“Law Master’s Publications
‘Bails and Bonds’
Prof. S. D. Bhosale
113
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BAILS AND BONDS
(Ss.436 and 450)
QUESTION BANK
1) What is anticipatory bail?
2) Circumstances in which anticipatory bail is granted.
3) Power of High Court and Court of Session regarding anticipatory bail.
4) Court granting anticipatory bail.
5) Board of assured accused and sureties.
6) Anticipatory bail when can be granted?
SHORT NOTES
1) Anticipatory bail.
SYNOPSIS
I.
Concept of Bail-
(1) According to Oxford Dictionary -
(2) According to Law Lexicon -
Need -
II.
Provisions as to regular bail -
A) When bail may be granted as of right-
1) In case of bailable offence (S.436)-
2) In case where investigation is not completed within prescribed period (S.167
(2))
3) No ground to believe guilty of accused of non-bailable offence (S.437(2))-
4) Where trial is not over within prescribed period (S.437 (6))-
5) No ground to believe guilty of accused, after trial but before judgment
(S.437 (7))-
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‘Bails and Bonds’
Prof. S. D. Bhosale
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6) Maximum period of detention is completed (S.436 (A))-
(B) Discretion in granting bail -
1) Factors to be considered while granting bail-
2) No bail in case of offences punishable with death or imprisonment for life
(S.437(3))-
3) Bail with condition -
4) Powers of High Court or Session Courts in granting bail (S.439) -
5) Anticipatory bail [Discussed in the note]
6) Cancellation of bail (S.439(2)) -
III)
Bails and Sureties -
Note- Anticipatory Bail (S.438) -
I) Meaning -
II) Object of granting of anticipatory bail -
III. Cancellation of bail -
IV)
Difference between ‘bail’ (ordinary) & ‘anticipatory bail’ -
I.
Concept of Bail:-
There is no definition of ‘bail’ in the Code. However, the terms ‘bailable’ and
‘non-bailable’ offences have been defined.
(1)
According to Oxford Dictionary:-
‘bail’ means ‘temporary release of an accused person awaiting trial, sometimes on
condition that a sum of money is lodged to guarantee his appearance in Court.’
(2)
According to Law Lexicon:-
‘bail’ means “to set at liberty a person arrested or imprisoned, on security being
taken for his appearance”.
In short, “bail” is to procure the release of a person from legal custody by
undertaking that he shall appear at the time & place designated and submit himself to the
jurisdiction and judgment of the Court. Such release may be on (i) the accused person’s
own bond and (ii) with or without the bond of sureties.
In other words, ‘bail’ is a process of setting a person free who is under arrest or
detention by taking surety (from the accused himself, with or without surety from another
person) for his appearance.
Need:-
A person’s life and personal liberty are very precious. Therefore, it is a
fundamental right under Art 21. Arrest affects the fundamental right to liberty. However,
the purpose of arrest is two-fold –
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‘Bails and Bonds’
Prof. S. D. Bhosale
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i)
to secure his presence at the time of trial and
ii)
in case his guilt is established, he should be available to undergo
punishment imposed on him.
However, ‘bail’ seeks both these purposes without detaining the accused behind
bars.
The principle underlying the release of the accused on bail is that the person is
presumed innocent until he is found guilty. Through ‘bail,’ the above purposes are
achieved without affecting the freedom of the person accused. ‘Bail is a unique blend of
the freedom of the accused and the interest of justice. The rule is ‘bail,’ and jail is an
exception.
II.
Provisions as to regular bail:-
When a person accused of an offence is brought before the Court, the Court either
grants bail immediately or calls it regular bail afterwards. On the contrary, when a person
seeks bail in anticipation (i.e., before his arrest), his arrest is called ‘anticipatory bail’.
A)
1)
When bail may be granted as of right:-
In case of bailable offence (S.436):-
When a person not accused of a non-bailable offence is arrested or detained
without a warrant and is prepared to give bail, the police officer or the Court having
custody of such a person is required to release him on bail.
The police officer or the Court, instead of taking bail from such a person, may
release him on executing a bond without surety.
Where the person so released on bail has failed to comply with the conditions of
bail, the Court may cancel his bail.
A person who is released on bail by the police should seek fresh bail from the
Court.
In bailable offences, bail is to be claimed as of right.
2)
period (S.167 (2)):-
It provides that –Where a person is in custody, and the investigation is not
complied within –
In the case where the investigation is not completed within the prescribed
(i)
ninety days,-where the investigation relates to an offence punishable with
death, imprisonment for life, or imprisonment for a term not less than ten
years; &
(ii)
sixty days,-where the investigation relates to any other offence.
The accused person shall be released on bail if he is ready to furnish bail.
3)
No ground to believe guilty of accused of non-bailable offence (S.437(2)):-
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‘Bails and Bonds’
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Where any person accused or suspected of a non-bailable offence is arrested or
detained without warrant by a police officer or appears or is brought before the Court,
and it appears to such officer or Court at any stage of investigation, inquiry, or trial that
there exists no reasonable ground for believing that the accused has committed the non-
bailable offence. Still, there are sufficient grounds for further inquiry into his guilt;
pending such inquiry, the accused shall be released on bail after recording reasons.
4)
Where the trial is not over within the prescribed period (S.437 (6)):-
If in any case triable by the Magistrate, the trial of a person accused of any non-
bailable offence is not concluded within the period of sixty days from the first date fixed
for taking evidence in the case, such person shall, if he is during custody in the whole
period, be released on bail unless the Magistrate directs contrary by recording reasons for
doing so.
5)
(S.437 (7)):-
If, at any time after the conclusion of the trial of a person accused of a non-
No ground to believe the guilt of the accused, after trial but before judgment
bailable offence & before judgment is delivered, the Court is of the 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
surety for his appearance to hear judgment delivered.
6)
Maximum period of detention is completed (S.436 (A)):-
It provides that an under-trial prisoner, other than the one accused of an offence
punishable with death, shall be released on bail if he has been under detention for the
period of more than one-half of the maximum sentence provided for the alleged offence.
(B)
Discretion in granting bail:-
In all cases of non-bailable offences, granting bail is discretionary & not
mandatory as in bailable offences. In non-bailable offences, granting bail is the discretion
offences.
1)
Factors to be considered while granting bail:-
The court takes into consideration the following factors while granting bail in non-
bailable cases.
(i)
the enormity of the charge;
(ii) the nature and gravity of the offence;
(iii) the severity of the punishment prescribed.
1
S.437(1) provides that, 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.
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‘Bails and Bonds’
Prof. S. D. Bhosale
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(iv) the nature of evidence in support of the accusation.
(v) circumstances in which the offence is committed.
(vi) probability of accused absconding, if released on bail;
(vii) the likelihood of the witness being tampered with.
(viii)the probability of repeating or continuing offences by the offender after
release.
(ix) the delay in the trial.
(x) the opportunity for the accused to prepare his defence.
(xi) the health, age, sex, background, character, and antecedent of the accused,
(xii) the position and status of the accused with reference to the victim and
witnesses.
Held—While exercising discretion, the Court has to remember that the object of
detention pending criminal proceedings is not punishment and that the law favors
allowing bail. Allowing bail is the rule, and refusing it is an exception.
2)
(S.437(3)):-
Where any person accused or suspected of commission of any offence punishable
No bail in cases of offences punishable with death or imprisonment for life
of or conspiracy or attempt to commit any such offences, the Court may impose a
condition on him to ensure his presence at trial or to ensure that such person shall not
commit a similar offence.
3)
Bail with the condition:-
While granting bail in cases of non-bailable offence, the Court may impose any
condition which it considers necessary –
(i)
in order to ensure that such person shall attend in accordance with the
conditions of the bond executed under this chapter.
in order to ensure that such person shall not commit an offence similar to
the offence of which he is accused or the commission of which he is
suspected, or
(ii)
(iii)
otherwise in the interest of justice.
4)
Powers of the High Court or Session Court in granting bail (S.439):-
The High Court and Sessions Court have the original power to grant bail and
2 AIR 1950 Pun 123.
3 Offences against state.
4 Offences affecting human body.
5 Offences against property.
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‘Bails and Bonds’
Prof. S. D. Bhosale
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impose conditions or reduce conditions pending police investigation, inquiry, or trial
before an inferior Court. The High Court or Sessions Court can also cancel the bail
granted to a person.
Appellate and revisional Courts may allow the release of the accused pending the
disposal of appeal or revision under S.389, 397 of the Code.
Under S.389 (3), even the convicting Court itself can grant bail to the accused on
the conviction to move an appeal.
5)
6)
Anticipatory bail [Discussed in the note]
Cancellation of bail (S.439 (2)):-
The High Court or Court of Sessions may direct that any person who has been
released on bail under this chapter be arrested and committed in custody. Generally, bail
is canceled for breach of a condition imposed by the Court while granting it.
III)
Bails and Sureties:-
Ss.440 to 450 deal with the execution of bond by the accused, sureties, form of a
bond, amount, etc. These sections also provide a procedure for forfeiture of the bond,
death, insolvency or discharge of sureties, and other miscellaneous matters.
Note- ANTICIPATORY BAIL (S.438) :-
1)
Meaning:-
S.438 enables the High Court and the Court of Sessions to direct the release of a
person on bail prior to his arrest; such release is called anticipatory bail. However, the
word ‘anticipatory bail’ is not used in the Code. The heading of S. 438 is “Direction for
grant of bail to person apprehending arrest.”
In fact, the term ‘anticipatory bail’ is a misnomer. It is because, under S.438, the
Court granted not anticipatory bail but merely an order releasing the accused on bail in
the event of his arrest.
S.438 provides for the issue of direction for the grant of bail to the person
apprehending arrest.
The section provides that if any person has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence, he may apply to
the High Court or the Court of Sessions for the direction that he may be released on bail
in the event of such arrest.
The court may grant or reject such an application, taking into consideration the
following factors –
i)
the nature, gravity, or seriousness of the accusation as apprehended by the
applicant
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‘Bails and Bonds’
Prof. S. D. Bhosale
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ii)
The antecedents of the applicant, including the fact that he has, on
conviction by the Court, previously undergone imprisonment in respect of
any cognizable offence.
iii)
iv)
the likely object of the accusation to humiliate or malign the reputation of
the applicant by having him so arrested; and
the possibility of the applicant fleeing from justice if granted anticipatory
bail.
It is at the discretion of the Court either to grant or reject an application seeking
the release of the person on bail in the event of his arrest in connection with a non-
bailable offence.
II)
Object of granting anticipatory bail:-
The object of granting anticipatory bail is two-fold –
Firstly, sometimes influential persons try to implicate their rivals in false cases to
disgrace them or get them detained in jail for some days.
Secondly, where there are reasonable grounds for holding that a person accused of
an offence is not likely to abscond or misuse his liberty while on bail, there seems no
necessity to detain him in jail.
III.
Cancellation of bail:-
The power to cancel bail in respect of any offence, whether bailable or non-
bailable, has been conferred on the High Court or Court of Sessions under S.439 (2).
However, the Session Court cannot cancel an order passed by the High Court.
grounds for cancellation of a bail:-
1) When the accused was found tampering with the evidence.
2) When the accused commits a similar offence or any heinous offence during the period
of bail.
3) When the accused has absconded.
4) When an offence committed by the accused has created a law and order problem in
society.
5) The High Court finds that the Court of Session while granting bail, has exercised its
judicial powers wrongly.
6) If Courts find that the accused has misused the privilege of bail.
7) If the life of the accused is itself in danger.
IV)
Difference between ‘bail’ (ordinary) & ‘anticipatory bail’:-
The differences between ‘bail’ (ordinary or regular) & ‘anticipatory bail’ are as
6 1990 Cr.1904
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‘Bails and Bonds’
Prof. S. D. Bhosale
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follows:-
Ordinary bail is granted after arrest, thereby releasing a person from custody.
Meanwhile, anticipatory bail is granted in anticipation of arrest and is effective at the
very movement of the arrest.
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