CHARGE

A charge represents a formal accusation made by the court against an individual accused of
committing an offence. In essence, a charge is a legal term used to describe an allegation. Similarly,
when an allegation against an individual encompasses multiple elements, it is referred to as ‘charges.’

Illustration:A, is accused by B in a hit-and-run case, resulting in the filing of a First Information

Report (FIR). Subsequently, the police will present a report to the court, detailing the offence A is
alleged to have committed, along with the progress of the investigation.

The court will frame charges against A. In the given scenario, the court might frame charges of Rash
Driving (as per Section 279 of the Indian Penal Code, 1860) and Culpable Homicide not amounting to
Murder (as per Section 299 of the IPC) to initiate the trial. However, if A had been accused solely of
Rash Driving, the court would have framed a single charge against him.

The case of V.C Shukla v. State (1980) explains the purpose of framing charge is to give intimation to
the accused, which is drawn up according to the specific language of the law, and giving clear and
unambiguous or precise notice of the nature of the accusation that the accused is called upon to
meet in the course of a trial.

Provisions dealing with ‘charge’

A charge is dealt with under Chapter 17 of the Criminal Procedure Code, 1973.

Section 211 to 214 Contents of Charge

Section 216 to 217 Powers of the court to alter the charge

Section 218 Basic rule

Section 219, 220, 221 and 223 Exceptions

Section 224 Effects of withdrawal

Section 215 and 464 Effects of errors

Form and content of a charge

Section 211 of Cr.PC constitutes essentials elements of the contents of the charge:
1. The charge form shall state the offence for which the accused is charged.

2. The charge form shall specify the exact offence name for which the accused is charged.

3. In case there is no specific name given under any law for the offence which the accused is
charged with, then the definition of the offence must be clearly stated in the charged form
and informed to the accused.

4. The law and provisions of the law to be mentioned in the charge form.

5. The charge shall be written in the language of the court.

 6. The accused shall be informed about his previous allegations which would expose him to
enhanced punishments if found guilty for the offence charged.

In the case of Court in its motion v Shankroo (1982), the court held that mere mentioning of the
Section under which the accused is charged, without mentioning the substance of the charge
amounts to a serious breach of procedure.

In Dal Chand v State (1981), the court held that defect in charge vitiates the conviction.

Section 212 of Cr.PC asserts the charge form shall contain:

1. The offence for which the accused is charged and the particulars like the time, place and the
person against whom the offence is committed and giving to the accused the precise and
clear notice of matter for which he is charged.

2. The exact time need not be mentioned in the charge form when the accused is charged with
criminal breach of trust or dishonest misappropriation of money or any other movable
property, it is sufficient if the gross sum is specified and the dates on which such alleged
offence have been committed.

In Ranchhod Lal v. State of Madhya Pradesh (1964), it was held that failure to mention the
particulars precisely due to the nature of the information may not invalidate the proceedings.

Section 213 of Cr.PC asserts When the nature of the case is such that the particulars mentioned in
Section 211 and 212 do not give the accused sufficient notice of the matter with which he is charged,
the charge shall contain such particulars of how the alleged offence is committed as will be sufficient
for that purpose.

Meaning of Framing of Charges

Framing of charges in a criminal case is the formal accusation of an individual committing a specific
offence or crime. During this process, the court reviews the evidence and the allegations presented
by the prosecution and if it finds sufficient grounds to believe that the accused has committed the
offence, it formulates and formally presents the charges against the accused.

The framing of charges under CrPC is a crucial step in criminal proceedings because it serves several
important purposes:

 Informing the Accused: It informs the accused of the specific offence they are being charged
with, along with the details of the allegations against them. This ensures that the accused is
aware of the nature of the accusation.

 Establishing Legal Foundation: It establishes the legal foundation for the trial to proceed.
Once charges are framed, the trial can move forward and the accused can prepare their
defence.

 Transparency: It promotes transparency in the legal process by clearly defining the scope of
the case and the charges brought against the accused.

 Protection of Rights: It safeguards the rights of the accused by ensuring that they are aware
of the charges and can exercise their right to defend themselves in court.

 Setting the Stage for Trial: It marks the beginning of the trial phase, where evidence is
presented, witnesses are called and legal arguments are made.
 Framing of Charges under Section 228 of the CrPC
Section 228(1) in The Code Of Criminal Procedure, 1973

(1) If, after such consideration and hearing as aforesaid, the Judge is of the
opinion that there is ground for presuming that the accused has committed an
offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief
Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the
offence in accordance with the procedure for the trial of warrant- cases
instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against
the accused.

Principles Related to Framing of Charge under CrPC

The framing of charges in criminal cases is guided by several fundamental
principles to ensure a fair and just legal process. Some key principles related
to the framing of charges include:

 Presumption of Innocence: The accused is presumed innocent until

proven guilty beyond a reasonable doubt. Charges are framed based on
a prima facie case but do not imply guilt.
 Due Process: The accused has the right to be informed of the charges
against them and to have a fair opportunity to prepare their defence.
 Specificity: Charges must be clear, specific and accurately describe the
alleged offence to ensure the accused understands the nature of the
accusation.
 Evidence-Based: Charges are framed based on evidence and
allegations presented by the prosecution. The court assesses whether
there are reasonable grounds to proceed.
 Fair Notice: The accused must receive sufficient notice of the offence to
prepare a defence, preventing surprise or ambiguity in the trial.
 Legal Definitions: Charges should use legal definitions and terminology
consistent with the law under which the offence is punishable.
 Transparency: The framing of charges promotes transparency in legal
proceedings, defining the scope and nature of the case.
 Protection of Rights: It safeguards the rights of the accused, including
the right to remain silent and the right to legal representation.
  Speedy Trial: Delays in framing charges can affect the principle of a
speedy trial, so charges should be framed promptly.
 Legal Standards: Charges should meet the legal standards for each
specific offence, ensuring accuracy and fairness.
Types of Trials for Framing of Charges in CrPC
The Code of Criminal Procedure outlines different types of trials, including:

Summary Trial: Summary trials are conducted for offences that carry a
maximum punishment of up to two years of imprisonment or for offences
related to theft, receiving stolen property, or assisting in retaining stolen
property when the value involved is less than Rs. 2,000. In summary trials,
there is no requirement for the formal framing of charges.

Summons Case: Summons cases involve offences for which the maximum
imprisonment term does not exceed two years. According to Section 251,
when the accused person is brought before the court or voluntarily appears,
they are informed about the specific offence they are alleged to have
committed. In such cases, the court asks the accused whether they plead guilty
or need to present a defence. The formal framing of charges is not necessary
in summons cases.

Warrant Case (Sections 238-250): In warrant cases, the formal framing of

charges in writing is required.

Trial before Sessions Court (Sections 225-227): Trials before the Sessions
Court also necessitate the formal framing of charges in writing.

Trial Before the Court of Session (Chapter XVIII)

The process of framing charges under CrPC in the context of trials before a
Court of Session is governed by Chapter XVIII of the CrPC. Section 228 of the
CrPC outlines the specific procedures for framing charges in cases exclusively
triable by the Court of Sessions and listed in the First Schedule of the CrPC.

Here’s an explanation of the key provisions related to the framing of charges

in trials before a Court of Session:

Exclusive Trial by Court of Sessions: Section 228(1) stipulates

that when the Court of Session considers the police report, examines other
relevant documents and hears both parties and it finds reasonable grounds to
presume the accused’s involvement in the commission of the offence, the
following steps are taken:
a. Non-Exclusive Cases: If the case is not exclusively triable by the Court of
Session, the court may frame a charge against the accused. Subsequently, it
can transfer the case to the Chief Judicial Magistrate or any other Judicial
Magistrate of First Class. The accused is then directed to appear before that
court on a specified date. The Magistrate will then proceed to try the offence
based on the charge framed by the Court of Session, following the procedure
for trial under Warrant-Cases.

b. Exclusive Cases: If the case falls exclusively within the jurisdiction of the
Court of Sessions, the court shall frame a charge against the accused.

Explanation of Charges: In cases where charges are framed

by the Court of Session, the charges must be clearly explained to the accused
and the accused is asked whether they plead guilty to the offence.

Necessity of Formal Charges: It is imperative that formal charges are framed

when there is a presumption of the accused’s involvement in the offence,
indicating a prima facie case. This is particularly crucial when the offence is
exclusively triable by the Court of Session. Failure to adhere to this procedure
may result in higher courts overturning the trial.

In essence, the process of framing of charges in trials before a Court of Session

is a critical step to ensure that the accused is informed of the allegations
against them and to maintain a fair and just legal process. The Court of
Session must exercise its judgment to frame charges appropriately, as per the
established procedure, to avoid legal complications in subsequent
proceedings.

TRIAL

The word ‘Trial’ is not defined under the Code of Criminal Procedure, 1973 (CrPC). However, it is
commonly understood that the stage of trial begins after the framing of charge and ends with
conviction or acquittal of the accused.

It is the judicial adjudication of a person’s guilt or innocence. Also, we can say that it is an important
process to determine whether the accused is guilty of an offence or not.

Types of Trial
 India follows the adversarial system, where generally the onus of proof is on the State
(Prosecution) to prove the case against the accused, and until and unless the allegation
against the accused is proved beyond reasonable doubt, the accused is presumed to be
innocent.
  Under the CrPC, trials have been categorized as:

o Session Trial (Chapter XVIII, Section 225 to 237)

o Warrant Trial (Chapter XIX, Section 238 to 250)

o Summons Trial (Chapter XX, Section 251 to 259)

o Summary Trial (Chapter XXI, Section 260 to 265)

SUMMON & SUMMON CASE

“Summon” is a document that commands a person to whom it is served to appear before the court
and to answer the complaint made against him. Summon is issued by the Magistrate to the accused
under section 204(1) (a) of Cr.P.C, 1973. “Summon case” means a case relating to an offence, not
being a warrant case. So summon cases are those in which punishment will not exceed
imprisonment for two years. It can be said that summon cases are not of serious nature, so it needs
to be decided speedily, without dispensing the requisites of the fair trial. The procedure to deal with
such matter provided in section 251 to 259 of Cr.P.C, 1973

Procedure in a Summons-Case

Substance of accusation to be stated - As per Section 251 of the Code when in a summons case the
accused appears or is brought before the Magistrate, the particulars of the offence of which he is
accused shall be stated to him, and he shall be asked whether he pleads guilty, or has any defence to
make, but it shall not be necessary to frame a formal charge.

 The Section only dispenses with a formal charge in a summons case, but it does not dispense
with the statement of the particulars of the offence for which the accused is to be dealt with.

Conviction on plea of guilty - As per Section 252 of the Code, if the accused pleads guilty, it is
imperative that the Magistrate shall record the plea of guilty as nearly as possible in the words used
by the accused.

 Conviction on plea of guilty in absence of accused in petty cases - Section 253 of the
Code is meant for the speedy disposal of petty cases. If a summons has been issued
under Section 206 (i.e., in cases of petty offences), and the accused desires to plead guilty
without appearing before the Magistrate, he shall transmit to the Magistrate a letter
containing his plea and also the amount of fine specified in the summons. The Magistrate
may then convict the accused in his absence and sentence him to pay the specified fine.

Hearing of the prosecution or defence cases - As per Section 254(1) of the Code after the personal
examination of the accused, if any, under Section 313(1)(b) the Magistrate shall “hear” the accused
and take all such evidence as he produces in his defence.

 When Section 254(1) requires that the Magistrate shall hear the accused, it certainly means
that he should ask the accused what he has to say in his defence against the incriminating
evidence which is brought on record against him, and the accused should be heard on every
circumstance appearing in evidence against him.

 As per Section 254(2) the Magistrate may, if he thinks fit, on the application of the accused,
issue a summons to any witness directing him to attend or produce any document or other
thing.
 o However, if the prosecution has made an application for the issue of summons to its
witnesses, it is the duty of the Court to issue summons and to secure the witness by
exercising all the powers given to it under the Code.

 As per Section 254(3) the Magistrate may, before summoning any witness on such
application, require that the reasonable expenses of the witness incurred in attending for the
purposes of the trial be deposited in court.

Acquittal or Conviction - As per Section 255(1) if the Magistrate, after taking the entire evidence
adduced in the case finds the accused not guilty, he shall record an order of acquittal.

 As per Section 255(2) where the Magistrate does not proceed in accordance with the
provisions of Section 325 or Section 360, he shall, if he finds the accused guilty, pass
sentence upon him according to law.

 Section 255(3) gives the Magistrate discretion to proceed in those cases where the evidence
for the prosecution establishes an offence other than that referred to in the complaint or
summons.

o However, the offence of which the accused may be convicted must appear to have
been committed from the facts admitted by the accused or proved against him.
Further, it should be seen that the accused is not prejudiced by the consideration of
some charge of which he knew nothing.

WARRANT CASE:

Warrant cases are those that include offences punishable with death penalty, imprisonment for life
or imprisonment exceeding more than two years.

The Magistrates’ Court forms the bedrock of the legal system in India and the process of trial of
warrant cases conducted by magistrates. Warrant case proceedings can begin by filing an FIR in the
police station. In this case, the police conduct an investigation and forward the report to the
Magistrate. The Magistrate then furthers the proceedings under the procedure established by law
and the offender is brought before the Magistrate or appears voluntarily. Or the complaint can be
filed directly with the Magistrate to initiate the proceedings against an offender.

Trial of Warrant Case by Magistrates

 Chapter XIX from Sections 238 to 250 provides for the trial of warrant case by magistrates.
As per Section 2(x) of the CrPC warrant case relates to offences punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.

o Under the Chapter, two procedures are provided for the trial of a warrant case by a
magistrate, namely cases instituted on a police report i.e., from Sections 238 to
243 and cases instituted otherwise than on police report i.e., from Sections 244 to
250.

 In respect of cases instituted on police report, it provides for the magistrate to discharge the
accused upon consideration of the police report and documents sent with it.

 In respect of the cases instituted otherwise than on police report, the magistrate hears the
prosecution and takes the evidence. If there seems to be no prima facie case, the accused is
discharged.
  The warrant Case instituted on Police Report involves following steps:

Cases Instituted on a Police Report

 According to Section 238 of CrPC when a case is instituted on police report the magistrate
shall comply with Section 207 of the Code.

 Discharge: After considering the police report and the documents attached with it under
Section 173 of CrPC and giving prosecution and the accused the opportunity of hearing, if
the magistrate is of the opinion that the charge against the accused is groundless. The
accused shall be discharged under Section 239.

 Framing of Charge: Upon examination, if the magistrate is of the opinion that there are
grounds for presuming that the accused has committed the offence, magistrate shall frame
the charge under Section 240 and such charge shall be read out and explained to the
accused.

 Evidence for Prosecution: As per Section 242(1) of CrPC, if the accused refuses to plead or
does not plead, or claims to be tried, or the Magistrate does not convict him under Section
241 (Conviction on plea of guilty), the Magistrate shall fix a date for the examination of
witnesses.

 The proviso to Section 242(1) is added by the Amendment Act of 2009 which says that the
Magistrate shall supply in advance to the accused the statement of witnesses recorded
during investigation by the police.

o As per Section 242(2) of the Code, the Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses directing him to attend or to
produce any document or other thing.

o As per Section 242(3) of the Code, on the day fixed for the examination of witnesses,
the Magistrate shall proceed to take all such evidence as may be produced in
support of the prosecution. The Magistrate may permit the cross examination of any
witness to be deferred until any other witness has been examined or recall any
witness for further cross-examination.

 Evidence for Defence: As per Section 243(1) of the Code, after the completion of the
prosecution evidence, the submission of the prosecution arguments, and the examination of
the accused person under Section 313(1)(b), the accused shall then be called upon to enter
his defence and produce his evidence.

o As per Section 243(2) of the Code, if the accused applies to the Magistrate to issue
process for calling any witness for examining or cross-examination or to produce a
document/thing, the Magistrate shall issue process unless:

 He considers that such application is made for vexatious purpose or for

defeating the ends of justice, or

 The accused had, prior to entering upon his defense, either cross-examined
or had the opportunity of cross-examining any witness.
In the former case, the Magistrate is required to record his reasons in writing for refusal to issue
process, and, in the latter, he may, if satisfied that it is necessary for the ends of justice to compel
such attendance, issue process.

Cases Instituted otherwise than on a Police Report

 Evidence for Prosecution: As per Section 244 of the Code, when the accused is brought
before a Magistrate, he should proceed to hear the prosecution and take all such evidence as
may be produced. The Magistrate may also summon such people to whom the prosecution
wishes to give evidence in support of its case.

 The accused can be discharged under Section 245 and under Section 246 charge shall be
framed against the accused if the accused is not discharged there after the accused must be
asked whether he wants to plead guilty or not.

 Evidence for defence is taken under Section 247.

Conclusion of Trial

Section 248 of CrPC mentions the acquittal or conviction.

 If the accused is not found guilty by the magistrate, an order of acquittal shall be recorded.

 Where a magistrate finds the accused guilty but does not proceed in accordance
with Section 325 or Section 360 of CrPC, a sentence may be passed against the accused.

Examples

Examples of summon cases include minor traffic violations, public nuisances

and petty thefts.

Examples of warrant cases encompass offences like murder, rape, drug

trafficking and serious financial fraud.

Here is a table highlighting the key differences between summon vs warrant

cases:

Aspect Summon Warrant

To compel a person to appear in To authorise law enforcement to

court or before a government search a specific location or seize
Purpose
agency for a specific reason, often specific items, primarily in
in civil cases. criminal cases.

Consequences of May result in a contempt of court May result in a search or arrest by

Non-Compliance charge. law enforcement.

Civil cases, hearings, trials, Criminal cases, evidence

Common Usage depositions and administrative collection and property seizure
proceedings. related to crimes.
 Recipients Individuals or organisations. Individuals or organisations.

Can be issued without a prior court Requires a court hearing or

hearing, with the court or probable cause showing before
Issuance Process
government agency determining its issuance and must be executed by
validity. law enforcement.

Administrative agencies (e.g., tax

Judicial officers (e.g., judges or
Issuing Authorities and regulatory agencies) and
magistrates).
courts.

Summary Trial
 A ‘summary trial’ implies speedy disposal of a suit. It is a type of trial in which matters are
resolved quickly, the procedure is shortened, and the proceedings are recorded in a speedy
manner.

o In a summary trial, all the cases should be tried by the summons procedure.

 The object of summary trial is to have a record which is sufficient for the purpose of justice,
and yet, not so long as to impede speedy disposal of the case.

 It is provided under Chapter XXI of CrPC and is provided under Section 260 to 265.

Power to Try Summarily

 According to Section 260(1) notwithstanding anything contained in the Code:

o Any Chief judicial Magistrate

o Any Metropolitan Magistrate

o Any Magistrate of the First Class specially empowered in this behalf by the High
Court, may, if he thinks fit, try in a summary way all or any of the offences:

o Offences not punishable with death, imprisonment for life or imprisonment for a
term exceeding two years;

o Theft, under Section 379, Section 380 or Section 381 of the Indian Penal Code where
the value of the property stolen does not exceed two thousand rupees;

o Receiving or retaining stolen property, under Section 411 of the Indian Penal Code
where the value of the property does not exceed two thousand rupees;

o Assisting in the concealment or disposal of stolen property, under Section 414 of the
Indian Penal Code where the value of such property does not exceed two thousand
rupees;

o Offences under Sections 454 and 456 of the Indian Penal Code;

o Insult with intent to provoke a breach of the peace, under Section 504, and criminal
intimidation punishable with imprisonment for a term which may extend to two
years, or with fine, or with both, under Section 506 of the Indian Penal Code;
 o Abetment of any of the foregoing offences;

o An attempt to commit any of the foregoing offences, when such attempt is an

offence;

o Any offence constituted by an act in respect of which a complaint may be made

under Section 20 of the Cattle-trespass Act, 1871.

 Section 261 empowers the Magistrate of the Second class who has been invested with the
powers by the High Court to try summarily any offence which is punishable only with fine or
with imprisonment for a term not exceeding six months with or without fine.

Procedure/Record in Summary Trial

In summary trials, the procedure specified for the trial of summons-case is to be followed Section
262(1), subject to the following three qualifications:

 As per Section 262(2) no sentence of imprisonment for more than 3 months can be passed in
any conviction under Chapter XXI.

 As per Section 264 of the Code in every case tried summarily in which the accused does not
plead guilty, the Magistrate shall record the substance of the evidence and a judgment
containing a brief statement of the reasons for the finding.

 As per Section 265 of the Code every such record and judgment shall be written in the
language of the court and signed by the Magistrate.

BAIL:

Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all
persons.

The provision of anticipatory bail under Section 438 was introduced in the Code of Criminal
Procedure in 1973

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle of “presumption of
innocence” i.e. every person accused of any crime is considered innocent until proven guilty.
Meaning of bail

‘Bail’ connotes the process of procuring the release of an accused charged with certain offences by
ensuring his future attendance in the court for trial and compelling him to remain within the
jurisdiction of the court.

Definition of bail, as per the Black’s Law Dictionary is that bail is – “the security required by a court
for the release of a prisoner who must appear at a future time.” The objective of arrest is to deliver
justice by presenting the accused before the Court. However, if the same objective can be achieved
without making any arrest then there is no need to violate his liberty. That’s why bail can be granted
to the accused person for conditional release.

Legal position of bail

The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973. Only the term
‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of Cr. PC. The
provisions relating to bail and bail bonds are mentioned under Section 436-450 of the Criminal
Procedure Code.

Categories of bail

For the purpose of bail, offences are classified into bailable and non-bailable offences which are
discussed below :

Bailable offences

According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in
the First Schedule of the Code, or which is classified as bailable under any other law. An accused can
claim bail as a matter of right if he is accused of committing a bailable offence. The police officer or
any other authority has no right to reject the bail if the accused is ready to furnish bail.
Under Section 436 of CrPC 1973, a person accused of a bailable offence at any time while under
arrest without a warrant and at any stage of the proceedings has the right to be released on bail.

Non-bailable offences

A non-bailable offence is defined as any offence which is not a bailable offence. A person accused of
a non-bailable offence cannot claim bail as a right. A person accused of non-bailable offences can be
granted bail provided the accused does not qualify the following conditions:

 There are reasonable grounds to believe that he has committed an offence punishable with
death penalty or life imprisonment.

 That the accused has committed a cognizable offence and he had been previously convicted
of an offence punishable with death, imprisonment for life or imprisonment of seven years
or more or if the accused been convicted on two or more instances of a cognizable and non-
bailable offence.

There are exceptional cases in which law gives special consideration in favour of cases where the
accused is a minor, a woman, a sick person etc. [Section 437(1) CrPC].

Different types of bail

Regular bail

Via this, the court orders the release of a person who is under arrest, from police custody after
paying the amount as bail money. An accused can apply for regular bail under Section 437 and 439 of
CrPC.

Interim bail

This is a direct order by the court to provide temporary and short term bail to the accused until his
regular or anticipatory bail application is pending before the court. The Supreme Court noticed the
misuse of interim bail by the accused in Rukmani Mahato vs. the State of Jharkhand.

Anticipatory bail

This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a crime.
When the person has an apprehension of being arrested, the person can apply for anticipatory bail.
Sometimes, an application for anticipatory bail may go against the person, as it might alert an
investigation agency regarding the involvement of that person in a crime.
Important factors to be considered while granting anticipatory bail in India

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive list
of considerations while deciding anticipatory bail. They are as follows:-

 Gravity of crime and role of accused must be understood before the arrest.

 Previous record of accused, any imprisonment on conviction in respect of non bailable

offence, should be checked.

 Possibility that applicant will flee from justice.

 Chances of repetition of similar or other offences.

 Intention behind accusation is whether to injure or humiliate the applicant by arresting him
or her.

 Consider the exact role of the accused.

 Reasonable apprehension of tampering with evidence, witnesses and threatening the

complainant.

Standard conditions while granting anticipatory bail

 Accused should present himself / herself for interrogation by the investigation office as and
when asked to appear.

 Accused should not directly or indirectly try to induce, threaten, or promise to any person
related to the case who knows the facts of the case, so that he can be dissuaded from
disclosing the fact to the court or investigation officer.

 Accused should not leave the country with prior permission of the court.

 Any other condition which the honourable court deems fit.

Cancellation of bail

Under Section 437(5) of CrPC, the court which has granted bail can cancel it, if found necessary
under certain conditions. Per Section 439(2), the Sessions Court, High Court, or Supreme Court can,
suo moto, cancel the bail granted to the accused and transfer the accused to custody. Per Section
389(2), an appellate court can also cancel the bail of the accused and order the accused to be
arrested and sent to custody.

CASE LAWS

Sushila Agarwal vs. State – Supreme Court held that anticipatory bail should not be for a fixed
period, but it is open to the court to limit the tenure of anticipatory bail if any special condition
necessitates the same.

Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :

 There are no provisions in the CrPC regarding time boundness of granting pre – arrest
anticipatory bail.

 The concerned court has the discretion to impose conditions for grant of anticipatory bail
including a limited period of protection etc., subject to considering any special circumstances
required.
Moti Ram & Ors vs State Of M.P (1978):

The right to seek release on bail under Section 436(1) cannot be undermined indirectly by imposing
an unreasonably high bond amount or bail bond requirement on the individual seeking release.

K. S. Layak v. State of A.P (1981):

It was held by the Andhra Pradesh HC that while granting bail on conditions, any condition which is in
derogation of an accused’s fundamental rights cannot be imposed.

What is a bond
A bail bond is a written document signed by the accused or his friends or family (known as surety) to
assure that the accused will be present before the court at the stipulated time and date, as specified
by the court. The bail amount is determined by the court, which is based on the gravity of the
offence, and the amount is forfeited if the accused does not appear before the court on the
stipulated trial date. A surety is a person who indemnifies or ensures the presence of the accused or
offender in court on the date specified by the court. The surety pays on behalf of the offender for the
purpose of a bail bond when the offender is deemed incapable of furnishing his personal bond. As
per Section 440 of the Code, the amount of bond fixed by the court should be proportionate to the
offence and should not be excessive. It is to be noted that this Section empowers the sessions courts
and the High Courts to instruct the magistrate or the police officer to reduce the bail bond amount if
deemed excessive. As per Section 442, the accused person will be released immediately once the
execution of the bond is completed, and if he is in jail, the court shall issue an order of release to the
officer in charge of the jail.

When is a bond required

A bail bond is required for the purpose of completing the bail procedure. In a situation wherein the
court determines the amount of the bail and the accused is deemed incapable of paying such an
amount by themselves, in such a scenario, the accused can seek the help of a bail bond agent or
bondsman. The next stage here is based on the appearance or non-appearance of the accused
before the court on the stipulated date. There can be two possible outcomes here:

Appearance of defendant

As per the conclusion or outcome of the court case, the dissolution of the bail bond is carried out,
and the collateral is returned to the defendant or person who posted the same.

Non-appearance

In a scenario wherein the accused fails to appear before the court on the court-mandated date, the
bail bond is deemed to be forfeited and the court demands payment of the bond amount. The
accused will be allowed to show cause upon failure of appearance. In case the sufficient cause is not
shown and the penalty is not paid, the court proceeds to recover the same as if such penalty were a
fine imposed by it under the Code.

Forfeiture of bond and conditions leading to it

A particular court before it advances action as per Section 446 of the Code to recover the penalty has
to be satisfied regarding the forfeiture of the bond. It is paramount that forfeiture must have been
“proved” in due satisfaction of the court. Therefore, satisfactory proof pertaining to the forfeiture of
a bond is essential with regard to the commencement of proceedings under Section 446 of the Code.
Such proof must initiate the commencement of proceedings under Section 446 of the Code and
without the same, proceedings under Section 446 of the Code cannot be set forth. The following
steps can be identified leading up to the invocation of Section 446.

 An accused was set off on bail under the provisions of the Code.

 The bail bond was set on a court-mandated amount to ensure the appearance of the accused
on a specified date.

 On the stipulated date, the accused fails to appear before the court.

 It is proved to the satisfaction of the court that the bond for appearance or production of
property or any other bond has been forfeited.

 Initiation of proceedings on forfeiture of the bond.

What does Section 446 Code say about proceeding when a bond has been forfeited

As per Section 446 of the Code, when it is established that the bond has been forfeited, the court can
call upon any person who is bound by that bond to pay the penalty or show cause why it should not
be paid. If a sufficient cause for forfeiting is not proved or shown and the penalty therein is also not
paid, the court can recover the same as if it was a fine imposed by a court under this Code as
per Section 421. The court has the discretion to remit a specified portion of the penalty. When the
accused is not present on the stipulated date as per the bond, then the accused has to showcase a
good cause to justify his absence. The court will also record the grounds of proof with regard to the
forfeiture of the bond. The following aspects can be derived based on Section 446:

1. Section 446 of the Code lays down the procedure regarding the forfeiture of bonds. It
basically refers to two classes of bonds:

 Any bond executed as per this Code for appearance or for production of property; and

 Any other bond under the ambit of this Code.

Both would stand on the same ground with respect to forfeiture.

2. The proviso under sub-section (2) says that when the penalty is unpaid and cannot be
recovered in the manner as laid down in Section 421 of the Code, the person who is bound
as the surety will be deemed liable, by order of the court ordering the recovery of the
penalty, to imprisonment in civil jail for a term up to six months.

3. As per sub-section (3), the Court can remit any part of the penalty and enforce payment with
respect to that particular part only.

4. As per sub-section (4), in case the surety passes away before the forfeiture of bond i.e.,
conditions of the bond have not been violated till that very point, in that case, the surety’s
property can be absolved from all liability with regard to the bond. But in a scenario wherein
the surety dies after the forfeiture of the bond, the property of the surety can be deemed
liable for penalty.

5. As per sub-section (5), a certified copy of the judgment, which represents that the person
who furnished security has been deemed guilty and convicted for breach of conditions of
his/her bond can be used in the form of evidence against such person. Hence, in a situation
wherein a person is convicted for breach of bond under the ambit of
 Sections 106, 117, 360 or 448 of the Code, a certified copy of the judgment would be used as
evidence during the proceedings against the surety and shall act in a way it presumes such
person’s liability unless proven otherwise.

Cancellation of Bond

Section 446A is concerned with the cancellation of the bond. The provisions of this Section do not
influence the provisions pertaining to the forfeiture of the bond. The Hon’ble High Court of Rajasthan
in the case of Johny Wilson vs State Of Rajasthan held that “It is true that forfeiture of the bail-bond
does not amount to cancellation of bail. The legislature has not used the word “cancellation”. When a
bond for the purpose of securing the appearance of a person in a case before the court is forfeited
for breach of an expressly stipulated condition, then in such a scenario, the bond executed by the
accused and sureties shall stand cancelled; and

Thereafter, the accused is not released on his personal bond in that case.

The proviso with respect to this section states that an accused can be released after 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 deems fit.