Bail section 436-439 crPC answer writing

Introduction	The concept of Bail is provided by Chapter XXXIII (Thirty-Three) of the Code of Criminal Procedure, 1973 (CrPC) titled ‘Provisions as to Bail and Bonds’. It consists of Sections 436-ail means short-term release of an accused person awaiting trial.
Section	It consists of Sections 436-450.
Relevant cases	–Moti Ram v. State of M.P.(1978) 4 SCC 47 – State v. captain jagjit singh (1962) sanjay chandra v. central bureau of investigation (2012) sushila aggarawal v. state (NCT of delhi)2020 Gurcharan Singh & Ors v. State (Delhi Administration) (1978):  Gurbaksh Singh Sibbia v. The state of Punjab (1980):
Present Problem	question related
Decision	decision of given question as per our reasoning
conclusion

Legal Position of Bail

The term ‘Bail’ has not been defined under CrPC. Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of the Code.

Bailable Offences

• According to Section 2(a) of CrPC bailable offence means an offence that is classified as bailable in the First Schedule of the Code, or which is classified as bailable under any other law.
• Under Section 436 of CrPC a person accused of a bailable offence at any time while under arrest without a warrant and at any stage of the proceedings has the right to be released on bail.
• An accused can claim bail as a matter of right if he is accused of committing a bailable offence.
• The Police Officer or any other authority has no right to reject the bail if the accused is ready to the furnish bail.

Non-Bailable Offences

• Any offence not mentioned as bailable under the First Schedule of CrPC or any other law is considered as non-bailable offence.
• A person accused of a non-bailable offence cannot claim bail as a right. Section 437 of CrPC provides for when bail may be taken in case of non-bailable offence.
• A person accused of non-bailable offence can be granted bail provided the accused does not fall under the following grounds:
  • There are reasonable grounds to believe that he committed an offence punishable with death penalty or life imprisonment.
  • That the accused has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment of seven years or more.
  • That the accused had been previously convicted on two or more occasions of commission of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.
  • There are exceptional cases in which law gives special consideration in favour of persons i.e., where the accused is a minor, a woman, a sick person etc. by virtue of Section 437(1) of CrPC.

Who can grant Bail?

• In case of a Bailable offence – Officer in charge of Police Station/ Court as per Section 436(1) of CrPC.
• In case of Non Bailable offence – Court (of any level) as per Section 437(1) of CrPC.
• Anticipatory Bail can be granted by Session Court or High Court according to Section 438(1) of CrPC.

Different types of Bail

• Regular Bail: The court orders the release of a person who is under arrest, from Police custody after paying the amount as bail money. An accused can apply for regular bail under Section 437 and 439 of Crpc.
• Interim Bail: This is a direct order by the court to provide temporary and short-term bail to the accused until his regular or anticipatory bail application is pending before the court.
• Anticipatory Bail: A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 438 of CrPC.

Conditions while Granting Bail

• According to Section 437(3), while granting bail to a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code,1860 (IPC), the court shall impose following conditions:
  • Such person shall attend in accordance with the conditions of the bond executed under this Chapter.
  • Such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
  • Such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

Special Powers of High Court or Court of Session Regarding Bail

Section 439 of CrPC accords certain special powers to both High Court and Sessions Court with respect to Bail. They are as follows:

Court may direct that any person accused of an offence and in custody be released on bail and may impose any condition which it considers necessary.

Court may direct that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

RELEVENT CASE LAW

CASE 1. Moti Ram V. State Of M.P., (1978) 4 SCC 47

Facts – This case deals with the issue of granting bail by the Magistrate under the Criminal Procedure Code, 1973 (CrPC) with or without sureties.It was noted in this case that the rights of the accused cannot be nullified by fixing a high amount of surety.

• The Magistrate ordered the appellant to be released on bail subject to the satisfaction of the Magistrate.
  • The Magistrate ordered the surety bond of Rs 10000/- to be produced, but the petitioner could not procure the huge sum by himself.
• The Magistrate made an order refusing to accept suretyship from the petitioner’s brother.
  • The reason recorder for refusing the suretyship from the brother of petitioner was that his assets were in another district.
• The petitioner appealed to the Supreme Court to modify the order and release him on furnishing the bond of Rs 2000/- or on executing a personal bond or passing any other order or direction.

Issues Involved

1. Whether the High Court or the Subordinate Courts have powers to enlarge a person on his own bond without sureties

2. Whether there are any criteria to quantify the amount of bail while releasing any person on surety?

3. Is it within the power of the court to reject a surety because he or his estate is situated in a different District or State?

section 436, CrPC, 1973 – In what cases bail to be taken —

(1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

Explanation. —Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso:

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

OBSERVATION

The Court observed that “Social Justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of social justice”.

The SC noted that the grant of bail will lose its purpose if the Court is powerless to dispense bail with surety.

The Court observed that the basic purpose of bail is to ensure that an accused person undergoes trial if he is out on bail.

The Court further said that “The discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount”.

Bail covers that Section 436 of CrPC speaks of bail, but the proviso makes a contradiction between bail and own bond without sureties, and this creates ambiguity.

The Bail covers both release on one’s own bond with or without sureties.

Also, when sureties should be demanded and what sum should be insisted on are dependent on several other factors.

Conclusion

The Court held that monetary bail is not an indispensable element of the Criminal procedure.

The Court said the Magistrate should not consider the points if the person belongs to the south and committed some offence in north and had no money for sureties or he may not know any one there then it’s impossible to furnish the sureties.

The Court ordered the Magistrate to release the petitioner on his own bond in a sum of Rs 1000/-.

CASE 2. Gurucharan singh v. state (Delhi Admn.)(1978)

Introduction

• This case deals with the exercise of judicial discretion while granting bail under Section 437 and Section 439 of the Code of Criminal Procedure, 1973 (CrPC).
• The facts and circumstances of the cases illustrate the factors and conditions under which bail may be granted to an accused.

Facts

• In this case the appellants were suspended police officer who were accused of the offence of murdering a notorious dacoit.
• The Magistrate declined to release them on bail then they approached session judge under Section 439 of CrPC and secured released on bail.
• The Delhi High Court cancelled the bail granted by the Session Court during appeal against which a Special Leave Petition (SLP) appeal was filed before Supreme Court.

Issues Involved

• Whether it is possible to define exact factors which should be considered by the Courts while granting or rejecting the bail?
• Whether there is an overriding consideration in granting bail?

Observations

• The Court observed that the Section 437(1) of CrPC is only concerned with the Court of Magistrate and there is no provision under Section 437(1), when the accused is for the first time produced after initial arrest before the Court of Session or before HC.
• If the accused with the allegation against him of the offence punishable with death or imprisonment for life, then the Court of Magistrate has no other option except rejection of the bail.
• Under Section 439(1) it confers the special powers to the HC or Session Court in respect of bail.
• The common point in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offences are committed; the position and status of the accused with reference to the victim and the witnesses.
• The Session Court and the HC may be approached by the accused after refusal of bail by the Magistrate under Section 437.
• There are twoparamount considerations to be looked into while granting bail:
  • Likelihood of the accused fleeing from justice; and
  • Tampering with prosecution evidence related to ensuring a fair trial of the case in a court of Justice.
• The Court said as far as the bail of the offence punishable with death or life imprisonment is concerned, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors.

Conclusion

The Court finally held that the Session Court was wrong while granting bail to the accused and unable to appreciate the evidence, hence appeals dismissed.

CASE 3. Sanjay chandra v. central bureau of investigation

Facts

This is an appeal under Article 136 against the common order of the Delhi High Court which rejected all the four bail applications filed by the appellants. All the appellants were alleged to have criminally conspired with the public servants to get UAS licence fraudulently to be eligible to get into the business of telecom. Earlier the Special Judge CBI also refused to grant bail.

Issue 

Whether the HC was right in refusing the bail?

1. Kalyan Chandra Sarkar v. Rajesh Ranjan (2005)- 
   1. Detention during the pendency of trial is not violative of Article 21 of the Constitution, as it is authorised by criminal law.
   2. Bail shall be granted in a non-bailable offence where the prosecution failed to establish a primary facie case
2. State of Rajasthan v. Balchand (1977)- Bail shall be refused where circumstances suggest that the accused will flee from justice or will thwart the course of justice or repeat the offence or threaten the witnesses.
3. Just as liberty is precious to an individual so is society’s interest in the maintenance of peace, law and order.
4. Gudikanti Narasimhulu v. Public Prosecutor (1978)- 
   1. The Court have discretionary jurisdiction to grant bail to the accused however as said by Benjamin Cardozo, the judge cannot be completely free as he cannot innovate something at his pleasure, he has to exercise this power with great care and caution by balancing the right of liberty of an individual.
   2. 3 important elements to determine whether the accused will appear are- the charge, nature of evidence and punishment if convicted
   3. The Court should enquire into the antecedents of the accused, particularly about his actions during bail to determine whether he will tamper with the witnesses.
5. Babu Lal Singh V State of UP, 1978–  Personal liberty cannot be deprived except for State necessity under Article 19 and by a reasonable, even-handed law and law made for community good
6. Considerations by the Court while using his discretion in granting bail:-
   1. Nature of accusation 
   2. Nature of evidence
   3. Severity of punishment if convicted
   4. Character, behaviour and means of accused
   5. Circumstances of offence
   6. Possibility of appearance of the accused
   7. Reasonable threat of tampering with witnesses
   8. Larger interest of public or State
   9. Prima facie case
   10. Nature and gravity of the charge
   11. The danger of justice being thwarted
   12. Delay in concluding the trial.
7. Gurucharan Singh V. State, 1978:- Two paramount considerations are the possibility of the accused fleeing from justice and tampering with the witnesses.

Decision/Order

1. As the investigation had already been completed, no need to remain in custody for further investigation.
2. Bail shall be granted on a personal bond with two solvent sureties each of 5 lakh to the satisfaction of Special Judge, CBI on the following conditions:-
   1. Appellants should not induce or threaten anyone related to the case.
   2. Appellants should appear on the date fixed for the hearing
   3. They will not dispute their identity
   4. Surrender their passport
   5. CBI has the liberty to modify the conditions.
3. Appeal allowed and disposed of.

Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : AIR 1980 SC 1632

State v. Captain Jagjit Singh (1962) 3 SCR 622

Subtopic – CANCELLATION OF BAIL

• The settled doctrine by the Supreme Court of India is that ‘Bail is the rule and jail is an exception’ but if cogent grounds are established, the courts are enshrined with powers to cancel the bail of a person.
• The Lower Courts, including those of Magistrates, have the authority to cancel bail under Section 437(5) of CrPC, whereas the High Court and Court of Session have the authority under Section 439(2) of the Code.
• The court needs to consider following circumstances before cancellation of bail:
  • The nature of the accusation (gravity and severity of offence).
  • The severity of punishment.
  • Taking into consideration the position or status of the accused, i.e., whether the accused can exercise influence on the victim and the witnesses or not.
  • Capacity of the accused to obstruct the due course of justice.
  • Possibility of repetition of offence when on bail.
  • The prima facie satisfaction of the court in support of the charge.
  • The different and distinct facts of each case and nature of substantive and corroborative evidence.
  • Likelihood of accused to approach the victims/witnesses.
  • Likelihood of accused absconding from proceedings.
  • Possibility of accused to tamper with evidence.

present problem:

X, a Senior Bureaucrat, is arrested for assault (a bailable offence) and murder (a non-bailable offence) of his servant. Two of X’s subordinate officials are witnesses in the case. X applies for bail. What are the factors that the Court should consider while disposing of his bail application? Also discuss the factors that are relevant for cancellation of bail.

answer: above given question is based on Gurucharan Singh vs state case. X will not get any bail here.

Before granting bail to ‘X”, the Court has to consider following pointssuch as:

(i) Nature and gravity of the offence;(ii) Character, behaviour, means, position and standing of the accused; (iii) Whether the accused may interfere/influence the course ofjustice etc.If the accused is such of character that his presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence then bail will be refused.

question – Ms. K, a woman journalist accused Mr. T the editor-in-chief of famous newspaper of sexually assaulting her on two occasions. Mr. T alleges that he has been falsely implicated in a case of sexual assault by Ms. K. Mr. T apprehending his arrest moves an application for anticipatory bail. Determine, the court having jurisdiction to grant such bail and the grounds on which bail can be claimed.

ANSWER – above given facts deals with toipc of Anticipatory bail

• Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.
  • The provision of pre-arrest bail is discretionary, and the court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The court may also impose certain conditions while granting bail, such as surrendering the passport, refraining from leaving the country, or reporting to the police station regularly.
  • —– What are the Conditions for Granting an Anticipatory Bail in India?
  • The person seeking anticipatory bail should have reason to believe that they may be arrested for a non-bailable offense.
  • The court may also impose a monetary bond, which the person seeking anticipatory bail will have to pay if they fail to appear before the court or violate the conditions imposed.
  • The person seeking anticipatory bail must make themselves available for interrogation by the investigating officer as and when required.
  • The court may grant anticipatory bail for a limited period, and the person will have to surrender to custody once the period expires.
  • It is important to note that the granting of anticipatory bail is at the discretion of the court and is not an absolute right. The court will consider various factors, such as the nature and gravity of the offense, the antecedents of the person seeking anticipatory bail, and the likelihood of the person absconding or tampering with evidence, before deciding whether to grant anticipatory bail.
  • On What Grounds Anticipatory Bail can be Cancelled?
  • Sec. 437(5) & Sec. 439 of CrPC deal with the cancellation of anticipatory Bail. They imply that a Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts.
  • A High Court or Court of Session may direct that any person who has been released on Bail by it be arrested, and brought under custody after filing of an application by the complainant or the prosecution. However, a Court does not have the power to cancel the Bail granted by the police officer.
  • Over the years, anticipatory Bail has acted as the protection (granted under Sec. 438 of CrPC) to safeguard a person against whom false accusation or charges have been made. It ensures the release of such falsely accused person even before they are arrested.
  • — Conclusion
  • Pre-arrest bail is an important legal provision that safeguards the fundamental rights of individuals in India.
  • The provision allows an accused person to apply for bail before being arrested for a non-bailable offence. The court may grant bail after considering the nature and gravity of the offence, the antecedents of the accused, and other relevant factors. The Supreme Court of India has laid down guidelines for granting pre-arrest bail, which require the court to consider various factors while granting bail.
  • Leading cases related to anticipatory bail
  • Balchand Jain v. State of M.P
  • Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : AIR 1980 SC 1632
  • Siddharam Satlingappa Mhetre v. State of Maharashtra and others
  • Sushila Aggarwal Case and Duration of anticipatory bail
  • Md. Asfak Alam v. The state of jharkhand & anr.