BAIL AND ITS IMPLEMENTATION
Introduction :
When a person has been arrested and charged with the commission of a crime, there is inevitably an interval of time before trial. Bail relates to the defendant’s right to freedom during this interval. It involves a pledge of money, property, or a “signature bond” as security that one will be available for trial when requested to appear. Failure of the defendant to appear may result in the forfeiture of the bail. The person who puts up the money is also known as the bail. There are compelling reasons why persons accused of crime should be allowed to be free on bail, after arrest and before trial. The right to bail implements the basic presumption of innocence that the law assumes for every person charged with crime. An accused is presumed to be innocent until actually convicted, and like all innocent people does not belong in jail.
The judge or magistrate fixing bail must take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, family and community ties, employment stability, financial resources, character and mental condition, and any previous record of appearance at court proceedings. The judge or magistrate dealing with bail necessarily exercises a large discretion. The judge’s decision will not be set aside by a reviewing court unless there is a strong proof of an abuse of that discretion. The judge is ordinarily in the best position to evaluate the facts of the crime.
Bail:
The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial.
In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant’s first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation, or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.
The courts have several methods available for releasing defendants on bail. Which of these methods is used is determined by the judge. One alternative is for the defendant to post a bail bond, or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant’s failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an arbitrary amount determined in light of the seriousness of the alleged offense.
A defendant can also be released upon her or his own recognizance, which is the defendant’s written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.
Criminal Prosecutions
The objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial. Constitutional and statutory rights to bail prior to conviction exist for most offenses, but state constitutional provisions and statutes must be consulted to determine the offenses to which bail applies. The Bail Reform Act of 1984 governs bail in federal offenses. It provides the federal magistrate with alternatives to the incarceration of the defendant. If the charge is a noncapital offense (an offense not punishable by death), the defendant may be released on her or his own recognizance. If there is a reasonable likelihood that the defendant will not return for trial, the judge may impose bail. The judge may also release the defendant into the custody of a designated person or organization for supervision. Restricting the residence, extent of travel, and personal associations of the accused are other options.
Discretion of the Court
A court exercises its discretion with respect to the allowance of bail. In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused’s appearance at trial. Unreasonable delay or postponement in the proceeding, which is not attributable to the accused, usually constitutes a ground for bail — in some jurisdictions, by absolute right; more frequently, at the discretion of the court.
In jurisdictions in which it is neither proscribed nor regarded as an absolute right, the grant of bail pending a motion for a new trial, a review, or an appeal is also discretionary. The grant of bail is then determined in light of the probability of reversal, the nature of the crime, the likelihood of the defendant’s escape, and the character of the defendant.
The decision to grant or deny bail is reviewable, but the scope of the review is limited to whether the court abused its discretion in its determination.
The amount of bail set is within the discretion of the court. Once fixed, it should not be modified, except for good cause. An increase cannot be authorized when the arrest warrant specifies the amount of the bail. An application for a change in bail is presented to the court by a motion based on an affidavit (a voluntary written statement of facts) confirmed by the oath of the person making it. The affidavit must be taken before a person authorized to administer such an oath and must contain the facts justifying the change.
Definition and Meaning of Bail :
In the law lexicon, ‘bail’ is defined as meaning to set at liberty a person arrested or imprisoned, or security being taken for his appearance on a day and at a place certain, and such security is called bail because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, in order that he may be safely protected from prison.
The basic conception of the word “bail” is release of a person from the custody of police and delivery into the hand of sureties who undertake to produce him in Court whenever required to do so. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place the charge against him and who is default of so doing are liable to forfeit such sum as is specified when bail is granted.
The term “Bail” in English Common Law as explained in Encyclopaedia Britannica means “the freeing or setting at liberty of one in tested or imprisoned upon by action, either civil or criminal, on surety for his appearance on a certain day and at a place named. The surety in lined bail, because the person arrested or imprisoned is placed in the of those who bind themselves or become bail for his due appearance when required. So he may be re-seized by them (if they suspect that he is 11 k nit to escape) and surrendered to the court, when they are discharged from liberty. The sureties must be sufficient in the opinion of the court to for the sum for which they are bound, and, as a rule, only minis holders are accepted; an accomplice of the person to be bailed or an infant would not be accepted. Bail is obligatory in all summary cases. It is obligatory in all misdemeanors, except such as have been placed on the of felonies, viz., obtaining or attempting to obtain property on false increase, receiving property so obtained or stolen, perjury or subornation or concealment of birth, willful or indecent exposure of the person, assault in pursuance of a conspiracy to raise wages, assault upon a officer in the execution of his duty or upon any one assisting him, H. rice or breach of duty as a peace officer, any prosecution of which the is are payable out of the country or brought rate or fund. In cases of bail can only be granted by a Security of State or the Kind’s Bench. A person charged with felony is not entitled as of right to be on bail. The power of admitting a prisoner to bail is judicial and not ministerial, and the exercise of the discretion must not be punitive, the chief Consideration being the likelihood of the prisoner failing to appear at the trial.1
“Instead of detaining the accused in custody during remand any one justice before whom the accused appears may discharge him upon his entering into a recognisance with or without sureties at time or place appointed for the continuance of the examination. The period for which justices may remand or bail a person accused of an indictable offence may, if that person or the prosecutor consent, exceed eight day. If the accused does not appear at the time and place mentioned in the recognisance the justice who discharged him on bail, or any other justice then there present, may certify and may transmit the recognisance to the clerk of the peace of the country, or other area, within which the recognisance is taken in order that may be enforced. The certificate of the justice is to be deemed sufficient primafacie evidence of the non-appearance of the accused.
Bail may also be continuous. “In this case the recogni-zance is conditioned for the appearance of the person remanded at every time and place to which the hearing may be adjourned.
“The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial. The test should : applied with reference to the following considerations.
- Then nature of the accusation.
- The nature of the evidence in support of the accusation.
- The Severity of the punishment which conviction will entail.
- Whether the sureties are independent, as indemnified by the accused person.
Object or Purposes of a Bail:
The object of keeping an accused person in detention prior to, or during the trial is not punishment but
i) to prevent repetition of offence with which he is charged; and
ii) to secure his attendance at the trial.
However, every criminal proceedings is based on a prima facie assumption of guilt and again there is a presumption of innocence in favour of the accused. Bail serves the purpose of presumption of innocence’. And at the same time, the conditions of bail like appearance in the court on fixed date and time serves the purpose prima facie assumption of guilt against the accused. There are varieties of purposes behind granting a bail. This may be, for example, for appearance before a court; for presenting appeal; pending reference or revision; or for the purpose of giving evidence etc.
Categories of Bail
Bail after investigation but before conviction:
(a) Bail by the Magistrate or Court (Sec. 496, 497 and 498)
Bail after Conviction:
(a) Bail pending appeal under section 426 and 498;
(b) Bail pending revision under section 435.
Bail in bailable offence (sec. 496) Bail in non-bailabel offence (sec. 497) Anticipatory Bail (sec. 498) Conditions of a Bail:
Bail conditions may be of two types: primary conditions and secondary conditions. Whenever an accused is granted on bail, this means that he or she is released from the detention subject to certain.
General Principles on Bail :
As a general rule bail should not be withheld as punishment unless the facts warrant such course.2<href=”#_ftn1″ name=”_ftnref1″ title=””>[1] Courts exercising bail jurisdiction should refrain from including in elaborate reasoning in their order in justification of grant or non-grant of bail.3 Bail was not to be refused to accused by way of punishment and the prosecution was required to show existence of reasonable grounds and satisfactory evidence in support of offence alleged against accused and if prosecution failed to establish same, then matter would become for further enquiry into the guilt of accused and bail in such circumstances should not be withheld.4
While granting bail the Court must consider the gravity of the offence of which the accused is charged, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, resonable apprehension of the witnesses being tampered with the larger interests of the public or the state and similar other considerations.5
The matters for consideration in an application for bail may be enumerated as follows:
a) Whether there is or is not a reasonable ground for believing that the applicant has committed the offence with which he is charged.
b) The nature and gravity of the charge;
c) Severity of degree of the punishment which might fall in the particular circumstances in case of a conviction;
d) The danger of the applicant’s absconding if he is released on bail;
e) The character and means and standing of the applicant;
f) The danger of the alleged offence being continued or repeated, assuming that the accused is guilty of having committed that offence in the past;
g) The danger of witness being tampered with;
h) Opportunity of the applicant to prepare his defence; and
i) The fact that the applicant has already been some months in jail and that the trial is not likely to conclude for several months at least.6<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
While dealing with a bail application the High Court should take into account the various considerations, such as—
I. nature and seriousness of the offence;
II. the character of the evidence;
III. circumstances peculiar to the accused;
IV. a reasonable possibility of the presence of the accused not being secured at the trial;
V. reasonable apprehension of witnesses being tampered with;
VI. the larger interests of the public or the state; and
VII. similar other considerations which arise when a court is asked to admit accused to bail in a non-bailable offence.7 Same consideration which have to be weighed in granting bail under section 497 would also apply in case of section 498.8
I. Law regarding disposal of bail application.
The law relating to disposal of bail application is as under :
1) When an accused surrenders in the Court and applies for bail, the subordinate Court have jurisdiction to release him on personal bond.
2) The Courts should be liberal in this matter, but the facts and the circumstances of each case should be considered and taken into account.
3) In cases of women and children Courts should prefer to release them on personal bonds pending the disposal of their bail applications as there is always a fear of sex abuse and child abuse in jail as well as police custody and no one likes to report such outrages to the authorities out of shame or other reasons.
4) The bail applications should be decided as expeditiously as possible and should not be allowed to remain pending for long. If practicable the bail applications should be considered the sum up.
II. Consideration of evidence at bail stage.
It is not for the Court at the stage of bail to evaluate the evidence but merely to consider as to whether upon the material on the record such sounds for belief have been made not or not. One of the ways in which can be done is to consider as to whether upon the material on the record, if on the record, if no further evidence is called or no rebutting is adduced, the accused can be found guilt or evidence is called or not. If he can be, then that would be a case where reasonable grounds do for forming the belief required under section 497 of the Code of Criminal Procedure and the High Court would be justified in refusing bail.9<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]
Only tentative assessment of evidence should be made at bail stage without entering into deeper appreciation of the merits of the case.10
Practice illation of evidence and recording of conclusion at interlocutory stage is deprecated. Such observation, held, apply with greater force in disposal of rail applications when neither accused yet arrested not case proceeded. Accused coming empty handed neither attacking noring injuries any one and only raising of lalkara attributed to him. Bail illowed by Sessions Judge was not interfered.
III. Prima facie case against accused.
While considering the question of grant of bail, the Court has to consider whether the prosecution has succeeded in making out a prima facie case against the accused coupled with the nature of the crime, the manner in which it has been committed, the possibility of the accused absconding and of his tempering with witnesses etc.10<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] In case of bail application of an accused who committed offence punishable with death etc., Court is required to be satisfied before rejecting the application that a. prima facie case exists as to the involvement of the accused in the offence.11
Mere naming the accused in the charge-sheet without any prima facie material and the mere fact that in the occurrence the Head of the State with his family has been murdered and that this is a sensational case cannot be a ground for refusal of bail.12 Appellant’s name not mentioned in the F.I.R. nor any material could be gathered against him by police. Bail was allowed.13
IV. No bail on sole ground of absence of any overt act.
Nature of commission of offence as alleged is to be taken note of while considering an application for bail for a non-bailable offence where normally accused is not entitled to bail unless special case is made out in respect of an accused. A person may not have committed an over act. He may, however, be the ring leader with whom others joined with common intention or common object. In case, such persons are released on bail object of the legislation in making the offence non-bailable becomes frustrated.14<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
V. Person playing minor role only.
For considering the prayer for bail the direct and overt acts alleged against the persons named in the FIR are required to be considered. If it were found that some of the accused persons although present and named in the FIR did not take any leading and active part in the alleged assault upon the deceased which caused his death and caused no other serious offence, they are entitled to bail.15
Where a solitary blow was allegedly inflicted on the deceased by co-accused while the petitioner was alleged to have held the deceased by the arm the question whether the petitioner secured the deceased by arm needing further inquiry. Petitioner was admitted to bail.16
VI. Accused named in the FIR.
The FIR or the prosecution version is not sacrosanct or a gospel truth. The presiding Officers have to bear in mind the prevalent circumstances of our society, tendencies to suppress their own role and tendencies of throwing the net more widely and several other human reactions and considerations which would reflect not only on the culpability of the accused but also upon the nature of the offence, and it is with this purpose that a discretionary jurisdiction to allow bail in a suitable case is vested in Courts.
VI. Nature of accusation.
In granting bail, the nature of accusation and the evidence in support of if, the severity of the punishment which a conviction will entail and the character, behaviour, means and standing of the accused should be areidered. While grant of bail in cases not punishable with death or imprisonment for life appears to be a rule, bail shall be refused in cases punishable with death or imprisonment for life unless the Court finds no grounds to believe the accused having committed such offence. Bail is not to e allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed an offence punishable with death or imprisonment for life. But where the has been filed against the petitioners under section 325/34, P.C., which offence is punishable with n years’ rigorous imprisonment. It is not a case which falls within the prohibition contained in 497, Cr. P.C. Bail was granted.
VII. Benefit of doubt.
Even for purposes of bail, the law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused. Therefore, where the dead body has not been found, no recoveries have been made, there is no indication that the ‘kari’ has been killed, there is a possibility of the identification being doubtful and also there is doubt about the plausibility of the statement of witnesses, or where the defence version that the complainant party was aggressor and accused having inflicted injuries on the complainant party in self-defence appeared more plausible. F.I.R. lodged by complainant party did not explain any of the injuries on the persons of the accused. Benefit of the doubt arising at the bail stage would go to the accused. Where there was doubt as to involvement of the accused in the commission of the offence, the accused was enlarged on bail. Where the alleged abductees made a statement which favoured the petitioners immediately after the occurrence, it was a fit case in which bail should not be withheld. Where the accused was charged under section 392/342/34, P. C and the only evidence against them was an identification test which was made in the presence of the Investigation Officer. It would be a matter for determination at the trial as to whether the identification parade should be relied upon or not but since the memo of identification bore the initial of the investigating officer, therefore, its authenticity needed to be enquired into. The fact that no recovery had been made from the applicant and further the fact that he was arrested after more than 7 months would make the enquiry into the guilt of the applicant more necessary. Bail was allowed.
VIII. Security proceedings, bail in.
A person against whom preventive action is taken under section 107/151, Cr. P. C. is not accused of any offence bailable or non-bailable. He has not committed an offence although he may be designing to commit one, which would cause a breach of peace or disturbance of public tranquillity. It is thus obvious that a person against whom action is taken by the Court in advance of the commission of an apprehended crime cannot fall within the expression ‘person accused of an offence’. The Code has taken care of providing a specific procedure for dealing with cases of preventive action under Ss. 107/109/110 of the Code, including the matter of interim release and ultimate discharge under those sections. Therefore, bail cannot be granted to him under S. 496, Cr. P. C. The three provisions contained in sections 496, 107 (4) and 117 (3) read together lead to the irresistible conclusion that while on the one hand, the law-giver was fully conscious of the sanctity attached to the liberty of a person and had taken due care to safeguard the same, it had equally taken note of the potential danger to public peace and its possible consequences and far-reaching implications. Therefore, the provisions of section 107, sub-section (4) and section 117, sub-section (3), which empower a Magistrate to detain the person proceeded against in custody, are not subject to or controlled by the provisions of section 496, Cr. P. C. Apart from the exception contained in the proviso to S. 497, a person against whom security proceedings are initiated is entitled to be released on bail. The Magistrate cannot, therefore, refuse bail to a person arrested under section 114 of the Code. The Magistrate may in such cases, while granting bail to the person proceeded against, direct him to also furnish ad interim bond for keeping the peace under section 117, Cr. P. C, Powers of High Court.Proviso to section 497(1), Cr. P.C. does not in any way control the absolute power vested in the High Court and the Court of Session under section 498 of the Code. Bail can be granted under section 498 pending an appeal against an order under section 107 of the Code, binding a person to keep the peace, although this section does not empower the Judge to pass an order under section 426.
IX. Age of accused.
Proviso to section 497 (1), Cr. P.C. constitutes an exertion even in the case of heinous offences publishable with death or life imprisonment. It is quite clear from the wording of this proviso that this provision of law is not mandatory. Nobody can claim the benefit of the concession as provided in the first proviso to sub-section (1) of section 497, as a matter of right. The Court must exercise its discretion on a proper appraisal of the facts and the surrounding circumstances of the case, not unmindful of the fact that this concession is provided in heinous cases of murder as well. The word “may appearing in it clearly indicates that this is a matter in the discretion of the Court concerned and each case must be considered on its merits. It Aloud, for example, be proper for a Court to release on bail an accused person who was suffering from some incurable disease and who had only a short time to live; or whose illness or sickness was such that he required treatment as an indoor patient in a hospital. Thus an old man of 55/60 years changed under section 302, P.C. and suffering from chronic bronchitis, or an old man of 70 years who is partially crippled and a victim of several ailments may be released on bail. But where an old man of 66 was accused causing fatal injury to the deceased, and bail was applied for on the found that he was suffering from chronic uraenia. The High Court refused to grant bail on the ground that the applicant was responding to treatment in jail.
A man of 55 years who is not suffering from any disease cannot avail he proviso on ground of age and get released on bail. Where the applicant for bail is old but he is neither sick nor infirm, he cannot be granted bail only on the ground of age. Thus where an accused is stated to be 75 years of ige and infirm in health. He has not been examined by a medical expert with to the determination of his age or infirmity. In fact there is no allegation whatsoever in the petition, as to what is the nature of his aliment, which has made him infirm. He might be old, but that alone would not bring his case within the ambit of proviso to sub-section (1) of section -497.
X. Woman accused.
Where a woman as accused of bigamy but she denied her signature on the prior nikahnama and tlure were other fats creating a doubt in the prosecution version. It was held that the petitioner being a female was entitled to bail under proviso to sub-section (1) of section 497, Cr. P. C.
A Court should grant bail to a woman even when she is accused of murder. Where there was no evidence to show that woman accused had been party to conspiracy to commit murder they were enlarged on bail.
XI. Ill-health of accused.
Bail may be granted only when the nature of ailment is serious enough to endanger a person’s life and that also not regardless of the merits of the case. The circumstances of the case and their cumulative effect together with the seriousness of the offence, the severity of punishment, the likelihood of the accused absconding or tempering with witnesses, has to be considered along with the nature and seriousness of the sickness; and the desirability of detention in jail by reason of availability or otherwise of the necessary.
XII. Right of private defence.
Where there has been inordinate delay in prosecution of the case and there is prima facie evidence that the accused acted in exercise of right of private defence, bail was granted to the accused. In another case where investigation agency was of the view that the accused acted in exercise of right of private defence and a case under section 304, P.C. was registered but a complaint was made for an offence under section 302. The Court held that in view of the prosecution opinion, bail may be granted to the accused. Where the fight took place on the question of turn of water and the accused claimed right of private defence and prima facie the fate of the case depended on the finding of fact whether at the time of occurrence the new warabandi had actually come into force or not. Bail was granted to the accused. But bail was refused when the determination of the question of private defence would require through sifting of evidence. Where no case for self-defence was prima facie made out the Court would not allow bail merely because such a plea had been taken. Where although the petitioner alleged that he was first fired upon by his deceased brother, and he reacted only in self-defence, yet the weapon recovered from the dead body of the deceased was found not to have been used. Bail was refused.
Bail on Cr. P.C.
Chapter- One
Section-496 : In what cases bail to be taken.
Where a person who is arrested is not accused of a non-bailable offence, 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 of him, as is suitable for the purpose of securing his appearance before a Court pending inquiry, that he should remain in detention. The section is imperative, and under its provisions 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 principle 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 the course of justice, 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.
In bailable offences there is no question of discretion in granting bail as the words of the section are imperative. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. Ordinarily the word “bail” applies to the second kind of security according to the practice and procedure of the Courts.17<href=”#_ftn6″ name=”_ftnref6″ title=””>[6] Persons contemplated by section 496 can not be taken into custody unless they are unable or unwilling to offer bail or to execute personal bonds. Bail can be claimed as of right by an accused person in all bailable offences.18<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]
Even a Police Officer on arrest has no discretion to refuse bail when the offence is bailable and the accused is prepared to furnish bail. An Officer-in-charge of a Police Station is bound to grant bail in non-bailable cases, and an improper refuse to do so will amount to a violation of duty.
If the court is satisfied that accused has his roots in the community and is not likely to abscond, it can release the accused on his personal bond without surety.19 Bail covers release on one’s own bond either with or without sureties. Poor men, young persons, inform individuals and women are week categories and courts should be liberal in releasing them on their own recognizance.20 Accused has indefeasible right to grant of bail under section 496.
Section 497, Cr. P.C. when bail may be taken in case of Non-bailable offence.
This section gives the Court or a police-officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life. But (1) a person under the age of sixteen years; (2) a woman; or (3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry. The same may be done after the conclusion of a trial and before judgment is pronounced, if the persons is believed not to be guilty of a non-bailable offence. As a safeguard the section provides for review of the order by the Court which has released the person on bail. The court should take into consideration various matters such as nature and seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the interest of the public or the State and similar other considerations before granting the bail.
The principle underlying the section is towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.21<href=”#_ftn8″ name=”_ftnref8″ title=””>[8] Cases not falling within prohibition contained in sub-section (1) of section 497. Grant of bail to be treated as a rule and withholding bail an exception. Facts of case are not to be stretched at all to push case within prohibition or to pull it out of same.22<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]
Which is a cherished right that is enjoyed by such a person. While deprivation of liberty is equal to conviction, courts have to take care that they are not deflected by sentiments alone.23 Prohibition under section 497 Cr. P.C. would apply in such offences which were punishable with death or life imprisonment and not to such offences which are punishable with life imprisonment only.24
This section deals with the question of granting bail in non-bailable cases. It provides for the granting of bail on only to person accused of a non-bailable offence but also to a person suspected of the commission of such an offence. It has no application to person tried and convicted of a non-bailable offence (Lala Jairam Das Vs. Emperor, AIR 1945 P.C. 94 at 97). To be released on bail a person must be in custody or in some sort of confinement. A fugitive from justice is not entitled to protection of the Court.25
The section first gives a discretion to the court (particularly Magistrate) to order release on bail in cases of non-bailable offences. But the wide dissection is to some extent controlled by two restrictions; sub-section (1) provides that if there appear reasonable grounds for believing that the accused, not being a person under the age of sixteen years or a woman or a sick or infirm person, has been guilty of an offence punishable with death or imprisonment for life, then he should not be released on bail.26
Section-498 : Power of direct admission to bail or reduction of bail.
This section gives the High Court Division and the Court of Sessions very wide powers to admit an accused person to bail in any case even when he is charged with a non-bailable offence. The powers of the High Court Division or the Court of Session given by this Section are not controlled by the statutory limitation laid down in section 497 of refusing bail if there appear reasonable grounds for believing the accused to be guilty of an offence punishable with death or imprisonment for life. The powers in this section are not fettered by any rules defining the limit within which they would be exercised. Where the preceding are in the nature of a “preventive action” the underlying object of which is to ensure that the applicants will not commit any offence or offences and not to punish them for having committed any offence. The applicant not being accused persons charged with the commission of any offence cannot lay claim to the provisions of section 496, 497 or 498 Cr. P. C. and apply for bail under any of these three Sections. Where a special law makes provision for the disposal of bail applications, the High Court Division has no jurisdiction to grant bail in contravention of those provisions. All the ordinary criminal Courts while trying a case whether under the ordinary law or any Martial Law Regulation or order are competent to entertain a bail application. So long as there is no order transferring a case covered by Martial Law orders or Regulations to Military Courts, the Sessions Court and the High Court Division can exercise jurisdiction under this section.
Chapter 39 of the Code contains the provisions of bail. Strictly speaking in the Code of Criminal Procedure there is no provision of granting bail to a person who apprehends arrest. By Law Reforms Ordinance, 1978.27 <href=”#_ftn10″ name=”_ftnref10″ title=””>[10]
Incorporated in the Criminal Procedure Code. Section 497A empoweredgranting of bail to a person apprehending arrest. This provision of section 497A was omitted by the Code of Criminal Procedure28 on the 15th June; 1982. Ii ihu . appears that now there is no provision in the Code of Criminal Proccduu for granting of pre-arrest bail. It is only by judicial interpretations ol sections 496/497 and 498 of the Code of Criminal Procedure thai anticipatory bail is being granted in our country.29
Section 498 Cr. P.C. gives extended and wider powers to the High Court Division for granting bail in non-bailable offences but this power must be exercised in a reasonable and judicial manner so that the normal practice founded on justice and equity is not disregarded, barring exceptional circumstances.30 The power of the High Court or the Court of Sessions under section 498 are not controlled by the statutory limitation laid down in section 497 for refusing bail if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. The powers in section 498 are not fettered by any rules defining the limits within which they would be exercised, as powers under section 497.31
Section 499 : Bond of accused and sureties.
(1) Before any person released on bail or released on his own bond, a bond for such sum of money as the police-officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient Sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police-officer or Court, as the case may be.
(2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court Division, Court of Sessions or other Court to answer the charge.
The provisions laid down in this section as to the nature and contents of the bail bond are imperative and must be strictly followed. It is the court granting bail which has to determine the sufficiency of the bond as well as the sureties. Form No. XLII is prescribed in Schedule V—Forms for that purpose. When the bail bond is not in accordance with this form, the person executing it incurs no liability. The court cannot require security in the form of a bank guarantee.
Section- 500 : Discharge from custody :
(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer-in-charge of the jail, and such officer on receipt of the order shall release him.
(2) Nothing in this section, section 496 or section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
When an acccused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case.32<href=”#_ftn11″ name=”_ftnref11″ title=””>[11]
Section-501 : Power to order sufficient bail when that first taken is in sufficient.
If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail.
The provisions of section 502 are meant for the continuity of the surety bond on the basis of which an accused has been released on bail till such time that the accused is before the court and for taking further action in case the accused desires to offer another surety in place of the one who is to be discharged. They are not conditions precedent for the acceptance of a fresh surety in place of the earlier one. Where, therefore, :in application on behalf of the accused is presented praying for the acceptance of B’s surety bond in place of a former surety who has applied for the discharge surety bond, in accepting B’s surety whose competence to stand surely for the stipulated amount is duly certified, the court commits. In such a case the bond of the former surety stands cancelled and that of B lakes its place.
Where a surety applies for cancellation of his bond under section 502 the presentation of the application itself imposes upon the Magistrate the duty of issuing a warrant for the arrest of the accused.
The section contemplates release of a surety without entailing release of the accused. If for any reason the accused is released, the surety stands released without anything more.
The Magistrate can discharge the surety only on the appearance of the accused before him and cannot do so as soon as the surety applies for cancellation of his bond.
Section-502. Discharge of sureties.
(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to custody.
Baliailable and Non-bailable Offence:
Bailable offence means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force and non-bailable offence means any other offence. 5th column of Schedule II of the Code of Criminal Procedure shows offences which are bailable and non-bailable. The term bailable has been selected first and then the expression non-bailable derived from it. Thus the term non-bailable means any offence other than bailable offence.
Right of Bail in Bailable Offence (sec. 496):
A bailable offence is an offence where bail can be claimed as of right. As soon as it appears that the accused person is prepared to give bail bond, the police officer or the court before whom he offers to give bail bond, is bound to set him free on bail on such terms as to bail as may appear to the officer or the court. Section 497 uses the imperative word that the person shall be released on bail. Thus neither the court nor the officer can reject bail where the offence is bailable because the language of section 496 is imperative. It is only I he. High Court Division which has power to order him to be ;i nested and remanded to custody in bailable offences. In every bailable offence bail is a right and not a favour. Accused of a offence cannot be taken into custody unless the accused is nimble or unwilling to offer bail bond or furnish moderate security1. The Court or police may ask for securities or executing a bond without sureties for his appearance in police station or court. The object of demand of security is not to punish the accused but to ensure In: presence in the court. Section 498 specifies that the amount of security must be fixed with due regard to the means of the and the nature of the offence and should not be excessive. II the person on bail suborns witness there maybe other remedies at law open to him e.g. contempt proceeding, or proceeding to bind him over to keep the peace or be of behavior.
Right of Bail in Non-bailable Offence (sec. 497):
When a person is arrested for a non-bailable offence and is brought before the court, the court may release him on bail. Thus bail in non-bailable offence is a matter within the discretion of the courts and cannot be claimed as of right. However, he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. In using discretion while granting bail in non-bailable offences, the Court should take into consideration the following things:
I. Whether there is a prima facie case against the accused;
II. Whether the release of the accused on bail would place hem in a position of advantage;
III. Whether the accused if at liberty, would tamper with and destroy the evidence;
IV. Whether the offence with which is charged is heinous and is under public condemnation;
V. Whether the accused is a habitual offender;
VI. Whether by his detention in jail his defence in Court would be hampered;
VII. Whether on account of his detention his dependents would be deprived of their subsistence;
VIII. Age, health and sex of the accused.
Difference between sections 496 and 497:
Difference between section 496 and 497 is this that in case of arrest under section 496 the person arrested or when he appears or is brought ik-fore, he can claim release on bail as a matter of right. The police office or the Court has got no option but to release the person on his executing a bail bond or on recognizance. On the other hand, in case of arrest under section 497 for non-bailable offences bail cannot be claimed as a matter of right but if the Court is of the opinion and is satisfied that having regard to the circumstances of the case, such as there is no apprehension of his absconding or tampering with the evidence and in the absence of any special circumstance the Court should almost invariably grant bail. A complete prohibition on bail is imposed in cases where there appear reasonable grounds for believing that the person arrested has been guilty of grave offences but the mere fact that a complaint has been made against a person which makes the offence he is alleged to have committed punishable with death or transportation for life is not enough.
Sub-section (2) of section 497 may be interpreted in two different ways. One, the words “non-bailable offence” occurring in the expression “there are not reasonable grounds for believing that the accused has committed a non-bailable offence” in this subsection may mean “offence punishable with death or transportation for life” which occur in sub-section (1) of this section. Read in this way, sub-section (2) would mean that if in the course of “investigation, inquiry or trial” it is found that there are not reasonable grounds for believing that the accused has committed an offence punishable with death or transportation for life, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail……”; the implication being that for other kinds of non-bailable offences (excluding those punishable with death or transportation for life) the accused shall be admitted to bail or released on his personal bond. Two but having regard to the words “non-bailable offence” expressed in general term without qualification, it may be taken to mean offences of any kind which are, according to Schedule II of CrPC, declared non-bailable and not necessarily offences punishable with death or transportation for life and in this view of the matter, if there are sufficient grounds for inquiry into the guilt of the accused person, the investigation officer or the Court is directed to release the accused on bail or on his personal bond. In this context, “inquiry into his guilt” should mean guilt in respect to offences which are bailable, in which case as provided in section 496, the accused as a matter of right is entitled to be released on bail or recognizance bond.
Bail under Special Laws
Many special penal laws provide for provisions for bail and in such a case of spa-ilk- provisions of bail, the provisions of CrPC shall not be applicable. However, if any special law is silent on bail, the provisions of the CrPC shall be applicable. Again, where the provisions regarding, hail is inadequate, resort may be had to the provisions of CrPC.
Nani O Shishu Nirjatan Daman Ain, 2000
For instance, section 19 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 a:, amended in 2003, provides for special provisions for bail. I Imvcvei. lime arc conflicting decisions on the question as to whetliei piayei lor hail can be made before competent Magistrate when a on is produced before him as an accused of an offence under 111 is Act.
Majority View:
This view is supported by as many as three judgments in the High Court Division. In case.33<href=”#_ftn12″ name=”_ftnref12″ title=””>[12] The High Court Division held that although the Tribunal and the High Court Division on appeal are empowered to grant bail under the general provisions of the Code, the power was limited and such power should subject to specific condition and restriction mentioned section 19 of the Ain. It has further been held that this restricted mention of bail prevails notwithstanding the general provision of section 25 of the Ain. Section 25 provides that in the matter lodging complaint, investigation, trial and disposal of a case Am, the provisions of the Code of Criminal Procedure shall apply. Likewise in34 the observations of the High Court Division are as follows:
“As regards the granting of bail in the case under the said Ain, the Chief Metropolitan Magistrate has no jurisdiction to entertain he prayer of bail. Only the Nari-O-Shishu Nirjatan Daman Tribunal can take cognizance of the offence in accordance with the provision of section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. Therefore, we direct the Chief Metropolitan Magistrate to send the record to the Tribunal within 7 days from the date of receipt of this order1 so that the petitioner can appear before the Tribunal and pray for bail…”.
Similarly in35<href=”#_ftn13″ name=”_ftnref13″ title=””>[13] the High ‘nurt Division made the following observations on the question of ‘.ranting bail under the Ain:
“…….we must make it clear that in any case under Nari-O-Shishu Nirjatan Daman Ain, 2000, which being a special law, bail can be granted upon hearing the informant or complainant or to that effect the state, hi Nari -o- Shishu Nirjatan Daman Ain, 2000 there is no scope for granting anitcipatory bail”
Minority View:
This view is supported by a single judgment of the High Court Division. In36 the High Court Division held that there was no legal bar to entertain a bail prayer and to make disposal of the same by the Magistrate so long the case remains a GR case. It was also held that even if allegation is brought under Nari-O-Shishu Nirjatan Daman Ain, the case remains a GR case till taking of cognizance by the Tribunal constituted under the Nari-O-Shishu Nirjatan Daman Ain. It was further held that a criminal proceeding under the Nari-O-Shishu Nirjatan Daman Ain commences when cognizance is taken by the Tribunal and as such the Tribunal cannot exercise the power of granting bail under section 19 of the Ain before taking such cognizance.
Except in the Fajlur Rahman’s case under the minority view, in all the other three cases as referred to above, the High Court Division held the uniform view that for an offence under the Ain, bail can be granted under the conditions and restrictions as provided in section 19. It is mentioned in section 19 that bail will be granted if the Tribunal is satisfied. The expression “satisfaction of Tribunal” has been repeated thrice in that section. Perhaps due to such an importance given as to the satisfaction of the Tribunal, in dealing with the bail matters, in Md, Nurul Islam Babul’s case direction was given by the High Court Division upon the Chief Metropolitan Magistrate to send the record to the Tribunal and in Shahid Malongi’s case it was observed that the restricted power of bail given under section 19 prevails notwithstanding the general provisions of section 25 of the Ain.
It is also clear that before the decision given in Fajur Rahman’s case, the High Court Division decided the point in three other cases. However, it also clear these three decisions were not brought to the notice of the High Court Division while giving decision in Faijur Rahman’s case. So far there has been no occasion for the Appellate Division to express its view on this point.
The Special Powers Act, 1974:
There is some reference of bail in section 32 of the Special Powers Act, 1974 and as such the general provisions of the Code of Criminal Procedure regarding bail are applicable in cases of consideration of hail under this Act.
It has been decided that section 32 of the Act does not provide an absolute bar on bail. The court can relaese the accused in bail when it is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged.37<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
As the appellant has been in jail since 03.05.1992 withoiut any trial, no charge has yet been framed, the trial is being delayed without any fault on th4e part of the appellant and the other co-accused persons have been enjoying the privilege of bail given by Special Tribunal, the High Court Division clearly failed to apply their judicial mind in dismissing the appeal for bail summarily whrn the appellant was entitled to be released on bail.38<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]
The appellant was enlarged on bail and then he absconded in his absence the charge was framed as back as on 22.06.94 his subsequently he was arrested by the police but his application l«i bail was rejected on 19.08.1996. Although the charge was frank-d long ago both not a single witness has yet been examined in Incase and there is no certainty when the trial shall commence and some co-accused who stand on the same footing are on bail till the conclusion of the trial. As such the appellant is enlarged on bail.39
Madak Drabbya Niyantran Ain, 1990:
The Madak Drabbya Niyantran Ain, 1990, provides for special provisions of bail in its section 31(ka). However, this law does not provide for any specific forum of trial where offences under this Ain may be tried. In the absence of any such specific provision, while considering any bail petition, the provision of sub-section (2) of section 5 of the CrPC shall apply and on consideration of the quantum of punishment as provided in schedule II of the Code under the heading “OF OFFENCES AGAINST OTHER LAWS”, the forum will be determined. So, the courts mentioned in 7th column will be competent to try the case and also competent to grant bail to those persons alleged to have committed offences under the Madak Drabbya Niyantran Ain.
Bail bond, sureties and forfeiture of bail bond.
On the language of section 499, Sessions Judge and Magistrate have no power whatever to impose any condition at all when they grant bail.40<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]Section 499 no-where speaks of any cash security. The law makers appear to have incorporated in section 513 a concession to the accused to enable him in circumstances when he is unable to produce his surety to offer cash deposit in liew of the band required under section 499.41
Grant of bail upon the fulfillment of conditions embodied in bail bon is not valid in law.42If obligation to appear in the transferee court is not specified in the bond, the surety cannot be penalised for failure of the accused to appear in that court. No court other than the one before which the accused was bound by the bond to appear can forfeit the bond.43
Magistrate granting bail should verify solvency of surety himself and not act upon the advice of others. Condition that the accused admitted to bail shall desist from reputation of offence with which he is charged cannot be incorporated in bail bond. The imposition of such a condition and its incorporation in the bond can not be considered to be ancillary to powers to grant bail.
Bail bond. Section 499, Cr. P.C. lays down that :
(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be exe