.P. 1990 Cr. L.J. 1636
158
Aftab Ahmed v. State of U.P. 1990 Cr. L.J. 1636
(a) Magistrate may grant bail to an accused person in case the
accused is woman, minor person up Sixteen years of age or
sick and infirm persons.
(b) Where the Magistrate has reason to believe that accused has
not committed an offence punishable with death or
imprisonment for life then magistrate may also grant bail.
161
Amir Chand v. Crown, AIR 1950 EP 53; State of U.P. v. Kailash, AIR 1955 All 98; State v. Batlu Panja, AIR
1954 Madhya Bharat 113.
162
Kripa Shankar V. State of U.P., 1984 All. Cr. C.160.
163
In Re Digendra Sankar,, 1982 Cri. L.J. 1297 Cal.
(a) Personal appearance/Custody of accused- must for Bail:-
Bail application cannot be entertained/heard unless the accused
is in the custody of the court. If the accused is already lodged in
jail under some order of court, the bail application can be heard
and disposed of even without physical appearance/production
of the accused before the court. Since the provision of section
438 Cr.P.C. regarding anticipatory bail have been omitted in
State of U.P. vide U.P. Act no. 16 of 1976, so granting bail
without seeking custody of the accused would amount to bring
in vogue the omitted provision of Section 438 Cr.P.C. even u/s
88 Cr.P.C. bail cannot be granted to an accused without his
personal before the court.164 Present position in State of U.P.
Section 438 re-enforced by the State Govt. of Yogi Aditya Nath,
so anticipatory bail can be granted to the accused u/s 438 of
Cr.P.C. in State of U.P.
(b)Accused to be permitted to surrender even without report
from police:-
The practice of some of the subordinate Magistrate not to
permit an accused to surrender when they make such request
and simply ask the Public Prosecutor to report is not proper.
When an accused surrenders in court and make an application
stating that he is wanted in the crime, his prayer should be
accepted. The practice of postponing surrender application is
not fair and cannot to approve. Things may, however, stand
differently if surrender application does not specifically mention
164
Vaman Narain v. State of Rajasthan, 2009 Cr.L.J. (SC) & Sunita Devi v. State of Bihar, 2005(51) ACC 220 (SC)
& Mukesh Kumar v. State of U.P., 2000(40) SCC 306 (All) & Kamlesh Parihar v. State of U.P., 1999 ALJ. 1507
(ALL-DB) & Niranjan Singh v. Prabhakar Rajaraman, AIR 1980 SC 785
that the person surrendering is wanted in a case or that the
police may be asked to report if he is wanted at all.165
4. Bail in Complaint Case- Relevant Circular Letter:
Note: (A) Giving approval to the principles of law laid down in chheda lal
and interpreting the law of bail u/s 436/ 437 Cr.P.C. in complaint cases
and bail to any other person like witnesses u/s 88 Cr.P.C., a Division
Bench of Hon’ble Allahabad High Court circulated in Criminal Misc.
Apllication No. 8810 of 1989, Babu Lal & Others v. Smt. Momina Begum
& Criminal Mics. Application No. 8811 of 1989, Parasnath Dubey &
others v. State of U.P. & other decided on 23.03.2006 and circulated by
Hon;ble Allahabad High Court amongst the judicial officers of the State
of U.P. vide C.L. No. 33/2006, dated 7.08.2008 has ruled as under—
Thus, we are of the view that the “case which will be governed by
the section 436 and 437 Cr.P.C. it is not necessary to apply the
provisions of section 88 of Cr.P.C. for the reason that section 436 and
437 Cr.P.C., are specific provision and deal with particular kind of cases,
where as the scope of Section 88 and 89 of Cr.P.C. is much wider as
discussed above. The case in which Section 436 Cr.P.C. is applicable,
an accused person has to appear before the Court and thereafter only
the question of granting bail would arise. Any one, who is accused
person, has been conferred a right to appear before the Court and if the
Court is prepared to give the bail, he shall be released on bail. The some
equality applies with respect to Section 437 Cr.P.C. also. Therefore,
where a summon or warrant is issued by a Court in respect of an
accused, the procedure u/s 436 and 437 has to be followed and
summon or warrant, which have been issued by the Court, have to be
executed and honoured. The necessary corollary would be that Section
88 and 89 Cr.P.C. as such, would not be attached in such cases.”
However we make it further clear that the language of aforesaid
provisions, whether the bail bond is required to be executed u/s 88
Cr.P.C. or the Court gives bail u/s 436 and 437 Cr.P.C. the appearance
of the person before the Court is must and cannot be dispensed with at
all.
(B) A single Hon’ble Judge of Allahabad High Court had in the case167
ruled that if an accused of a complaint case appears in court in response
to summons, he should not be taken into custody and should be
released on bail u/s 88 Cr.P.C. with or without sureties. But the above
noted ruling has been overruled in the year 1995 by a Five Judge Bench
168
decision of the Allahabad High Court render in the case laying down
that Section 88 Cr.P.C applies only to a person who is present in court
as witness etc. if a person appear in court for purpose of bail in
accordance with the provision of Setion 437 Cr.P.C. and surrenders,
then he becomes an accused and the provision u/s 88 Cr.P.C. does not
apply to an accused.
167
Vishwa Nath Jiloka v. Munsif Lower Criminal Court, Bahriach, 1989 AWC 1235 (ALL)
168
Dr. Vinod Narain v. State of U.P., 1995 ACC 375 (ALL-Five Judge Bench)