• Bail

  • The Code of Criminal Procedure, 1973 has a provision according to which A High Court or Court of Session has powers to direct any person’s enlargement on Bail subject to the conditions which the Court deems fit and proper in the given facts and circumstances. The Ss.-437 & 439 of the Code of Criminal Procedure, 1973, provide for the bail provisions. Post-conviction, the bail provisions are provided in S-389 of the Code of Criminal Procedure, 1973.

    Principal object of bail is to secure the attendance of the Petitioner at the time of trial and ensure that he does not flee from justice.  To ensure that he is is there in the Court to take the judgment and serve the sentence if inflicted by the court. At the same time, an accused must not be deprived of his personal liberty and held in custody during trial in anticipation of his conviction unless the interest of the society demands otherwise or there is material to show that he will use his liberty to subvert justice or tamper with the evidence.   

    For the purposes of Bail, the court is not expected to meticulously examine the evidence or undertake an elaborate scrutiny of the documents as that may prejudice the case of either side.  However, a prima facie view with regard to commission of offence by the accused can be taken.

    While granting anticipatory bail to the Petitioner, the courts have to do a fine judicial balancing  between the safeguarding the Petitioner’s interest qua his personal liberty and that of the investigational powers of the Investigating Agency, by putting appropriate, and sometimes stringent, conditions of bail upon the Petitioner.

    In the light of the directions passed by the Apex Court from time to time, parameters to be considered by the Courts for grant of bail are as follows:

    [Vital Parameters/Considerations For Bail]

    1. Enormity, Severity, gravity and the seriousness of the allegations.
    2. Chances of the accused fleeing or absconding from the processes of law, i.e. whether or not he has roots in the society.
    3. Whether existed any danger of justice being thwarted, if the Petitioner is extended the benefit of bail
    4. Chances of the Petitioner creating hurdles in the fair investigation or the trial
    5. Reasonable apprehension of the witnesses being influenced and/ or evidence tampered with by the accused;
    6. Previous antecedents of the accused person- his Character, behaviour, means, position and standing, including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
    7. Likelihood of the offence being repeated;
    8. Likelihood of delay in conclusion of trial.
    9. The nature of evidence, which has been gathered by the investigating agency
    10. Maximum sentence, which it may entail, in the event of conviction.
    11. The principle of parity.
    12. Whether Investigation/ Trial vitiated owing to lack of jurisdiction of the Investigating Agency/ Court. 

    To know more, go on clicking on the following links

    Bail Courts & Other Criminal Fora

    [Judicial Fora In Hierarchical Order]

    • Supreme Court Of India
    • High Courts Of Various States
    • District & Sessions Judge [D&SJ] 
    • Metropolitan Magistrates [MM]
    • Judicial Magistrates [JM]
    • Mediators & Concilliators.

    Other Criminal Foras

    • Crime Against Women Cell [CAW Cell]
    • Central Bureau of Investigation [CBI]
    • Central Vigilance Commission [CVC]
    • Comptroller and Auditor General of India [CAG].
    • Delhi Commission for Women [DCW]
    • Enforcement Directorate [ED]
    • Indian Govt. Limbs & Foreign Missions
    • Intelligence Bureau (IB)
    • National Commission for Women [NCW]
    • National Technical Research Organisation (NTRO)
    • Research and Analysis Wing (RAW)
    • Serious Fraud Investigation Office [SFIO]- SFIO is a multi-disciplinary organization under Ministry of Corporate Affairs, consisting of experts in the field of accountancy, forensic auditing, law, information technology, investigation, company law, capital market and taxation for detecting and prosecuting or recommending for prosecution white-collar crimes/frauds.
    • Senior Citizen Cell.
    • Women Helpline Nos.

    Bail Related Legal Provisions

    [Code of Criminal Procedure, 1973]

    Section-389. Suspension of sentence pending the appeal; release of appellant on bail.- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

    *[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

    Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]

    (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.

    (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

    (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

    (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
    order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

    (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

    *[Inserted vide The Code of Criminal Procedure (Amendment) Act, 2005]

    Section- 437. When bail may be taken in case of non-bailable offence.- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

    (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

    (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

    Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

    Provided further that the Court may also direct "that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

    Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the Court.

    Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

    (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

    (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court shall impose the conditions,--

    (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

    (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

    (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
    and may also impose, in the interests of justice, such other conditions as it considers necessary.

    (4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.

    (5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

    (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

    (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

    Section- 439. Special powers of High Court or Court of Session regarding bail.- (1) A High Court or Court of Session may direct-

    (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

    (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

    Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

    (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

    Offences can be divided in the following ways. The Offence under:

    • Indian Penal Code, 1860.
    • Prevention of Money Laundering Act, 2012 (PMLA).

    Judgments On Bail For The Offences Under Section-498A

    Judgments On 

    • D. K. Basu Vs. State of West Bengal- SC-24.07.2015- 18.12.1996- 01.08.1997- _____- 1997 (1) SCC 416 - Arrest, Detention, Custodial Death & Torture-Damages & Compensation- Bail- [Full PDF Judgment Dated: 24.07.2015] [Full PDF Judgment Dated: 18.12. 1996] [Full PDF Judgment Dated: 01.08. 1997].
    • Gautam Kundu     Vs.   Directorate   of   Enforcement (Prevention   of   Money Laundering   Act),   Government   of India- (2015) 16 SCC 1- Bail in PMLA, ED, and Analogous Crimes- Prevention of Money Laundering Act, 2012 (PMLA)- S-45- Offences to be cognizable and non-­bailable- Held, “34. “xxx xxx xxx We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which   indicates   that   the   legislature   has   carved   out   an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45­A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on   the   provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure.”[Full PDF Judgment]. 
    • Geeta v. State (Govt. of NCT of Delhi), Bail Appln. 2726/2014, Judgment Dated- 05/03/2015, Bench-Manmohan Singh, J, Citations- 2015(3) AD(Delhi) 322: 2015(149) DRJ 351- Bail- Sections-498A/304B/34 IPC [Full PDF Judgment].  
    • Gurucharan-Singh-DelHC-27.04.2016-WP-Crl-307-of-2016-Bail-in-PMLA-ED-and-Analogous-Crimes [Full PDF Judgment].
    • J S Gill- State v. Jaspal Singh Grill, AIR 1984 SC 1503 at p. 1505= 1984 Cri LJ 1211= (1984)3 SCC 555= 1984 SCC (Cri) 44
    • J S Gill- State v. Jaspal Singh Gill, AIR 1984 SC 2277= 2005 SCC (Cri) 1057. 36.
    • Kanhaiya Kumar Vs. State Of NCT Of Delhi, W.P.(Crl) 558/2016, Judgment Dated: 02.03.2016, Bench: Pratibha Rani, J, Delhi High Court- FIR No.110/2016 [Dated: 11.2.2016], Bail- Offence under Section 124-A/34 IPC at PS Vasant Kunj North, Under Sections 124-A/120-B/34/147/149 IPC.- Slogans referred to in the Order-: ‘1. AFZAL GURU MAQBOOL BHATT JINDABAD. 2. BHARAT KI BARBADI TAK JUNG RAHEGI JUNG RAHEGI 3. GO INDIA GO BACK 4. INDIAN ARMY MURDABAD 5. BHARAT TERE TUKKDE HONGE– INSHAALLAHA INSHAALLAHA 6. AFZAL KI HATYA NAHI SAHENGE NAHI SAHENGE 7. BANDOOK KI DUM PE LENGE AAZADI.- Held, "39. As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any antinational event organised in the campus. Freedom of speech guaranteed to the citizens of this country under the Constitution of India has enough room for every citizen to follow his own ideology or political affiliation within the framework of our Constitution. While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.- Further Held, "41. Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even. 42. The kind of slogans raised may have demoralizing effect on the family of those martyrs who returned home in coffin draped in tricolor. 43. The petitioner claims his right regarding freedom of speech and expression guaranteed in Part-III under Article 19(1)(a) of Constitution of India. He has also to be reminded that under Part-IV under Article 51A of Constitution of India fundamental duties of every citizen have been specified along with the fact that rights and duties are two sides of the same coin.".- Futher Held, "46. The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident. 47. The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic. 48. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment. 49. During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment.".
    • Moti Ram Vs. State Of M.P.-SC-24.08.1978-1978 AIR 1594=1978 SCC (4) 47-Bail jurisprudence- Bail Bond- Enlargement on bail with or without sureties-Scope of Ss. 440(1), 441, 445, 389(1)- Criteria to guide in quantifying the amount of bail and acceptance of surety whose estate is situate in a different district or State- ’Bail’ in s. 436 of the Criminal Procedure Code suggests ’with or without sureties. And, ’bail bond‘ in s. 436(2) covers own bond. Art. 14 protects all Indians qua Indians, within the territory of India. Art. 350 sanctions representation to any authority, including a Court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in and State language according to the law in that State must be accepted everywhere in the territory of India, same where a valid legislation to the contrary exists. Otherwise, an Adivasi will be unfree in Free India, and likewise many other minorities. The process of making Indians aliens in their own homeland should be inhibited. Swaraj is made out of united stuff. The best guarantee of presence in Court is the reach of law, not the money tag- The Court left open to the Parliament to consider- whether in our socialist republic with social justice as its hallmark, monetary superstition, not other relevant consideration like family ties, roots in the community, membership of stable organisations should prevail or bail bonds to ensure that the ’bailee’ does not flee justice [Full PDF Judgment].
    • Nitin Kumar v. State, Bail Appln. No. 437/2015 (06/04/2015), 2015(219) DLT 227: 2015(4) AD(Delhi) 109 [Manmohan Singh, J.]- Bail- Sections-498A/304B/34 IPC [Full PDF Judgment].
    • Pappu- State of Maharashtra Vs. PappuCriminal Appeal No. 944/2014, Judgment Dated- 24/04/2014, Bench- P. Sathasivam, C.J., Ranjan Gogoi, J & N.V. Ramana, J, Citations- 2014(11) SCC 244= 2014(5) SCALE 584= 2014(4) Supreme 636= 2014(4) SLT 521= 2014(3) SCC(Cr) 350- Cancellation Of Bail [Full PDF Judgments].
    • Sanjay Chandra v. Central Bureau of Investigation- (2012) 1 SCC 40= (2012) 1 Supreme Court Cases 40- Bail in PMLA, ED, and Analogous Crimes [Full PDF Judgment].
    • Sarwan Singh Vs. State, Bail Appln.No. 2102/2014, Judgment Dated- 20/01/2015, Bench- Manmohan Singh, J, Citation- 2015(1) JCC 703- Bail-Sections 419, 420, 467, 468, 471 & 120-B- Bail [Full PDF Judgment].
    • Subrata Chattoraj Vs. Union of India, (2014) 8 SCC 768- Bail in PMLA, ED, and Analogous Crimes [Full PDF Judgment].
    • Suresh Kalmadi Vs. CBI, Bail Appln. 1692/2011(19/01/2012)- 2012(1) JCC 734= 2012(187) DLT 575= 2012(1) AD(Delhi) 889= 2012(127) DRJ 588: [Mukta Gupta, J.] [Full PDF Judgments].
    • Vishwanath Maranna Shetty [State of  Maharashtra Vs. Vishwanath   Maranna   Shetty]- (2012) 10 SCC 561- Bail in PMLA, ED, and Analogous Crimes- Maharashtra Control of Organised Crime Act, 1999 [Full PDF Judgment].
    • Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation', (2013) 7 SCC 439- Bail in PMLA, ED, and Analogous Crimes [Full PDF Judgment].

    Related Links

    • Format Bail Application- District & Sessions Judge- Rape Case
    • Format Bail Application- Delhi High Court- Proclaimed Offender 
    • Related Provisions- S-439 CrPC

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