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PROVISIONS OF BAIL BY POLICE AND BY MAGISTRATE

The word "Police" is defined in the Indian Police Act 1861 and in various Police Acts.

Under Code of Criminal Procedure, a vilage Chowkidar is not a

Police Oficer and he is not invested with al the powers which are confered upon

a Police Oficer by the Criminal Procedure Code.1 Since the Indian Police Act has

not ben extended to the Jammu & Kashmir, a Police Oficer of that State can not

be demed to be a Police Oficer under the Criminal Procedure Code and

therefore, an arest made by him in any State in India is not waranted by law.

Powers Police oficer to acept bail is regulated by the provisions of Code of

Criminal Procedure. An improper refusal to grant bail or puting unecesary

obstacles in the way of release amounts to a dereliction of duty .2

The Code of Criminal Procedure 1973 confers wide powers upon Police of

making arest. In aditon to the power of arest, the Code bestows upon police

powers paralel to the magistrate to release an arested person on bail. In Morit

Malhotra V. State of Rajasthan 3

, the acused was granted bail under section 436

by the police. But when he apeared before the court he was advised to take bail

from the court. He chalenged the orders in the Rajasthan High Court which ruled

that it is not necesary for an acused to get bail granted by the court if he has

already ben granted bail by the police. The court drew suport from the

reasoning in the Supreme Court decision in Fre Legal Aid Commite,

Jamshedpur Vs. State of Bihar,4 wherein it was ruled that in a sesions case if

the magistrate has granted bail, the acused ned not sek bail from the court of

sesions.

1 Jagni Singh Vs. Emperor, 45, Cr. L. J. 643

2 Mahesh Chand Vs. State, 1952 Cr.LJ 943, AIR 1952 Tra. Co.201. 3 191 Cr. L. J. 806 (Raj.)

4 AIR 1982 S.C. 1463.61

Having regard in the nature of the relationship of the person on bond with

the court and the powers confered on the court under section 436, it apears that

the above ruling may not be generaly folowed by the courts.

An interesting question arose in Haji Mohamed Wasim v. State of U.P.5

before the Alahabad High Court as to the validity of bail granted by police

oficers. In this case the acused who was on bail granted by police prefered not

to apear before the court. The trial court isued a non-bailable warant which

came to be chalenged by the acused under section 482. The court ruled that he

has to take fresh bail from trial court.

It reasoned:

The power of a police oficer in-charge of a police station to grant

bail and the bail granted by him comes to an end with the

conclusion of the investigation except in cases where the suficient

evidence is only that of a bailable ofence, in which eventualy he

can take security for apearance of the acused before the

magistrate on a day fixed or from day to day until otherwise

directed. No parity can be claimed with an order pased by

magistrate in view of enabling provision contained in clause (b) of

section 209… under which the commital Magistrate has ben

empowered to grant bail until conclusion of trail, which power was

otherwise restricted to grant of bail by him during pendency of

commital procedings under clause (a) of section 209.6

The real situation, as it obtains today in the society, is amply clear that

police discretion is not always being properly exercised in the mater of arest.

The citzens are being deprived of their liberty and the police has become a kind

of teror for the citzens because of their undue harshnes with the public in

general and the suspects in particular. The newspapers are replete with examples

of police high-handednes. It is mater of common knowledge that in order to

extract information from a suspect, the police beat a person in the course of

5 192 Cr. L. J. 129.

6 Ld. at 1302, se also Morit Malhotra Vs. State of Rajasthan 191 Cr. L.J. 806.62

investigation, in custody to the extent that sometime an acused person even

sucumbs to injuries. On many ocasions departmental inquiries have ben

conducted, but these have ben used mainly to cover up the taint. Furthermore,

instances are known where in order to secure conviction of an acused, the police

has concocted the whole prosecution story and have tutored the witneses to

implicate inocent persons. Such police activites once led a high court judge to

form an opinion that police is itself an organization of gondas,7 although the

remarks were expunged later by the Supreme Court. Even then an echo of these

remarks continues to be heard til today.

3.1 Bail by Police

The power of a Police Oficer, to release on bail a person acused of an

ofence and taken into custody by him, may be divided under two heads:

(a) when the arest was made without any warant; and

(b) when the arest was made in pursuance of warant of arest.

Power of police to grant bail under head (a) may be gathered from sections

42, 43, 56, 59, 169, 170, 436, 437 and Schedule IColumn 5 of the Code.

The powers of police to grant bail under head (b) are controled by

directions endorsed under Section 71 of the Code. Section 81 of the Code

however, alows a police oficer to take bail when the person arested or produced

before him has ben acused of the commision of a bailable ofence even though

warant of arest does not contain any direction to that efect. In case of non- bailable ofence the endorsement on the warant has to be strictly folowed.

Endorsement on warant however should be by name.8

3.2 Bail when arest made without warant

(i) Bail under section 42 Cr. P.C.:

Sections 41 and 42 Cr. P.C. are the only sections under which a

police oficer may arest a person for non-cognizable ofence. But this

power can be exercised under the conditons specified in the section.

Section 41 enumerated nine categories of cases in which a police oficer

7 Amin Vs. State, AIR 1958 293.

8 Kochu Kunjio Vs. State of Kerala (1962), Cr. L. J. 436, 1961 Ker. L. T. 57.63

may arest a person without an order from magistrate and without a

warant. The powers of the police to arest a person without a warant are

only confined to such persons who are acused or concerned with ofences

or are suspects thereof. A person who is aleged to have ben in posesion

of an ilicit arm once upon a time, can neither be caled presently an

acused nor a suspect hereof.

Section 42 Cr. P.C. 1973 can be invoked when the ofender refuses to give

name and adres or gives a name and adres which the police oficer considers

to be false. If those particulars are within the knowledge of the police oficer,

neither the question of arest nor the question of bail wil arise. As son as name

and adres has ben ascertained the police oficer can not detain him, if he is

wiling to execute the necesary bonds.9

If for any reason, the true name and

adres of the arested person can not be ascertained with 24 hours, the provisions

of Sections 56 and 59 wil come into operation. A special feature of this section is

that he bond of an ofender who is not a resident of India shal be secured by the

surety or sureties whose residence is in India. No similar restriction as to the

residence of a surety is to be found in the other provisions of the Code.

The power to arest and to release on bail can be exercised by any Police

Oficer not necesarily by an oficer-in-charge of the Police station because this

section has ben enacted to provide for a particular non cognizable ofence does

not put any restrictions on the power of a Police Oficer to enlarge a person on

bail after the corect name and residence have ben ascertained.

(i) Bail under section 43 Cr. P.C.:

The Code of Criminal Procedure provides for the arest of person

by a private person also though his powers of arest are very

limited. A private individual may arest a person only when:

1. he is proclaimed ofender, or

2. he in his presence, commits a non-bailable and cognizable ofence.

9 20 Cr. L. J 381, AIR 199, Al 160 (161).64

After the arest has ben made the arested person should be, without

unecesary delay handed over to a police oficer, or in his absence, be brought o

the nearest police station.

The question of bail wil depend upon what opinion the police oficer

forms abouthe person brought before him.

1. If there is no suficient ground to believe that the arested person has

commited any ofence, he shal at once be released.

2. If there is reason to believe that such person comes under the provisions of

section 41, a police oficer shal re-arest him and then the normal procedure of

investigation, determination of the question whether a non-bailable case is made

out or not and the desirabilty of release on bail etc. wil arise.

3. If there is reason to believe that he has commited a non-cognizable ofence he

shal be released as son as his name and residence have ben ascertained as

provided under section 42 Criminal Procedure Code. A chowkidar, not being a

police oficer is not entiled to receive a person arested under this section.10 But

where a chowkidar is a police oficer as under the Chota Nagpur Rural Police Act,

(Act I of 1914) he can received a person arested under section 59, Criminal

Procedure Code (old) and detain him in custody.1

(i) Bail under sections 56, 57 and 59 Cr. P.C.:

Section 56 mandates that a police oficer efecting an arest

without warant must take or send the ofender arested, before a

magistrate having jurisdiction in the case of before the oficer

in charge of a police station.

But in section 56, there is an inbuilt provision authorizing police oficer to

admit he arested ofender to bail, but power of the police oficer is subject o the

provisions herein contained as to bail. Section 56 of the new Code coresponds to

section 60 of the old Code. Explaining section 60 M.P. High Court observed:

"The provision in section 60 that he arested person shal be taken

before Magistrate having jurisdiction subject o the provisions as to

10 46 CWM 162, ILR 3 Al 60. 1 3 Cr. L. J. 572, AIR 1932 Pat. 214.65

bail only refers to the powers of the police to grant bail. If the

police in its discretion do not think it fit to alow bail to arested

person, then they have to take him or send the person arested

before a magistrate having jurisdiction in the case, Section 61 (i.e.

new section 57) is concerned solely with the question of the period

of detention by the police of a person arested without warant".12

Section 57 provides that person arested not to be detained more than

twenty four hours. The intention of the legislature is that an acused person

should be brought before a Magistrate competent to try or commit with as litle

delay as posible. Section 57 is pointer to the intendment o uphold liberty and to

restrict o the minimum curtailment of liberty.13

Section 59 provides that no person who has ben arested by a police

oficer shal be discharged except on his own bond, or on bail, or under special

order of a magistrate.

Under section 56 and 59, the Legislature has used words “Police Oficer”.

(iv) Bail under section 169 Cr. P.C. The section refers to the grant of bail not at the start but only on the

making of an investigation under Chapter XI of the Code. Til then bail is not

authorized under the provisions of this section. The power to release on bail a

person in custody vests in oficer in charge of the police station or the police

oficer making the investigation. Under section 36, Criminal Procedure Code, a

police oficer superior in rank to an oficer in charge of a police station can

exercise the same powers of investigation as can be exercised by an oficer in

charge of the police station. Section 169 provides that if upon an investigation it

apears to the oficer-in-charge of police station that there is no suficient

evidence or reasonable ground of suspicion to justify the forwarding of the

acused to a magistrate, such oficer shal release him on his executing a bond

with or without sureties as such oficer may direct, to apear, if and when so

12 Gulam Mohammad Azimmudin Vs. State, 1959, Cr. L. J. 60.

13 Mohd. Ahmed Yasin Mansuri Vs State of Maharashtra 194 Crl.1854 (Bom.DB).6

required before a magistrate empowered to take cognizance of the ofence on a

police report and to try the acused or commit him for trial.

An “Oficer-in-charge of Police station” includes, when the oficer-in- charge of Police Station is absent from the station house or unable from ilnes or

other cause to perform his duties the Police Oficer present at the station house

who is next to such oficer and is above the rank of constable or when the State

Government so desires, any other police oficer so present.

An oficer-in-charge of the Police Station or an investigating oficer can

not release a person on bail if he has apeared as an acused before the magistrate

on the basis of a complaint in respect of the incident which the police also is

investigating.14 If the acused is in custody, he must be released if after

completion of the investigation there is no suficient evidence or reasonable

ground of suspicion against him. The magistrate, however, can direct he police to

make further investigation. There is no provision, which empowers the magistrate

to release/discharge an acused pending investigation before submision of the

final form and taking cognizance of the ofence.15

If the oficer in charge of the police station on the investigating oficer

takes a bond from the acused for his apearance before the police it is void

abinito.16 The admision to bail, therefore, is only a provisional arangements and

the magistrate may either discharge the bond on order the re-arest of the

acused.17 The powers of an oficer incharge of the police station on the

investigating oficer to admit a person to bail are not hampered by the nature of

ofence of which he is acused.

(v) Bail under section 170 Cr. P.C. Under this section the authority to grant bail acrues to an oficer in

charge of the police station, "if the ofence is bailable". Do these words also mean

that a station oficer shal release a person on bail if the ofence made out during

investigation was only a bailable ofice though the inital acusation was in

14 Rohal Husain Vs. Emperor, 35 Cr. L. J. 208 AIR 193 Al 582.

15 Hera Lal Pandit Vs. State of Bihar (204) Pat. LJR 452.

16 25 Cr. L. J. 712 AIR 1925 Lah 125.

17 34 Cr. L. J. 761: AIR 193 Al 39.67

respect of a non-bailable ofence of which the police tok up the investigation, or

that a station oficer shal release a person on bail if the ofence is bailable and the

investigation was made under section 15 (3) of the Code, that is to say, the

original acusation should be of a non-cognizable ofence in order to empower a

station oficer to admit a person on bail? It is submited that a station oficer is

empowered to grant bail if investigation has disclosed the ofence to be bailable

and it is immaterial what he inital acusation against him was.

Under the imperative provisions of section 170, therefore, an oficer in

charge of the police station has either to forward the acused in custody or if the

ofence is bailable or on investigation found to be bailable, to acept bail for his

apearance before a magistrate, he canot entertain an aplication for the

withdrawal of a complaint and, therefore, he canot be discharged an acused.18

(vi) Bail under section 436 Cr. P.C.

The provisions of this section cast a statutory duty upon the oficer in

charge of the police station to release on bail a person who was involved in a

bailable ofence. The power to release either on bail or on a personal recognizance

i.e. bonds without sureties extends to the time the acused is in the custody of

such oficer. The right of the acused to be released arises only when the person

under arest or detention is prepared and able to give bail. He canot be taken into

custody unles he is unable or unwiling to ofer bail or to execute a personal

bond.19

(vi) Bail under section 437 Cr. P.C.

The power to release on bail a person acused of a non-bailable ofence is

confered upon only one clas of police oficers, namely an oficer-in-charge of

the Police Station under section 437 sub Section (I). Since the power to grant bail

is permisive and not obligatory, it has to be exercised with great caution because

of the risk and stakes involved. Before exercising his power, a station oficer

ought to satisfy himself that the release on bail would not prejudice the

prosecution in bringing home the guilt of the acused. In case the oficer in charge

18 1875 Rat (91).

19 The Crown Vs. Makhan Lal 48 Cr. L. J. 656.68

admits an acused to bail, it is mandatory for him to record the reasons or special

reasons in the case diary and preserve the bail bonds until they are discharged

either by the apearance of the acused in court or by the order of a competent

court.

For the purpose of bail in non-bailable ofence, the Legislature has

clasified them under two heads:

(1) those which are punishable with death or imprisonment for life;

(2) those which are not so punishable.

In case of an ofence punishable with death or imprisonment for life a

station oficer canot enlarge a person on bail, if there apears reasonable grounds

for believing that he has ben guilty of such ofence. The age or sex or sicknes or

infirmity of the acused canot be considered by a police oficer for the purpose

of granting bail. These maters may be taken in view by a court only. An oficerin-charge

of the police station may grant bail only when there are no reasonable

grounds for believing that the acused has commited a non-bailable ofence or

when the non-bailable ofence complained of is not punishable with death or life

imprisonment.

3.3 Bail by Police when arest made in pursuance of warant

The relevant provisions of Code of Procedure in conection with above

heading are confined in section 71 and 81 of Criminal Procedure Code.

(i) Bail under section 71 Cr. P.C.

A Police oficer executing a warant under this section canot exercise any

power beyond those contained in the endorsement, so that if the arested person is

to be released on his personal bond, a police oficer canot demand sureties from

the prisoner.20 It is a mater entirely in the discretion of the court isuing a warant

under this section to give a direction for the release of the arested person on bail

or not. Even in bailable ofence, a court may not give such direction.21 When a

person to arested is not arested until the date on which he has to atend the court,

the direction regarding the taking of bail lapses. But since the warant itself

20 6 Cr. L. J. 275. 21 Lachmi Narain Vs. Emperor 40 Cr. LJ 283, AIR 1939 Al. 156.69

remains in force under section 70 (2) Criminal Procedure Code, the person against

whom the warant had ben isued can be arested even after the date on which he

was to be in atendance in court.2

This section makes it clear that a magistrate is competent to isue a

warant of arest for the production of a particular person before his own court

and not before a police oficer.23

A warant directed to any Police Oficer may also be executed by any

other Police Oficer whose name is endorsed upon the warant by the Oficer to

whom it is directed or endorsed (Section 73 Cr. P.C.)

(i) Bail under section 80 & 81 Cr. P.C.

When a warant of arest is executed out side the district in which it was

isued any police oficer who is not a District Superintendent of police or the

Commisioner of Police may release an arested person acording to the

directions contained in the endorsement. But a District Superintendent of Police,

the Commisioner of Police in presidency town with in the local limits of whose

jurisdiction the arest was made shal release on bail the arested person, if the

ofence is bailable and such person is ready and wiling to give bail to their

satisfaction.

In short, when a warant of arest is to be executed within the district in

which it was isued or it is to be executed out side the district in which it was

isued a police oficer has not to engage himself in the determination of the

question whether the arested person is acused of a bailable or a non-bailable

ofence. He has to comply strictly with the contents of the endorsement if

any. He canot release a person on bail simply because the arested person is

acused of a bailable ofence. In case of a warant which is executed out side the

district in which it was isued, the proviso to Sub Section (1) of Section 81

empowers a District Superintendent of Police or the Commisioner of Police

within the local imits of whose jurisdiction the person was arested to release him

bail, if the ofence is bailable, provided such person is ready and wiling to give a

2 10 Cr. L. J. 479, 41nd case 31.

23 1 CWN 154: ILR 24 Cal. 320.70

satisfactory security even though there was no direction by the court isuing the

warant.

3.4 Bail by Magistrate

“Bail” remains an undefined term in the Code of Criminal Procedure 1973.

Nowhere else the term has ben statutorily defined conceptualy, it continues to

be understod as a right for asertion of fredom against state imposed restraints.

Since the U.N. Declaration of Human rights of 1947, to which India is a

signatory, the concept of bail has found a place within scope of human rights.

A right to get admited to bail can lawfuly be circumspected if the police

neds the arested person any time for purpose of investigation of the case. The

Code of Criminal Procedure provides that a person suspected of having

commited a cognizable ofence can be remanded to police custody. In case of

arest without warant, the request for remand in case of a suspect begins with a

formal arest. Any person who is arested by a police oficer should be produced

before the Judicial Magistrate within 24 hours from the time of his arest. If a

person commits a bailable ofence, then the magistrate grant him bail but if he

commits any non-bailable ofence, then it is on the discretion of the Magistrate

that whether bail should be granted to him or not. Section 59, 4 (1), 8, 167, 436,

437 etc. deals with powers of Judicial Magistrate to grant bail.

3.5 Bar of Discharge except on Bail under Section 59 Cr. P.C.

The first provision in the code which deals or apears to deal with the

power of a Magistrate to discharge an arested person is contained in section 59,

Criminal Procedure Code. What he section lays down is that a person arested by

the police canot be discharged except: -

(i) on personal recognizance, or

(i) on bail, or

(i) under a special order of a Magistrate.

This section coresponds to section 63 of the old Cr. P.C. An interesting

question arises whether this section as it is worded confers any power on a

Magistrate to release a person on bail or, the section itself does not confer any71

power on a Magistrate but it only enumerates in a general maner the ways in

which an arested person can be enlarged.

This High Court of Madhya Pradesh held that section 63 (old), Criminal

Procedure Code as it is worded, does not itself confer any power to a Magistrate

to release a person on bail. It only provides for the release of a person arested

without warant, on his bond or on bail or on his discharge under special order of

a Magistrate. The release is to be only when under other provisions of the code a

person has ben ordered to be released on his bond, or on bail or on his

discharge under the special order of a Magistrate. The special order of a

Magistrate contemplated is “a special order of a Magistrate under section 167of

Cr. P.C.”24 His Lordship has not set forth any reasons for ariving at he aforesaid

conclusion. On the other hand, one finds that no importance has ben atached to

the words “herein contained” in present section 56 (old section 60), instead the

words used by his Lordship are “when under other provisions of the Code a

person has ben ordered to be released”. Again one finds that the words “A

special order of a Magistrate” have ben held to mean “a special order of a

Magistrate under section 167”. Before pursuing the mater further it is necesary

to point out at this stage that the word “discharged” used in section 59, Criminal

Procedure Code, should not create any confusion in determining the corect scope

of that section because the same expresion has ben used in the first proviso to

section 436, Criminal Procedure Code, which is obviously a provision for bail.

Therefore, the word “discharged” and “release on bail” have not two diferent

meanings. This M. P. case critcizes the word “discharge” in old section 63 as not

hapy.

3.6 Bail when Warant Executed Outside Teritory under Section 81 Cr. P.C.

Section 81 coresponds to old section 86 with some distinction: Section

80, Cr. P.C. 1973 provides that an arested person outside the jurisdiction of a

court isuing the warant of arest is to be produced before the isuing court

where it is within 30 km of the place of arest or nearer than Executive

24 Gulam Mohammad Azimudin v. State, 1959, Cr.LJ 60: AIR 1959 MP 147.72

Magistrate, or District Supt. Or Commisioner of police.25 The police authorites

above or the Executive Magistrate then shal direct the removal of the arested

person to the custody of the court isuing the warant. But, if the ofence is

bailable, before such removal the person arested may be enlarged on bail. If the

ofence is non-bailable one, it is only the C.J.M. subject o the limitation provided

in section 437, Cr. P.C., or it is the Sesions Judge who are empowered to release

such person on bail. But, these provisions would not curtail the power of the

police oficer to take security under section 71 Cr. P.C. 1973. Section 187, Cr.

P.C. does not overide the provisions of sections 70 to 81, of Cr. P.C., 1973.26

To have the benefit of compulsive bail the arested person must be a

person acused of a bailable ofence. If the warant is for the arest of a witnes,

because those provisions aply for the arest not only of an acused person but

others also e.g. a witnes, a Magistrate canot acept bail from such arested

person.27 If the arested person is acused of a non-bailable ofence, such

Executive Magistrate as has ben refered to in sections 80 and 81 has no power

to act beyond the terms of the endorsement contained in the warant of arest. He

can be released only if he is ready and wiling to give the security required by the

endorsement. Where there is no endorsement for taking bail and the ofence is

non-bailable, the Magistrate, within whose jurisdiction the man was arested,

must direct his removal in custody to the court which isued the warant, no

mater whether he is wanted as a witnes or as an acused, a Magistrate must

satisfy himself that the person arested apears to be the person intended by the

court which isued the warant. And when he is so satisfied, he can direct the

removal of the arested person in custody to the court which isued the warant.28

3.7 Requiring one to execute bond under section 8, Cr. P.C. The scope of this section is limited that it only empowers a court o require

a person present in court to execute a bond, with or without sureties for

apearance before the court aking the bond or before the court o which the case

25 1971 Cr. L. J. 149 (Cal.).

26 Velapan Vs. State, AIR 1965 Ker. 72.

27 Chotey Lal Vs. Emperor, 49, Cr.L.J. AIR 1948 Al 72 (74): 2 Weir 39.

28 In re Sagarmal Khemraj & another. 42. Cr. L.J. 205: AIR 1940 Bom 397.73

may be transfered for trial (note the change in present section 8 from old section

91). And the section is only aplicable to persons who are present in court and

does not authorize a Magistrate to go to the house of a person and compel him to

execute a bond for apearance in court.29

The requirements of this section are:

i.the person is present in court; and

i.for his apearance the court can isue a summons; or

i.for his apearance the court can isue a warant.

It is in the discretion of the court to require a person to give a bond for

apearance with or without sureties. While the charge is pending, an acused

whether guilty or not must obey such bond.30

3.8 Security for peace and bail under section 106 Cr. P.C.

The section authorizes the taking of security for keping the peace. The

ofences in which the section aply are:

i. Ofences under Chapter VII, Indian Penal Code, namely

ofences against public tranquilty e.g., section 141 to 160

except ofences under sections 153-A, 153-B and 154 I.P.C.;

i. Asault or using Criminal force or commiting mischief;

i. Any ofence involving breach of peace;

iv. Criminal intimidation.

Security for keping the peace can be required under this section when a

person is convicted of certain ofences. In order to atract the provisions of this

section it is necesary:

i. that here must be conviction;

i. that the conviction must be for one of the ofences mentioned

in the section;

i. that he conviction must be by a court mentioned in the section;

iv. that such court must be of the opinion that it is necesary to

bind over the acused to prevent he breach of peace.

29 37 Cr. L. J. 837: 163 Ind C. 413.

30 20 Cr. L. J. 384: AIR 1919 Al 158.74

The order, caling for the security must also be pased at the time of

pasing of sentence on the acused and a convicted person is not entiled to a

show cause notice or a preliminary enquiry for the demand of security under this

section31. The one restriction on the powers of a court of a judicial Magistrate

or/and court of Sesions is that the term for which the security can be taken

canot exced thre years and a complainant canot be asked to give a similar

security for keping the peace.32 The power to demand security under section 106,

Criminal Procedure Code, is not confined to regular trials. Even if the acused has

ben convicted in a summary trial, a cal for security can be made.3 An order

under this section must specify the amount of security required, otherwise the

order is bad. In fixing the amount of security, a Magistrate ought to consider the

status in life of the person concerned, so that he may have a fair chance to be able

to find security. When an order is for bond with sureties, the Magistrate canot

direct hat a particular person must be one of the sureties.34 Sub-section (2) of this

section lays down that on the conviction being set aside, the order for security

also fails to the ground.35

3.9 Magistrates who can demand security under Chapter VII of the Code

(Sections 107, 108, 109, 10, 16, 17):

Only an Executive Magistrate can demand security under these sections. It is only

section 106 which can be invoked by a Sesions Court or a Judicial Magistrate 1st

Clas who tried the case and convicted the acused.

Two important conditons are necesary for initation of proceding under

section 107 namely formation of opinion and existence of suficient grounds for

procedings. Order should not be pased mechanicaly. Drawing procedings

merely on police report is bad. Impositon of an excesive amount of Rs.20,00 as

31 4 Cr.L.J. 639: AIR 1943 Mad 406: 25 Cr. L.J. 965: AIR 1924 Al 230 (Contra):27

Cr.L.J. 112: AIR 1927 Pat. 37.

32 Crown V. Kalen and others, 1902 Pun LR No.82 Cr.

3 7 Oudh Cas 38: 1 Cr. L.J. 1054.

34 19 Cr. L.J. 439: AIR 1918 Al 95.

35 Gita Prasad Singh v. Emperor, 25 Cr.L.J. 919: 1925 Pat 17: Dalganjan v. Emperor, 25 Cr.L.J. 481: AIR 1924 ALL 696.75

amount of bond is also improper.36 Formation of opinion on definite information

is a sine qua non for the igniton of the proceding.37 The fact hat he Magistrate

formed his opinion should apear on the face of the reocrd.38

Chapter VII of the Code of Criminal Procedure contemplates to kinds of

securites being taken:

i. for keping the peace, and

i. for god behaviour.

Section 107, Criminal Procedure Code, deal with the security for keping

the peace and sections 108, 109 and 10, Criminal Procedure Code, the security

for god behaviour. Under section 106, security for keping the peace is

demanded from a convicted person, whereas under section 107, security is caled

for, although he is not convicted of any ofence, because there is reason to

aprehend that he is likely to commit or provoke a breach of the peace.

Procedings under both the sections are judicial and not administrative.39

3.10 Stages of Bail Under the Preventive Sections:

In the preventive sections under Chapter VII of the Code of Criminal

Procedure, the question of bail may arise at five diferent stages:

(a) When procedings have not commenced but are only in view.

(b) When procedings have commenced and notice under section

12, Criminal Procedure Code, has ben isued.

(1) of section 16 the Magistrate is of opinion that immediate

measures are necesary for the prevention of the breach of the

peace or disturbance of public tranquilty or the commision of

any ofence or for the public safety. But, Magistrate canot

demand such interim bond without enquiry being commenced.40

36 Kailash Singh v. State of Bihar, AIR 1983 Pat PLH (HC) 314: 1983 Cr.L.J. NOC 28

(Pat).

37 M.S.C. Rao v. State of Mysore, 1971 Mad LJ (Cr) 602: (1971) 2 Mys LJ:302.

38 Cninaya Chotiar v. State of Mysore, 1970 Cr.L.J. 11: 1969 Mad LJ (Cr) 13.

39 193 Cr. L. J. 813: AIR 1953 Al 475.

40 Madhu Limaye v. S. D.M., (1970), 3 SCC 746: (1971).76

(d) Pending the reference under section 12 (4), Criminal Procedure

Code.

(e) Pending apeal or evision.

The various stages at which the question of bail may arise have ben

enumerated above. But, strictly speaking, at some of those stages the question of

bail ought not to arise at al and if the Magistrate orders the detention in

custody of a person because the later is not able to give security to the

satisfaction of the Magistrate concerned, the detention is ilegal. It canot be

gainsaid that he question of release on security can arise only when a person can

be arested on the basis of information furnished against him. If he canot be

arested, any order demanding security from him is ilegal. It has ben held that a

Magistrate is not competent o send any person to jail who is produced before him

after arest unles he has ben given expres powers for the same under the

provisions of the code.41

3.1 Bail under Section 124 Cr. P.C. When a person for whose apearance a summons or a warant has ben

isued either on acount of the unfitnes of his surety or his sureties or on acount

of the unwilingnes of such surety or sureties to act as such, and that person

apears or is brought before the Magistrate, the Magistrate may alow him to give

for the unexpired portion of the term of such bond, fresh security of the same

description as the original security. Sections 121 to 124 deals with the

procedings to be taken subsequent o orders pased under section 106 or section

17. An order pased under section 124, for the purposes of section 18 to 123 is

demed to be order made under section 106 or section 17 as the case may be.

Therefore, where an order for furnishing security is for six month and a surety has

ben discharged on acount of his unfitnes or unwilingnes, the Magistrate has

no choice but to take the person in custody and refer the case to the Sesions

Judge or the High Court as the case may be. The question of his release on bail

41 Criminal Miscelaneous Aplication No.1038of 1957 Prabhu Narain Singh and

Others v. State and Others decided on 23rd August, 1957 (Alahabad High Court).7

during reference wil be governed by other provisions of the code. At that stage

the Magistrate making the reference is powerles to grant bail.42

3.12 Bail under Section 309, Cr. P.C.

The scope of section 309 Cr. P.C. is diferent from the old and

coresponding section 34 Cr. P.C. As held in Natabar Parida Vs. State of

Orisa,43 section 309 is atracted only after Magistrate takes cognizance of

ofence. During this period Magistrate may admit he acused to bail doubtlesly.

Even during the interegnum betwen the period of submision of charge-shet

and commitment to Courts of Sesion, Magistrate can grant bail to acused or

remand him to custody.4

3.13 Bail to Lunatics :Section 30, Cr. P.C.

Bail canot be claimed as a mater of right for persons of unsound mind.

Courts have ben vested with great powers and wide discretion in the mater of

grant or refusal of bail. Section 30, Cr.P.C. does not speak of bailable or non- bailable ofences. The nature of ofence and the severity of punishment awardable

for the commision of a particular ofence are not maters to be considered when

the question of release on security of a lunatic arises. A Magistrate may release a

person of unsound mind on bail even though he is charged of an ofence of the

most heinous type and may refuse bail in bailable case if he is of the opinion that

bail should not be alowed. An acused of unsound mind may be released on

security, irespective of the ofence with which he is charged not only on the

finding by the court that the acused is of unsound mind, but also prior to such

finding, during the pendency of the inquiry into his state of mind [section 328

(2)].

The nature of security for release of a lunatic acused is diferent from the

security for the release of other persons, in that, in the former it is binding not

only for apearance but also for preventing the acused from causing injury either

42 12 Cr. L. J 410: 5 Sind. LR 87. 43 (1975) 2 SCC 20. 1975 SCC (Cr) 484: AIR 1975 SC:1465:1975 Cr.L.J.1212:1975

Cur.L.J. 420

4 State of U.P. v. Lakshmi Brahman (1983) 2 SCC 372. 1983 SCC (Cr) 489: 1983

Cr.L.J.839:AIR 1983 SC 439 overuling 1976 Cr.L.J. 18 (Al).78

to himself or to any other person. But any conditon which is not specified in

section 30, Cr.P.C. canot be imposed and if the Magistrate imposes any new

conditon, it is ilegal and unforceable.45 There are no words in section 30 Cr.

P.C., that security for apearance is confined to the duration of the inquiry or trial.

Security under this section is for apearance of the acused “when required before

the Magistrate or court or such oficer as the magistrate or court apoints in this

behalf since the security under section 30 does not contemplate only apearance

at the procedings of the inquiry or trial for the ofence for which the acused is

charged, it does not erminate with the termination of the inquiry or trial. A person

standing security may be caled upon to produce the person released on his

security even after the trial has terminated. He wil not be heard to say that his

undertaking came to an end with the termination of the trial.

There is yet another distinction betwen the execution of security under

section 30 and section 436 to 439 Cr. P.C. A bond executed under chapter

XXXII of the code (sections 436 to 439) is binding only with every date of

hearing of such ofence and for the purpose of answering such charge. A surety

does not undertake to be responsible for the atendance of the acused to answer

charges in respect of ofences that might be commited at some future date.46

When security is given under section 30 Cr.P.C., a surety not only undertakes to

be responsible for the atendance of the acused to answer charges in respect of

ofence or ofences already commited but also guarantes that he would prevent

the acused “from doing injury to himself or to any other person”. Thus the

purpose of bail under section 30 Cr.P.C is diferent from the purpose of bail

under sections 436 to 439 Cr. P.C.

There is a distinction betwen ordinary remand under section 167 or 309

Cr. P.C. on the one hand and under section 30 on the other. When the Magistrate

opines that bail should not be taken or if suficient security is not given,

Magistrate may order him to be remanded to any safe custody in any place not

necesarily judicial custody. That apart, on making order of detention under

45 Narain Shankar v. Emperor, 35 Cr. L. J. 20: AIR 193 Sind 267.

46 Mana V. Emperor, 25 Cr. L.J. 131: AIR 1924 Lah 62: 76 IC 27.79

section 30 (2), it is mandatory that Magistrate must report his ordering detention

to State Government.

3.14 Bail for ofence against Administration Of Justice : under section 340,

Cr. P.C.

When any Magistrate is of opinion, whether on aplication made to him in

this behalf or otherwise, that it is expedient in the interest of justice that an

inquiry should be made with regard to an ofence punishable under sections 193,

194, 195, 196, 19, 20, 205, 206, 207, 208, 209, 210, 21, 28 of the Indian

Penal Code or any ofence described in section 463 or punishable under section

471, section 475 or section 476 of IPC which apears to have ben commited in

relation to a proceding in that court, such court may, after such preliminary

inquiry, if any, as it thinks necesary, record a finding to that efect and make a

complaint thereof, in writng, signed by himself, and shal forward the same to a

Magistrate of the First Clas having jurisdiction. After the court has recorded its

finding and decided to make a complaint, the power to detain in custody or

release on bail acrues to the complainant court under this section. If the ofence

complained of is bailable the court may take suficient security for the apearance

of the acused before the transfere Magistrate or if the aleged ofence is non- bailable, it may, if it thinks necesary so to do, send the acused to such

Magistrate in custody. But unles the court has finaly made up its mind that a

complaint should be made it has no power to consider either that the ofence

aleged is bailable or non-bailable or that he person should be taken in custody or

not.47 If a court has taken a person into custody ilegaly, that is to say, without

making a final order about filng a complaint the remedy of a prisoner is by way

of the writ of habeas corpus and not under section 439, Cr.P.C.

3.15 Bail for Contempt in presence of Court :under section 346, Cr. P.C.

When an ofence, as is described in section 175, Section 178, 179, 180 or 28 of

I.P.C. is commited in the view or presence of a Criminal Court and that court,

instead of proceding under section 345, Cr.P.C., considers that the person

47 Mohammad Khan V. Emperor, 45 Cr.L.J. 768: AIR 194 Lah 328.80

acused of any of the ofences refered to above should be imprisoned otherwise

than in default of fine, or that a fine exceding two hundred rupes should be

imposed upon him, such court after recording the facts constiuting the ofence

and the statement of the acused may forward the case to a Magistrate having

jurisdiction to try the same, and may require security to be given for the

apearance of such acused person before such Magistrate or if suficient security

is not given, shal forward such person in custody to such Magistrate.

Under this section as under the provisions of section 340, the person

complained against has not o aply for bail to the court. It is the discretion of the

court forwarding the complaint either to ensure the atendance of the acused by

demanding a security for his apearance before the transfere Magistrate or it may

just inform the acused of the date on which he has to apear before that court. He

canot be taken in custody merely because he has not aplied for bail. He can be

taken in custody if security is demanded from him and he does not give suficient

security.48

3.16 Bail to Witnes under Section 349, Cr. P.C. :

If any witnes or person caled to produce a document or thing before a

Criminal Court, refuses to answer such questions as are put to him or to produce

any document or thing in his posesion or power which the court requires him to

produce, and does not ofer any reasonable excuse for such refusal and persists in

his refusal he may be dealt with acording to the provisions of section 345 to 346

Cr. P.C.

Under this section a complainant is not a witnes and a witnes is not

bound to answer a question which is irelevant o the isue.49 A witnes is also not

bound to answer any question asked by the court which tends to incriminate him

in criminal procedings because of the protection aforded to him under section

165, Evidence Act,50 nor is he bound to produce a document in respect of which

he claims privilege under section 123 or 124, Indian Evidence Act.

48 12 Suth WR (Cr) 18.

49 ILR 13 Bom 60.

50 ILR 10 Bom 185.81

3.17 Bail to First ofender etc. under section 360, Cr. P.C.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the

power of a court or a Magistrate of the second clas specialy empowered by the

State Government in this behalf, to release a convicted ofender on his entering

into a bond, with or without sureties, to apear and receive sentence when caled

upon during such period (not exceding thre years) as the Magistrate may direct,

and in the mean time to kep the peace and be of god behaviour. The Magistrate

thus has discretion either to punish the ofender with imprisonment or release him

on probation of god conduct.

The proviso to sub-section (1) of this section lays down the procedure to be

adopted by a Magistrate of the second clas not specialy empowered by State

Government in this behalf, when such Magistrate is of opinion that the powers

confered by section 360 Cr. P.C. should be exercised in favour of the convicted

person. An interesting question arises as to what should a Magistrate, who is not

competent to release a convict forthwith, do, when there are more than one

acused before him and he is of the opinion that one or more of them, but not al,

deserve the benefit under this section. It was held by the Madras High Court in re

Pitamanayaga Pandaram that such Magistrate should dispose of the case of the

other acused himself first and then submit the case of the acused who in his

opinion deserves the benefit of this section.51 The same view was taken by the

Bombay High Court.52 In a later ruling by the same High Court it was held that

there is nothing in the language of either old section 562 or old section 380 which

prohibits a Magistrate of the second or third clas sending up al the acused, the

whole case, and the entire procedings to the Sub Divisional Magistrate in a case

where he sugests that action should be taken under section 562 against only one

or few of the acused persons.53

The limitation imposed upon a Magistrate of the second clas by the

proviso to sub-section (1) are not aplicable in a case in which a person is

51 4 Cr. L.J. 568: AIR 1943 Mad. 390.

52 Emperor Vs. Yesu, 2. Bom LR 49.

53 Pali Munisami, 48, Cr.L.J. 361: AIR 1948 Mad 86.82

convicted of theft, theft in a building, dishonest misapropriation, cheating or any

ofence under the Indian Penal Code punishable with not more than two years’

imprisonment and the court is of the opinion, loking into al the extenuating

circumstances, that it is a fit case when the ofender should be released after due

admoniton. There is no legal compulsion on a Magistrate of the second clas to

submit he procedings before a Sub Divisional Magistrate for his orders.54

3.18 Bail for misuse of liberty of section 360: Under section 360 (9), Cr. P.C.

The question of release on bail may arise when a convicted ofender to

whom the benefit of section 360 Cr. P.C. was given fails to observe any of the

conditons of his recognizance and is aprehended on a warant isued by a

Magistrate who convicted him, or by a Magistrate who could have dealt with the

ofender in respect of his original ofence. An ofender when he is aprehended

on such warant may either be remanded to custody until the case is heard or he

may be admited to bail with a suficient surety conditoned on his apearing for

sentence.

3.19 Post-Conviction and Pre-Apeal Bail under section 389 Cr. P.C.

The section contemplates post-conviction and pre-apeal period. Pending

an apeal against conviction apelate Court may release the convict on bail and

High Court can exercise this power when apeal ies to Sesions Court. So far as

the court convicting the acused is concerned, the court is bond to admit the

acused to bail pending order pased by apelate court or High Court when (a)

the acused was already on bail and has ben sentenced to imprisonment for a

term not exceding thre years; or (b) when the ofence was a bailable one.

Even on fulfilment of the conditon court on convicting the acused may

refuse bail if there exists a special reason. Under this section an intention to

present an apeal on the part of the convicted person is suficient reason to justify

the release of a convicted person on bail. It may further be noted that an order of

54 Murli Dhar V. Mahbob Khan. 26 Cr. L.J. 624, 1925, Al 64: The King Vs. Maung

Thein Aung (Contra) 42 Cr. L.J.2, AIR 1940 Rang 280: 191 IC 712.83

bail under this section is for a limited period only and is aplicable only to

“convicted” persons and not o those who are bound over.5

3.20 Bail while making reference under section 395 Cr. P.C.

When a Magistrate makes a reference under section 395, Criminal

Procedure Code, to the High Court for its opinion on the validity or otherwise of

any act, Ordinance or Regulation or, of any provision contained in an Act,

Ordinance or Regulation, he may, pending the decision of the High Court, either

commit he acused to jail or release him on bail to apear when caled upon. The

Magistrate wil exercise his discretion in favour of the acused or against him

acording to the seriousnes of the charge and severity of punishment provided in

that act, Ordinance or Regulation.

3.21 Bail During Revision Under Section 397 Cr. P.C.

The Sesions Court and the High Court in exercise of revisional power

can cal for records of inferior courts for the purpose of satisfying himself as

to the corectnes, legality or propriety of any finding, sentence or order recorded

or pased and as to the regularity of any procedings of such inferior court. When

such revisional Court cals for the record of an inferior Court, he may direct that

the execution of the sentence or order be suspended and, if the acused is in

confinement, that he be released on bail or on his own bond pending the

examination of the record. The grant of bail pending revision is within the

discretion of the court concerned which must be guided by general considerations

on the merits of the case, the likelihod of the aplicant absconding, the trivial

nature of the ofence, the nature of punishment, etc. The revisional power by the

High can be exercised not necesarily on the aplication of the agrieved parties

but also on own motion56. Despite right of apeal being available, High Court suo

5 Charan Mehto v. Emperor, 37 Crl. J. 15: AIR 1936 ALL 107: 13 Cr.L.J. 958: AIR

1930 Pat 274.

56 Ramesh Vs. A. P. Jhaveri (1973) 3 SCC 84: 1973 SCC (Cri) 565: AIR 1973 SC 84:

Mohammad Vs. State of Kerala, 1982 Cr. L.J. 120: 1982 Ker. L.T. 105, Range Forest

Oficer Vs. A V. Hegde, 1978 Cr. L.J. 1374.84

moto can invoke the revisional powers on an ilegal order being brought to its

atention.57

3.2 Bail under Section 437 Cr. P. C. Section 437 deals with bail in bailable ofence. Grant of bail is a rule and

refusal is an exception. A person acused of bailable ofence has the right to be

released on bail. Bail in cases of bailable ofences is compulsory bail. In the

mater of admision to bail the Code of Criminal Procedure makes a distinction

betwen bailable and non-bailable ofences. The grant of bail to a person acused

of non-bailable ofence is discretionary. But a person acused of bailable ofence

at any time while under detention without a warant at any stage of the proceding

has the right to be released on bail in view of section 436 Cr. P.C. 1973.58 Even

when a person suspected of commiting a bailable ofence is produced before a

Magistrate and he is prepared to give bail, Magistrate has no option but o release

him on apropriate bail.59

3.23 Bail for non-bailable Ofence: Under Section 437 Cr. P. C.

The provisions of section 437 empower two authorites to consider the

question of bail, namely (1) a “court” which includes a High Court and a Court of

Sesion, and (2) an oficer-in-charge of the police station who has arested or

detained without warant a person acused or suspected of the commision of a

non-bailable ofence. Although this section deals with the power or discretion of a

court as wel as a police oficer in charge of police station to grant bail in non- bailable ofences it has also laid down certain restrictions on the power of a police

oficer to grant bail and certain rights of an acused person to obtain bail when he

is being tried by a Magistrate.

Section 437, Criminal Procedure Code, deals with the powers of the trial

court and of the Magistrate to whom the ofender is produced by the police or

57 K. Nazema Vs. State of Kerala, 1983 Cr. L.J. (NOC) 19 (Ker): 1983 Ker LT 579.

58 Ratilal Bhanji Mithani v. Ast. Colector of Customs, AIR 1967 SC 1939.

59 Kanubhai v. State of Gujarat, (1972) 13 Guj. LR 748; Union of India v. S.

Bhagwandas, 1969 Mad L.W. (Cr) 8.85

the acused surenders or apears, to grant or refuse bail to person acused of,

or suspected of the commision of any non-bailable ofence. The words “or

suspected of the commision of” were inserted by the Code of Criminal Procedure

(Amendment) Act, 195 (26 of 195 Section 94 (a) (i). The words ocur in the Cr.

P.C. 1973 to, so there is no distinction betwen person acused of the

commision of a non-bailable ofence and a person suspected of the commision

of a non-bailable ofence. Both of them have ben put in the same category. But

the discretion of the court is controled by two important limitations, viz:

i. Where the prosecution can satisfy the court that there are

reasonable grounds for believing that the acused is guilty of

the commision of a non-bailable ofence which is punishable

with death or imprisonment for life, it, shal refused bail [sub

section (1)]

i. Where the acused can satisfy the court that there are no

reasonable grounds for believing that he had commited any

non-bailable ofence or where after trial and before judgment

the court is of opinion that the acused is not guilty of any

ofence, the court has no option but o release him on bail [sub

section (2) and (7)].

Subject to the aforesaid limitations a court has an unfetered discretion to

grant bail. In sesion-commitable case the Magistrate may require the acused to

furnish bail for apearance before the Sesions Court o.60

This prohibiton upon a magisterial power to enlarge one on bail where

there are reasonable grounds for believing that he has commited an ofence

punishable with death or imprisonment for life, it based particularly on the object

60 Fre Legal Aid Commite v. State of Bihar (1982) 3 SCC 389 (1): 1983 SCC (Cr) 62 (1).86

of prevention of repetion of the ofence and securing the atendance of the

acused and similar easons.61

Thus, the police and Magistrate have wide powers for grey of Bail but bail

must be granted cautiously. The discretionary powers should also be exercised in

a judicious maner. The Principles laid down by higher. 3.24 Criteria for Judicial Discretion to Grant or Refuse Bail

“Bail or jail”, to borow the famous quote from KRISHNA IYER, J., is the

question that repeatedly comes before courts wielding immense judicial discretion

while exercising their bail jurisdiction. It may be pointed that in an oft-quoted

observation, KRISHNA Iyer, J., had stated in the case of Gudikant Narasimhulu

v. Public Prosecutor, High Court of A.P.,62 “Bail or jail?” ? At the pre-trial or

post-conviction stage ? belongs to the blured area of the criminal justice system

and largely hinges on the hunch of the bench, otherwise caled judicial

discretion”. These observations stil hold true, if not in the leter of law then at

least in practice, insptie of several judicial pronouncements as wel as provisions

in the statutes, as to how the judicial discretion has to be exercised. This judicial

discretion has to answer one of the most important fundamental rights guaranted

under Article 21 of the Constiution, namely, personal liberty. Grant of bail may

he gifting personal liberty to a person who has ben arested or who is

anticipating an imminent arest. On the other hand, refusal of bail implies sending

that person to jail, or to police custody, as the case may be, and thereby depriving

that person of his personal liberty. In fact, the question of “bail or jail?” has a

bearing not only on the individual concerned but also on the society in general,

for, an inocent person sent o jail may not augur wel for a just society whereas a

61 State of Orisa v. Damodar, (1971) 37 Cut LT 629.

62 AIR 1978 SC 429 at p. 420 :(1978)1 SCC 240 :1978 Cri LJ 502 :1978 SCC (Cri) 15.

Also se, Babu Singh v. State of U.P., AIR 1978 SC 527 at p. 529 : (1978)2 SCR 77:

1978 Cri LJ 651 : (1978)1 SCC 579 : 1978 SCC (Cri) 13 ; A. Prasad v. State of

Karnataka, 1982 Cri LJ 542 at p. 545 (Kant); Mazahar Ali v. State, 1982 Cri LJ 123 at

p. 126 (J & K): 1982 Kash LJ 62.87

dangerous and hardened criminal released on bail can do more harm to the society

by way of destroying the evidence, threatening the witneses, evading the judicial

proces or may be by commiting more ofences. The importance of this judicial

discretion canot therefore be understated. One of the main reasons for the

uncertainty in the exercise of this judicial discretion in bail maters is the fact hat

without going into the ful details of the evidence, which in fact might not even

have ben colected til that time in many cases as the case concerned might stil

be under investigation, a Court has to decide whether a prima facie case exists

which then becomes a grey area in which diferent shades of opinion could be

posible.

Highlighting the ned for caution while exercising the said judicial

discretion in bail maters, KRISHNA IYER, J., further observed that:

Personal liberty, deprived when bail is refused, is to precious a

value of our constiutional system recognized under Art 21 of the

Constiution that the crucial power to negate it is a great trust

exercisable not casualy but judicialy, with lively concern for the

cost to the individual and the community. … After al, personal

liberty of an acused or convict is fundamental, sufering lawful

eclipse only in terms of ‘procedure established by law’. The last

four words of Art. 21 are the life of that human right.”63

At the same time, His Lordship fuly released that the exercise of this

judicial discretion was a dificult mater, which is clear from the folowing

observations: “The code is cryptic on this topic and the court prefers to be tacit, be

the order custodial or not. And yet, the isue is one of liberty, justice, public

safety and burden of the public treasury, al of which insist that a developed

jurisprudence of bail is integral to a socialy sensitzed judicial proces.”64

63 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., AIR 1978 SC 429 at p.

430.

64 Ibid.8

Speaking about the bail jurisdiction, in another case,65 the Supreme Court

observed that the doctrine of Police Power, constiutionaly validates punitve

proceses for the maintenance of public order, security of the State, national

integrity and the interest of the public generaly. Even so, having regard to the

solemn isue involved, deprivation of personal fredom, ephemeral or enduring,

must be founded on the most serious considerations relevant to the welfare

objectives of society specified in the Constiution.

3.25 Can Conditions be Imposed in Bailable Ofence?

In the case of In re Kota APpalakonda,6 the acused were charged by the

police under Ss. 147, 148, 47, 324 and 323, IPC, al of which were bailable

ofences. When they aplied for bail, the Magistrate ordered their release on

conditon that they should not enter on the disputed land til the disposal of the

case. However, it was held by the Madras High Court that the impositon of that

conditon was ilegal on the ground that if the conditon was not fulfiled the

Court would have to refuse bail, which was not permited in a bailable case under

S. 496, Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973]. It was

observed that with regard to non-bailable ofences, there could be no objection to

imposing conditons of this kind, for the Magistrate had an option to grant bail or

to refuse bail and he had also the power under S. 497(5) of Cr. P.C. (of 1898)

[equivalent to S. 436 of Cr. P.C. of 1973] of causing persons so released to be

arested and commited to custody, which sub-Section he would aply in case the

conditon was not fulfiled.

S. 496, Cr.P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973]

envisaged an acused person being released on bail when the charge against him

is in regard to a bailable ofence. The words used are “such person shal be

released on bail” thereby denoting that it is mandatory on the Magistrate to admit

65 Babusingh v. State of UP AIR 1987 SC 527 at p. 529.

6 4 Cri LJ 202 (Mad) :AIR 1942 Mad 740 :(1942)2 MLJ 53.89

him in that behalf. He has no discretion to impose any conditons, the only

discretion that is left in him being only as to the amount of the bond or whether

the bail could be on his bond or with sureties. Any conditon subject o which the

bail should operate infringes the provisions of S. 496. The bail under S. 496, Cr.

P.C. (of 1898) should be an unconditional one. The considerations that pertain to

an order under S. 497, Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of

1973] do not aply to the granting of bail under S. 496. In the former case, it is

the discretion of a Court o release the acused on bail or not and while releasing

the acused on bail it could impose certain restrictions. But he acused is entiled

to claim bail under S. 496. Acordingly, it was held that in the instant case, while

granting bail in a bailable ofence, the acused could not be compeled to apear

before the Commisioner of Police, as it was a conditon which was repugnant o

the terms of S. 496 Cr.P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973].

Consequently, the clause in that behalf canot be restored as it was validly

deleted.67

3.26 Surender of Pasport While Granting Bail

In Hazari Lal Gupta v. Rameshwar Prasad,68 while ordering release of the

acused on bail, who was living and doing busines in United Kingdom, the High

Court had put the conditons that he should surender his pasport and that he

would not leave without the permision of the Court. It was contended that

Sections 496, 497 and 498 of the Criminal Procedure Code (of 1898) [equivalent

to Ss. 436, 437 and 439 respectively, of Cr. P.C. of 1973] in relation to bail did

not confer any power on the court when granting bail to restrict the departure of

the acused from India by requiring him to surender the pasport. Rejecting the

said contention, the Supreme Court held that Sections 496, 497 and 498 of the

67 Public Prosecutor v. Raghuramaiah, (1957) 1 Mad LJ (Cri) 609 : (1957)2 Andh WR

393.

68 1972 Cri LJ 298 at p. 30 : AIR 1972 SC 484 : (1972)1 SCC 452 : (1972)2 SCR 66 :

1972 SCC (Cri) 208.90

Criminal Procedure Code (of 1898) were not exhaustive of powers of the court in

regard to terms and conditons of bail particularly when the High Court under S.

561-A of the Criminal Procedure Code (of 1898) [equivalent o S. 436 of Cr. P.C.

of 1973] dealt with cases of this type. The aprehension of the acused jumping

bail could not be brushed aside. The Supreme Court observed that if the acused

wanted to retain the pasport the court might not have granted him any bail; that

even the reduction of the surety was made in order to enable the acused to be

enlarged on bail; and that the reduction of surety was also on the consideration

that he acused would not leave India.

Police and the Magistrate have ben given power to grant bail under

Cr.P.C. However, in bailable ofences, bail can be claimed as a mater of right. Police or Magistrate has no discretion in this regard. However, police uses

discretion in granting bail as the people are not aware of statutory provisions.

There is urgent ned to impart awarenes in this regard so that police may not

misuse its powers for extraneous considerations.

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