JAMIA MILLIA ISLAMIA

NEW DELHI

FACULTY OF LAW

CODE OF CRIMINAL PROCEDURE - I

BAIL IN BAILABLE OFFENCE

Submitted by: - Submitted TO: -

Priyam (48)(s/f) Dr. Asad malik

Semester- VIII Prof (CrPC)

 BAIL IN BAILABLE OFFENCE

TABLE OF CONTENT

INTRODUCTION.................................................................................................................................... 3
SCOPE AND APPLICATION ............................................................................................................ 3
BAIL IS A SECURITY FOR APPEARANCE ............................................................................... 4
CONSIDERATIONS FOR GRANT OF BAIL ............................................................................... 5
POWER TO REFUSE BAIL ............................................................................................................... 5
WHO MAY BE RELEASED ON BAIL ............................................................................................ 6
CONDITIONAL BAIL ........................................................................................................................... 7
BAIL BOND EXECUTED BEFORE POLICE OFFICER ......................................................... 8
CANCELLATION OF BAIL, GRANTED UNDER THIS SECTION ..................................... 8
POWER OF MAGISTRATE ............................................................................................................... 9
CANCELLATION OF BAIL WHERE ACCUSED ABSENT HIMSELF ........................... 10
AFTER CANCELLATION, CAN ACCUSED DEMAND BAIL AGAIN AS OF RIGHT?
.................................................................................................................................................................... 11
CONCLUSION ...................................................................................................................................... 13

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INTRODUCTION

The word “Bail” means the security of a prisoner’s appearance for trial. The effect of granting
bail is, accordingly not to get the prisoner free from jail or custody, but to release him from the
custody of Law and to entrust him to the custody of his sureties who are bond to produce him at
his trial at a specified time and place. Grant of bail is a rule and refusal is an exception. A person
accused of a bailable offence has the right to be released on bail. Bail in case of bailable offences
is compulsory. In the matter of admission to bail the Code of Criminal Procedure makes a
distinction between bailable & non-bailable offences.
The grant of bail to a person accused of non-bailable offence is discretionary. But a
person accused of bailable offence at any time while under detention without a warrant at any
stage of the proceedings has the right to be released on bail in view of section 436 Cr. P.C. 1973.
When the offence is bailable and accused is prepared to furnish bail, police officer has no
discretion to refuse bail. Even when a person suspected of committing a bailable offence is
produced before a magistrate and he is prepared to give bail, Magistrate has no option but to
release him on appropriate bail. Magistrate cannot refuse to accept surrender and to bail out an
accused against whom a petition or complaint of bailable offence has been filed. The offence
when is bailable, bail has to be granted. If the offence is non-bailable further considerations arise.
While adjudicating a bail application detailed examination of evidence and elaborate
documentation of the merits of the case is however to be avoided.

SCOPE AND APPLICATION

‘Bail’ connotes the process of procuring the release of an accused charged with certain
offence by ensuring his future attendance in the court for trial and compelling him to remain
within the jurisdiction of the court.1 Where a person who is arrested is not accused of a non-
bailable offences no needless impediments should be placed in the way of his being admitted to
bail. In such cases the man is ordinarily to be at liberty and it is only if he is unable to furnish
such moderate security, if any as is required that he should remain in detention. The section is

1
Nathurasu v. State, 1998 Cri LJ 1762 (Mad).

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imperative and under its provision the magistrate is bound to release the person on bail or
recognizance. But bail means release of a person from legal custody; it presupposes that he is in
custody. Person who is under no such restraint cannot be granted bail. The fundamental principal
of our system of justice is that a person should not be deprived of his liberty except for a distinct
breach of law. If there is no substantial risk of the accused fleeing there is no reason why he
should be imprisoned during the period of his trial. The basic rule is to release him on bail unless
there are circumstances suggesting the possibility of his fleeing from justice or thwarting the
course of justice. When bail is refused it is a restriction on personal liberty of the individual
guaranteed by Article 21 of the Constitution and therefore, such refusal must be rare. Where
delay take place in the disposal of criminal proceedings the accused ought not to be kept in
custody for an inordinately long time and must be released on bail except when under extremely
rare circumstances it is not possible to do so.
Appearance under this section includes voluntary appearance. When he so surrenders is
in judicial custody of the court and the magistrate cannot reject the bail on the ground that the
person was neither arrested nor had been summoned by court order of Magistrate has granted
interim bail the interim bail would subsist so long as the fresh bail application is not decided by
the Magistrate. As offence under sections 8/21 NDPS Act is bailable offence. The power to grant
bail given by sections 436 and 437 of the Code vests in the Court before whom an accused
appears and is brought. The expression “Court” means the Court which has power to take
cognizance of the case. A Court which has only the power to remand under section 107 is not a
competent Court for granting bail. Similarly as Executive Magistrate has no jurisdiction to grant
bail except in respect of offences punishable with fine and or imprisonment up to three months.
In relation to a person not accused of such offences the Magistrate, who has jurisdiction to take
cognizance has power to grant bail even when the accused is in custody on the basis of an order
of remand passed by an Executive Magistrate.2
BAIL IS A SECURITY FOR APPEARANCE
Bail in its fundamental concept is a security for the prisoner’s appearance to answer the
charge at a specified time and place. It is natural and relevant for any Court to consider such
security in relation to and in the light of the nature of the crime charged and the likelihood or

2
Singeshwar Singh Vs. Bihar, 1976 Cr.LJ 1511 (Pat).

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otherwise of the guilt of the accused there under. At any early stage when accused asks for bail,
the Court has necessarily to act on a reasonable and intelligent anticipation which ex-hypothesis
must, to a certain extent, be problematical because the trial has not run its course. A person
released on bail is still considered to be detained in the constructive custody of the Court through
his surety. He has to appear before the Court whenever required or directed. Therefore, to that
extent, his liberty is subjected to restraint. He is notionally in the custody of the Court and hence
continues to be a person arrested. Even in spite of the fact that the accused had been released on
bail, he continues to be a person arrested on a charge of commission of an offence.

CONSIDERATIONS FOR GRANT OF BAIL

The first duty of the Court in granting or refusing bail would be to see whether there is
possibility of the accused being available to trial and also whether there is any possibility of
accused jumping out the bail.3 Where an accused was granted bail in a case arising out of police
report and subsequently a complaint with additional charges have been filed, accused may be
directed to surrender and then apply for bail in respect of additional charges. Once the accused
had incurred the liability of the forfeiture of the earlier bonds, he is not entitled to bail as a matter
of right, even in bailable cases. Where after the grant of bail in bailable offence, subsequently
non-bailable offence is added the accused would not be allowed to remain on the same bail
bonds, fresh bail application would be referred for non-bailable offence.

POWER TO REFUSE BAIL

Sub Section (2) of section 436 empowers the Court to refuse bail to an accused person even if the
offence is bailable, where the person granted bail fails to comply with the conditions of the bail
bond. Such refusal will not affect the powers of the Court to forfeit the bond and recover penalty
from the surety as laid down by section 446. Even in bailable offence the Court has power to
refuse to release a person on bail. The person committed to custody under the order of the High
Court cannot ask for his release on bail under this section, but the High Court may by subsequent
order admit him to bail again. An order granting or refusing bail is interlocutory. Order refusing
bail is not a final order. Bail may be refused at one stage but may be granted at a later stage in

3
Sukar Narayan Bakhia Vs. Rajnikant R.Shah, 1982 Cr.LJ 2148 (Guj).

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the same proceedings. It can be even rescinded or modified or cancelled at any stage. It does not
terminate the proceedings or decides a point for decision in the case and therefore is not a final
order.

WHO MAY BE RELEASED ON BAIL

A person who is accused of a bailable offence will be entitled to a bail under this section.
He will be entitled to bail if:4
a. he is accused of a bailable offence;
b. he is arrested or detained without warrant by an officer-in-charge of a police station or
appears or is brought before a court;
c. a complaint or a police report of a bailable offence is made against him, or he is
suspected of having committed such an offence.
But even though the offence is bailable, bail will not be granted if the accused stultifies
the process of the court or breaks his bond of appearance.
When a bail application is moved before the subordinate Courts, the same shall be disposed of
the same day. Power under Section 436 should be exercised sparingly by the High Court.

Bail can be taken by the police officer who has arrested or detained the person concerned or by
the Court before whom the person appears or is brought. Under Section 440, the High Court or
the Court of Session may in any case direct that the bail required by a police Officer or
Magistrate be reduced. When a police officer makes an arrest under Section 41 he is bound to
give the person arrested the option of the bail and bail bond should be not excessive but in
accordance with position in life occupied by the person arrested. In Superintendent and
Remembrancer of Legal Affairs, Bengal Vs. Jairali,539 the decision in the matter of the petition
of Daulat Singh,6 was doubted and it was held that there was no indication in that section that the
police are bound, after arrest, to inform the persons arrested that they are entitled to be released
on bail. But Section 56 lays down that a police officer making an arrest shall, without

4
K.K.Girdhar Vs. MS. Kathuria, 1989 Cr.LJ 1094 (Delhi).
5
ILR 63 Cal. 189: 37 CrLJ 1070.
6
ILR 14 ALL 45.

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unnecessary delay and “subject to the provisions herein contained as to bail”, take or send the
person arrested before Magistrate having jurisdiction in the case or before the officer-in-charge
of a police station. From the words “italicsed” it is clear that if the police officer effecting an
arrest is an officer-in-charge of a police station and if the offence is bailable, such officer shall
release the arrested person on bail when the arrested person is prepared to give bail. If, however,
the police officer arresting a person is not an officer-in-charge of a police station, then the
arrested person has to be produced before the officer-in-charge of a police station, as required
under this section. Where a person at the time of his arrest, holds a very high position under the
Government of India, it is a fit case in which a personal bond would be deemed enough.

CONDITIONAL BAIL
The Court or the police officer has to grant bail to an accused in a case relating to a
bailable offence. Bail has, therefore, to be granted to the accused in such cases, and any
condition in the order granting the bail, other than the one for attendance of the accused, would,
therefore, be illegal.7In respect of bailable offences, a Magistrate cannot impose a condition that
the accused should appear before the police.8 The Rajasthan High Court while rejecting the
prayer for cancellation of bail however imposed condition for a short period of one week that
the non petitioner Nos. 1 and 2 should appear before the Investigating Officer for further
interrogation. The said non-petitioners were not to leave the town during the week and were to
present themselves for interrogation before the Investigating Officer or such Police Officer and
at such time during the week, as they may be directed by the Investigating Officer. Non-
petitioner Nos. 1 and 2 could leave after seeking permission of the Investigating Officer. With
these conditions the application for cancellation of bail was rejected.
The condition that a person accused of a bailable offence has to surrender his pass-port is
not a term as to bail and therefore cannot be imposed by a Magistrate under Section 436. But the
High Court can restrict the appellant’s departure from India. These terms and conditions do not
fetter inherent powers of the High Court.

7
Sardamma In re (1965) 2. Andh W.R. 289, AIR 1965 AP 444 at 446,447 .
8
Paulose Vs. State, 1978 Ker. LT 337.

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BAIL BOND EXECUTED BEFORE POLICE OFFICER

A bail bond executed before a Police Officer on account of the fact that the person,
involved in a bailable offence, should be released as his detention in custody, if he is prepared to
offer bail, will be contrary to law. So a bail bond executed before a police officer is not for the
appearance before the police because a person accused is an offence, during investigation, is
made an obligation to make himself available before the police officer for investigation and for
that, strictly speaking, no bail bond is required to be furnished and that being so, the bail bond so
furnished before the police officer, in such circumstances, is definitely for appearance before a
court where definitely such person involved in a bailable offence, is required to appear if and
when chargesheet is submitted and the process of trial takes place. The police have no power to
require an accused person released on bail to appear before them. They can only require the
accused person to appear before the Magistrate at the time and place mentioned in the
bond.6Once police has released an accused on bail after taking bonds for appearance before the
Court, on the submission of charge-sheet, the accused need not be asked to file fresh bail bonds9.

CANCELLATION OF BAIL, GRANTED UNDER THIS SECTION

Section 436 (2) of the Cr. P.C. lays down that where a person had 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 subsequent occasion in the same case he appears before the Court
or is brought in custody. Therefore, it cannot be said that orders passed by the Judicial
Magistrate, for further remand to custody is in any away without jurisdiction. In such
circumstances, it cannot be held that the custody of the accused is illegal. The Supreme Court10
has recognized the power to cancel the bail granted under section 436 in exercise of the inherent
powers of the High Court. The Supreme Court has observed that the Code makes no express
provision for the cancellation of a bail granted under Section 436. Nevertheless, if at any
subsequent stage of the proceedings, it is found that any person accused of a bailable offence is
intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the
High Court has the power to cause him to be arrested and to commit him to custody for such
period as it thinks fit. This inherent power of the High Court exists and is preserved by Section
9
Mohit Malhotra Vs. State of Rajasthan, 1990 Raj. Cri. Cas. 68.
10
Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939

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482 of the Code. The person committed to custody under sub section (2) of section 439 confers
upon the High Court or the Court of Session power to cancel bail in regard to cases of persons
accused of any offences where such persons were admitted to bail under this chapter,73 though
ordinarily a Magistrate has no power under the Code to cancel the bail of the accused persons
who are on bail in bailable offences.
When an accused has been released under section 436 and later a non bailable offence is
added, even then the bail granted cannot be cancelled. Bail can be cancelled only either under
section 439 (2) or Section 437 (5). Once bail is granted under Section 436 and a charge-sheet for
a non bailable offence also is filed, bail cannot be cancelled unless there is misuse of the
liberty granted. But in case an order has been made for releasing a person on bail and it is later
found that such order is either based on some misapprehension or being otherwise infirm, is
likely to prejudice the interest of administration of justice, then this provision of law seems to
amply empower the Courts mentioned therein to make a suitable order canceling the order of
release on bail so as to protect and safeguard the cause of justice.

POWER OF MAGISTRATE
The powers of the Magistrate in granting bail are not governed by the Court which has
jurisdiction to try the case; rather are governed by the punishment prescribed for commission of
the crime. A Magistrate has no jurisdiction to grant bail only in such case where the prescribed
punishment is imprisonment for life or death penalty. The Magistrate is empowered to grant bail
in the case of an offence under section 366 IPC, where the punishment is that of 10 years.11 The
Court has discretion in the matter; it may release accused by taking only a personal bond without
insisting surety for the appearance. The insistence of the personal bond and surety is essentially a
matter of discretion and within the jurisdiction of the Court.
In regard to a bailable offence Magistrate is not competent to impose condition. The
accused has a right to be enlarged on bail. The imposition of condition in bail order that accused
shall appear before the investigating officer once in three days was held unsustainable and hence
set aside. The condition that a person accused of bailable offence has to surrender his passport in

11
Aftab Ahmed Vs. State of U.P. 1990 Cr. LJ 1636 (All-DB).

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Court is not a term as to bail and therefore cannot be imposed by a Magistrate.12 The Supreme
Court has held that unnecessarily inhibitive condition ought not to be imposed while granting
bail. An order rejecting surety because he or his estate was situated in a different district was
held to be discriminatory and violate of Article 14 of the Constitution.
In an Orissa case13 it has been held that Magistrate has power to cancel bail, be the
offence bailable or not, the deciding factor being whether the accused by his behaviour and
conduct forfeited the concession shown to him. Affirming the decision it was held the power to
forfeit bail bond is inherent in any court and when circumstances justify the court is competent to
cancel the bail which was granted earlier. The question is not whether the offence is bailable or
non bailable. A person accused of bailable offence when is committed to custody by reason of
his bond being forfeited cannot claim to be released on the ground of the bailability of the
offence, for his commitment to custody is not for reason of the fact that he is alleged to have
committed a bailable offence but by reason of a judicial order forfeiting his bond is a
consequence of the conduct of the accused showing pending trial be should not be at large.
Section 446-A provides that for breach of a condition a bond furnished for release on bail in
bailable offence may stand forfeited and cancelled. And once this is done no such person shall be
released only on his own bond, in that case, if the police officer or the court, as the case may be,
for appearance before whom the bond was executed, is satisfied that there was no sufficient
cause for the failure of the person bound by the bond to comply with its condition. Subject to
other provisions of the Code of Criminal Procedure the accused may be released in that case
upon execution of fresh personal bond for such sum of money and bond by one or more of such
sureties as the police officer or the court, as the case may be, thinks sufficient.

CANCELLATION OF BAIL WHERE ACCUSED ABSENT HIMSELF

In Panna Lal v. R.K. Sinha,14 it was contended that the applicant was accused of a
bailable offence for which he had already been granted bail under the provisions of Section 496
Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973], which was an absolute and
indefeasible right; therefore, the Sessions Judge had no jurisdiction to cancel his bail and order

12
Azeez Vs. State of Kerala, 1984 Cr.LJ 1059: 1984 (2) Crimes 413.
13
Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ (NOC) 104(Ori.): (1977)44 Cut LT 466.
14
1967 Cri LJ 980 at p. 983 (All) : AIR 1967 All 304.

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his arrest in spite of the fact that he had absented himself and had failed to attend the court.
Relying upon the decision of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam
Mondkar,15 it was held by the Allahabad High Court that in the said case the Supreme Court had
made it abundantly clear that if an accused has abused his bail (by not attending the Court or
otherwise ) his commitment to custody thereafter is not by reason of the fact that he was charged
of a bailable offence; on the other hand, his subsequent commitment to the custody is on the
ground that he has forfeited his bail. It was held that in such a case the accused could not fall
back upon his original right under Section 496 Cr. P. C. (of 1898) [equivalent to S. 436 of Cr. P.
C. of 1973] which had ceased to be applicable to his case, because of his default.
It was further held by the Allahabad High Court that it was true that the Supreme Court in the
said Talab Haji Hussain case had also remarked that there was no specific provision for the
cancellation of the bond and re-arrest of a person accused of a bailable offence; but this remark
was evidently with reference to the powers of an appellate or revisional authority, like the High
Court, and that it was not meant to cover the case of first instance which had initially granted bail
as there was a specific provision in Section 92, of Cr. P. C. (of 1898), conferring a right of
cancellation of bond and re-arrest of the offender. It was also observed by the High Court that it
appeared that in said Talab Haji Hussain case, the provisions of Section 92 of Cr. P. C. (of 1898)
had not been brought to the notice of the Supreme Court.

AFTER CANCELLATION, CAN ACCUSED DEMAND BAIL AGAIN AS OF

RIGHT?
In Talab Haji Hussain v. Madhukar Purshottam Mondkar,16 where the High Court in
exercise of its inherent powers had cancelled bail granted to the accused in a bailable offence, it
was contended that the provisions of S. 496 of Cr. P.C. (18980 [ equivalent to S. 436 of Cr. P.C.
of 1973] were plainly inconsistent with the exercise of inherent power by the High Court under
S. 561- A of Cr. P. C. (of 1898) [ equivalent to S. 436 of Cr. P.C. of 1973] against the instant
case, that despite the order of cancellation of bail passed by the High Court, the accused would
be entitled to move the trial Court for bail again and the trial Court would be bound to release

15
AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.
16
1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.

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him on bail because the right to be released on bail recognized by S. 496 of Cr. P.C. (of 1898)
was an absolute and an indefeasible right; that despite the order of the High Court, that right
would still be available to the accused; and that in such a scenario, the order passed for
cancellation of bail using inherent powers would be rendered ineffective and that itself would
show that there was a conflict between the exercise of the said power and the provisions of S.
496 of Cr. P.C. (of 1898). of a person accused of a bailable offence; but the does not mean that
S. 496 entitles such an accused person to be released on bail, even though it may be shown that
he is guilty of conduct entirely subversive of a fair trial in the Court
In this regard, the Supreme Court further held that under S. 498(1) of Cr.P.C. (of 1898)
[equivalent to S. 436 of Cr. P.C. of 1973], the High Court or the Court of Session may, even in
the case of persons accused of bailable offences, admit such accused persons to bail; and that if a
person accused of a bailable offence is admitted to bail by an order passed be the High Court or
the Court of session, the provisions of sub-section (2) become applicable to his case; and under
these provisions the High Court or the Court of Session is expressly empowered to cancel the
bail granted by it and to arrest the accused and commit him to custody. The Supreme Court thus
held that the result was that with regard to class of cases of bailable offences falling under S.
498(1) of Cr. P.C. (of 1898), even after the accused person are admitted to bail, express power
had been conferred on the High Court or the Court of Session to arrest them and commit them to
custody; that clearly then it could not be said that the right of a person accused of bailable
offence to be released on bail could not be forfeited even it his conduct subsequent to the grant of
bail was found to be prejudicial to a fair trial.

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CONCLUSION

It is indisputable that an unnecessarily prolonged detention in prison of under trials

before being brought to trial is an affront to all civilized norms of human liberty and any
meaningful concept of individual liberty which forms the bedrock of a civilized legal system
must view with distress patently long periods of imprisonment before persons awaiting trial can
receive the attention of the administration of justice. Thus the law of bails must continue to allow
for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the
humanization of criminal justice system and to sensitize the same to the needs of those who must
otherwise be condemned to languish in prisons for no more fault other than their inability to pay
for legal counsel to advise them on bail matters or to furnish the bail amount itself.
While concluding, it seems desirable to draw attention to the absence of an explicit
provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an
under trial prisoner on his bond without sureties and without any monetary obligation. There is
urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in
Indian prisons today include many who are unable to secure their release before trial because of
their inability to produce sufficient financial guarantee for their appearance. Where that is the
only reason for their continued incarceration, there may be good ground for complaining of
invidious discrimination. The more so under a constitutional system which promises social
equality and social justice to all of its citizens. The deprivation of liberty for the reason of
financial poverty only is an incongruous element in a society aspiring to the achievement of
these constitutional objectives. There are sufficient guarantees for appearance in the host of
considerations to which reference has been made earlier and, it seems to me, our law-makers
would take an important step-in defence of individual liberty if appropriate provision as made in
the statute for non-financial releases.
.

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