CHAPTER-III

LEGAL PROVISIONS RELATING TO BAIL BY POLICE AND BY

MAGISTRATEThe word "Police" is defined in the Indian Police Act 1861 and in various

Police Acts. Under Code of Criminal Procedure, a village Chowkidar is not a

Police Officer and he is not invested with all the powers which are conferred upon

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

not been extended to the Jammu & Kashmir, a Police Officer of that State can not

be deemed to be a Police Officer under the Criminal Procedure Code and

therefore, an arrest made by him in any State in India is not warranted by law.

Powers Police officer to accept bail is regulated by the provisions of Code of

Criminal Procedure. An improper refusal to grant bail or putting unnecessary

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 arrest. In addition to the power of arrest, the Code bestows upon police

powers parallel to the magistrate to release an arrested person on bail. In Morit

Malhotra V. State of Rajasthan 3, the accused was granted bail under section 436

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

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

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

already been granted bail by the police. The court drew support from the

reasoning in the Supreme Court decision in Free Legal Aid Committee,

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

the magistrate has granted bail, the accused need not seek bail from the court of

sessions.

1 Jagni Singh Vs. Emperor, 45, Cr. L. J. 6432 Mahesh Chand Vs. State, 1952 Cr.LJ 943, AIR 1952 Tra. Co.201.3 1991 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 conferred on the court under section 436, it appears that

the above ruling may not be generally followed by the courts.

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

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

officers. In this case the accused who was on bail granted by police preferred not

to appear before the court. The trial court issued a non-bailable warrant which

came to be challenged by the accused under section 482. The court ruled that he

has to take fresh bail from trial court.

It reasoned:

The power of a police officer 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 sufficient

evidence is only that of a bailable offence, in which eventually he

can take security for appearance of the accused before the

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

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

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

section 209… under which the committal Magistrate has been

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

otherwise restricted to grant of bail by him during pendency of

committal proceedings 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 matter of arrest.

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

of terror for the citizens because of their undue harshness with the public in

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

of police high-handedness. It is matter of common knowledge that in order to

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

5 1992 Cr. L. J. 1299.6 Ld. at 1302, see also Morit Malhotra Vs. State of Rajasthan 1991 Cr. L.J. 806.

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

succumbs to injuries. On many occasions departmental inquiries have been

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

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

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

implicate innocent persons. Such police activities once led a high court judge to

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

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

remarks continues to be heard till today.

3.1 Bail by Police

The power of a Police Officer, to release on bail a person accused of an

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

(a) when the arrest was made without any warrant; and

(b) when the arrest was made in pursuance of warrant of arrest.

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

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

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

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

however, allows a police officer to take bail when the person arrested or produced

before him has been accused of the commission of a bailable offence even though

warrant of arrest does not contain any direction to that effect. In case of non-

bailable offence the endorsement on the warrant has to be strictly followed.

Endorsement on warrant however should be by name.8

3.2 Bail when arrest made without warrant

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

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

police officer may arrest a person for non-cognizable offence. But this

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

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

7 Amin Vs. State, AIR 1958 293.8 Kochu Kunjio Vs. State of Kerala (1962), Cr. L. J. 436, 1961 Ker. L. T. 577.

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

warrant. The powers of the police to arrest a person without a warrant are

only confined to such persons who are accused or concerned with offences

or are suspects thereof. A person who is alleged to have been in possession

of an illicit arm once upon a time, can neither be called presently an

accused nor a suspect thereof.

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

name and address or gives a name and address which the police officer considers

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

neither the question of arrest nor the question of bail will arise. As soon as name

and address has been ascertained the police officer can not detain him, if he is

willing to execute the necessary bonds.9 If for any reason, the true name and

address of the arrested person can not be ascertained with 24 hours, the provisions

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

that the bond of an offender who is not a resident of India shall 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 arrest and to release on bail can be exercised by any Police

Officer not necessarily by an officer-in-charge of the Police station because this

section has been enacted to provide for a particular non cognizable offence does

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

bail after the correct name and residence have been ascertained.

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

The Code of Criminal Procedure provides for the arrest of person

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

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

1. he is proclaimed offender, or

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

9 20 Cr. L. J 381, AIR 1999, All 160 (161).

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After the arrest has been made the arrested person should be, without

unnecessary delay handed over to a police officer, or in his absence, be brought to

the nearest police station.

The question of bail will depend upon what opinion the police officer

forms about the person brought before him.

1. If there is no sufficient ground to believe that the arrested person has

committed any offence, he shall at once be released.

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

section 41, a police officer shall re-arrest him and then the normal procedure of

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

out or not and the desirability of release on bail etc. will arise.

3. If there is reason to believe that he has committed a non-cognizable offence he

shall be released as soon as his name and residence have been ascertained as

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

police officer is not entitled to receive a person arrested under this section.10 But

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

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

Procedure Code (old) and detain him in custody.11

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

Section 56 mandates that a police officer effecting an arrest

without warrant must take or send the offender arrested, before a

magistrate having jurisdiction in the case of before the officer

in charge of a police station.

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

admit the arrested offender to bail, but power of the police officer is subject to the

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

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

"The provision in section 60 that the arrested person shall be taken

before Magistrate having jurisdiction subject to the provisions as to

10 46 CWM 162, ILR 3 All 60.11 33 Cr. L. J. 572, AIR 1932 Pat. 214.

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

police in its discretion do not think it fit to allow bail to arrested

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

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 arrested without warrant".12

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

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

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

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

restrict to the minimum curtailment of liberty.13

Section 59 provides that no person who has been arrested by a police

officer shall 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 Officer”.

(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 XII of the Code. Till then bail is not

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

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

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

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

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

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

appears to the officer-in-charge of police station that there is no sufficient

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

accused to a magistrate, such officer shall release him on his executing a bond

with or without sureties as such officer may direct, to appear, if and when so

12 Gulam Mohammad Azimmuddin Vs. State, 1959, Cr. L. J. 600.13 Mohd. Ahmed Yasin Mansuri Vs State of Maharashtra 1994 Crl.1854 (Bom.DB).

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

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

An “Officer-in-charge of Police station” includes, when the officer-in-

charge of Police Station is absent from the station house or unable from illness or

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

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

Government so desires, any other police officer so present.

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

not release a person on bail if he has appeared as an accused before the magistrate

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

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

completion of the investigation there is no sufficient evidence or reasonable

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

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

to release/discharge an accused pending investigation before submission of the

final form and taking cognizance of the offence.15

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

takes a bond from the accused for his appearance before the police it is void

abinitio.16 The admission to bail, therefore, is only a provisional arrangements and

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

accused.17 The powers of an officer incharge of the police station on the

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

offence of which he is accused.

(v) Bail under section 170 Cr. P.C.

Under this section the authority to grant bail accrues to an officer in

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

that a station officer shall release a person on bail if the offence made out during

investigation was only a bailable office though the initial accusation was in

14 Rohal Husain Vs. Emperor, 35 Cr. L. J. 208 AIR 1933 All 582.15 Heera Lal Pandit Vs. State of Bihar (2004) Pat. LJR 452.16 25 Cr. L. J. 712 AIR 1925 Lah 125.17 34 Cr. L. J. 761: AIR 1933 All 399.

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respect of a non-bailable offence of which the police took up the investigation, or

that a station officer shall release a person on bail if the offence is bailable and the

investigation was made under section 155 (3) of the Code, that is to say, the

original accusation should be of a non-cognizable offence in order to empower a

station officer to admit a person on bail? It is submitted that a station officer is

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

and it is immaterial what the initial accusation against him was.

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

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

offence is bailable or on investigation found to be bailable, to accept bail for his

appearance before a magistrate, he cannot entertain an application for the

withdrawal of a complaint and, therefore, he cannot be discharged an accused.18

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

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

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

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

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

such officer. The right of the accused to be released arises only when the person

under arrest or detention is prepared and able to give bail. He cannot be taken into

custody unless he is unable or unwilling to offer bail or to execute a personal

bond.19

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

The power to release on bail a person accused of a non-bailable offence is

conferred upon only one class of police officers, namely an officer-in-charge of

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

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

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

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

prosecution in bringing home the guilt of the accused. In case the officer in charge

18 1875 Rat (91).19 The Crown Vs. Makhan Lal 48 Cr. L. J. 656.

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admits an accused 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 appearance of the accused in court or by the order of a competent

court.

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

classified 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 offence punishable with death or imprisonment for life a

station officer cannot enlarge a person on bail, if there appears reasonable grounds

for believing that he has been guilty of such offence. The age or sex or sickness or

infirmity of the accused cannot be considered by a police officer for the purpose

of granting bail. These matters may be taken in view by a court only. An officer-

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

grounds for believing that the accused has committed a non-bailable offence or

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

imprisonment.

3.3 Bail by Police when arrest made in pursuance of warrant

The relevant provisions of Code of Procedure in connection with above

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

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

A Police officer executing a warrant under this section cannot exercise any

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

to be released on his personal bond, a police officer cannot demand sureties from

the prisoner.20 It is a matter entirely in the discretion of the court issuing a warrant

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

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

person to arrested is not arrested until the date on which he has to attend the court,

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

20 6 Cr. L. J. 275.21 Lachhmi Narain Vs. Emperor 40 Cr. LJ 283, AIR 1939 All. 156.

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

whom the warrant had been issued can be arrested even after the date on which he

was to be in attendance in court.22

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

warrant of arrest for the production of a particular person before his own court

and not before a police officer.23

A warrant directed to any Police Officer may also be executed by any

other Police Officer whose name is endorsed upon the warrant by the Officer to

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

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

When a warrant of arrest is executed out side the district in which it was

issued any police officer who is not a District Superintendent of police or the

Commissioner of Police may release an arrested person according to the

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

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

jurisdiction the arrest was made shall release on bail the arrested person, if the

offence is bailable and such person is ready and willing to give bail to their

satisfaction.

In short, when a warrant of arrest is to be executed within the district in

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

issued a police officer has not to engage himself in the determination of the

question whether the arrested person is accused of a bailable or a non-bailable

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

any. He cannot release a person on bail simply because the arrested person is

accused of a bailable offence. In case of a warrant which is executed out side the

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

empowers a District Superintendent of Police or the Commissioner of Police

within the local limits of whose jurisdiction the person was arrested to release him

bail, if the offence is bailable, provided such person is ready and willing to give a

22 10 Cr. L. J. 479, 41nd case 31.23 1 CWN 154: ILR 24 Cal. 320.

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

warrant.

3.4 Bail by Magistrate

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

Nowhere else the term has been statutorily defined conceptually, it continues to

be understood as a right for assertion of freedom 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 admitted to bail can lawfully be circumspected if the police

needs the arrested person any time for purpose of investigation of the case. The

Code of Criminal Procedure provides that a person suspected of having

committed a cognizable offence can be remanded to police custody. In case of

arrest without warrant, the request for remand in case of a suspect begins with a

formal arrest. Any person who is arrested by a police officer should be produced

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

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

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

that whether bail should be granted to him or not. Section 59, 44 (1), 88, 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 appears to deal with the

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

Criminal Procedure Code. What the section lays down is that a person arrested by

the police cannot be discharged except: -

(i) on personal recognizance, or

(ii) on bail, or

(iii) under a special order of a Magistrate.

This section corresponds 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 any

71

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

which an arrested 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 arrested

without warrant, 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 been 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 arriving at the aforesaid

conclusion. On the other hand, one finds that no importance has been attached 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 been ordered to be released”. Again one finds that the words “A

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

Magistrate under section 167”. Before pursuing the matter further it is necessary

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 correct scope

of that section because the same expression has been 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 different

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

happy.

3.6 Bail when Warrant Executed Outside Territory under Section 81 Cr. P.C.

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

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

court issuing the warrant of arrest is to be produced before the issuing court

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

24 Gulam Mohammad Azimuddin v. State, 1959, Cr.LJ 600: AIR 1959 MP 147.

72

Magistrate, or District Supt. Or Commissioner of police.25 The police authorities

above or the Executive Magistrate then shall direct the removal of the arrested

person to the custody of the court issuing the warrant. But, if the offence is

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

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

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

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

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

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

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

person accused of a bailable offence. If the warrant is for the arrest of a witness,

because those provisions apply for the arrest not only of an accused person but

others also e.g. a witness, a Magistrate cannot accept bail from such arrested

person.27 If the arrested person is accused of a non-bailable offence, such

Executive Magistrate as has been referred to in sections 80 and 81 has no power

to act beyond the terms of the endorsement contained in the warrant of arrest. He

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

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

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

must direct his removal in custody to the court which issued the warrant, no

matter whether he is wanted as a witness or as an accused, a Magistrate must

satisfy himself that the person arrested appears to be the person intended by the

court which issued the warrant. And when he is so satisfied, he can direct the

removal of the arrested person in custody to the court which issued the warrant.28

3.7 Requiring one to execute bond under section 88, Cr. P.C.

The scope of this section is limited that it only empowers a court to require

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

appearance before the court taking the bond or before the court to which the case

25 1971 Cr. L. J. 149 (Cal.).26 Velappan Vs. State, AIR 1965 Ker. 72.27 Chhotey Lal Vs. Emperor, 49, Cr.L.J. AIR 1948 All 72 (74): 2 Weir 39.28 In re Sagarmal Khemraj & another. 42. Cr. L.J. 205: AIR 1940 Bom 397.

73

may be transferred for trial (note the change in present section 88 from old section

91). And the section is only applicable 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 appearance in court.29

The requirements of this section are:

i.the person is present in court; and

ii.for his appearance the court can issue a summons; or

iii.for his appearance the court can issue a warrant.

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

appearance with or without sureties. While the charge is pending, an accused

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 keeping the peace. The

offences in which the section apply are:

i. Offences under Chapter VIII, Indian Penal Code, namely

offences against public tranquility e.g., section 141 to 160

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

ii. Assault or using Criminal force or committing mischief;

iii. Any offence involving breach of peace;

iv. Criminal intimidation.

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

person is convicted of certain offences. In order to attract the provisions of this

section it is necessary:

i. that there must be conviction;

ii. that the conviction must be for one of the offences mentioned

in the section;

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

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

bind over the accused to prevent the breach of peace.

29 37 Cr. L. J. 837: 163 Ind C. 413.30 20 Cr. L. J. 384: AIR 1919 All 158.

74

The order, calling for the security must also be passed at the time of

passing of sentence on the accused and a convicted person is not entitled 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 Sessions is that the term for which the security can be taken

cannot exceed three years and a complainant cannot be asked to give a similar

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

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

been convicted in a summary trial, a call for security can be made.33 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 cannot

direct that 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 VIII of the Code

(Sections 107, 108, 109, 110, 116, 117):

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

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

Class who tried the case and convicted the accused.

Two important conditions are necessary for initiation of proceeding under

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

proceedings. Order should not be passed mechanically. Drawing proceedings

merely on police report is bad. Imposition of an excessive amount of Rs.20,000 as

31 44 Cr.L.J. 639: AIR 1943 Mad 406: 25 Cr. L.J. 965: AIR 1924 All 230 (Contra):27Cr.L.J. 1112: AIR 1927 Pat. 37.

32 Crown V. Kallen and others, 1902 Pun LR No.82 Cr.33 7 Oudh Cas 338: 1 Cr. L.J. 1054.34 19 Cr. L.J. 439: AIR 1918 All 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.

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

is a sine qua non for the ignition of the proceeding.37 The fact that the Magistrate

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

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

securities being taken:

i. for keeping the peace, and

ii. for good behaviour.

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

the peace and sections 108, 109 and 110, Criminal Procedure Code, the security

for good behaviour. Under section 106, security for keeping the peace is

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

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

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

Proceedings 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 VIII of the Code of Criminal

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

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

(b) When proceedings have commenced and notice under section

112, Criminal Procedure Code, has been issued.

(c) When pending the completion of the enquiry under sub section

(1) of section 116 the Magistrate is of opinion that immediate

measures are necessary for the prevention of the breach of the

peace or disturbance of public tranquility or the commission of

any offence or for the public safety. But, Magistrate cannot

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 228(Pat).

37 M.S.C. Rao v. State of Mysore, 1971 Mad LJ (Cr) 602: (1971) 2 Mys LJ:302.38 Cninnaya Chottiar v. State of Mysore, 1970 Cr.L.J. 111: 1969 Mad LJ (Cr) 13.39 1933 Cr. L. J. 813: AIR 1953 All 475.40 Madhu Limaye v. S. D.M., (1970), 3 SCC 746: (1971).

76

(d) Pending the reference under section 122 (4), Criminal Procedure

Code.

(e) Pending appeal or revision.

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

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

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

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

satisfaction of the Magistrate concerned, the detention is illegal. It cannot be

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

be arrested on the basis of information furnished against him. If he cannot be

arrested, any order demanding security from him is illegal. It has been held that a

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

after arrest unless he has been given express powers for the same under the

provisions of the code.41

3.11 Bail under Section 124 Cr. P.C.

When a person for whose appearance a summons or a warrant has been

issued either on account of the unfitness of his surety or his sureties or on account

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

appears or is brought before the Magistrate, the Magistrate may allow 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

proceedings to be taken subsequent to orders passed under section 106 or section

117. An order passed under section 124, for the purposes of section 118 to 123 is

deemed to be order made under section 106 or section 117 as the case may be.

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

been discharged on account of his unfitness or unwillingness, the Magistrate has

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

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

41 Criminal Miscellaneous Application No.1038of 1957 Prabhu Narain Singh andOthers v. State and Others decided on 23rd August, 1957 (Allahabad High Court).

77

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

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

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

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

corresponding section 344 Cr. P.C. As held in Natabar Parida Vs. State of

Orissa,43 section 309 is attracted only after Magistrate takes cognizance of

offence. During this period Magistrate may admit the accused to bail doubtlessly.

Even during the interregnum between the period of submission of charge-sheet

and commitment to Courts of Session, Magistrate can grant bail to accused or

remand him to custody.44

3.13 Bail to Lunatics : Section 330, Cr. P.C.

Bail cannot be claimed as a matter of right for persons of unsound mind.

Courts have been vested with great powers and wide discretion in the matter of

grant or refusal of bail. Section 330, Cr.P.C. does not speak of bailable or non-

bailable offences. The nature of offence and the severity of punishment awardable

for the commission of a particular offence are not matters 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 offence of the

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

bail should not be allowed. An accused of unsound mind may be released on

security, irrespective of the offence with which he is charged not only on the

finding by the court that the accused 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 accused is different from the

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

only for appearance but also for preventing the accused from causing injury either

42 12 Cr. L. J 410: 5 Sind. LR 87.43 (1975) 2 SCC 220. 1975 SCC (Cr) 484: AIR 1975 SC:1465:1975 Cr.L.J.1212:1975

Cur.L.J. 42044 State of U.P. v. Lakshmi Brahman (1983) 2 SCC 372. 1983 SCC (Cr) 489: 1983

Cr.L.J.839:AIR 1983 SC 439 overruling 1976 Cr.L.J. 118 (All).

78

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

section 330, Cr.P.C. cannot be imposed and if the Magistrate imposes any new

condition, it is illegal and unforceable.45 There are no words in section 330 Cr.

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

Security under this section is for appearance of the accused “when required before

the Magistrate or court or such officer as the magistrate or court appoints in this

behalf since the security under section 330 does not contemplate only appearance

at the proceedings of the inquiry or trial for the offence for which the accused is

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

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

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

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

There is yet another distinction between the execution of security under

section 330 and section 436 to 439 Cr. P.C. A bond executed under chapter

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

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

does not undertake to be responsible for the attendance of the accused to answer

charges in respect of offences that might be committed at some future date.46

When security is given under section 330 Cr.P.C., a surety not only undertakes to

be responsible for the attendance of the accused to answer charges in respect of

offence or offences already committed but also guarantees that he would prevent

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

purpose of bail under section 330 Cr.P.C is different from the purpose of bail

under sections 436 to 439 Cr. P.C.

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

Cr. P.C. on the one hand and under section 330 on the other. When the Magistrate

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

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

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

45 Narain Shankar v. Emperor, 35 Cr. L. J. 200: AIR 1933 Sind 267.46 Mana V. Emperor, 25 Cr. L.J. 131: AIR 1924 Lah 622: 76 IC 227.

79

section 330 (2), it is mandatory that Magistrate must report his ordering detention

to State Government.

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

Cr. P.C.

When any Magistrate is of opinion, whether on application 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 offence punishable under sections 193,

194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, 228 of the Indian

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

471, section 475 or section 476 of IPC which appears to have been committed in

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

inquiry, if any, as it thinks necessary, record a finding to that effect and make a

complaint thereof, in writing, signed by himself, and shall forward the same to a

Magistrate of the First Class 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 accrues to the complainant court under this section. If the offence

complained of is bailable the court may take sufficient security for the appearance

of the accused before the transferee Magistrate or if the alleged offence is non-

bailable, it may, if it thinks necessary so to do, send the accused to such

Magistrate in custody. But unless the court has finally made up its mind that a

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

alleged is bailable or non-bailable or that the person should be taken in custody or

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

making a final order about filing 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 offence, as is described in section 175, Section 178, 179, 180 or 228 of

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

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

47 Mohammad Khan V. Emperor, 45 Cr.L.J. 768: AIR 1944 Lah 328.

80

accused of any of the offences referred to above should be imprisoned otherwise

than in default of fine, or that a fine exceeding two hundred rupees should be

imposed upon him, such court after recording the facts constituting the offence

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

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

appearance of such accused person before such Magistrate or if sufficient security

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

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

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

court forwarding the complaint either to ensure the attendance of the accused by

demanding a security for his appearance before the transferee Magistrate or it may

just inform the accused of the date on which he has to appear before that court. He

cannot be taken in custody merely because he has not applied for bail. He can be

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

security.48

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

If any witness or person called 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 possession or power which the court requires him to

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

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

Cr. P.C.

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

bound to answer a question which is irrelevant to the issue.49 A witness is also not

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

in criminal proceedings because of the protection afforded 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 600.50 ILR 10 Bom 185.

81

3.17 Bail to First offender 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 class specially empowered by the

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

into a bond, with or without sureties, to appear and receive sentence when called

upon during such period (not exceeding three years) as the Magistrate may direct,

and in the mean time to keep the peace and be of good behaviour. The Magistrate

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

on probation of good conduct.

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

adopted by a Magistrate of the second class not specially empowered by State

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

conferred 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

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

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 accused himself first and then submit the case of the accused 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 class sending up all the accused, the

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

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

or few of the accused persons.53

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

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

51 44 Cr. L.J. 568: AIR 1943 Mad. 390.52 Emperor Vs. Yessu, 2. Bom LR 449.53 Palli Munisami, 48, Cr.L.J. 361: AIR 1948 Mad 86.

82

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

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

imprisonment and the court is of the opinion, looking into all the extenuating

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

admonition. There is no legal compulsion on a Magistrate of the second class to

submit the proceedings 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 offender to

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

conditions of his recognizance and is apprehended on a warrant issued by a

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

offender in respect of his original offence. An offender when he is apprehended

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

may be admitted to bail with a sufficient surety conditioned on his appearing for

sentence.

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

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

an appeal against conviction appellate Court may release the convict on bail and

High Court can exercise this power when appeal lies to Sessions Court. So far as

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

accused to bail pending order passed by appellate court or High Court when (a)

the accused was already on bail and has been sentenced to imprisonment for a

term not exceeding three years; or (b) when the offence was a bailable one.

Even on fulfillment of the condition court on convicting the accused may

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

present an appeal on the part of the convicted person is sufficient reason to justify

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

54 Murli Dhar V. Mahboob Khan. 26 Cr. L.J. 624, 1925, All 644: The King Vs. MaungThein Aung (Contra) 42 Cr. L.J.22, AIR 1940 Rang 280: 191 IC 712.

83

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

“convicted” persons and not to those who are bound over.55

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 the accused to jail or release him on bail to appear when called upon. The

Magistrate will exercise his discretion in favour of the accused or against him

according to the seriousness 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 Sessions Court and the High Court in exercise of revisional power

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

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

or passed and as to the regularity of any proceedings of such inferior court. When

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

the execution of the sentence or order be suspended and, if the accused 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 likelihood of the applicant absconding, the trivial

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

High can be exercised not necessarily on the application of the aggrieved parties

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

55 Charan Mehto v. Emperor, 37 Crl. J. 155: AIR 1936 ALL 107: 13 Cr.L.J. 958: AIR1930 Pat 274.

56 Ramesh Vs. A. P. Jhaveri (1973) 3 SCC 884: 1973 SCC (Cri) 565: AIR 1973 SC 84:Mohammad Vs. State of Kerala, 1982 Cr. L.J. 1120: 1982 Ker. L.T. 105, Range ForestOfficer Vs. A V. Hegde, 1978 Cr. L.J. 1374.

84

motto can invoke the revisional powers on an illegal order being brought to its

attention.57

3.22 Bail under Section 437 Cr. P. C.

Section 437 deals with bail in bailable offence. Grant of bail is a rule and

refusal is an exception. A person accused of bailable offence has the right to be

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

matter of admission to bail the Code of Criminal Procedure makes a distinction

between bailable and non-bailable offences. The grant of bail to a person accused

of non-bailable offence is discretionary. But a person accused of bailable offence

at any time while under detention without a warrant at any stage of the proceeding

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

when a person suspected of committing a bailable offence is produced before a

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

him on appropriate bail.59

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

The provisions of section 437 empower two authorities to consider the

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

Session, and (2) an officer-in-charge of the police station who has arrested or

detained without warrant a person accused or suspected of the commission of a

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

court as well as a police officer in charge of police station to grant bail in non-

bailable offences it has also laid down certain restrictions on the power of a police

officer to grant bail and certain rights of an accused 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 offender is produced by the police or

57 K. Nazeema Vs. State of Kerala, 1983 Cr. L.J. (NOC) 199 (Ker): 1983 Ker LT 579.58 Ratilal Bhanji Mithani v. Asstt. Collector 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) 88.

85

the accused surrenders or appears, to grant or refuse bail to person accused of,

or suspected of the commission of any non-bailable offence. The words “or

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

(Amendment) Act, 1955 (26 of 1955 Section 94 (a) (i). The words occur in the Cr.

P.C. 1973 too, so there is no distinction between person accused of the

commission of a non-bailable offence and a person suspected of the commission

of a non-bailable offence. Both of them have been put in the same category. But

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

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

reasonable grounds for believing that the accused is guilty of

the commission of a non-bailable offence which is punishable

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

section (1)]

ii. Where the accused can satisfy the court that there are no

reasonable grounds for believing that he had committed any

non-bailable offence or where after trial and before judgment

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

offence, the court has no option but to release him on bail [sub

section (2) and (7)].

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

grant bail. In session-committable case the Magistrate may require the accused to

furnish bail for appearance before the Sessions Court too.60

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

there are reasonable grounds for believing that he has committed an offence

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

60 Free Legal Aid Committee v. State of Bihar (1982) 3 SCC 389 (1): 1983 SCC (Cr) 62 (1).

86

of prevention of repetition of the offence and securing the attendance of the

accused and similar reasons.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 manner. The Principles laid down by higher.

3.24 Criteria for Judicial Discretion to Grant or Refuse Bail

“Bail or jail”, to borrow 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 blurred area of the criminal justice system

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

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

least in practice, insptie of several judicial pronouncements as well 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 guaranteed

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

he gifting personal liberty to a person who has been arrested or who is

anticipating an imminent arrest. 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 innocent person sent to jail may not augur well for a just society whereas a

61 State of Orissa 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) 115.

Also see, Babu Singh v. State of U.P., AIR 1978 SC 527 at p. 529 : (1978)2 SCR 777:1978 Cri LJ 651 : (1978)1 SCC 579 : 1978 SCC (Cri) 133 ; A. Prasad v. State ofKarnataka, 1982 Cri LJ 542 at p. 545 (Kant); Mazahar Ali v. State, 1982 Cri LJ 1223 atp. 1226 (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 witnesses, evading the judicial

process or may be by committing more offences. The importance of this judicial

discretion cannot therefore be understated. One of the main reasons for the

uncertainty in the exercise of this judicial discretion in bail matters is the fact that

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

have been collected till that time in many cases as the case concerned might still

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

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

possible.

Highlighting the need for caution while exercising the said judicial

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

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

value of our constitutional system recognized under Art 21 of the

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

exercisable not casually but judicially, with lively concern for the

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

liberty of an accused or convict is fundamental, suffering 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 fully released that the exercise of this

judicial discretion was a difficult matter, which is clear from the following

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

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

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

jurisprudence of bail is integral to a socially sensitized judicial process.”64

63 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., AIR 1978 SC 429 at p.430.

64 Ibid.

88

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

observed that the doctrine of Police Power, constitutionally validates punitive

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

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

solemn issue involved, deprivation of personal freedom, ephemeral or enduring,

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

objectives of society specified in the Constitution.

3.25 Can Conditions be Imposed in Bailable Offence?

In the case of In re Kota APpalakonda,66 the accused were charged by the

police under Ss. 147, 148, 447, 324 and 323, IPC, all of which were bailable

offences. When they applied for bail, the Magistrate ordered their release on

condition that they should not enter on the disputed land till the disposal of the

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

condition was illegal on the ground that if the condition was not fulfilled the

Court would have to refuse bail, which was not permitted 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 offences, there could be no objection to

imposing conditions 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

arrested and committed to custody, which sub-Section he would apply in case the

condition was not fulfilled.

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

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

is in regard to a bailable offence. The words used are “such person shall 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. 529.66 44 Cri LJ 202 (Mad) : AIR 1942 Mad 740 : (1942)2 MLJ 553.

89

him in that behalf. He has no discretion to impose any conditions, 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 condition subject to 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 apply to the granting of bail under S. 496. In the former case, it is

the discretion of a Court to release the accused on bail or not and while releasing

the accused on bail it could impose certain restrictions. But the accused is entitled

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

granting bail in a bailable offence, the accused could not be compelled to appear

before the Commissioner of Police, as it was a condition which was repugnant to

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 cannot be restored as it was validly

deleted.67

3.26 Surrender of Passport While Granting Bail

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

accused on bail, who was living and doing business in United Kingdom, the High

Court had put the conditions that he should surrender his passport and that he

would not leave without the permission 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 accused from India by requiring him to surrender the passport. 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 WR393.

68 1972 Cri LJ 298 at p. 300 : AIR 1972 SC 484 : (1972)1 SCC 452 : (1972)2 SCR 666 :1972 SCC (Cri) 208.

90

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

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

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

of 1973] dealt with cases of this type. The apprehension of the accused jumping

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

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

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

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

that the accused would not leave India.

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

Cr.P.C. However, in bailable offences, bail can be claimed as a matter 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 need to impart awareness in this regard so that police may not

misuse its powers for extraneous considerations.

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