BAIL & BAIL BONDS

PRESENTED BY,
M. KARUNANITHI, B.Sc., M.L.,
SENIOR PANEL COUNSEL,GOVERNMENT OF INDIA
Advocate, Madras High Court, Madurai Bench
Former Special Public Prosecutor ‘Q Branch CID
Cell No:93611 78345 Email: kanlaw1971@gmail.com
 Remand

Police Custody Judicial Custody

There must be application of mind Shall transmit a copy of the

Sec 167(1) Crl.P.C
and... there are grounds for believing
that the accusation or information
is well founded.
entries made in the diary… to
Judicial Magistrate along with
remand request and accused

Remand to custody can not be made mechanically. Judicial mind has

to be applied on the materials placed before him.
It also amounts to taking cognizance, but for the limited purpose

Which law confers right to judicial Magistrate to take the accused in to

custody…. S.167 Crl.PC. With out provision of law judicial Magistrate
can not pass any order. Since, no inherent power is vested with judicial
Magistrate like Sec.151 Crl.PC
 Section 167(2) Crl.P.C
Remand to custody can be done only by judicial Magistrate Section
167(2A)… in case of non-availability of judicial Magistrate...I.O
accused can produce before the Executive Magistrate who has been
conferred power of Judicial Magistrate or Metropolitan Magistrate

Remand During investigation(Pre-Cognizance Stage)

u/s 167(2) Crl.P.C

Post Cognizance stage

1)Sec.209(1) a) remand the accused to custody
2)Remand the accused
3) Sec 309(2) … and may by warrant remand the accused if it custody
after Judgement of Acquittal on Admission of appeal against
acquittal
Sec 390… appeal u/s 378… HC may issue warrant directing that the
accused be arrested and brought before the it.
 BAIL – Post - Judgement

1.Suspension of conviction
2. Suspension of sentence
3.Suspension of Fine
4.Suspension of Compensation

After Judgement of Acquittal

on Admission of appeal against Acquittal
Sec 390 Crl.PC… appeal u/s 378 Crl.PC… HC may issue
warrant directing that the
accused be arrested and brought before the HC.
Bail may be granted.
 ARREST AND CUSTODY – DISTINCTION:
 There is a remarkable distinction between police custody
and arrest by police. The term arrest has been defined in
Section 41 of Code of Criminal Procedure, 1973, but what is
meant by custody has not been defined in the Code of
Criminal Procedure.
 In every arrest there must be a custody but not vice versa.
Arrest is a mode of formally taking a person into police
custody, but a man may be in police custody in other ways.
 The word “in custody” used in Section. 27 of the Indian
Evidence Act only denotes survillance or restriction on the
movements of the person concerned.
[Harbans Singh v. State]- AIR 1970 BOM 79 :: 1970 Cr.L.J 325
[K.M.Cheriyan v. D.Johnson]- 1969 MLJ (Crl.) 765
 After Arrest (S. 57 Within 24 hours)/
Remand (S.167(2)) to Bail in a bailable offence
1. Judicial Custody 2.Police custody u/s. 436 Cr. P.C.

Accused unable to furnish surety – No proviso for cancellation of

within a week of arrest – indigent person bail in a bailable offence
– he shall be discharged on his own bond u/s. 436 Cr. P.C.

Bail – Non - bailable offence – u/s. 437 (5) Cr.P.C. – Cancellation

u/s. 437 Cr.P.C. of bail

u/s. 439 Cr.P.C. – Bail – Non -

u/s. 438 Cr.P.C. – Anticipatory bail bailable offence – Power of High
court and Sessions Court

u/s. 439 (2) Cr.P.C. – Bail granted under this chapter can be cancelled
(including bail in a bailable offence and anticipatory bail)
 CHAPTER XXXIII
BAIL AND BAIL BONDS
SEC 436 TO 450
 436 – bail in a bailable offence
 436 A – maximum period for which an under
trial prisoner can be detained
 437 – bail in a non bailable offence
 437 A – bail to require accused to appear
next appellant court
 438 – anticipatory bail
 439 – special power of High Court/
Sessions Court - bail
 Chapter XXXIII
Bail and Bail Bonds
Sec 436 to 450
 440 – Amount of bond and reduction
 441 – bond of accused and sureties
 441 A – declaration of sureties
 442 – discharge from custody
 443 – power to order sufficient bail
 444 – discharge of sureties
 445 – deposit instead of recognizance
 Chapter XXXIII
Bail and Bail Bonds
Sec 436 to 450
 446 – procedure when bond has been forfeited
 446 A – Cancellation of bond and bail bond
 447 – Procedure – insolvency / death of surety
 448 – bond from minor
 449 – Appeal from orders u/s 446
 450 – power to direct levy of amount due on
certain recognizance
 Bail and Bail Bonds

Bailable Offence - Sec 2(a) Non-Bailable Offence - Sec 2(a)

Sec 436 Crl.P.C Sec 437 & 439 Crl.P.C
No proviso to cancel bail
Pillappan (a) Ravikumar V. State
2018 (2) MLJ Criminal 502
Guidelines given by Madras HC

Anticipatory Bail
Bail – Exclusively triable Sec 438 Crl.P.C
by Court of Session No proviso to cancel
anticipatory bail

Sec 439 (2) Cr.P.C Enables the court of session and

High Court to cancel bail granted under the chapter
Bail and Bail bonds
 Bail

Bailable Offence Non - Bailable Offence

Exclusively triable by court of sessions

In Some cases Judicial Magistrate can grant bail

in a case exclusively triable by court of session
 2001 SCC crl 674
 2005 MLJ crl 85
 Difference between Bail u/s 437(6) and
Bail u/s 167(2) crl.P.C

Bail u/s 167(2) mandatory and absolute

Bail u/s 437(6) Crl.P.C is mandatory

but not absolute
1992 Crl.L.J 3712
2001 Crl.L.J 1727

Exception to section 167(2) Crl.P.C (default Bail)

1. NDPS Act
2. Section 43(D),(2)(b) of unlawful activities
prevention Act
 Applicability of S.437(6)

Date of Examination of accused must be fixed in

a non-bailable case

After trial date, if trial not concluded within six

months – bail mandatory

If reasons to be recorded – bail may be rejected –

Otherwise accused must be released on bail
 Bail Conditions

• In bailable offence no condition can be imposed.

• Exclusively triable by court of sessions – Whether
Judicial Magistrate can grant bail?

- In some cases Judicial Magistrate can grant bail.

Related Judgements:
2001 SCC Criminal 674
2005 MLJ Criminal 85
 Bail Conditions
• The conditions as contemplated U/S 437 (3) and 438 (2),
439(1)(a) alone can be imposed.
• Onerous condition
a) To deposit cash security
b) To produce close relative as surety
c) To produce sale deed and to do any work like to remove
karuvela tree.

• Related Judgements:
2018 (1) Law weekly Criminal 102
2015 MLJ Criminal Page 471
3 AIR 2009 SC page 2072
2015 (2) MWN (CRL) 438
2017 (1) Law Weekly Criminal page 800
2009 (12) SCC 721
 Scope of Bail U/S 167(2) Cr.P.C
• Judges / Judicial Magistrate has power to remand the accused
U/S 167(2) Cr.P.C – It is not absolute – Restrictions are there.
• After 60 / 90 days if valid final report has not been received –
accused cannot be kept under custody – Accused has got
indefeasible right to get bail – how to calculate 60 / 90 days:
1. Not the date of arrest – it commences from the date of first
remand.
• No notice to the public prosecutor is necessary.
• Petition U/S 167 (2) Cr.P.C to be decided on the same day.
• Whether bail granted U/S 167 Cr.P.C can be cancelled on filing of
final report?
- No – Bail once granted U/S 167 Cr.P.C cannot be cancelled
merely on the ground that final report is filed ( 2000 (2) MWN
Criminal 158 ).
• Defective chargesheet – can bail U/S 167(2) Cr.P.C rejected?
– NO (2004 (2) LW Criminal 545 ).
 Scope of Bail U/S 167(2) Cr.P.C
• Whether Onerous condition can be imposed while granting bail U/S 167(2)
Cr.P.C ?
- NO – It cannot be imposed (2019 (2) TNLR 934, 2019 (2) LW Criminal 629)
• Whether 60/90 days can be extended – to file final report?
1. Prosecution under NDBS act (Sec 36 A (4)) – 180 days.
2. Sec 43(d), (2), (b) of UAPA Act 1967 - 180 days.

Related Judgements:
2011 (1) SCC Criminal 1099
2018 (1) SCC Criminal 401
2018 (3) MLJ Criminal 303

Leading Judgements:
1. CBI vs. Anupam Kulkarni – 1992 SCC Criminal 554.
2. State V. Md. Ashraft Bhal – 1996 SCC Criminal 117.
3. State of Maharashtra V. Bharathi Chantmal Varma – 2002 SCC Criminal 299.
4. State of MP V. Pustam & Others – 1995 SCC Criminal 830.
5. Abdul Rahman V. State of Tamil Nadu – 2000 (2) MWN Criminal 158.
6. Sanjay Dutt V. CBI – 1995 CRLJ 477 SC
 Bail Under Special Laws

Section 14-A(2) of SC/ST Act Once bail is dismissed by

the special Court. An appeal has to be filled.

Appeal against grant of bail or refusal to grant bail

can be filed within 90 days from the date of the
order(Sec.14 – A(3) SC/ST Act….

Sec 438 is not applicable as per sec 18 of the Act…..

2019(3) SCC Crl 702 HC registry was directed to
number the petition and place before the concern
court
 Special Court

Scope of Sec 438 whether special court can entertain

anticipatory Bail petition FB (Patna HC & Calcutta HC..)
Special court is also court of session, so they can exercise
power u/s 438 Crl.P.C

Teri Majhi and another vs State of WB

1993 Crl.L.J 2436(1991 SCC online pat 286)2:1
V.Sridharan Vs State

Madras HC
PC Act – Special Court can not entertain petition
u/s 438 Crl.P.C
 BAR – NDPS Act – Commercial Quantity

Sec 37… the court is satisfied that

1) There are reasonable grounds for believing that he

is not guilty of such offence
2) And he is not likely to commit any offence while on
bail… twin test for bail…
1986Crl.L.J 1757

India V.Shiv Shanker Kesari (2007)7 Scc 798. Thus

recording of Satisfaction on both the aspects, noted
above, is a sine qua non for granting of bail under the
N.D.P.S Act
 Appeal – Sec 372 to 394 Cr.PC
• Suspension of Conviction:
1. 1995 (2) SCC 513.
2. 2007 2 SCC 574.

• Suspension of Sentence:
1. 389(3) CrPC – By trial Court.
2. 389(1) CrPC – By Appellate Court.

• Suspension of Fine:
1. 2000(2) Criminal 383.
2. AIR 1976 SC 1263.

• Suspension of Compensation:
1. 2014 (1) Criminal 325.

• Suspension of Conviction – Sentence – fine can also be cancelled:

1. AIR 1951 Madras 1042.
2. 1989 CrPC 163 M.P
 Suspension of Conviction

• Conviction can be executable – It may incur a

disqualification – In such a situation conviction can be
suspended.

• There must be proper pleadings – If conviction not

suspended what would be the injury to the appellant.

• Related Judgements:
1. 1995 (2) SCC 513.
2. 2007 2 SCC 574.
3. 2006 MLJ Criminal 353
4. 1996 CRL.L.J. 721.
 Suspension of Sentence

• Sentence includes:
a. Imprisonment
b. Fine
c. Compensation

• Related Judgements:
1. 1998 CRL.L.J. 3719.
2. 2000 (2) Crimes 383.
3. AIR 1976 SC 1263
4. 1987 CRL.L.J. 1838.
 Cancellation of Suspension of Sentence

• Though there is no specific provision to cancel

suspension of sentence – In appropriate case can
cancel bail by recalling order of suspension.

• Related Judgements:
1. AIR 1951 Madras 1042.
2. 1989 CRL.L.J. 163 MP

• An intervener has no right to be heard.