Professional Documents
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CRIMINAL PROCEDURE
Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.
TUSHAR
TABLE OF CONTENTS
1. Meaning of Bail
2. Bail under Criminal Procedure Code
3. Section 436-A
4. Section 438
5. Cancellation of bail
6. Conclusion
CONCEPT OF BAIL
1
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939.
2
Kanubhai v. State of Gujarat (1972)(B) Guj LJ 864 : Union of India v. S. Bhagwandas
1969 Mad. LW (Cri) 88.
3
Niranjan Singh v. Prabhakar (1980)2 SCC 559 : 1980 SCC (Cri) 508 : AIR 1980 SC
785.
BAIL UNDER CRIMINAL PRCEDURE CODE
Provided that such officer or Court, if he or it thinks fit, may, instead of taking
bail from such person, discharge him on his executing a bond without sureties
for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the
provisions of sub-section (3) of section 116.
Section 436 of the Code provides for release on bail in cases of bailable
offenses. Section 436 provides that when person not accused of a non-bailable
offense is arrested or detained he can be detained as right to claim to be
released on bail.
This section entitles a person other than the accused of a non-bailable offense
to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a
police officer arresting such a person without a warrant to inform him his right
to be released on bail.
Section 436 (1) of the Code signifies that release on bail is a matter of right, or
in other words, the officer-in-charge of a police station or any court does not
have any discretion whatsoever to deny bail in such cases. The word " appear
in this sub- clause is wide enough to include voluntary appearance of the
person accused of an offense even where no summons or warrant has been
issued against him. There is nothing in S. 436 to exclude voluntary appearance
or to suggest that the appearance of the accused must be in the obedience of a
process issued by the court. The surrender and the physical presence of the
accused with the submission to the jurisdiction and order of the court is
judicial custody, and the accused may be granted bail and released from such
custody.
Of course, if facts are brought to the notice of the court which go to show that
having regard to the condition and background of the accused his previous
record and the nature and circumstances of the offense, there may be a
substantial risk of his non-appearance at the trial, as for example, where the
accused is a notorious bad character or confirmed criminal or the offense is
serious the court may not release the accused on his personal bond and may
insist on bail with sureties. But in the majority of cases, considerations like
family ties and relationship, roots in the community, employment status etc.
may prevail with the court in releasing the accused on his personal bond and
particularly in cases where the offense is not grave and the accused is poor or
belongs to a weaker section of the community, release on personal bond
could, as far as possible, be preferred. But even while releasing the accused on
personal bond it is necessary to caution the court that the amount of the bond
which it.
SECTION 436A - Maximum period for which an under trial prisoner
can be detained:
The new provision Section 436A was introduced in order to solve the problems
of undertrials' who were languishing in jails as they will now be given an
opportunity to be set free instead of endlessly waiting for their trial to take
place. This move has been made due to a faulty criminal justice system and
provides a makeshift method of providing justice and relief to undertrial
prisoners. This seems to suggest that the Legislature and the Government have
accepted the existence of the faulty system and their inability to do anything
about it. For this purpose section 436 A was inserted.
Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to
the Court to set the prisoner free or to make him/her continue imprisonment.
There is no mention of any applications having to be filed under the section.
The first part of the section states that any prisoner who has served more than
half the term of his/her imprisonment 'shall' be released. However, the proviso
puts a restriction on the mandatory provision by giving discretionary powers to
the courts. This raises questions regarding the implementation of the
provision. There is every chance that a prisoner may be sent back to jail to
serve a period longer than the half term of his/her sentence. Till the Judges
give their written reasons for the same, one will not know on what grounds a
continuation of the term can be ordered as the section does not provide any
guidelines.
Section 437 of the Code provides for release on bail in cases of non-bailable
offenses. In such cases, bail is not a matter of right. Court has sufficient
discretion to deny or to grant bail. First Schedule to the Code provides the list
of bailable and non-bailable offenses. Further cases often arise under S. 437,
where though the court regards the case as fit for the grant of bail, it regards
imposition of certain conditions as necessary in the circumstances.
To meet this need sub-section (3) of S. 437 provides:
When a person accused or suspected of the commission of an offense
punishable with imprisonment which may extend to seven years or more or of
an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal
Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any
such offense, is released on bail under sub-section (1), the Court may impose
any condition which the Court considers necessary: -
(a) In order to ensure that such person shall attend in accordance with the
conditions of the bond executed under this Chapter, or
(b) In order to ensure that such person shall not commit an offence similar
to the offence of which he is accused or of the commission of which he is
suspected, or
(c) Otherwise in the interests of Justice.
Anticipatory bail can not be granted in all cases as a matter of course. The
exercise of power has to be invoked in exceptional case only. While
considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should be caused to the free and
full investigation and there should be prevention of harassment and unjustified
detention of the accused.
There are certain circumstances where applications for anticipatory bail are
normally refused. These include:
For offences/contraventions under certain specific statutes like the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 and the Defence of India Rules, 1971.
The provisions of s. 438 are normally refused to those accused of
particularly heinous offences like murder and rape.
One can avail the provisions of s. 438 by filing an application for the same in
the High Court or Sessions Court. If an application in the Sessions Court is
rejected, the person may file the same in the High Court, but not vice versa.
The application may be preferred to the relevant court in whose jurisdiction
the accused was purported to commit the offence or the jurisdiction in which
the arrested person apprehends arrest.
According to S. 437(5) any court which has released a person on bail under (1)
or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such
person be arrested and committed to custody.
The power to cancel bail has been given to the court and not to a police officer.
Secondly, the court which granted the bail can alone cancel it. The bail granted
by a police officer cannot be cancelled by the court of a magistrate. For
cancellation of bail in such a situation, the powers of the High Court or Court of
Session under S. 439 will have to invoked. Rejection of bail when bails applied
for is one thing; cancellation of bail already granted is quite another. It is easier
to reject a bail application in a non-bailable cases than to cancel a bail granted
in such case. Cancellation of bail necessary involves the review of a decision
already made and can large be permitted only if , by reason of supervening
circumstances it would be no longer conducive to a fair trial to allow the
accused to retain his freedom during the trial. However, bail granted illegal or
improperly by a wrong arbitrary exercise of judicial discretion can be cancelled
even if there is absence of supervening circumstances. If there is no material to
prove that the accused abused his freedom court may not cancel the bail.
Case law
4
[1978] 4 SCC 47
2. In Public Prosecutor v. George Williams5
The Madras High Court pointed out five cases where a person granted bail may
have the bail cancelled and be recommitted to jail:
(a)Where the person on bail, during the period of the bail, commits the very
same offence for which is being tried or has been convicted, and thereby
proves his utter unfitness to be on bail;
(b)If he hampers the investigation as will be the case if he, when on bail;
forcibly prevents the search of place under his control for the corpus delicti or
other incriminating things;
(c)If he tampers with the evidence, as by intimidating the prosecution witness,
interfering with scene of the offence in order to remove traces or proofs of
crime, etc.
(d)If he runs away to a foreign country, or goes underground, or beyond the
control of his sureties; and
(e)If he commits acts of violence, in revenge, against the police and the
prosecution witnessed & those who have booked him or are trying to book
him.
5
1951 Mad 1042
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 priods
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.
BIBLIOGRAPHY
Websites:
1. www.Advocatekhoj.com
2. www.indiankanoon.com
3. www.batasnatin.com
Books:
1. R.V. Kelkar’s, Criminal procedure , 6th edition , 2016
Cases:
1. In Moti Ram & Others. v. State of M.P
2. In Public Prosecutor v. George Williams
Statutes:
1. Code Criminal Procedure,1973