BAIL

(SS. 436 – 450)

BRIEF OUTLINE

INTRODUCTION
 Meaning
 Object of granting bail
 Bailable and Non-Bailable Offences
 First Schedule of Cr.P.C.

TWO CASES PERTAINING TO RELEASE ON BAIL

 Where release on bail is imperative.
 Where the Court has discretion in granting bail.

CASES WHERE RELEASE ON BAIL IS IMPERATIVE

a. Cases other than non-bailable offences. – S.436
b. If investigation is not completed in 60/90 days. – S.167
c. No reasonable grounds for believing that the accused is guilty of an offence, but
reasonable grounds for further inquiry. – S. 437(2)
d. Trial not concluded in 60 days – S.436(6)
e. Release on bail on conclusion of trial but before judgment is delivered. – S.437(7)

CASES WHERE THE COURT HAS DISCRETION IN GRANTING BAIL

a. Bail in cases of non-bailable offences – S.437(1)
b. No Bail in case of offence punishable with death of imprisonment for life – S.437(1)(i)
c. No bail for habitual offender or person previously convicted of serious offence – S.437(1)
(ii)
d. Bail shall not be rejected merely because the accused required to be identified by
witnesses during investigation – S.437(1) (Proviso 3)
e. Grant of bail with conditions – S.437(3)
f. Powers of High Court or Court of Sessions to grant bail – S.439
g. Approver in custody not to be released on bail – S.306(4)(b)

ANTICIPATORY BAIL – S.438

a. Object

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 b. Meaning
c. Wide discretion in granting Anticipatory Bail.
d. Concurrent jurisdiction of High Court and Sessions Court.
e. Reasonable apprehension of arrest for a non-bailable offence – Reason to believe.
f. Time duration of Anticipatory bail – to be effective till the conclusion of trial.
g. Cancellation of Anticipatory bail.
h. Conditions on grant of Anticipatory Bail.
i. No Blanket Order of Anticipatory Bail.
j. Interim Order.
k. Notice to Public Prosecutor.
l. No Anticipatory bail after arrest.
m. Anticipatory Bail given in absence of S.438 – when the person appears before the Court

CANCELATION OF BAIL
 Provisions – The Power to cancel bail is provided under section 437(5) and section
439(2).
 Power – Only the Court who has granted the bail has the power to cancel bail and not the
Police.
 Proof – In case of cancellation of bail in a criminal case, the case is not required to be
proved beyond reasonable doubt.
 Conditions/Cases where bail can be cancelled – The following is a non-exhaustive list
of contingencies upon happening on which, the bail can be cancelled:
 Commission of offence;
 Threatening the witnesses;
 Tampering with the evidence;
 Likely to abscond to a foreign country;
 Commission of acts of violence against Police or other in the Court.
 Hamper investigation.
 Locus Standi – The power to cancel the bail or the application can be filed by the
following persons:
a. State;
b. Prosecution party;
c. Court on its own motion i.e., Suo Moto
 Rejection of Bail vis-à-vis Cancellation of Bail – Both these concepts are entirely
different. It is easier to reject a bail, then to cancel a bail which is already granted.
Cancellation of bail is mainly a review of the decision already tendered, and can only be
permitted if there are some supervening circumstances and it would cause prejudice to a
fair trial.

BOND OF ACCUSED AND SURETIES

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Amount of Bond and reduction thereof – S.440
 The amount of bond executed under the code shall be fixed after considering the
following factors:
 Facts and Circumstances of the case;
 Chances of accused absconding;
 Financial capacity of the accused;
 Nature of charges
 However, the above-mentioned list is not an exhaustive one, and other factors also may
be considered by the Court while deciding on the amount of bond.

Conditions and Execution of Bond – S.441

 A person can be released in the following two ways:
a. On his own bond;
b. By one or more sureties.
 The bond shall also contain the conditions imposed while granting bail.
 The bond may bind the person so released to appear if he is called upon by the High
Court or Sessions Court or Other Court to answer charge.
 The Court may accept affidavits from the sureties in order to ascertain whether the person
is sufficient or fit to act as a surety or not.
 The bond shall contain the details about time and place of appearance of accused,
otherwise the same will be void.
 In case there are more than one accused then separate bonds shall be executed. There is
no provision for consolidated bail bond in case of several accused persons.

Declaration by Sureties – S.441-A

 The surety shall make declaration to the effect declaring as to the number of persons to
whom he has stood surety including the accused, and further tender their particulars.

Discharge from custody – S.442

 Once the bail bond has been executed, the person shall be released.
 If such person is in jail, then the Court shall issue an order of release to the officer in
charge of the PS.

Sufficiency of sureties – S.443

 If insufficient surety has been admitted (by mistake, fraud or otherwise) then
 The Court may do any of the two following things:
a. Ask the accused to find out another sufficient surety; or
b. Send the accused to jail if he fails to do so.

Application for Discharge – S.444

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  The surety may apply to the Magistrate for discharge of surety i.e., to discharge the bond.
 After such application is made, the Magistrate shall issue a warrant of arrest to the
accused.
 The Court may do any of the two following things:
c. Ask the accused to find out another sufficient surety; or
d. Send the accused to jail if he fails to do so.

Procedure in case of Forfeiture of Bond – S. 446

 If the Court is satisfied that the bail bond has been forfeited then it shall do the
following:
a. Record the grounds of such proofs; and
b. Call upon the person bound by such bond to pay the penalty; or
c. To show cause why it should not be paid.
 The Court may remit any portion of the penalty mentioned and enforce payment in part.
 If the surety dies before the surety is forfeited, his estate shall be discharged from all
liability with respect to the bond.

Cancellation of Bail Bond – S.446-A

 Once the surety is forfeited the bail bond executed on basis of such surety shall also be
cancelled.
 If there was no sufficient cause for the failure of such person who was bound by the bond
to comply with its conditions, then he may not be released on his personal bond as well.
 However, he may execute a fresh personal bond.

Procedure in case of Insolvency or Death of surety – S.447

 In case of insolvency/death/forfeiture of surety/bond the person, who executed the bond
shall furnish fresh security in accordance with the directions of the original order.
 Failure to do so may result to such consequences as would have been accrued in case of
default in complying with the original order.

Appeal from Order u/s. 446 – S.449

 The appeal from Magistrate shall lie before the Sessions Court;
 The appeal from Sessions Court shall lie before the High Court.

Power to direct levy of amount on certain recognizances – S.450

Deposit instead of Recognizance – S.445

 This applies to the case where the person is required to execute a bond with or without
sureties.

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  In such case the Court may permit the person to deposit a sum of money or government
promissory notes to such amount as the Court or Officer may fix in lieu of executing a
bond.
 This section does not apply in cases where the bond is executed for good behavior.

Bond required from Minor – S.448

 In case where a bond is required to be executed by a minor, the Court or the Officer shall
not except personal bond from such minor person.
 Only bond from surety or sureties shall be accepted by the Court or Officer on behalf of
such minor.
a.

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 INTRODUCTION

MEANING
 The term Bail has not been defined anywhere in the Code.
 Black’s Law Dictionary – “To procure the release of a person from legal custody,
by undertaking  that he shall appear at the time and place designated and submit himself
to the  jurisdiction  and judgment of the court”
 Law Lexicon – “A security for the appearance of the accused person on giving which he
is released pending trial or investigation.”

OBJECT OF GRANTING BAIL

 Generally, a person is put behind bars in order to ensure the following two things:
a. Presence at the trial; and
b. Availability to receive the sentence.
 However, in certain cases, bail can be granted if the Court is assured that by detaining the
accused no reasonable purpose would be sought and his appearance could be sought
otherwise also.
 Granting of bail goes in line with the principle that an accused is presumed innocent until
proven guilty.
 To prevent the accused from being subjected to the psychological and physical
deprivation of jail life.
 To ensure that the burden of arrest of the accused does not have adverse inference on the
innocent family members.
 If the accused is not likely to abscond, in such cases granting bail should not be an issue.
 The object of detention pending criminal proceedings, is not punishment and the law
favours allowance of bail, which is the rule, and refusal is the exception.

BAILABLE & NON – BAILABLE OFFENCES – S.2(a)

Bailable Offence
 An accused charged with a bailable offence has the right to be released on bail under
section 436 of the Cr.P.C.
 However, the Court is empowered to refuse the bail for a bailable offence if the accused
fails to comply with the conditions of the bail bond.
 Examples:
 Voluntarily causing hurt. (S.323)
 Causing miscarriage. (S.312)
 Attempt to commit suicide. (S.309)
 Being a member of unlawful assembly.
 Bribery in relation to elections.

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Non – Bailable Offence
 An accused charged with a non – bailable offence has no right to be released on bail,
however, his release on bail rests on the discretion of the Court hearing his bail
application.
 The Court may refuse to grant bail in a non – bailable offence if the credential of the
accused/applicant are doubtful.
 Examples:
 Murder (S.302)
 Dowry Death (S.304-B)
 Rape (S.376)
 Kidnapping (S.363)
 Attempt to murder. (S.307)

FIRST SCHEDULE OF CR.P.C.

 It is to be noted that the Code has not given any precise criterion or test to determine
whether an offence is bailable or non-bailable.
 However, the first schedule provides for the classification of bailable and non-bailable
offences.
 It provides that an offence punishable with imprisonment for three years or more shall be
considered as “non-bailable offence”.
 The schedule refers to all offences under IPC and classifies them as bailable and non-
bailable.

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