Professional Documents
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Chapter-Iv Right To Bail in Bailable Offence Under Section 436 Cr. P.C
Chapter-Iv Right To Bail in Bailable Offence Under Section 436 Cr. P.C
Chapter-Iv Right To Bail in Bailable Offence Under Section 436 Cr. P.C
1
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939.
2
Dharmu Naik v. Rabindranath Acharya 1978 CrLJ 864 : Kanu Bhai v. State of Gujarat
1972 (B) Guj LR 748.
3
Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864 : Union of India v. S. Bhagwandas
1969 Mad. LW (Cri) 88.
4
K.K. Rao v. State 1982 Mad LJ (Cr). 330 : (1981)2 Andh LT 461.
5
State of Punjab v. Jagjit Singh, AIR 1962 SC 253 : (1962)3 SCR 622 : (1962)1 Cr. LJ
215.
6
Niranjan Singh v. Prabhakar (1980)2 SCC 559 : 1980 SCC (Cri) 508 : AIR 1980 SC
785.
92
7
1991 Cri. LJ 806 (Raj).
8
AIR 1982 SC 1463.
93
Having regard to the nature of 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.
An interesting question arose in Haji Mohamed Wasim vs. State of U. P.9
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 nor
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 reasoned:
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 incases where the sufficient
evidence is only that of a bailable offence, in which eventuality 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 trial, which power was
otherwise restricted to grant of bail by him during pendency of
committal proceedings under clause (a) of section 209. 10
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 a 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
9
1992 Cr. LJ 1299.
10
Id. at 1302; see also Morti Malhotra v. State of Rajasthan 1991 Cr. LJ 806.
94
11
Amin v. State, AIR 1958 All. 293.
12
Nathurasu v. State, 1998 Cri LJ 1762 (Mad).
13
Mir Hashamali (1917)20 Bom. LR 121 ; Kaubhai Chhaganlal, 1973 Cr LJ.
14
Praghunandan Pershad (1904)32 Cal 80, 83.
15
Varkey Paily Madthikudiyil, AIR 1967 Ker. 189; Narayen Prasad, AIR 1963 MP 276;
Bhramar Vs. State of Orissa, 1981 CrLJ 1057.
95
complaint with additional charges have been filed, accused may be directed to
surrender and then apply for bail in respect of additional charges. 27 Once the
accused had incurred the liability of the forfeiture of the earlier bonds, he is not
entitled to bail as a matter of right, even in bailable cases. 28 Where after the grant
of bail in bailable offence, subsequently non-bailable offence is added the accused
would not be allowed to remain on the same bail bonds, fresh bail application
would be referred for non-bailable offence.
4.5 Power to Refuse Bail
Sub Section (2) of section 436 empowers the Court to refuse bail to an
accused person even if the offence is bailable, where the person granted bail fails
to comply with the conditions of the bail bond. Such refusal will not affect the
powers of the Court to forfeit the bond and recover penalty from the surety as laid
down by section 446.
Even in bailable offence the Court has power to refuse to release a
person on bail. The person committed to custody under the order of the High
Court cannot ask for his release on bail under this section, but the High Court may
by subsequent order admit him to bail again. 29
An order granting or refusing bail is interlocutory. Order refusing bail is
not a final order. Bail may be refused at one stage but may be granted at a later
stage in the same proceedings. It can be even rescinded or modified or cancelled
at any stage. It does not terminate the proceedings or decides a point for decision
in the case and therefore is not a final order. 30
4.6 Notice on Bail Application
Whenever an application for remand of accused is moved on behalf of
prosecution, it has to be prepared for the opposition to the same and for a prayer
for the release of the accused on bail. The application for the remand and the bail
application are bound to be taken together at one and the same time without
27
Kalyan Vs. State of U.P. 1990 Cr.LJ 1658 (All).
28
Johny Wilson Vs. State of Rajasthan, 1986 CrLJ 1235: 1985 (2) Crimes 938 (Raj.).
29
Rati Pal Bhanji Mithani Vs. Asst.Collector of Customs, AIR 1967 SC 1639: 1967 CrLJ
1576.
30
K.P. Vasu Vs. State, AIR 1975 Ker. 15.
98
31
K.K.Girdhar Vs. MS. Kathuria, 1989 Cr.LJ 1094 (Delhi).
32
State of Mysore Vs.Biswanath Rao, 1966 Cr.LJ 267 (1965) 1 Mys. LJ 365; 1965 Mad. LJ
(Cr.) 849: AIR 1966 Mys. 71.
33
Joseph D. Kattampilly Vs. State of Kerala, 1970 Kerala 521.
34
Babu Ram Vs. State, 1988 A Cr. R. 464.
35
Kedar Nath Tiwari Vs. State of U. P., (1987) 1 Crimes 641; 1987 All. LJ 572; 1987
All.Cr. R. 289; 1988 (25) ACC 2.
36
Mahendra Pal Singh Vs. State of U. P. 1989 A.W.C. 1406; Rajendra Vs. State, 1989
A.Cr.R.96; 1989 All. LJ 223 Talab Haji Hussain Vs. Madhukar Purshottam Mondkar,
AIR 1958 SC 376 at 380.
37
Talab Haji Husaain Vs. Madhukar Purshottam Mondkar AIR 1958 SC 376.
99
38
In the matter of the petition of Daulat Singh, ILR 14 All. 45 at 47; see also Wadhawa
Singh Vs. Emperor, AIR 1928 Lah. 318.
39
ILR 63 Cal. 189: 37 CrLJ 1070.
40
ILR 14 ALL 45.
41
P.K.Roy Vs. State, AIR 1955 Cal. 277 at 278.
100
the warrant executed outside the limits of his jurisdiction his order for bail was
bad.42
1. See Sections 42 (2) 43 (3), 56, 59, 169, 170, 436 and 437 for powers
of police officers to release on bail;
2. Sections 71, 81, 88, 167, 187, 389, 390, 330, 339, 340, 436 and 437
for the general powers of Court to release on bail
3. Section 395 for bail by a Metropolitan Magistrate on making a
reference;
4. Sections 397, 400, 439, 440 for powers of Session Judge to release
on bail; and
5. Sections 389, 439 and 440 for powers of the High Court.
It is largely the facts of a case that incline a Court to grant bail. 43
4.8 Leaving Decision as to Sufficiency of Bail to Police Illegal
The practice of leaving to the police the decision as to the sufficiency of
bail, when bail has been ordered by the Court, is contrary to law. The duty of
deciding as to its sufficiency or otherwise is with the Court itself and not with the
police,44 though the Court may call for a report from the police.
4.9 Bail Bond Without Sureties: Need for a Clear Provision:
Where a person at the time of his arrest, holds a very high position under
the Government of India, it is a fit case in which a personal bond would be
deemed enough.45
4.10 Heavy Amount not to be Demanded
Bail covers both release on one’s own bond and one’s bond with surety or
sureties. What surety amount should be demanded is dependent on several
variable factors. Heavy amount should not be demanded as surety amount. There
is no provision in law to insist that surety must hail from within the district where
42
P.K.Roy Vs. State, AIR 1955 Cal. 277 at 278.
43
Jawahar Singh Vs. State (1986) 29 DLT 144; Om Parkash Vs. State (1986) 30 DLT 311;
Gordhan vs. State of Rajasthan (1986) 2 Crimes 630: 1986 RLW 540: 1986 Cr.L.R. 42.
44
Queen Empress Vs. Gayitri Prosunno Ghosal, ILR 15 Cal. 455 at 457.
45
Crown Vs. Makhan Lal (1947) 48 Cr. LJ 656 at 659.
101
the Court is situate.46 When the accused is not likely to abscond and has his roots
in the community, he can be safely released on personal bond. Enquiry into
solvency of the accused can become a source of harassment and often result in
deprivation of liberty and should not be insisted upon as a condition of acceptance
of the personal bond.47
Where sureties are insisted on, ordinarily due weight should be given to
the affidavits produced by the surety and an inquiry or insistence on a solvency
certificate must be the exception rather than the rule. 48
In the under noted case49 the Supreme Court has laid down the guiding
principles when accused can be released on personal bond without sureties. The
observations may be perused with advantage:
“If the Court is satisfied, after taking into account, on the basis of information
placed before it, that the accused has his roots in the community and is not
likely to abscond it can safely release the accused on his personal bond. To
determine whether the accused has his roots in the community which would deter
him from fleeing, the Court should take into account the following factors
concerning the accused:
1. the length of his residence in the community;
2. his employment status, history and his financial condition;
3. his family ties and relationships;
4. his reputation, character and monetary condition;
5. his prior criminal record including any record of prior release on
recognizance or on bail;
6. the identity of responsible members of the community who would
vouch for his reliability;
46
Moti Ram Vs. State of Madhya Pradesh AIR 1978 SC 1594;1978 Cr.LJ 1703.
47
Hussainara Khatoon Vs. Home Secretary, state of Bihar, AIR 1979 SC 1360: 1979 Cr.
LJ 1036.
48
Valson Vs. State of Kerala (1984) 2 Crimes 503.
49
Hussainara Khatoon Vs. Home Secretary State of Bihar, AIR 1979 SC 1360: Cr.LJ 1036.
102
ensure his attendance in Court.50 The proviso to this section excludes the
operation of its substantive part and empowers the Magistrate in his discretion to
detain a person who is sent to him under Section 107 by a Magistrate not
empowered to proceed under sub-section (1) of that section. This section,
however, can have application only during the pendency of criminal proceedings
whether in regard to an offence or under Chapter VIII of the Code, and it has no
application once a person has been convicted of a substantive offence or has been
ordered under Section 118 to furnish security. 51
Where the police reported to the joint Magistrate that a person was a bad
character and a champion of thieves and receiver of stolen property, the
Magistrate directed evidence to be adduced as to such person’s general character
and summoned him to show cause why he should not be required to give security
for good behaviour for one year. On the same day the person appeared in answer
to the summons and several witnesses were examined by the prosecution who
gave evidence as to his general bad character by repute and of specific acts of bad
livelihood. The case was then adjourned to the following day in order to allow the
accused person to produce his witnesses to character and he entered into a
personal recognizance of Rs.500/- to appear on the adjourned date. It was held
that the Magistrate was empowered to take a personal recognizance from the
accused person for his appearance at the adjourned hearing.52
Where a person was neither arrested under Section 107 Cr. P.C., nor sent
up to the sub-Divisional Magistrate but was arrested under the proviso to Section
113, it was held that the Magistrate had no jurisdiction to refuse bail. 53
Since the Magistrate is responsible for the maintenance of public peace
within his jurisdiction, when he has made an interim order against a person
committed by him to custody on the ground that such an order is necessary for
preserving the public peace, it should not be lightly interfered with by a higher
authority like the Court of Session. No doubt, if there is anything irregular or
50
Emperor Vs. Karbalai Hussain Ali Husain Rizir, AIR 1940 Nag.85.
51
Emperor Vs. Rasulbux AIR 1942 Sind 132 at 133; LLR 1942 Kar. 278.
52
Queen Vs. Chocha Rai, 7 NWP HCR 366 at 371.
53
Faiz Mohd. Vs. Emperor 17 CrLJ (1).
105
illegal in the order it is the bounden duty of the Sessions Court to give relief to a
private citizen who is injuriously affected by the order.54
The provision to sub-section (1) of this section deals with the power of a
court when a person appears or is brought before it and is prepared at any time to
give bail. Where the offence is a non-bailable one, the proviso certainly cannot
control the provision of Section 439. 55
The discretion of the Court in granting bail to the petitioners was disputed
on the premises that security proceedings had been initiated against the
petitioners. It would be difficult at pretrial stage to determine whether those
proceedings are well measured or is a mere measure to influence the Court to
withdraw the concession of bail. Adequate safeguards otherwise in the form of
interim security under Section 116 of the Code of Criminal Procedure could be
asked for at the pain of which the petitioners could be confined. In the
circumstances, the concession of the bail should not have been withdrawn
abruptly after the grant of bail within a span of just ten days. 56
4.12 Conditional Bail
The Court or the police officer has to grant bail to an accused in a case
relating to a bailable offence. Bail has, therefore, to be granted to the accused in
such cases, and any condition in the order granting the bail, other than the one for
attendance of the accused, would, therefore, be illegal.57In respect of bailable
offences, a Magistrate cannot impose a condition that the accused should appear
before the police.58
The Rajasthan High Court while rejecting the prayer for cancellation of
bail however imposed condition for a short period of one week that the non-
petitioner Nos. 1 and 2 should appear before the Investigating Officer for further
interrogation. The said non-petitioners were not to leave the town during the week
and were to present themselves for interrogation before the Investigating Officer
54
Lakshmanan Velayudhan vs. State, AIR 1952 TC 182 at 183.
55
Ibid. 182 at 183.
56
Lakhmir Singh Vs. State of Punjab 1981 CrLJ 258 at 259 (P&H).
57
Sardamma In re (1965) 2. Andh W.R. 289, AIR 1965 AP 444 at 446,447.
58
Paulose Vs. State, 1978 Ker. LT 337.
106
or such Police Officer and at such time during the week, as they may be directed
by the Investigating Officer. Non-petitioner Nos. 1 and 2 could leave after seeking
permission of the Investigating Officer. With these conditions the application for
cancellation of bail was rejected. 59
The condition that a person accused of a bailable offence has to surrender
his pass-port is not a term as to bail and therefore cannot be imposed by a
Magistrate under Section 436.60
But the High Court can restrict the appellant’s departure from India. These
terms and conditions do not fetter inherent powers of the High Court. 61
4.13 Money may be Deposited Instead of Executing Bond
The law does not contemplate or authorize a Magistrate to demand a cash
deposit as a condition precedent to the release of the prisoners or accused persons
on bail. The provisions of Section 441 of the Code prescribe that the amount of
every bond should be fixed with due regard to the circumstances of the case and
should not be excessive.62 But Section 445 permits of a deposit of a sum of money
or Government Promissory Notes, except in the case of a bond for good
behaviour, in lieu of executing a bond.
There is no provision for asking the accused to furnish cash bail and such
an order was set aside.63
4.14 Bond should be by Accused and not by Agent when Personal Attendance
of Accused Dispensed with
Where the personal attendance of an accused person is dispensed with a
recognizance bond, if deemed necessary, should be taken from him and not from
his agent though he may appear by agent and if the agent neglected to attend
when the case was called on, the recognizance bond might be held forfeited and
the accused made liable for the payment of the penalty. 64
59
Mool Chand Vs. Bulaki Das, 1981 Raj. Cr.C. 255.
60
Azeez Vs. State of Kerala (1984) 2 Crimes 413.
61
Hazari Lal Gupta Vs. Rameshwar Prasad, AIR 1972 SC 484 at 486.
62
Rajballam Singh Vs. Emperor, AIR 1943 Pat. 375 at 376 (1).
63
Surindra Lal Das Vs. Lalika Das (1976-77) 81 CWN 77; 1977 Cr.LJ 405.
64
Reg. Vs. Lallubhai Jasubhai, 5 BHCR Cr. Cas. 64 ad 65.
107
65
Rambalak Pandit Vs. State of Bihar, 1984 Pat. LJR 150 at 152.
66
Jayantilal Purshottamdas Vs. State of Gujarat, 1966 Cr.LJ 209 at 210 (Guj).
67
Mohit Malhotra Vs. State of Rajasthan, 1990 Raj. Cri. Cas. 68.
108
68
In re Balasundra Pavalar, AIR 1951 Mad. 7 at 9.
69
Lal Mohan Mandal Vs. Kali Kishore Bhuymah (1911)12 CrLJ 179 at 170 (Cat.).
70
Crown Prosecutor, Madras Vs. N.S.Krishnan, AIR 1945 Mad. 250 at 251, 252.
71
Sohan Singh Social Worker etc. Vs. Mr. S.S. Sohal Adl. CJM, Amritsar, 1983 Cr.LT 467
at 489 (P&H)
72
Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939
109
jurisdiction springs from the overriding inherent powers of the High Court and
can be invoked in exceptional cases only when the High Court is satisfied that the
ends of justice will be defeated unless the accused is committed to custody. This
inherent power of the High Court exists and is preserved by Section 482 of the
Code. The person committed to custody under sub section (2) of section 439
confers upon the High Court or the Court of Session power to cancel bail in
regard to cases of persons accused of any offences where such persons were
admitted to bail under this chapter, 73 though ordinarily a Magistrate has no power
under the Code to cancel the bail of the accused persons who are on bail in
bailable offences.74
When an accused has been released under section 436 and later a non
bailable offence is added, even then the bail granted cannot be cancelled. Bail can
be cancelled only either under section 439 (2) or Section 437 (5). 75
Once bail is granted under Section 436 and a charge-sheet for a non
bailable offence also is filed, bail cannot be cancelled unless there is misuse of the
liberty granted.76
When bail has been granted in a case instituted by the police, on a
complaint case being filed in regard to certain other offences alleged to have been
committed in the course of the same transaction, the accused has to apply and get
bail in regard to the later also.77
But in case an order has been made for releasing a person on bail and it is
later found that such order is either based on some misapprehension or being
otherwise infirm, is likely to prejudice the interest of administration of justice,
then this provision of law seems to amply empower the Courts mentioned therein
to make a suitable order canceling the order of release on bail so as to protect and
safeguard the cause of justice. This provision necessarily implies jurisdiction in
73
Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939.
74
Janardhan Yadav Vs. State of Bihar, 1978 BLJ 42: 1978 Pat. LJR 361.
75
Vijendra Vs. State of Rajasthan, 1988 R.Cr.C. 431.
76
Inder Pal Singh Vs. State, 1988 A. Cr.R.722
77
Kalyan Vs. State of U.P. 1990 Cr LJ 1658 (ALL).
110
the Court concerned to cancel an order even before the person in question has
been actually released, and it is not intended to prohibit the court from canceling
the order of release on bail before it is executed. 78
The accused was on bail in a case pending against him under section
376/511 Penal Code and it was fixed for evidence of prosecution on 8 th August
1974. He had gone out to meet his relative and fell ill there and was under the
treatment of the Officer-in-charge of the Civil Hospital. He sent a telegram on 7 th
August 1974 to the court informing about his illness. The Court on 7th August
1974 issued non-bailable warrant for arrest of the accused and on 8 th August the
bail bond of the accused and surety bond of the surety were cancelled. It was held
that there was no justification for the Sessions Judge to issue non bailable
warrants against the accused on the 7th August 1974. In his order, dated 7th August
1974 it was mentioned that no medical certificate has been forwarded. A medical
certificate could not be sent along with the telegram. The accused fell sick on the
7th August, 1974 and therefore, the medical certificate could not reach the Court
on the same day. No opportunity was given to the accused to show cause why his
bail bond should not be cancelled. The Sessions Judge had already issued non
bailable warrant of arrest against the accused on the 7 th August; therefore there
was no justification for him to forfeit the bail bond and the surety bond on 7 th
August before hearing the accused. The order of the Sessions Judge was
accordingly set aside.79 When an accused on bail absconds he forfeits the
concession to remain on bail.80
Where the applicant in revision is on bail, on the dismissal of the revision
application it is not necessary to pass a specific order that he should surrender
to his bail because bail is itself only granted till such time as orders are passed
on the revision application.81
78
Bakshi Sardari Lal Vs. Superintendent Tihar Central Jail, Delhi 1968 Cr. LR 675 at 680
(Del.).
79
Uttam Singh Vs. State of Punjab (1973) 76 PLR 699.
80
Johny Wilson Vs. State Of Rajasthan 1986 CrLJ 1235 Raj.
81
Lachman Prasad Vs. Emperor, AIR 1943 All. 23 at 24.
111
82
Kedar Nath Tiwari Vs. State of U. P. 1987 (1) Crimes 641 (All).
83
Kali Dass Vs. SHO, Police Station Reasi, 1979 CrLJ 345 (J&K).
84
Jssma Vs. State of U.P. 1993 Cr.LJ 2432 (All).
85
Devendra Singh Negi Vs. State of U.P. 1994 Cr. LJ 1783 (All).
86
Babu Mida Vs. State of M.P. 1978 Cr.LJ 1846 (MP).
87
Aftab Ahmed Vs. State of U.P. 1990 Cr. LJ 1636 (All-DB).
112
the personal bond and surety is essentially a matter of discretion and within the
jurisdiction of the Court.88
In regard to a bailable offence Magistrate is not competent to impose
condition. The accused has a right to be enlarged on bail.89 The imposition of
condition in bail order that accused shall appear before the investigating officer
once in three days was held unsustainable and hence set aside. 90 The condition
that a person accused of bailable offence has to surrender his passport in Court is
not a term as to bail and therefore cannot be imposed by a Magistrate. 91 The
Supreme Court has held that unnecessarily inhibitive condition ought not to be
imposed while granting bail. An order rejecting surety because he or his estate
was situated in a different district was held to be discriminatory and violate of
Article 14 of the Constitution.92
4.20 Effect of Execution of Bail Bonds Before Police
There is no provision in the Code for asking an accused already released
on bail by the police officer to furnish fresh bail and bonds. Where bail bonds
submitted before the police officer for purposes of appearing before the Court
have already been given, fresh undertaking for the same effect is not to be asked
for. Bail and bonds should ordinarily be for appearance not only before the Court
of Magistrate but also if the case is triable by the Court of Session before the
Court of Session unless there are particular reasons for not doing so. 93
4.21 Cancellation of Bail by Magistrate
In an Orissa case94 it has been held that Magistrate has power to cancel
bail, be the offence bailable or not, the deciding factor being whether the accused
88
Chowriappa Constructions Vs. Embassy Constructions Devpt. P. Ltd. (2002) 4 All. Cri R
654 2002 Cr.LJ 3863 (3865) (Kant.
89
Talab Haji Husain Vs. Madhukar. AIR 1958 SC 376.
90
Hanumanthegowda Vs. State of Karnataka. 1997 (1) Crimes 303 (Kant).
91
Azeez Vs. State of Kerala, 1984 Cr.LJ 1059: 1984 (2) Crimes 413.
92
Moti Ram Vs. State of MP, 1978 Cr.LJ 1703:AIR 1978 SC 1594: (1978) 4 SCC 47: Linga
Raju Vs. The State of Chattisgarh, 2002 (1) Crimes 474 (Chatt.).
93
Monit Malhotra Vs. State of Rajasthan 1991 Cr.LJ 806, 808 (Raj.)
94
AIR 1962 SC 253: (1962) 3 SCR 622: (1962) 1 CrLJ 215.
113
by his behaviour and conduct forfeited the concession shown to him. 95 Affirming
the decision it was held the power to forfeit bail bond is inherent in any court and
when circumstances justify the court is competent to cancel the bail which was
granted earlier. The question is not whether the offence is bailable or non-
bailable. The determining feature is whether the accused by his behaviour and
conduct has forfeited the concession shown to him. 96 It has been held, however, in
a Patna case that Magistrate has no power to cancel bail in bailable offence. High
Court or Sessions Court may so cancel. 97 A person accused of bailable offence
when is committed to custody by reason of his bond being forfeited cannot claim
to be released on the ground of the bailability of the offence, for his commitment
to custody is not for reason of the fact that he is alleged to have committed a
bailable offence but by reason of a judicial order forfeiting his bond is a
consequence of the conduct of the accused showing pending trial be should not be
at large.98 As to forfeiture of bond when the bond is for appearance, the fact of
accused’s failure to appear on the date fixed operates to the bond being forfeited
forthwith.99
That on such forfeiture the accused bailed out even in bailable offences
entails the risk of the bail bond of surety cancelled gets statutory affirmation by
the insertion of section 446-A, Cr. P.C. by section 6, Cr. P.C. (Amendment) Act,
1980 coming into force with effect from September 23, 1980.Section 446-A, Cr.
P.C. 1973 prevails over the compulsory bail provision in section 436 Cr. P.C.,
1973. Section 446-A provides that for breach of a condition a bond furnished for
release on bail in bailable offence may stand forfeited and cancelled. And once
this is done no such person shall be released only on his own bond, in that case, if
the police officer or the court, as the case may be, for appearance before whom
95
Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ (NOC) 104(Ori.): (1977)44 Cut LT
466.
96
Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ 45 Cut LT 11 AIR 1940 Bom 40.
97
Janardhan Sadh Vs. State Of Bihar 1978 CrLT 1318 (Pat).
98
T. H. Hussain Vs. M.P.Mondkar, AIR 1958 SC 376: 1958 SCR 1226: 1958 Mad LJ (Cr)
512: 1958 All Cr.391: 1958 CrLJ 701: 1958 SCJ 672: (1958) 2 Mad LJ (SC) 37: (1958) 2
Andh WR (SC) 37: 1958 All WR (SC) 591: 60 BLR 937.
99
Ramananda Chowdhary Vs. State of Orissa, 1978 CrLJ 597: 1977 Cut LR (Cr) 452: Ram
Chander Vs. State of U.P. (1981) All Cr C 217.
114
the bond was executed, is satisfied that there was no sufficient cause for the
failure of the person bound by the bond to comply with its condition. Subject to
other provisions of the Code of Criminal Procedure the accused may be released
in that case upon execution of fresh personal bond for such sum of money and
bond by one or more of such sureties as the police officer or the court, as the case
may be, thinks sufficient.
4.22 Power to Cancel Bail in Bailable Offences must be Used Sparingly
While holding that the High Court in exercise of its inherent powers under
S. 561-A of Cr. P.C. (of 1898) could cancel bail granted to an accused in a
bailable offence, the Supreme Court held that this inherent power has to be
exercised sparingly, carefully and with caution and only such exercise is justified
by the tests specifically laid down in the section itself. The Supreme Court further
observed that after all, procedure, whether criminal or civil, must serve the higher
purpose of justice; and it was only when the ends of justice were put in jeopardy
by the conduct of the accused that the inherent power could and should be
exercised in cases as in the instant case. 100
4.23 Cancellation of Bail where Accused Absent Himself
In Panna Lal v. R.K. Sinha,101 it was contended that the applicant was
accused of a bailable offence for which he had already been granted bail under the
provisions of Section 496 Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of
1973], which was an absolute and indefeasible right; therefore the Sessions Judge
had no jurisdiction to cancel his bail and order his arrest in spite of the fact that he
had absented himself and had failed to attend the court. Relying upon the decision
of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam
Mondkar,102 it was held by the Allahabad High Court that in the said case the
Supreme Court had made it abundantly clear that if an accused has abused his bail
(by not attending the Court or otherwise ) his commitment to custody thereafter is
not by reason of the fact that he was charged of a bailable offence; on the other
100
Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at p. 381 :
1958 SCR 1226 : 1958 Cri LJ 701.
101
1967 Cri LJ 980 at p. 983 (All) : AIR 1967 All 304.
102
AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.
115
hand, his subsequent commitment to the custody is on the ground that he has
forfeited his bail. It was held that in such a case the accused could not fall back
upon his original right under Section 496 Cr. P. C. (of 1898) [equivalent to S. 436
of Cr. P. C. of 1973] which had ceased to be applicable to his case, because of his
default.
It was further held by the Allahabad High Court that it was true that the
Supreme Court in the said Talab Haji Hussain case had also remarked that there
was no specific provision for the cancellation of the bond and re-arrest of a person
accused of a bailable offence; but this remark was evidently with reference to the
powers of an appellate or revisional authority, like the High Court, and that it was
not meant to cover the case of first instance which had initially granted bail as
there was a specific provision in Section 92, of Cr. P. C. (of 1898), conferring a
right of cancellation of bond and re-arrest of the offender. It was also observed by
the High Court that it appeared that in said Talab Haji Hussain case, the
provisions of Section 92 of Cr. P. C. (of 1898) had not been brought to the notice
of the Supreme Court. Accordingly, the High Court held that, in the instant case,
on failure of the application to appear before the Session Judge, the latter who had
initially granted bail, was fully competent to issue warrants against the applicant
to enforce his attendance before him, irrespective of the fact that the applicant was
originally charged of a bailable offence. It was held that in such a case the
accused was ordered to be arrested because of his default and forfeiture of the
personal and surety bonds, by failing to attend the court on the date fixed in the
case. Accordingly, it was held that the Sessions Judge had full jurisdiction not
only to issues warrants for the arrest of the defaulting applicant but also to commit
him to custody.103
4.24 After Cancellation, can Accused Demand Bail Again as of Right?
In Talab Haji Hussain v. Madhukar Purshottam Mondkar,104 where the
High Court in exercise of its inherent powers had cancelled bail granted to the
accused in a bailable offence, it was contended that the provisions of S. 496 of
103
Panna Lal v. R.K. Sinha, 1967 Cri LJ 980 at p. 983 (All) ; AIR 1967 All 304.
104
AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.
116
Cr. P.C. (18980 [ equivalent to S. 436 of Cr. P.C. of 1973] were plainly
inconsistent with the exercise of inherent power by the High Court under S. 561-
A of Cr. P. C. (of 1898) [ equivalent to S. 436 of Cr. P.C. of 1973] against the
instant case, that despite the order of cancellation of bail passed by the High
Court, the accused would be entitled to move the trial Court for bail again and the
trial Court would be bound to release him on bail because the right to be released
on bail recognized by S. 496 of Cr. P.C. (of 1898) was an absolute and an
indefeasible right; that despite the order of the High Court, that right would still
be available to the accused; and that in such a scenario, the order passed for
cancellation of bail using inherent powers would be rendered ineffective and that
itself would show that there was a conflict between the exercise of the said power
and the provisions of S. 496 of Cr. P.C. (of 1898). Terming the said argument
attractive, the Supreme Court held that a close examination of the provisions of S.
496 of Cr. P. C. (of 1898) {equivalent to S. 436 of Cr. P.C. of 1973] would show
that there was no conflict between its provisions and the exercise of the inherent
jurisdiction under S. 561-A of Cr. P. C. (of 18980 [equivalent to S. 436 of Cr.
P.C. of 1973]. The Supreme Court further observed as under (sections mentioned
in the following para are from the old Cr. P. C. of 1898) :
“In dealing with this argument it is necessary to remember that, if
the power under S. 561-A is exercised by the High Court, the bail
offered by the accused and accepted by the trail Court would be
cancelled and the accused would be ordered to be arrested
forthwith and committed to custody. In other words, the effect of
the order passed under S. 561-A, just like the effect of an order
passed under S. 497(5) and S. 498(2),would be not only that the
bail is cancelled but that the accused is ordered to be arrested and
committed to custody. The order committing the accused to
custody is a judicial order passed by a criminal Court of competent
jurisdiction. His commitment to custody thereafter is not by reason
of the fact that he us alleged to have committed a bailable offence
117
105
Talab Haji Hussian v. Madhukar Purshottam Mondkar, AIR 1958 Sc 376 at p. 380.
106
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ.
107
(2008) I SCC 474 at pp. 479-80.
119
under they would have been required to surrender as the bail application could be
entertained and heard only if the accused were in custody. It was held that as no
order adverse to the accused had been passed by any court nor was there any
miscarriage of justice or any illegality, in such circumstances, the High Court
committed manifest error of law in entertaining a petition under Section 482 Cr.
P. C. and issuing a direction to the subordinate court to accept the sureties and
bail bonds for the offence under Section 304 IPC. It was observed that the effect
of the order passed by the High Court was that the accused after getting bail in an
offence under Sections 324,352 and 506 IPC on the very day on which they were
taken into custody, got an order of bail in their favour even after the injured had
succumbed to his injuries and the case had been converted into one under Section
304 IPC without any court examining the case on merits, as it stood after
conversion of the offence. The procedure laid down for grant of bail under
Section 439 Cr. P. C., though available to the accused, having not been availed of,
the exercise of power by the High Court under Section 482 Cr. P.C. was clearly
illegal. Accordingly, the aforesaid order passed by the High Court was set aside.
In the aforesaid case of Hamida v. Rashid,108 in a petition under S. 482 Cr.
P. C., the High Court had allowed the continuation of the same bail which was
granted to accused in a bailable offence even after its conversion into an offence
under S. 304 IPC. While setting aside the said order, the Supreme Court held that
in spite of its repeated pronouncements that inherent power under Section 482 Cr.
P. C. should be exercise sparingly with circumspection in rare cases and that too
when miscarriage of justice is done, the High Court entertained the petition under
Section 482 Cr. P. C., the ultimate result where of was that the order of bank
granted in favour of the accused for an offence under sections 324,352 and 506
IPC ensured to their benefit even after the offence had been converted into one
under section 304 IPC and also subsequently when charge had been framed
against them under section 302 read with Section 34 IPC. The accused did not
remain in custody even for a single day nor did they approach the Court of Chief
108
(2008) I SCC 474 at p. 480.
120
Judicial Magistrate or sessions Judge for being granted bail under section 304 or
302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue
of the said order passed by the High Court. Highlighting that the dockets of the
High Court are full and there is a long pendency of murder appeals in the High
Court from which the instant case had arisen, the Supreme court held that ends of
justice would be better served if valuable time of the High Court is spent in
hearing those appeals rather than entertaining petitions under Section 482 Cr. P.
C. at an interlocutory stage which are often filed with some oblique motive in
order to circumvent the prescribed procedure, as was the case in the instant case,
or to delay the trial which would enable the accused to win over the witnesses by
money or muscle power or they may become disinterested in giving evidence,
ultimately resulting in miscarriage of justice.
In a case, the accused were arrested for the commission of bailable offence
and accordingly they were released on bail by the Magistrate. Subsequently, the
charge was altered and S. 307 IPC was included which is non-bailable and
exclusively triable by the Court of Session. Only on that ground the police
arrested the accused without the bail being cancelled by the Court. In other words,
the police did not move the Court to cancel the bail, making out a case that they
are required for an offence under S.307, IPC. Therefore, the arrest by the police
itself was illegal. Subsequently when the accused were produced before the
Magistrate, the Magistrate also did not look into the fact that they were released
by the same Court on earlier occasion in the same crime number. Therefore,
before remanding the accused, the Magistrate ought to have considered whether
their bail application should be cancelled or not. Without cancelling the bail
which was granted by the same Court and remanding the accused without
assigning any reasons, the said order was illegal. If the police is allowed to arrest
the accused who has been released on bail by the Court, it will lead to disastrous
consequences as the police will be able to arrest the same accused under the same
crime number by altering the section, making it a non-bailable offence. Therefore,
it is absolutely necessary that before the accused is re-arresting in the same crime
121
bail had been made on their behalf or being too poor they were unable to furnish
bail. The Supreme Court observed as under in this regard:
“It is not uncommon to find that under-trial prisoners who are
produced before the Magistrate are unaware of their right to obtain
release on bail and on account of their poverty, they are unable to
engage a lawyer who would apprise them of their right to apply for
bail and help them to secure release on bail by making a proper
application to the Magistrate in that behalf. Sometimes the
Magistrates also refuse to release the under-trial prisoners
produced before them on their personal bond but insist on
monetary bail with sureties, which by reason of their poverty the
under-trial prisoners are unable to furnish and which, therefore,
effectively shuts out for them any possibility of release from
pretrial detention. This unfortunate situation cries aloud for
introduction of an adequate and comprehensive legal service
programme, but so far, these cries do not seem to have revoked any
response.”
Calling for the setting up of a nationwide legal service programme to
provide free legal services to the poor, the make it possible to reach the benefits of
the legal process to them, to protect them against injustice and to secure to them
their constitutional and statutory rights, the Supreme Court held that when Article
21 provides that no person shall be deprived of his life or liberty except in
accordance with the procedure established by law, it is not enough that there
should be some semblance of procedure provided by law, but the procedure under
which a person may be deprived of his life or liberty should be “reasonable, fair
and just”. The Supreme Court further observed that a procedure which does not
make available legal services to an accused person who is too poor to afford a
lawyer and who would, therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as “reasonable, fair and just”. The
Supreme Court held that the right to free legal services is an essential ingredient
123
of “reasonable, fair and just” procedure for a person accused of an offence and is
implicit in the guarantee of Article 21. This is a constitutional right of every
accused person who is unable to engage a lawyer and secure legal services on
account of reasons such as poverty, indigence or incommunicado situation and the
State is under a mandate to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so required, provided of course
the accused person does not object to the provision of such lawyer. Accordingly,
in the instant case, the Supreme Court directed the State to provide lawyer as its
cost to the under-trial prisoners, charged with bailable offences, when they were
to be produced before the Magistrates on the next remand dates, for the purpose
of making an application for bail. 112
As mentioned earlier, it may be pointed out that S. 436 of Cr. P.C. has
been amended subsequently by Act No. 25 of 2005 to ensure that a poor person
does not have to remain in custody in a bailable offence due to not being able to
furnish sufficient sureties. This offers a solution at least for a part of the problem
highlighted in the aforesaid Supreme Court judgment. It is also pertinent to
mention that “legal aid”, a free legal service to poor persons, has also become
quite established by now.
4.28 Issuance of Non-Bailable Warrant in a Bailable Offence
In a case, the offence alleged against the accused were under Sections
341, 323 and 506, IPC which were all bailable. They were released on bail
accepting cash surety offered by them. While granting bail the Magistrate had not
imposed any conditions nor he had given any date for the accused to appear
before the Court. However, subsequently, even before the charge-sheet was filed,
the Magistrate took up the case and directed to issue non-bailable warrant against
the accused. It was held that the Magistrate cannot issue non-bailable warrant
according to his whims and fancies without assigning any specific reason for
doing so. It is incumbent on the Magistrate to satisfy himself as to whether non-
bailable warrant will have to be issued under the compelling circumstances. If the
112
Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980)1 SCC 98 at pp. 103-5.
124
accused failed to appear before the Court on the date fixed by the Court for his
appearance be one of the reasons for the Magistrate to issue non-bailable warrant.
Accordingly, the said order of the Magistrate directing issuance of a non-bailable
warrant was set aside.
4.29 Section 436-A: Maximum Period for which an Under-trial 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 that one half of 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 minimum period of
punishment.
Provided for the said offence under that law.
“Explanation – In computing the period of detention under this section for grant
of bail the period of detention passed due to delay in proceedings caused by the
accused side be excluded.
New section 436A inserted by the Cr.P.C. (Amendment) Act 2005 (25 of
2005) enforces w.e.f. 23.6.2006 vide Notification No. S.). 923 (E) dated
21.6.2006.
There had been instances, where under-trial prisoners were detained in jail
for periods beyond the maximum period of imprisonment provided for the alleged
offence. The new Section 436A inserted in the Code by Cr.P.C. (Amendment)
Act, 2005 (25 of 2005) provides that where an under-trial prisoner other than the
125
one accused of an offence for which death has been prescribed as one of the
punishments, has been under detention for a period extending to one-half of the
maximum period of imprisonment provided for the alleged offence, he shall be
released on his personal bond, with or without sureties.
It is also proposed to provide that in no case will an under trial prisoner be
detained beyond the maximum period of imprisonment for which he can be
convicted for the alleged offence.
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.
No such person shall in any case be detained during the period of
investigation, inquiry or bail for more than the maximum period of imprisonment
provided for the said offence under that law.
Bail is a right and refusal is an exception. However, the courts can impose
the conditions while granting bail. But the conditions should not be unreasonable.
Courts have also power to cancel bail. But power to cancel bail in non-bailable
offences must be used sparingly. It is the duty of the Magistrate to dispose of the
bail application as early as possible.
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