Bail, Anticipatory Bail, Mandatory Bail & Bail After Conviction
Bail, Anticipatory Bail, Mandatory Bail & Bail After Conviction
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by
Sri M.SREENU,
Principal Junior Civil Judge,
Rayachoti
“The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a
socially sensitized judicial process”.
– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
opined that:
“The grant or refusal to grant bail lies within the discretion of the Court.
The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to bail is not
to be denied merely because of the sentiments of the community against the
accused. The primary purposes of bail in a criminal case are to relieve the
accused of imprisonment, to relieve the State of the burden of keeping him,
pending the trial, and at the same time, to keep the accused constructively in
the custody of the Court, whether before or after conviction, to assure that he
will submit to the jurisdiction of the Court and be in attendance thereon
whenever his presence is required”.
Recently, Hon’ble Supreme Court, in Aasu vs. state of Rajastan
(Criminal Appeal NO.511 of 2017 Dt.09-03-2017) issued a direction that
Bail applications shall be disposed of normally within one week.
for periods beyond the maximum period of imprisonment provided for the
alleged offence. A new section 436A5 is inserted in the Code to provide that
where an under trial prisoner other than the offence for which death has been
prescribed as one of the punishments, has been under detention fora period
extending to one half of the maximum period of imprisonment provided for the
alleged offence, he should be released on his personal bond, with or without
sureties. It is also provided that in no case the under trial be detained beyond
the maximum period of imprisonment for which he can be convicted for the
alleged offence.
grounds for believing that he has been guilty of such offence. The age or sex or
sickness or infirmity of the accused cannot be considered by a police officer for
the purpose of granting bail. These matters may be taken in view by a court
only. An officer- in-charge of the police station may grant bail only when there
are no reasonable grounds for believing that the accused has committed a non-
bailable offence or when the non-bailable offence complained of is not
punishable with death or life imprisonment.
6 Sundeep kumar bafna vs. State of maharashtra & anr Criminal appeal no. 689 of 2014
dt.27.03.2014.
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having jurisdiction, and get it rejected for the purpose of approaching the
Sessions Court or High Court for bail.
Cancellation of Bail:
The Code of Criminal Procedure makes clear provisions for cancellation of bail
and taking accused back in custody. Section 437(5) states that any court which
has released a person on bail under sub-section (1) or sub-s. (2) of s. 437, may,
if it considers it necessary so to do, direct that such person be arrested and
commit him to custody. Similarly s. 439 confers on the High Court and the Court
of Session power to cancel bail. Section 439(2) The Code of Criminal Procedure
makes clear provisions for cancellation of bail and taking accused back in
custody.
The power of cancellation of bail can be resorted to broadly in the following two
situations:
(i) On merits of a case mainly on the ground of the order granting bail
being perverse, or passed without due application of mind or in violation of any
substantive or procedural law; and
(ii) On the ground of misuse of liberty after the grant of bail or other
supervening circumstances.
Bail in the first type of cases can be cancelled by superior courts only, whereas
in the second category of cases bail can be cancelled by the very court which
may have granted bail. There appears to be confusion galore in the judicial
pronouncements on the aspect of cancellation of bail on merits and on the
ground of subsequent conduct of accused already on bail or on the ground of
supervening circumstances. Sometimes the principles of cancellation of bail on
the ground of subsequent conduct or intervention of new circumstances have
been wrongly brought in and applied to the cases where cancellation of bail is
sought on the merits of the case. It is therefore necessary to clearly understand
the aforesaid distinct principles of cancellation of bail operating in these two
different fields.
As stated herein above the legal provisions pertaining to cancellation of
bail under Cr.P.C are mainly contained in S.437 (5) and 439(2).
Section 437(5) provides for the cancellation of bail by a court other than a
High Court or a Sessions Court. Meaning thereby it confers power of cancellation
on the Magistrate court. It states that a court other than High court or Sessions
Court, may, if it considers necessary to do so, direct that a person released on
bail by it be arrested and committed to custody. By judicial pronouncements this
provision has been interpreted to mean that any court that has released the
accused on bail has power to direct arrest of such person and commit him to
custody if subsequent to the release on bail, the circumstances justify to do so.
Ordinarily the court would be entitled to exercise this power only where the
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person released on bail is guilty of misuse of the liberty granted by the court or
where there is new development in the investigation or recovery of cogent
material prima facie involving accused with heinous crime. However, bail once
granted should not be cancelled in a mechanical manner without considering
whether any supervening circumstances have rendered it no longer conducive to
a fair trial to allow the accused to retain his freedom by enjoying the concession
of bail during the trial.
Cancellation of bail- certain grounds:
The grounds for cancellation of bail under ss. 437(5) and 439(2) are
identical, namely, bail granted under S.437(1) or (2) or s.439(1) can be
cancelled where the accused (1) misuses his liberty by indulging in similar
criminal activity, (2) interferes with the course of investigation, (3) attempts to
tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar
activities which would hamper smooth investigation, (5) attempts to flee to
another country, (6) attempts to make himself scarce by going underground or
becoming unavailable to the investigating agency, (7) attempts to place himself
beyond the reach of his surety, etc. These grounds are illustrative and not
exhaustive.
Section 439(2) confers powers on the High Court and the Sessions Court
to direct re-arrest of the accused who might have been released on bail by any
court and commit him to custody. A comparison of s. 439(2) and s. 437(5)
makes it clear that the powers of cancellation of bail vested in the High Court
and the Sessions Court are very wide vis--vis the powers of the Magistrate
court.
s. 439(2) confers powers of cancellation of bail on the High Court and the
Sessions Court in respect of orders of bail passed itself as well as by any court
subordinate to it also. The power to cancel an order of bail passed by itself by
the High Court or the Sessions Court as the case may be, can usually be
exercised only where the person released on bail is guilty of misuse of the
liberty granted by the court or there is substantial change in the facts of a case.
However so far as the cancellation of bail order passed by a court subordinate to
it is concerned no such restricted interpretation is justified. Section 439(2)
clearly provides that any person who has been released on bail under this
Chapter may be arrested and committed to custody by a High Court or Court of
Sessions. So it is legally permissible to a High Court or a Court of Session to
review and examine an order of bail passed by a court subordinate to it on
merits and decide whether such order is legally sustainable or not.
Magistrate has power to pass the subsequent order altering or amending
or deleting the conditions of the earlier bail order in any manner whatsoever.
Section 437 (5) of Cr.P.C. impliedly confers such power on him. When the
Magistrate is conferred with the power to cancel his order, then, as a logical
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corollary, it follows that he does have the power as well to amend or effect
necessary alterations, short of cancellation, in the earlier bail order passed by
him7.
It is now a settled law that complainant can always question the order
granting bail if the said order is not validly passed. It is not as if once a bail is
granted by any court, the only way is to get it cancelled on account of its
misuse. The bail order can be tested on merits also8. Bail already granted cannot
be cancelled on the ground that police needs custodial interrogation of the
accused.
the case so as to dissuade him from disclosing such facts to the court or
to any police officer;
a condition that the person shall not leave India without the previous
permission of the court.
Section 167(2) deals with powers of the magistrate to detain the accused
in custody and release him on bail on expiry of the statutory period. It is quite
clear that power is conferred on the magistrate to release the accused on bail
under the proviso. The position is well settled by the Supreme Court
judgment11.The prevalent impression in some judicial circles that in case of
offences that are required to be tried by sessions court, it is only the sessions
court which has power to release the accused on bail under section 167(2) is not
correct. Restrictions imposed on the powers of the magistrate with regard to
grant of regular bail under section 437 of the Code would not be applicable when
magistrate exercises power under section 167(2) .
In Natbar Parinda12 Hon’ble Supreme Court noted that the accused has a
right to be released on bail under this provision even in serious and ghastly
types of crimes.
The period of 90 or 60 days would begin to run from the day on which the
The Patna High Court in Suddu kumar vs. State of Bihar16 has
observed that if a prayer for suspension of sentence and release of an appellant
on bail, convicted of a capital crime and sentenced to undergo imprisonment for
life, it is to be considered favourably and he is ordinarily allowed bail if he has
completed seven years of incarceration in connection with such case before
conviction and after conviction, taken together when his appeal is not likely to
be heard on merits in near future, on the ground of possible delay in the
disposal of the appeal.
A Two Judge Bench of the Supreme Court, in Atul Tripathi Vs. State of
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UP discussed the scope and ambit of Section 389 ofCr.P.C and issued the
following Guidelines regarding the suspension of Sentence during the pendency
of Criminal Appeal.
a. The appellate court, if inclined to consider the release of a convict sentenced
to punishment for death or imprisonment for life or for a period of ten years
or more, shall first give an opportunity to the public prosecutor to show
cause in writing against such release.
b. On such opportunity being given, the State is required to file its objections, if
any, in writing.
c. In case the public prosecutor does not file the objections in writing, the
appellate court shall, in its order, specify that no objection had been filed
despite the opportunity granted by the court.
d. The court shall judiciously consider all the relevant factors whether specified
in the objections or not, like gravity of offence, nature of the crime, age,
criminal antecedents of the convict, impact on public confidence in court, etc.
before passing an order for release.
CONCLUSION:
The Personal liberty is of utmost importance in our constitutional system
recognized under Article 21. Deprivation of personal liberty must be founded on
the most serious considerations relevant to welfare objectives of the society as
specified in the Constitution. Even though the law of the land and Hon’ble Higher
courts in various cases have tried to intervene and also have laid down certain
guidelines to be followed but unfortunately nothing has been done about it.
There is also a strong need felt for a complete review of the bail system keeping
in mind the socio-economic condition of the majority of our population. While
granting bail the court must also look at the socio-economic plight of the
accused and must also have a compassionate attitude towards them. A proper
scrutiny may be done to determine whether the accused has his roots in the
community which would deter him from fleeing from the court.
“Society has a vital interest in grant or refusal of bail because every
criminal offence is an offence against the state. The order granting or refusing
bail must reflect perfect balance between the conflicting interests, namely,
sanctity of individual liberty and the interest of the society”.
– Justice Dalveer Bhandari in S.S. Mhetre vs. State of Maharashtra (2010)