S.N.D.T. Women’s University

Law School
The Code of Criminal Procedure 1973 & The Juvenile Justice
(Care & Protection of Children) Act 2000
Subject:- Provisions as to Bail and Bonds
Class :- LLB 3rd Year (Semester 5th)
Name :- Pratiksha Tripal Bhagat
Roll No:- 4
Submitted to: Mrs.Violet M. Almeida

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Index

SR. No. Topic Page No

1 Introduction 3

2 Meaning of Bail and Bond 3

3 Objects Of Bail and Bond 4-5

4 Evolution Of Concept Of Bail 6-9

5 Types of Bail 10

6 Basic Interpretation of Sections Related 10-19

Bail and Bonds

7 Advantages and disadvantages of Bail 20

8 Important Case Laws Regarding Bail 20-22

9 Bail Under Other Acts 22-24

10 Case Laws 24

12 Conclusion 25

13 Webliography 26

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Introduction
The Popular meaning of word ‘bail’ is simply that it is the security given for
the due appearance of a prisoner in order to obtain his release from imprisonment.
The word ‘bail’ has various connotations and as verb it means to deliver and
arrested person to his surety’s on their giving the requisite obligation or security his
appearance. The noun ‘bail’ may refer either to the obligation or the obligators.
In Black’s Law Dictionary the word bail as a noun has been defined as “A
security such as cash or bond especially security required by a court for the release
prisoner who must appear at a future date”. Bail as a verb means “to obtain the
release of (oneself or another) by providing security for future appearance” or to
release a person after receiving such security ‘Bail’ in criminal proceedings means:
1. Bail grantable in or in connection with proceedings for an offence to a
person who is accused or convicted of the offence. (or)
2. Bail grantable in connection with an offence to a person who is under
arrest for the offence or for whose arrest for the offence a warrant, indorsed for bail,
is being issued.”

Meaning of bail and bond:

The concept of bail has a long history and deep roots in English 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 were 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 persons to forfeit money when their charges failed to
appear for trial from this grew the modern practice of posting a money bond 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 days during which the bondsman may
produce the accused in court.
Bond- A document stating that an amount of money has been paid to allow a
person who has been accused of a crime to remain free until the trial. If the person
does not appear at the trial, the court keeps the money.

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Objects of Bail and Bond

It is not the purpose of the criminal law to confine a person accused of crime
before his conviction. Bail, in criminal cases is, therefore, intended to combine the
administration of justice with the liberty and convenience of the person accused.
Administration of justice on the spot or immediately after the commission of a
crime in accordance with the fundamental principles of natural justice embedded in
a fair and just legal system is not feasible. This appears to be one of the reason for
the evolution of the bail jurisdiction in any legal system.
After the registration of crime it takes time to complete the investigation and
thereafter it takes even much longer time to conclude the trial. It is a matter of
common experience that the judicial machinery, more particularly in India is ill
equipped to provide a speedy trial to the accused in conformity with well
established principles of criminal jurisprudence. The question, whether accused
should be kept in the prison or should be kept free pending investigation and trial,
therefore, falls for consideration before the court in every criminal case where
accused is under arrest. An accused person cannot be detained in judicial custody
for long time by refusing him bail if the legal system is not in a position to provide
speedy trial. The inability of the judicial system to provide expeditious trial to the
accused should always be kept in mind while dealing with the issue of bail. Keeping
a person behind bars without providing him a quick trial is quite incongruous to the
concept of personal liberty which is a basic human right. The under-trial prisoner,
therefore, cannot be allowed to suffer in jail for indefinitely long time.
Further, bail is allowed to prevent confinement of innocent persons which
would otherwise result into a pre-trial punishment and to enable an accused person
to prepare his defense to the charge against him. The principle underlying release on
bail is that an accused person is presumed in law to be innocent till his guilt is
proved and as a presumably innocent person, he is entitled to freedom and every
opportunity to look after his case, provided his attendance is secured by proper
security. It goes without saying that an accused person, if he enjoys freedom, will be
in a much better position to look after his case and to properly defend himself than
if he were in custody. Ordinarily a person accused of an offence which is not very
serious therefore, deserves the benefit of bail.
The consequences of pre-trial detention are grave. Defendants presumed
innocent are subjected to the psychological and physical deprivations of jail life,
usually under more onerous conditions than are imposed on convicted defendants.
The jailed defendant loses his job if he has one and is prevented from contributing
to the preparation of his defense. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family.

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Bail or jail at the pre-trial or post-conviction stage belongs to the blurred area
of the criminal justice system and largely hinges on the hunch of the bench,
otherwise called judicial discretion. Personal liberty, deprived when bail is refused,
is too precious a value of our constitutional system that the crucial power to negate
it is a great trust exercisable, not casually but judicially, with lively concern for the
cost to the individual and the community.

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Evolution Of Concept Of Bail

The concept of bail can trace back to 399 BC, when Plato tried to create
a bond for the release of Socrates. The modern bail system evolved from a
series of laws originating in the middle ages in England.

Evolution in England:
There existed a concept of circuit courts during the medieval times in
Britain. Judges used to periodically go? On circuit? To various parts of the
country to decide cases. The terms Sessions and Quarter Sessions are thus
derived from the intervals at which such courts were held. In the meanwhile,
the under trials were kept in prison awaiting their trials. These prisoners were
kept in very unhygienic and inhumane conditions this was caused the spread of
a lot of diseases. This agitated the under trials, who were hence separated from
the accused. “This led to their release on their securing a surety, so that it was
ensured that the person would appear on the appointed date for hearing. If he
did not appear then his surety was held liable and was made to face trial. Slowly
the concept of monetary bail came into existence and the said under trials was
asked to give a monetary bond, which was liable to get forfeited on non-
appearance.
In The Magna Carta, in 1215, the first step was taken in granting rights
to citizens. It said that no man could be taken or imprisoned without being
judged by his peers or the law of the land.
Then in 1275, the Statute of Westminster was enacted which divided
crimes as bailable and non bailable. It also determined which judges and
officials could make decisions on bail.
In 1677, the Habeas Corpus Act was added to the Right Of Petition of
1628, which gave the right to the defendant the right to be told of the charges
against him, the right to know if the charges against him were bailable or not.
The Habeas Corpus Act, 1679 states, “A Magistrate shall discharge prisoners
from their Imprisonment taking their Recognizance, with one or more Surety or
Sureties, in any Sum according to the Magistrate's discretion, unless it shall
appear that the Party is committed for such Matter offenses for which by law
the Prisoner is not bailable.”
In 1689 came “The English Bill of Rights”, which provided safeguards
against judges setting bail too high. It stated that “excessive bail hath been
required of persons committed in criminal cases, to elude the benefit of the laws
made for the liberty of the subjects. Excessive bail ought not to be required.”

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Current Practice
In 1976 the Bail Act 1976 came into force. It sets out the current and
the basic legal position of bail prevailing in England. It lays out that there is a
general right to bail, except as provided for under the First Schedule of the Act.
While there are different grounds for refusing the right to bail depending on the
type of offence, for all imprison able offences the two basic grounds are as set
out by the O’Callaghan decision. But there is also the additional ground that if
the court is satisfied that there are “substantial grounds for believing” that the
defendant if released on bail will commit an offence while on bail, bail may be
refuse.
Under section 5(3) of the Bail Act 1976 the court which withholds bail
is required to give reasons, so that the defendant can consider making an
application1. In practice, however, the reasons given by English courts on a
variety of standard forms are frequently short and not explicitly based upon
particular facts and factors. Stone's Justices' Manual suggests that magistrates
announce any decision to refuse bail merely by relating the grounds and
statutory reasons in short form2. English administrative law also requires that,
where there is an existing obligation to give reasons for a decision, the reasons
given be clear and adequate, and deal with the substantial issues in the case3.
The English courts use tick boxes for recording the grounds and the
reasons for not granting bail. There is a use of a standard pattern that which lists
out the various reasons for not granting the bail. These forms vary in their
precise configuration, but in substance they are all the same as all of them set
out the grounds for refusing bail in one column, and a number of possible
reasons for the findings those grounds established in another column. The
decision is recorded by ticking the relevant box in each column. But the
decisions recorded on standard forms might be at risk of being characterized as
“abstract” or “stereotyped”, and therefore inadequate. The quality of the reasons
given directly reflects the quality of the decision-making process.

In India:
“   The ethics and injunctions of ancient Hindu jurisprudence required inter
alia, an expedient disposal of disputes by the functionaries responsible for
administration of justice. No laxity could be afforded in the matter as it entailed
penalties on the functionary’s4.Thus; a judicial interposition took care to ensure
that an accused person was not unnecessarily detained or incarcerated. This

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indeed devised practical modes both for securing the presence of a wrongdoer,
as well as to spare him of undue strains on his personal freedom.”
During Moghul rule, the Indian legal system is recorded to have an
institution of bail with the system of releasing an arrested person on his
furnishing a surety. The use of this system finds reference in the seventeenth
century travelogue of Italian traveler Manucci. Manucci himself was restored to
his freedom from imprisonment on a false charge of theft. He was granted bail
by the then ruler of the Punjab, but the koma released him on bail only after
Manucci furnished a surety. Under Moghul law, an interim release could
possibly be actuated by the consideration that if dispensation of justice got
delayed in one's case then compensatory claims could be made on the judge
himself for losses sustained by the aggrieved party.”

“  The advent of British rule in India saw gradual adaptation of the

principles and practices known to Britisher’s and was prevalent in the common
law. The gradual control of the East India Company’s authority over Nizamat
Adalats and other fouzdary courts in the mofussil saw gradual inroads of
English criminal law and procedure in the then Indian legal system. At this
juncture of history, criminal courts were using two well understood and well
defined forms of bail for release of a person held in custody. These were known
as zamanat and mud/atka. A release could be affected on a solemn engagement
or a declaration in writing. It was known as muchalka which was an obligatory
or penal bond generally taken from inferiors by an act of compulsion. In
essence, it was a simple recognizance of the principal of bail. Another form of
judicial release was a security with sureties known as zamanat, in which the
zamin (surety) became answerable for the accused on the basis of a written deed
deposited by him with the trying court. With discretionary powers vested in
courts under the doctrine of tazcer in Mohammedan criminal law, a decision on
the issue of grant or refusal of bail or the mode of release, did not pose much
difficulty”. However, the form and contents of the British institution of bail
were statutorily transposed by the passing of Code of Criminal Procedure in
1861, followed by its re-enactment in 1872 and 1898 respectively. In the
changed context of an independent Republican India, administrators of law and
justice are mandated to function in a manner that the constitutional equilibrium
between the ‘freedom of person’ and the ‘interests of social order’ are
maintained effectively. “Ushering of democratic social order necessarily
required updating and streamlining of the then existing laws. As a necessary
corollary to the above, the Law Commission of India directed its attention
towards the existing procedural code and provisions governing the system of
bail”.

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Law Commission-41st Report:

“   After having taken stock of the entire position, the Law Commission
brought out its recommendations in the 41st Report. These recommendations
were considered and incorporated by Parliament while fabricating the newer
Code of Criminal Procedure, 1973, with the purpose of replacing the earlier one.
In relation to provisions governing bail. The Law Commission reiterated the
need to preserve the basic and broad principles in regard to bail and suggested
modifications in the operational aspect of the system.
According to the Law Commission, the broad principles of the subject
are: (i) bail is a matter of right if the offence is bail able,
(ii) bail is a matter of discretion if the offence is non-bail able
(iii) bail is not to be granted if the offence is punishable with death or
imprisonment for life but the court has discretion in limited cases to order
release of a person.
The Law Commission also stated that even in respect of offences
punishable with death or imprisonment for life, the Session’s court and the High
Court ought to have even a wider discretion in the matter of granting bail.”

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Definitions & Detailed Explanations on Topic “Bail” & it’s
Provisions:

Types of Bail:
Bail is a kind of security that you provide to the law for them to release
you. It is a surety that you would be available in court as and when required in
future. As mentioned before bail is your right, it’s your right to freedom and you
must apply for it. There are different categories of bails applicable depending
upon the type of charge against you.
(1) Interim Bail – This bail is for certain period of time granted before hearing
to the prosecution.
(2) Permanent Bail – This bail is permanent in nature and granted only after
hearing to the petitioner as well as the prosecution.
(3) Bail before Arrest – It is granted when the court feels that the accused is
falsely involved in the case and an arrest would affect his honor and dignity
badly.
(4) Bail on Arrest – Under section 497 of Cr. Pc. Bail can be granted for both
bailable as well as non bailable offenses after the accused is arrested against
a charge
(5) Protective Bail – A bail granted so that the accused can approach the
provincial court for getting a pre-arrest bail without touching its merit.
(6) Directly approaching Superior Court – The superior courts can grant pre-
arrest bail in some appropriate cases directly if the accused has been deprived
or prevented of approaching lower courts.
(7) Bail for the Convict – Once convicted, bail is granted to the accused even if
the appeal for the same is accepted if court finds that there are considerable
grounds for his/her release.

Basic Interpretation of Sections Related Bail and Bonds:

Section 436 – In what cases bail to be taken
(1) When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station,
or appears or is brought before a Court, and is prepared at any time while in the
custody of such officer or at any stage of the proceeding before such Court to
give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such
person is indigent and is unable to furnish surety, instead of taking bail from
such person, discharge him on his executing a bond without sureties for his
appearance as hereinafter provided:

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Provided further that nothing in this section shall be deemed to affect the
provisions of Sub-Section (3) of section 116 or section 446A.

Explanation – Where a person is unable to give bail within a week of the date
of his arrest, it shall be a sufficient ground for the officer or the Court to
presume that he is an indigent person for the purposes of this proviso.

(2) Notwithstanding anything contained in Sub-Section (1), where a person has

failed to comply with the conditions of the bail-bond as regards the time and
place of attendance, the Court may refuse to release him on bail, when on a
subsequent occasion in the same case he appears before the Court or is brought
in custody and any such refusal shall be without prejudice to the powers of the
Court to call upon any person bound by such bond to pay the penalty thereof
under section 446.

Section 436A – 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 than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained

during the period of investigation inquiry or trial for more than the maximum
period of imprisonment provided for the said offence under that law.

Explanation – In computing the period of detention under this section

for granting bail the period of detention passed due to delay in proceeding
caused by the accused shall be excluded.

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Section 437 – When bail may be taken in case of non-bailable
offence
(1) When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by an officer in
charge of a police station or appears or is brought before a Court other than the
High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence punishable with death
or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he had
been previously convicted on two or more occasions of a cognizable offence
punishable with imprisonment for three years or more but not less than seven
years:

Provided that the Court may direct that a person referred to in clause
(i) or clause (ii) be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm:
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 witnesses during investigation shall not be
sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail and gives an undertaking that the shall comply with such
directions as may be given by the Court.
Provided also that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more be released on bail by the Court under
this Sub-Section without giving an opportunity of hearing to the Public
Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation,
inquiry or trial as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilt, the accused shall, subject
to the provisions of section 446A and pending such inquiry, be released on bail,
or, at the discretion of such officer or Court on the execution by him of a bond
without sureties for his appearance as hereinafter provided.

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(3) When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or of an
offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal
Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such
offence, is released on bail under Sub-Section (1) the Court shall impose the
conditions,-
(A) that such person shall attend in accordance with the conditions of
the bond executed under this Chapter,
(B) that such person shall not commit an offence similar to the offence
of which he is accused, or suspected, of the commission of which he is
suspected, and
(C) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to any police
officer or tamper with the evidence. and may also impose, in the interests of
justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under Sub-Section
(1), or Sub-Section (2), shall record in writing his or its reasons or special
reasons for so doing.
(5) Any Court which has released a person on bail under Sub-Section (1),
or Sub-Section (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of
any non-bailable offence is not concluded within a period of sixty days from the
first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the
Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a
non-bailable offence and before judgment is delivered the Court is of opinion
that there are reasonable grounds for believing that the accused is not guilty of
any such offence, it shall release the accused, if he is in custody, on the
execution by him of a bond without sureties for his appearance to hear judgment
delivered.

Section 437A – Bail to require accused to appear before next

appellate Court
(1) Before conclusion of the trial and before disposal of the appeal, the
Court trying the offence or the Appellate Court, as the case may be, shall require
the accused to execute bail bonds with sureties, to appear before the higher

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Court as and when such Court issues notice in respect of any appeal or petition
filed against the judgment of the respective Court and such bail bonds shall be in
force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the
procedure under section 446 shall apply.

Section 438 – Direction for grant of bail to person apprehending

arrest (Anticipatory bail)

(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section that in the
event of such arrest he shall be released on bail; and that Court may, after taking
into consideration, inter-alia, the following factors, namely-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he
has previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and.
(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,either reject the application
forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this Sub-Section or has rejected
the application for grant of anticipatory bail, it shall be open to an officer in-
charge of a police station to arrest, without warrant the applicant on the basis of
the accusation apprehended in such application.

1A. Where the Court grants an interim order under Sub-Section (1), it shall
forthwith cause a notice being not less than seven days notice, together with a
copy of such order to be served on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court,

1B. The presence of the applicant seeking anticipatory bail shall be obligatory at
the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.

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(2) When the High Court or the Court of Session makes a direction under
subsection (1), it may include such conditions in such directions in the light of
the facts of the particular case, as it may thinks fit, including-
(i) a condition that the person shall make himself available for
interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to any police
officer;
(iii) a condition that the person shall not leave India without the
previous permission of the Court;
(iV) such other condition as may be imposed under Sub-Section (3) of
section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in
charge of a police station on such accusation, and is prepared either at the time
of arrest or at any time while in the custody of such officer to give bail, he shall
be released on bail, and if a Magistrate taking cognizance of such offence
decides that a warrant should issue in the first instance against that person, he
shall issue a bailable warrant in conformity with the direction of the Court under
Sub-Section (1).
(4) Nothing in this section shall apply to any case involving the arrest of
any person on accusation of having committed an offence under sub-section (3)
of section 376 or section 376AB or section 376DA or section 376DB of the
Indian Penal Code2.

Section 439 – Special powers of High Court or Court of Session

regarding bail
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on
bail, and if the offence is of the nature specified in Sub-Section (3) of section
437, may impose any condition which it considers necessary for the purposes
mentioned in that Sub-Section;
(b) that any condition imposed by a Magistrate when releasing any
person on bail be set aside or modified:
1A. The presence of the informant or any person authorised by him shall be
obligatory at the time of hearing of the application for bail to the person under
sub-section (3) of section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code.
(2) A High Court or Court of Session may direct that any person who has
been released on bail under this Chapter be arrested and commit him to custody.

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Section 440 – Amount of bond and reduction thereof
(1) The amount of every bond executed under this chapter shall be fixed with
due regard to the circumstances of the case and shall not be excessive.

(2) The High Court or Court of Session may direct that the bail required by a
police officer or Magistrate be reduced.

Section 441 – Bond of accused and sureties

1. Before any person is released on bail or released on his own bond, a bond for
such sum of money as the police officer or Court, as the case may be, thinks
sufficient shall be executed by such person, and, when he is released on bail, by
one or more sufficient sureties conditioned that such person shall attend at the
time and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or Court, as the case may be.
2. Where any condition is imposed for the release of any person on bail, the bond
shall also contain that condition.
3. If the case so requires, the bond shall also bind the person released on bail to
appear when called upon at the High Court, Court of Session or other Court to
answer the charge.
4. For the purpose of determining whether the sureties are fit or sufficient, the Court
may accept affidavits in proof of the facts contained therein relating to the
sufficiency or fitness of the sureties, or, if it considers necessary, may either hold
an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to
the Court, as to such sufficiency or fitness.

Section 441A – Declaration by sureties

Every person standing surety to an accused person for his release on
bail, shall make a declaration before the Court as to the number of persons to
whom he has stood surety including the accused, giving therein all the relevant
particulars.

Section 442 – Discharge from custody

As soon as the bond has been executed, the person for whose
appearance it has been executed shall be released; and when he is in jail the
Court admitting him to bail shall issue an order of release to the officer in charge
of the jail, and such officer on receipt of the orders shall release him.

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Nothing in this section, section 436 or section 437 shall be deemed to
require the release of any person liable to be detained for some matter other than
that in respect of which the bond was executed.

Section 443 – Power to order sufficient bail when that first taken
is insufficient
If, through mistake, fraud, or otherwise, insufficient sureties have been
accepted, or if they afterwards become insufficient, the Court may issue a
warrant of arrest directing that the person released on bail be brought before it
and may order him to find sufficient sureties, and on his failing so to do, may
commit him to jail.

Section 444 – Discharge of sureties

1. All or any sureties for the attendance and appearance of a person released
on bail may at any time apply to a Magistrate to discharge the bond, either
wholly or so far as relates to the applicants.
2. On such application being made, the Magistrate shall issue his warrant of
arrest directing that the person so released be brought before him.
3. On the appearance of such person pursuant to the warrant, or on his
voluntary surrender, the Magistrate shall direct the bond to be discharged
either wholly or so far as relates to the applicants, and shall call upon such
person to find other sufficient sureties, and, if he fails to do so, may
commit him to jail.

Section 445 – Deposit instead of recognizance

When any person is required by any Court or officer to execute a bond
with or without sureties, such Court or officer may, except in the case of a bond
for good behaviour, permit him to deposit a sum of money or Government
promissory notes to such amount as the Court of officer may if in lieu of
executing such bond.

Section 446 – Procedure when bond has been forfeited

(1) Where a bond under this Code is for appearance, or for production of
property, before a Court and it is proved to the satisfaction of that Court or of
any Court to which the case has subsequently been transferred, that the bond has
been forfeited, or where in respect of any other bond under this Code, it is
proved to the satisfaction of the Court by which the bond was taken, or of any
Court to which the case has subsequently been transferred, or of the Court of any

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Magistrate of the first class, that the bond has been forfeited,
the Court shall record the grounds of such proof, and may call upon any person
bound by such bond to pay the penalty thereof or to show cause why it should
not be paid.

Explanation – A condition in a bond for appearance, or for production of

property, before a Court shall be construed as including a condition for
appearance, or as the case may be, for production of property before any Court
to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may
proceed to recover the same as if such penalty were a fine imposed by it under
this Code:

Provided that where such penalty is not paid and cannot be recovered in the
manner aforesaid, the person so bound as surety shall be liable, by order of the
Court ordering the recovery of the penalty, to imprisonment in civil jail for a
term which may extend to six months.

(3) The Court may, 2 [after recording its reasons for doing so, remit any portion
of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section
117 or section 360 is convicted of an offence the commission of which
constitutes a breach of the conditions of his bond, or of a bond executed in lieu
of his bond under section 448, a certified copy of the judgment of the Court by
which he was convicted of such offence may be used as evidence in proceedings
under this section against his surety or sureties, and, if such certified copy is so
used, the Court shall presume that such offence was committed by him unless
the contrary is proved.

Section 446A – Cancellation of bond and bail bond

Without prejudice to the provisions of section 446, where a bond under this
Code is for appearance of a person in a case and it is forfeited for breach of a
condition-

(1) the bond executed by such person as well as the bond, if any, executed by
one or more of his sureties in that case shall stand cancelled; and

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(2) thereafter 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 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:

Provided that subject to any other provision of this Code he may be released in
that case upon the execution of a 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.

Section 447 – Procedure in case of insolvency or death of surety

or when a bond is forfeited
When any surety to a bond under this Code becomes insolvent or dies,
or when any bond is forfeited under the provisions of section 446, the Court by
whose order such bond was taken, or a Magistrate of the first class may order
the person from whom such security was demanded to furnish fresh security in
accordance with the directions of the original order, and if such security is not
furnished, such Court or Magistrate may proceed as if there had been a default in
complying with such original order.

Section 448 – Bond required from minor

When the person required by any Court, or officer to execute a bond is a minor,
such Court or officer may accept, in lieu thereof, a bond executed by a surety or
sureties only.

Section 449 – Appeal from orders under section 446

All orders passed under section 446 shall be appealable,

(1) in the case of an order made by a Magistrate, to the Sessions Judge;

(2) in the case of an order made by a Court of Sessions, to the Court to which an
appeal lies from an order made by such Court.

Section 450 – Power to direct levy of amount due on certain

recognizances
The High Court or Court of Session may direct any Magistrate to levy the
amount due on a bond for appearance or attendance at such High Court or Court
of Session.

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Advantages of Bail
Some of the major benefits of granting bail are:

• One can be well-braced for trial.

• One’s reputation can be preserved.
• One can attend his work or job.
• Family bonding and responsibilities can be maintained.
• Freedom from police torture.
• Freedom from the boredom of hardened criminals.
• Freedom from low hygienic conditions of the jail.
• One can meet his advocate anytime.

Disadvantages of Bail
The primary concerns for granting bail are:

• The burden of expenses lies on the state.

• Damage is caused to the reputation of the accused.
• The accused family finds it difficult to adjust to society because people have
inferior views against the same.

Important Case Laws Regarding Bail

In May 2021, the Madhya Pradesh High Court has stated that District
Judiciary is extremely tight twisted in granting bail, which in turn issued
directions regarding granting of bail to police as well as Judicial Officers, which
are as follows:

Instructions to police regarding bail:

1. When the maximum penalty for an offence is up to 7 years in jail, the accused
may not be detained by the police as a matter of course; unless there is a specific
statute that requires it.

2. Before arresting in such a case, the police would record the reason in writing why
the arrest was necessary: To prevent the accused from committing any further
offences, or for case’ proper investigation, or to prevent the accused from causing
the disappearance of evidence or based on credible suspicion that the accused
would tamper with evidence or prevent a witness from testifying, or based on

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credible apprehension that the accused would tamper with evidence or prevent a
witness from testifying.

3. While arresting an accused of offences carrying a potential punishment of up to 7

years, the State Police is required to format and produce a checklist of pre-
conditions that the police must meet under section 41(1)(b)(ii) of the CrPC. A
copy of the checklist must be submitted with the remand application to the
Magistrate who has the authority to remand the accused to the police or judicial
custody.

4. If the police decide not to arrest the suspect, the Magistrate must be notified
within two weeks of the FIR being filed. For circumstances that must be proven in
writing, the Superintendent of Police may extend this term.

5. If questioning of the accused is needed, the accused must be issued with a notice
under section 41A CrPC or section 160 CrPC within two weeks of the FIR being
registered, which may be extended by the Superintendent of Police of the district
concerned for reasons to be recorded in writing.

6. When the police do not arrest the accused, and the accused appears before the
police on notice under section 41A or section 160 CrPC and assists the police in
the course of the investigation, the police are not to arrest the accused unless there
are compelling reasons that must be recorded, as stated in paragraph 31.2.

7. Suppose the police fail to comply with the requirements mentioned above. In that
case, they will be held in contempt of the court’s order, in addition to any other
administrative action that may be taken against the erring officer.

Instructions to judicial magistrates regarding bail:

1. When exercising remand powers, the Magistrate must determine whether the
arrest made by the police meets the conditions of section 41 of the CrPC, as stated
in paragraph 11.2 of Arnesh Kumar’s case.

2. The Magistrate must determine if the checklist is available, as ruled by the

Supreme Court in Arnesh Kumar’s case, paragraph 11.3.

3. Suppose the police fail to comply with paragraphs 11.2 and/or 11.3 of Arnesh
Kumar’s case. In that case, the Magistrate shall not authorise further detention of
the accused and shall release him immediately, as the arrest is unlawful in and of
itself. Thus his detention would be unlawful as well due to the police failing to
comply with the requirements of section 41 of the Criminal Procedure Code.

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4. In accordance with paragraph 11.4 of Arnesh Kumar’s judgement, it is obligatory
for the Magistrate authorising detention to record his independent satisfaction and
to guarantee that his satisfaction for further remand of the accused is fulfilled in
his order of remand.

5. The Magistrate must also determine whether specific reasons for the accused’s
arrest have been documented and if those reasons are significant, leading to a
reasonable judgement that one of the conditions for the accused’s continued
custody as an undertrial has been met.

6. Failure on the part of the Magistrate to perform as ordered herein may result in
administrative procedures being initiated against such Magistrate.

Bail Under Other Acts

BAIL UNDER M. C. O. C. ACT :-

The power to grant bail by the High Court or the Court of Session is not only
subject to the limitations imposed by section 439 of the Code of Criminal Procedure,
1973, but is also subject to the limitation placed by section 21(4) of MCOC. Apart
from the grant of opportunity to the Public Prosecutor the other two conditions are :

1. The satisfaction of the court that there are reasonable grounds for believing that
the accused is not guilty for the alleged offence and

2. He is not likely to commit any offence while on bail. The conditions are
cumulative and not alternative.

BAIL UNDER N. D. P. S. ACT ;

According to Section 37 of the NDPS if the accused is arrested for allegedly

committing offence punishable U/s.19,24,27-A and offences for commercial quantity,
he cannot be released on bail, unless an opportunity to oppose the bail application is
given to Public Prosecutor. The NDPS Act, 1985 was enacted and the menace of
drugs trafficking which it intends to curtail is evident from its scheme. A perusal of
section 37 of the NDPS Act, 1985 leaves no doubt in the mind of the court that a
person accused of an offence punishable for a term of imprisonment of five years or
more, shall generally be not released on bail. Negation of bail is the rule and its grant
an exception under sub-clause (ii) of clause (b) of section 37(1).

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BAIL UNDER P. O. T. A. :-

If the intention of legislature is that an application for bail can not be made prior
to expiry of one year after detention of offences under POTA, it would have been
clearly spelt out in that manner in section 49(b) itself. Section 49(6) and 49(7) of
POTA have to be read together and the combined reading of these two sections is to
the effect that public prosecutor has to be given an opportunity of being heard before
releasing the accused, that there are grounds for believing that he is not guilty of
having committed such offence. It is by way of exception to section 49(7) that proviso
is added which means that after the expiry of one year after the detention of the
accused for the offence under POTA, the accused can be released on bail after hearing
the public prosecutor under ordinary law without applying the rigour of section 49(7)
of POTA.

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act :

Merely because offence under S.C and S.T.(Prevention of Atrocities) Act is

exclusively triable by Special Court, it can not be said that Magistrate will have no
power to grant bail.

Other Acts :-
As regards Copy Rights Act, Essential Commodities Act, Indian Forest Act,
Bombay Prohibition Act, Information Technology Act, Bombay Prevention of
Gambling Act, Prevention of Immoral Trafficking Act, Wild Life Protection Act,
Environment (Protection) Act etc., the bail of the accused persons involved in the
offence under any of these Acts will lie with the concerned Judicial Magistrate First
Class.

Transit Bail :-
A court can grant bail even when crime is registered outside jurisdiction of the
Court. It is called as Transit bail. Like regular bail and anticipatory bail, transit bail
can be classified in two types i.e regular transit bail and anticipatory transit bail. As
per section 81 of Criminal Procedure Code, if the person arrested is brought before
Magistrate having no jurisdiction, he can be released on bail i.e if the offence is
bailable and arrested person is ready and willing to give bail to the satisfaction of the
magistrate, or a direction has been endorsed under Sec.71 of the Cr.P.Code on the
warrant and such person is ready and willing to give the security required by such
direction. The magistrate can take such bail and security, as the case may be, and
forward the bond, to the court which issued warrant. Further if the offence is non

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bailable, it is lawful for the Chief Judicial Magistrate or a Sessions Court to consider
the provisions of section 437 of Cr. P. Code and also to consider information and the
documents forwarded along with warrant as per section 78 (2) of Cr. P. Code. After
going through section 437 and information and documents referred in section 78 (2),
Chief Judicial Magistrate and Sessions Court can release Cancellation such person on
bail and forward the bond to the court which issued the warrant. The anticipatory
transit bail is covered by section 438 of Cr.P.Code. When any person is
apprehending his arrest in a case registered beyond jurisdiction of the Court, he may
apply to the Court or Court of Sessions for direction that in the event of his arrest he
be released.

Case Laws

1. Sunil Batra Vs. Delhi Administration AIR 1978 SC 1675 :

The right to life includes right to give importance to human dignity and decency even
in rescuse homes and prisons.

2. Rasiklal Vs. Kishore Khanchand Wadhwani,

reported in AIR 2009 SC 1341, it was observed that, "In case of bailable offence there
is no question of discretion in granting bail"

3. State of Maharashtra Vs. Anant Dighe

AIR 1990 SC 625 it is observed that : "There are no hard and fast rules regarding
grant of refusal of bail, each case has to be considered on its own merits. The matter
always calls for judicious exercise of discretion by the Court"

4. Babusing Vs.State of Uttar Pradesh

AIR 1979 SC 527 it is observed that, "Refusal of an application for bail does not
necessarily preclude another application on later occasion giving more details,
further development and different consideration he findings of a higher Court or a
co-ordinate bench must receive serious consideration at the hands of the Court
entertaining a bail application at a later stage when the same had been rejected
earlier.

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Conclusion :-
The power given to the police for arrest has become one of the
remunerative sources for police corruption. It has become a handy tool who act
with ill motive.
Courts, especially the district courts and courts subordinate to it, hesitate
to provide bail to the accused as the fear grows in Judicial Magistrates’ minds as
to they may be questioned by higher judiciary or vigilance case may be initiated
against them.
In such cases, the accused approaches the higher judiciary for bail,
resulting in courts’ overcrowding. Therefore, Judicial Magistrates of the level of
District Judge and below should adhere to the directions given by High Courts
and Supreme Courts while deciding bail related cases.

This not only will help the accused in getting bail rather overcrowding of
higher courts can be prevented. This will also be a lesson for the police for
making unnecessary arrests.

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Webliography
• www.wikipedia.org
• https://blog.ipleaders.in/provisions-relating-to-bail
• www.writinglaw.com/bail-under-crpc/
• www.legalserviceindia.com/legal/article-5231-bail-bond.html
• www.lawnn.com/bail-and-bonds/
• https://devgan.in/crpc/chapter_33.php
• https://www.latestlaws.com/articles/everything-bail-bonds-bond-forfeiture-consequence-
thereof-rakesh-kumar-singh
• https://www.humanrightsinitiative.org/publications/prisons/section_436_crpc.pdf
• https://lawtimesjournal.in/bail-under-crpc/
• https://www.intolegalworld.com/note?title=provisions-for-bail-under-crpc

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