CHAPTER-V

GRANT OF BAIL IN NON-BAILABLE OFFENCEThe Code of Criminal Procedure has classified offences in two categories:-

(i) Bailable offences

(ii) Non-bailable offences

The classification has been made for the obvious reason that seriousness

and gravity of the charge and the severity of the punishment awardable are very

probable factors which are likely to tempt an accused person either to tamper with

the prosecution evidence or to abscond in order to escape the punishment.

If a person is arrested for an offence which is non bailable, in that case

court on its discretion can grant bail. The definition of a non-bailable offence

appears in Section 2 (a) of our Code of Criminal Procedure 1974. Section 2(a)

provides that “Bailable offence” means an offence which is shown as bailable in

the first schedule or which is made by any other law for the time being in force

and “non-bailable offence” means any other offence.

By and large, offences punishable with imprisonment for not less than

three years are taken as serious offences and are made non-bailable.

5.1 When Bail may be Taken in Case of Non-Bailable Offence Under Section

437 Cr. P. C.

1. When any person accused of, or suspected of, the commission of any non-

bailable offence is arrested or detained bailable offence, without warrant

by an officer in charge of a police station or appears or is brought before a

Court other than the High Court or Court of Session, he may be released

on bail, but—

i. Such person shall not be so released if there appears reasonable

grounds for believing that he has been guilty of an offence punishable

with death or imprisonment for life;

ii. Such person shall not be so released if such offence is a cognizable

offence and he had been previously convicted of an offence punishable

with death, imprisonment for life, imprisonment for seven years or

127

more, or he had been previously convicted on two or more occasions

of the cognizable offence punishable with imprisonment for three years

or more but not less than seven years.

Provided that the Court may direct that a person referred to in clause (i) or

clause (ii) be released on bail, if such person is under the age of sixteen years or is

a woman or is sick or infirm;

Provided further that the Court may also direct that a person referred to in

clause (ii) be released on bail if it is satisfied that it is just and proper so to do for

any other special reason;

Provided also that the mere fact that an accused person may be required

for being identified by witnesses during investigation shall not be sufficient

ground for refusing to grant bail if he is otherwise entitled to be released on bail

and gives an undertaking that he shall comply with such directions as may be

given by the Court.

**[Provided also that no person shall, if the offence alleged to have been

committed by him is punishable with death, imprisonment for the life, or

imprisonment for seven years or more be released on bail by the Court under this

sub-section without giving an opportunity of hearing to the Public Prosecutor.]

2. If it appears to such officer or Court at any stage of the investigation,

inquiry or trial, as the case may be, that there are not reasonable grounds

for believing that the accused has committed a non-bailable offence, but

that there are sufficient grounds for further inquiry into his guilt, [the

accused shall, subject to the provisions of Section 446A and pending such

inquiry, be released on bail], or at the discretion of such officer or Court,

on the execution by him of a bond without sureties for his appearance as

hereinafter provided.

3. When a person accused or suspected of the commission of an offence

punishable with imprisonment which may extend to seven years or more

or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the

Indian Penal Code (45 of 1860), or abetment of, or conspiracy or attempt

128

to commit, any such offence, is released on bail under sub section (1), the

Court shall impose the conditions –

(a) that such person shall attend in accordance with the

conditions of the bond executed under this Chapter;

(b) that such person shall not commit an offence similar to the

offence of which he is accused, or suspected, of the

commission of which he is suspected; and

(c) that such person shall not directly or indirectly make any

inducement, threat or promise to any person acquainted

with the facts of the case so as to dissuade him from

disclosing such facts to the Court or to any police officer or

tamper with the evidence, and may also impose, in the

interests of justice, such other conditions as it considers

necessary.

4. An officer or a Court releasing any person on bail under sub section (1) or

sub-section (2) shall record in writing his or its *[reason or special reason]

for so doing.

5. Any Court which has released a person on bail under sub-section (1) or

sub-section (2), may, if it considers it necessary so to do, direct that such

person be arrested and commit him to custody.

6. If, in any case triable by a Magistrate, the trial of a person accused of any

non-bailable offence is not concluded within a period of sixty days from

the first date fixed for taking evidenced in the case, such person shall, if he

is in custody during the whole of the said period, be released on bail to the

satisfaction of the Magistrate, unless for reasons to be recorded in writing,

the Magistrate otherwise directs.

7. If, at any time after the conclusion of the trial of a person accused of a

nonbailable offence and before judgment is delivered, the Court is of

opinion that there are reasonable grounds for believing that the accused is

not guilty of any such offence, it shall release the accused, if he is in

129

custody, on the execution by him of a bond without sureties for his

appearance to hear judgment delivered.

5.2 Scope and Application

This section gives the Court or a police officer power to release an

accused on bail in a non-bailable case, unless there appear reasonable grounds

that the accused has been guilty of an offence punishable with death or with

imprisonment for life. But (1) a person under the age of sixteen years (2) a

woman; or (3) a sick or infirm person may be released on bail even if the offence

charged is punishable with death or imprisonment for life. Where a person is

charged with a non-bailable offence, but it appears in the course of the trial that he

is not guilty of such offence, he can be immediately released on bail pending

further inquiry. The same may be done after the conclusion of a trial and before

judgment is pronounced, if the person is believed not to be guilty of a non-

bailable offence. As a safeguard the section provides for review of the order by

the Court which has released the person on bail. The power of the Magistrate

under this section cannot be treated at par with the powers of the Sessions Court

and the High Court under Section 439.

The basic rule may perhaps be tersely put as bail not jail except where

there are circumstances suggestive of fleeing from justice or thwarting the course

of justice or creating utter troubles in the shape of repeating offences or

intimidating witnesses and the like by the petitioner who seeks enlargement on

bail from the Court.1 Grant of bail is the rule and its refusal is an exception. But

while granting it the Court has to be satisfied that the order to be passed is in the

interest of justice.2 The provisions of Code do not contemplate either granting of a

bail on the basis of an assurance of a compromise or cancellation of a bail for

violation of the terms of such compromise. Having granted the bail under the said

provision of law, it is not open to the trial Court or the High Court to cancel the

1 State of Rajasthan Vs. Balchand, AIR 1977 SC 2447: 1978 CrLJ 195.2 Mazahar Ali Vs. State, 1982 CrLJ 1223, 1225 (J&K)

130

same on a ground alien to the grounds mentioned for cancellation of bail in the

said provision of law.3

Furlough and parole are two distinct terms now being used in the jail

Manuals or laws relating to temporary release of prisoners. When a prisoner is on

parole his period of release does not count towards the total period of sentence

while when he is on furlough he is eligible to have the period of release counted

towards the total period of his sentence undergone by him.4

5.3 Classification of Non-Bailable Offences

Non-bailable Offence:

1. If the offence is not punishable with death

or imprisonment for life.

The accused person

may be admitted to

bail.

2. If there are no reasonable grounds for

believing that the person is guilty of an

offence punishable with death or

imprisonment for life.

The accused may

released on bail.

3. If there are reasonable grounds for believing

that the accused is guilty of an offence

punishable with death or imprisonment for

life.

The accused shall

not be released on

bail.

4. If there are reasonable grounds for believing

that the accused person is guilty of an

offence punishable with death or

imprisonment for life but is under sixteen

years of age, is a woman or is sick or

infirm.

The accused person

may be released on

bail.

5. If there are no reasonable grounds for The accused person

3 Biman Chatterjee Vs. Sanchita Chatterjee, AIR 2004 SC 1699: (2004) 3 SCC 388: 2004CrLJ 1451 (1453) (SC)

4 State of Haryana Vs. Mohinder Singh, 2000 SCC (Cri) 645: AIR 2000 SC 890: 2000CrLJ 1408: (2000) 3 SCC 394.

131

believing that the accused person has

committed a non-bailable offence but there

are sufficient grounds for further inquiry

into his guilt.

shall be released on

bail.

6. If, in any case triable by a Magistrate, the

trial of a person accused of a non-bailable

offence is not concluded within sixty days

from the first date fixed for taking evidence

and such person has been in custody

throughout.

The accused shall

be released on bail.

7. If after the conclusion of the trial of a

person accused of a non-bailable offence

and before judgment is delivered the court

is of opinion that the accused is not guilty

of any such offence.

The accused shall

be released on bail

It will thus appear that the occasion for the exercise of judicial discretion

either in favour or against the accused arises only under (1), (2) and (4), otherwise

the legislature itself has taken a liberal view of the matter. As far as the case of an

accused under (3) is concerned, it is submitted, that he cannot be released by the

Magistrates. So far as the courts of Session or High Court is concerned, their

power is not fettered by the fact that there are reasonable grounds for believing

that they are involved in offences punishable by death or imprisonment for life.

Thus it has been held in an Allahabad case that a Magistrate has no jurisdiction to

grant bail where there are prima facie reasons to believe that the accused is guilty

of attempt to murder (section 307, I.P.C). But, in such a case Sessions Judge by

invoking the aid of section 439, Cr. P. C, may admit the accused to bail. The

question has been exhaustively dealt with while discussing the scope and ambit of

the provisions of section 439 of the code.

Besides the considerations catalogued above which weigh with a court

while considering the question of bail in a non-bailable case, there may be other

132

factors which may tilt the balance in favour or against the accused in a particular

case because it is not possible to lay down an exhaustive list of considerations

beyond which a court may not act5.

One thing has, however, been emphasized by the High Court, Courtney

Terrel C. J. has observed “we must point out in the most emphatic way for the

further guidance of Magistrate and Sessions Judges that save in exceptional cases,

persons accused of crimes punishable with long terms of imprisonment should not

be released by them on bail”6. The Court is not to go at a tangent in order to find

out possible excuses for granting bail7.

5.4 Power to Grant of Bail in Non-Bailable is Discretionary

Unlike a bailable offence where bail is a mater of right under S. 436 Cr.

P.C., grant of bail for a non-bailable offence under S. 437 Cr. P.C. (or, for that

matter, even under S. 439 Cr. P.C.), is a matter of discretion.

The grant of bail in non-bailable cases is generally a matter in the

discretion of the authorities in question.6

The grant of bail in respect of a person accused of or suspected of the

commission of any non-bailable offence, is a matter of discretion and under

Section 437 of the Code, if there is no prohibition otherwise and if the guidelines

for enlarging on bail are satisfied, then, the Magistrate in his discretion may

release such person on bail. It thus gives the jurisdiction that contains a discretion

which must be utilized judicially. It is stipulated that bail may not be denied only

on the ground that the accused is required for getting him identified by the

witnesses. Certain conditions can be annexed to the liberty and in certain

contingencies liberty already granted can be snatched by cancellation of bail. In

addition to these provisions, there is a ban even on such discretionary power of

the Magistrate when there appear reasonable grounds for believing that the

accused has been guilty of an offence punishable with death or imprisonment for

5 Rao Harnarain Singh Vs. Emperor, 1958 CrLJ 563: AIR 1958 Raj 123; AllahrakhioUmeed Ali Vs. Emperor, 35 CrLJ 144; Joglikar Vs Emperor 33 Cr. LJ 94: AIR 1931 All504 Hutchinson Vs. Emperor, 32 CrLJ 1271: AIR 1931 All 356

6 Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at p. 378 :1958 SCR 1226 : 1958 Cri LJ 701.

133

life in which case, the Magistrate has no jurisdiction and power to release the

accused on bail as it is well emphasized by the use of the words “but he shall not

so release”. Exception to this general ban finds place in the proviso relating to

young persons or sick or infirm persons or women.

Bail is a mater of right if the offence is bailable. In the case of a non-

bailable offence, bail is a matter of judicial discretion. Bail shall not be granted by

the Magistrate if the offence is punishable with death or imprisonment for life if

he is of the view that there appear reasonable grounds for believing that the

person concerned accused of or suspected of the commission of the offence has

been guilty of the offence, provided that he may, in his discretion that he may, in

his discretion, grant bail to a woman or a minor under the age of sixteen years or a

sick or infirm person. In a case involving a non-bailable offence, a Court may

impose reasonable conditions besides fixing of the bail amount for the attendance

of the accused.

A discretion has to be exercised in granting bail in cases not punishable

with imprisonment for life or death unless there may be some reasons for not

exercising such a discretion in favour of the accused. Such reasons should be

mentioned in the order while refusing bail. In cases of under-trials charged with

commission of an offence or offences the court is generally called upon to decide

whether to release him on bail or to commit him to jail. The decision has to be

made mainly in non-bailable cases, having regard to the nature of the crime, the

circumstances in which it was committed, the background of the accused, the

possibility of his jumping bail, the impact that his release may make on the

prosecution witnesses, its impact on society and the possibility of retribution, etc.7

5.5 Discretion to be Exercised in Judicious Manner, and not in a Casual or

Cavalier or Arbitrary Manner

Grant of bail though being a discretionary order-but, however, calls for

exercise of such a discretion in a judicious manner and not as a mater of course.

Order for bail bereft of any cogent reason cannot be sustained. Needless to record,

7 Guddu v. State of U.P., 1990 Cri LJ 1531 at p. 1534 (All).

134

however, that the grant of bail is dependent upon the contextual facts of the matter

being dealt with by the Court and facts however do always vary from case to case.

While placement of the accused in the society, though may be considered but that

by itself cannot be a guiding factor in the matter of grant of bail and the same

should and ought always be coupled with other circumstances warranting the

grant of bail. The nature of the offence is one of the basic consideration for the

grant of bailmore heinous is a crime, the greater is the chance of rejection of the

bail, though, however, dependent on the factual matrix of the matter.8

The court dealing with the application for bail is required to exercise its

discretion in a judicious manner and not as a mater of course.9

The jurisdiction to grant bail ahs to be exercised on the basis of well

settled principles having regard to the circumstances of each case and not in an

arbitrary manner. While granting the bail, the Court has to keep in mind the nature

of accusations, the nature of evidence in support thereof, the severity of the

punishment which conviction will entail, the character, behaviour means and

standing of the accused, circumstances which are peculiar to the accused,

reasonable possibility of securing the presence of the accused at the trial,

reasonable apprehension of the witnesses being tampered with, the larger interests

of the public or State and similar other considerations. It has also to be kept in

mind that for the purpose of granting the bail the Legislature has used the words

“reasonable grounds for believing” instead of “the evidence” which means the

Court dealing with the grant of bail can only satisfy itself as to whether there is a

genuine cases against the accused and that the prosecution will be able to produce

prima facie evidence in support of the charge. It is not expected, at this stage, to

have the evidence establishing the guilt of the accused beyond reasonable doubt.10

8 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002)3 SCC598 : 2002 SCC (Cri) 688.

9 Chamna Lal v. State of U.P., (2004)7 SCC 525 at p. 527 : AIR 2004 SC 4267 : 2004SCC (Cri) 1974.

10 Prahlad Singh Bhati v. NCT, Delhi, AIR 2001 SC 1444 at p. 1446 : 2001 Cri LJ 1730 :(2001)4 SCC 280 : 2001 SCC (Cri) 674.

135

In any event, the discretion to be used for grant of bail shall always have

to be strictly in accordance with law and to de hors the same.11 The provisions of

the Criminal Procedure Code confer discretionary jurisdiction on criminal courts

to grant bail to the accused pending trials or in appeals against convictions. Since

the jurisdiction is discretionary it is required to be exercised with great care and

caution by balancing valuable right of liberty of an individual and the interest of

the society in general. In granting or refusing the bail, the courts are required to

indicate, may be very briefly, the reasons for grant or refusal of bail. The

jurisdiction is not to be exercised in a casual and cavalier fashion.12

The court granting bail should exercise its discretion in a judicious manner

and not as a matter of course. Though at the state of granting bail a detailed

examination of evidence and elaborate documentation of the merit of the case

need not be undertaken, there is a need to indicate in such orders reasons for

prima facie concluding why bail was being granted particularly where the accused

is charged of having committed a serious offence. Any order devoid of such

reasons would suffer from non-application of mind.13 Though it is correct that

detailed examination of the merits of the case is not required by the courts while

considering an application for bail but, at the same time, the exercise of discretion

has to be based on well-settled principles and in a judicious manner and not as a

matter of course.14

Though detailed examination of the evidence and elaborate documentation

of the merits of the case is to be avoided by the Court while passing orders on bail

applications, yet a court dealing with the bail application should be satisfied as to

whether there is a prime facie case, but exhaustive exploration of the merits of the

case is not necessary. The court dealing with the application for bail is required to

exercise its discretion in a judicious manner and not as a matter of course. There

11 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002a SC 1475 at p. 1478 : (2002)3SCC 598 : 2002 SCC (Cri) 688.

12 Mansab Ali v. Irsan, (2003)1 SCC 632 : AIR 2003 SC 707 : 2003 SCC (Cri) 399.13 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004)7 SCC 528 at p. 535 : AIR 2004 SC

1866 : 2004 Cri LJ 1796 : 2004 SCC (Cri) 1977.14 Ajay Kumar Sharma v. State of U.P., (2005)7 SCC 507 at p. 508 : 2005 SCC (Cri) 1702.

136

is a need to indicate in the order, reasons for prima facie concluding why bail was

being granted particularly where an accused was charged of having committed a

serious offence.15

It was held by the Hyderabad High Court in Fazal Nawaz Jung v. State of

Hyderabad,16 that the discretionary power of the court to admit to bail is not

arbitrary but is judicial and is governed by established principles; the object of

detention of the accused is not punitive but to secure his appearance to abide by

the sentence of law, the principal inquiry is whether a recognizance would effect

that end, and in seeking an answer to this inquiry, the courts have to consider the

seriousness of a charge, the nature of the evidence, the severity of the punishment

prescribed for the offences and in some instances, the character, means and

standing of the accused, but the severity of the sentence has to be borne in mind in

cases of offences punishable with death or with transportation for life since the

severity of the punishment is itself such as to induce a person to escape the trial.

The Court has to exercise judicial discretion keeping in view the

recognized principles and factors while considering the application for bail.17

While the Court exercises its discretion, whether it is under S. 437 or 438

or 439, Cr. P.C., it shall exercise the same properly and not in an arbitrary

manner. The discretion exercised shall appear a just and reasonable one. It is true

that no norms are prescribed to exercise the discretion. Merely because, norms are

not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr.

P.C. that does not mean the discretion shall be left to the whims of the Court.18

The personal liberty as guaranteed under the Constitution has necessarily

to be harmonized with the considerations under the ordinary law, one can

understand refusal of bail in matters eating into the very vitals of the society. In

such matters the issue is always resolved by reference to what is in the interest of

society and what is against. In the ultimate analysis the decision in matters in bail

15 Deepak Singh v. State of Rajasthan, 2007 Cri LJ 4338 at p. 434- (SC).16 AIR 1952 Hyd 30 : 1952 Cri LJ 873.17 Rama Mhatre v. Dattatraya Janu Vayale, 1981 Cri LJ 1605 at p. 1612 (Bom) : 1981 Cri

LR (Mah) 62.18 Afsar Khan v. State, 1992 Cri LJ 1676 at pp. 1679-80 (Kant) : ILR 1992 Kant 2894.

137

is always taken on the circumstances and facts of each case. It is for this reason

that the discretion is vested in courts in matters of bail and has always been

considered a great trust. This discretion has to be exercised judicially with all the

concern to the facts of a particular case and the circumstances.19

While it is true that Article 21 of the Constitution is of great importance

because it enshrines the fundamental right to individual liberty, but at the same

time a balance has to be struck between the right to individual liberty and the

interest of society. No right can be absolute, and reasonable restrictions can be

placed on them. While it is true that one of the considerations in deciding whether

to grant bail to an accused or not is whether he has been in jail for a long time, the

court has also to take into consideration other facts and circumstances, such as the

interest of the society.20

‘Discretion’ when applied to court of justice, means “sound discretion

guided by law”. It must be governed by rule, not by humour. It must not be

arbitrary, vague and fanciful, but legal and regular, and in the case of granting bail

the discretion of the Judge must be exercised not in opposition to, but in

accordance with, the established principles of law. In granting bail, the Judge has

to consider whether a prime facie case has been or has not been made out by the

prosecution. If a prima facie case has been made out by the prosecution and if

there appear reasonable grounds for believing that the person accused has been

guilty of an offence punishable with death or imprisonment for life, he shall not

be released on bail pending disposal of the case unless extraordinary

circumstances intervene favouring the accused.21

The jurisdiction to grant bail has to be exercised on the basis of well

settled principles having regard to the circumstances of each case and not in an

arbitrary manner. While granting the bail, the Court has to keep in mind the nature

of accusations, the nature of evidence in support hereof, severity of the

punishment which conviction will entail, the character, behaviour, means and

19 Rajender Singh Sethia v. State, 1988 Cri LJ 749 at p. 755 (Del).20 Rajesh Ranjan Yadav v. CBI, (2007)1 SCC 70 at p. 79 : 2007 Cri LJ 304.21 State v. Veerapandy, 1979 Cri LJ 455 at p. 458 (Mad).

138

standing of the accused, circumstances which are peculiar to the accused,

reasonable possibility of securing the presence of the accused at the trial,

reasonable apprehension of the witnesses being tampered with, the larger interests

of the public or State and other similar considerations.22

5.6 Principles for Grant of Bail Under S. 437

In State of Rajasthan v. Balchand,23 the Supreme Court laid down that the

basic rule is bail, not jail, except where there are circumstances suggestive of

fleering from justice or thwarting the course of justice or creating other troubles in

the shape of repeating offences or intimidating witnesses and the like, by the

accused who seeks enlargement on bail from the Court. The Supreme Court

clarified that this list was not exhaustive but only illustrative. It was further held

that the gravity of the offence involved, which is likely to induce the accused to

avoid the course of justice, must also weigh with the Court when considering the

question of jail, and likewise the heinousness of the crime should also be taken

into account. While granting bail to the accused would report to the police station

once every fortnight.

The following principles emerge for grant or refusal of bail under Section

437, Cr. P.C.:24

(i) Bail should not be refused unless the crime charged is of the highest

magnitude and the punishment of it assigned by law is of extreme

severity;

(ii) Bail should be refused when the Court may reasonably presume, some

evidence warranting that no amount of bail would secure the presence

of the convict at the stage of judgment;

(iii) Bail should be refused if the course of justice would be thwarted by

the person who seeks the benignant jurisdiction of the Court to be

freed for he time being;

22 Sanjay Sharma v. State of J. & K, 2004 Cri LJ 1473 at p. 1474 (J & K).23 (1977)4 SCC 308 at pp. 308-9 : AIR 1977 SC 2447 : 1978 Cri LJ 195 : 1977 SCC (Cri)

594.24 Sidharth Vashisth alias Manu Sharma v. State of Delhi, 2004 Cri LJ 684 at p. 688 (Del).

See also, Birajit Sinha v. State of Tripura, 2004 Cri LJ 4485 at p. 4487 (Gau).

139

(iv) Bail should be refused if there is likelihood of the applicant interfering

with witnesses for the prosecution or otherwise polluting the process

of justice; and

(v) Bail should be refused if the antecedents of a man who is applying for

bail show a bad record, particularly a cored which suggests that he is

likely to commit serious offences while on bail.

The principles in granting bail to persons accused of offences are quite well

settled. In connection with non-bailable offences (not punishable with death or

imprisonment for life) one of the considerations is the danger of the accused

absconding. In considering this danger, the Court has to consider the weight of the

evidence against the accused, the nature and gravity of the charge and severity of

the degree of punishment that might follow. Another consideration is the danger

of witnesses being tampered with or of evidence being suborned. In considering

these matters, the character, means and standing of accused persons have to be

taken into consideration. At the same time, the Court has to see that there is no

punitive detention and that opportunity is given as far as possible to the accused

persons to prepare their defence.25

5.7 Considerations for Grant of Bail in Non-Bailable Offences

The overriding considerations in granting bail which are common both in

the case of S. 437(1) and S. 439(1) Cr. P.C. of the new code are the nature and

gravity of the circumstances in which the offence is committed; the position and

the status of the accused with reference to the victim and the witnesses; the

likelihood, of the accused fleeing from justice, of repeating the offence, of

jeopardizing his own life being faced with a grim prospect of possible conviction

in the case, of tampering with witnesses; the history of the case as well as of its

investigation and other relevant grounds which, in view of so many variable

factors, cannot be exhaustively set out.26

25 State v. Mahamed Hussain Kakroddin Maniyar, 1968 Cri LJ 1231 at p. 1232 (Bom) :AIR 1968 Bom. 344.

26 Gurcharan Singh v. State (Delhi Admn.) AIR 1987 SC 179 at p. 186.

140

The considerations which normally weigh with the court in granting bail

in non-bailable offences, basically, are-the nature and seriousness of the offence;

the character of the evidence; circumstances which are peculiar to the accused; a

reasonable possibility of the presence of the accused not being secured at the trial;

reasonable apprehension of witnesses being tampered with; the larger interest of

the public or the State and other similar factors which may be relevant in the facts

and circumstances of the case.27

It is trite that among other considerations which the Court has to take into

account in deciding whether bail should be granted in a non-bailable offence is

the nature and gravity of the offence.28

The question whether to grant bail or not depends for its answer upon a

variety of circumstance, the cumulative effect of which must enter into the

judicial verdict. Any one single circumstance cannot be treated as of universal

validity or as necessarily justifying the grant or refusal of bail.29

In American Jurisprudence,30 it is stated; “where the granting of bail lies

within the discretion of the court, the granting or denial is regulated, to a large

extent, by the facts and circumstances of each particular case. Since the object of

the detention or imprisonment of the accused is to secure his appearance and

submission to the jurisdiction and the judgment of the court, the primary inquire is

whether a recognizance or bond would effect that end.”

One of the consideration for granting bail in a non-bailable offence must

be the gravity and the nature of the offence. It was held that in the instant case,

there were no mitigating circumstances and that the High Court was not justified

in granting bail. It was also observed that without considering the material facts

on record, and without assigning any reason, the High Court had granted bail to

the accused inspite of he fact that there was sufficient material on record against

27 State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003)8 SCC 50 at p. 56 : AIR 2003SC 3224.

28 State of Maharashtra v. Ramesh Taurani, AIR 1998 SC 586 at p. 587 : 1998 Cri LJ 855 :(1998)1 SCC 41 : 1998 SCC (Cri) 257.

29 State of Orissa v. Rajendra Prasad Bharadia, (1994)5 SCC 146 at p. 151 : 1994 SCC(Cri) 1372.

30 American Jurisprudence (2nd, Vol. 8, p. 806, para 39).

141

the accused. Moreover, it was a double murder case and there were eye-witnesses

to the occurrence. The bail was accordingly cancelled.31

The considerations which normally weigh with the court in granting bail

in non-bailable offences are the nature and seriousness of the offence; the

character of the evidence; circumstances which are peculiar to the accused; a

reasonable possibility of the presence of the accused not being secured at the trial;

reasonable apprehension of witnesses being tampered with; the larger interested

of the public or the State and other similar factors which may be relevant in the

facts and circumstances of the case.32

The Court before granting bail in case involving non-bailable offences,

particularly where the trial has not yet commenced, should take into consideration

various matters such as the nature and seriousness of the offence, the character of

the evidence, circumstances which the peculiar to the accused, reasonable

possibility of the presence of the accused not being secured at the trial, reasonable

apprehension of witnesses being tampered with, the larger interests of the public

or the State and similar other considerations.33

The considerations which normally weight with the court in granting bail

in non-bailable offences are the nature and seriousness of the offence; the

character of the evidence; circumstances which are peculiar to the accused; a

reasonably possibility of the presence of the accused not being secured at the trial;

reasonable apprehension of witnesses being tampered with; the larger interest of

the public or the State and other similar factors which may be relevant in the facts

and circumstances of the case.34

The Court before granting bail in cases involving non-bailable offences,

particularly where the trial has not yet commenced, should take into consideration

various matters such as the nature and seriousness of the offence, the character of

the evidence, circumstances which are peculiar to the accused, a reasonable

31 State v. Eslian, (2006)9 SCC 785 at p. 785 (2006)3 SCC (Cri) 399.32 Chenna Boyanna Krishna Yadav v. State of Maharashtra, (2007)1 SCC 242.33 State v. Jaspal Singh Grill, AIR 1984 SC 1503 at p. 1505 : 1984 Cri LJ 1211 : (1984)3

SCC 555; 1984 SCC (Cri) (44. See also, Sunita v. State of Punjab, 199).34 Chenna Boyanna Krishna Yadav v. State of Maharashtra, (2007)1 SCC 242 at p. 247.

142

possibility of the presence of the accused not being secured at the trial, reasonable

apprehension of witnesses being tampered with, the larger interests of the public

or the State and similar other considerations.35

Certain relevant considerations for grant of bail, though only illustrative

and no exhaustive-neither there can be any, are as under:36

(i) While granting bail the Court has to keep in mind not only the nature

of the accusations, but the severity of the punishment, if the accusation

entails a conviction and the nature of evidence in support of the

accusations.

(ii) Reasonable apprehensions of the witnesses being tampered with or the

apprehension of there being a threat for the complainant should also

weigh with the Court in the matter of grant of bail.

(iii) While it is not expected to have the entire evidence establishing the

guilt of the accused beyond reasonable doubt but there ought always to

be a prima facie satisfaction of the Court in support of the charge.

(iv) Frivolity in prosecution should always be considered and it is only the

element of genuineness that shall have to be considered in the matter

of grant of bail and in the event of thee being some doubt as to the

genuineness of the prosecution, in the normal course of events, the

accused is entitled to an order of bail.

While granting bail the court has to consider the nature and gravity of the

circumstances in which the offence is committed; the position and status of the

accused with reference to the victim and witnesses; the likelihood of the accused

fleeing from justice, of repeating the offence, of jeopardizing his own life being

faced with the grim prospect of the possible conviction in the case, of tampering

with a witness; the history of the case as well as of its investigation and other

relevant grounds.37

35 State v. Jaspal Singh Gill, AIR 1984 SC 2277 : 2005 SCC (Cri) 1057.36 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002)3 SCC

598 : 2002 SCC (Cri) 688.37 Pranchanan Mishra v. Digambar Mishra, (2005)3 SCC 143 at p. 148.

143

One of the considerations in granting bail in non-bailable offences is the

gravity and the nature of the offence.38

It was held by the High Court of Calcutta in Nagendra v. King Emperor,39

that the object of bail is to secure the attendance of the accused at the trial, that the

proper test to be applied in the solution of the question whether bail should be

granted or refused is whether it is probable that the party will appear to take his

trial and that it is indisputable that bail is not to be withheld as a punishment.

In Kishan Singh v. State of Punjab,40 it was held that the principal

consideration to weigh with the court in the exercise of its discretion in granting

or refusing bail is the probability of the accused appearing to stand the trial and

not his supposed guilt or innocence and generally speaking, the nature of the

accusation, the kind of evidence in support thereof, the severity of the punishment

which the conviction will entail and the character, behaviour, means and the status

of the accused have to be taken into account and this is generally done for the

purpose of determining whether or not the accused is likely to endeavour to

escape punishment by absconding.

The Court has to consider the question for the grant of bail in the light of

such further considerations such as nature and seriousness of the offence, the

character of the evidence, the circumstances which are peculiar to the accused, a

reasonable possibility of the presence of the accused not being secured at the trial,

reasonable apprehension of witnesses being tampered with, the larger interest of

the public or State, and similar other circumstances which arise when a Court is

asked for bail in a non-bailable offence. It cannot be stated that the power of the

High Court is unfettered and even if no additional grounds are made out, bail

should be granted as a routine. Had it been so every accused instead of going to

the Magistrate for grant of bail would come straight to the Sessions Court or the

High Court. That would rather render S. 437 Cr. P.C. defunct, at any rate, in most

38 Anil Kumar Tulsiyani v. State of U.P., (2006)9 SCC 425 at p. 427 : (2006)2 SCC (Cri)565.

39 SIT 1924 Cal 476 at pp. 479-80 : (1924)25 Cri LJ 732.40 AIR 1960 Punj 307: 1960 Cri LJ 850.

144

of the cases leaving those in which the accused is infirm, a minor or a woman.

That could not be the intention of the Legislature.41

According to S. 437 of Cr. P.C., different considerations, come into play

when any person is accused of a non-bailable offence and there appear reasonable

grounds for believing that he has been guilty of an offence punishable with death

or imprisonment for life. Regarding all other offences the mater has been left to

the discretion of the Court concerned. Bail should not be refused as a matter of

punishment. A person accused of an offence, howsoever heinous, has to be

considered as innocent till he proved to be guilty. While considering the question

regarding grant or refusal of bail, several circumstances, including the seriousness

of the offence, the possibility of the accused to abscond, or the chances of his

tampering with the witnesses or misusing his liberty, as well as the prima facie

nature of the evidence available on the record, have been considered by the Courts

as relevant considerations.42

The grant of bail is a rule and its refusal is an exception but while granting

bail the Court has to be satisfied that in a given case its grant is necessary in the

interest of justice. The basic question which must be present to the mind of the

Court while considering the question of bail is whether the grant of bail would

thwart the course of justice or would it further the course of justice. There cannot

indeed by any inflexible rule governing the grant of bail. Each case has to be

decided on its own facts. However, certain guidelines have been formulated by

the Courts from time to time, which the Courts generally take into consideration

while considering the question of grant of refusal of bail. While considering the

question of grant or refusal of bail, the Courts generally take into consideration:

(a) the nature of the charge;

(b) the nature of the accusation;

(c) the nature of evidence in support of the accusation;

(d) the severity of the punishment to which the accused may be subjected;

41 M.P. Jayaraj v. State of Karnataka, 1977 Cri LJ 1724 at pp. 1724-25 (Kant) : (1977)1Kant LJ 304.

42 Bansi Lal v. State of Haryana, 1978 Cri LJ 472 at p. 477 (P & H).

145

(e) the danger of the accused abusing the concession of bail by way of

absconding or tempering with the evidence;

(f) health, age an sex of the accused;

(g) the social position or status of the accused and complainant party; and last

but not the least;

(h) whether the grant of bail would thwart the course of justice

One of the age-old considerations in the mater of grant of bail is ensuring the

availability of the accused at the trial. Non-availability can be out of voluntary

acts like willfully avoiding by absconding or putting an end to life by suicide; and

by involuntary acts like the life of the accused being taken away as an act of

reprisal. The majesty of law is affected when a wrongdoer escapes its mighty

clutches whether arising out of a voluntary or involuntary situation.43

While the discretion of a court functioning under S. 437 of Cr. P.C. is

necessarily limited by the provision of the section, the considerations which

weigh with a court dealing with an application for bail under S. 439(1) of Cr.P.C.

would be many. It may not be possible to exhaust the different factors that may be

of relevance in assessing the question whether bail could be granted in a given

case. These may vary form case to case. Even the weight of the several factors

which are usually taken into account for determining whether bail should be

granted or not must vary from case to case. The nature and gravity of

circumstances in which the offence is committed, the position and status of the

accused with reference to the victim and the witnesses, the likelihood of the

accused fleeing from justice, of repeating the offence, of jeopardizing his own life

being faced with the grim prospect of possible conviction in the case and of

tampering with the witnesses are matters which have nexus to the consideration of

the bail application.44

One of the main considerations in granting bail would be as to whether on

the basis of the evidence and the documents on which prosecution relies it can be

43 Bijayaketan Mohanty v. State of Orissa, 1982 Cri LJ 1954 at p. 959 (Ori) (FB) : 54 cutLT 229.

44 Unthaman v. State of Kerala, 1983 Cri LJ 74 at p. 76 (Ker) (FB).

146

said that there are grounds to believe that the accused are involved in offences

punishable with death or transportation for life and there are such reasonable

grounds on which the accused are likely to be charged of murder then the question

of grant of bail would not arise.45

It is settled law that in granting or non-granting of bail in non-bailable

offence, the primary consideration is the nature and gravity of the offence.46

While dealing with the application for bail, the nature and seriousness of

the offence, the character of the evidence, circumstances which are peculiar to the

accused, a reasonable possibility of the accused not being secured at the trail,

reasonable apprehension of witnesses being tampered with, the larger interest of

the public or the State and similar other consideration arise when a court is asked

for bail in a non-bailable offence.47

In the case of a bailable offence, the police officer arresting an accused,

himself will give bail and if for any reason he fails to do so, the Court will

necessarily give bail. If the offence is non-bailable, further considerations will

naturally arise. The Court will consider the nature and seriousness of the offence,

character of the evidence, stage of investigation, the severity of the punishment

which is likely to be imposed in the accused if convicted, the need for curtailing

the freedom of the accused at that stage, reasonable possibility of the presence of

the accused not being secured either for purpose of investigation or for the trial,

reasonable apprehension of the accused, if set at liberty, interfering with the

witnesses or the course of justice and the larger interest of the public or the State

and other relevant aspects.48

There cannot be inflexible rules governing the subject which rest

principally with the Court’s discretion in the matter of allowance or refusal of

bail. Probability or improbability of the prosecution terminating in conviction is

not a conclusive consideration for the grant or refusal of bail, particularly in a

45 Amar Singh v. State, 1985 Cri LJ 550 at p. 552 (Del) : (1985)1 Crimes 749.46 Staish Jaggi v. State of Chhattisgarh, 2007 Cri LJ 2766 at p. 2767 : (2007)11 SCC 195 :

(2007)56 AIC 202(SC).47 Kalyan Singh v. State of M.P., 1989 Cri LJ 512 at p. 514 (MP).48 Surendra Kumar v. State of M. P., 1989 Cri LJ 512.

147

case in which evidence has not so far been led. For their guidance the Court also

look to other circumstances, which may be determinative, as for example the

Court consider: (a) the enormity of the charge; (b) the nature of the accusation; (c)

the severity of the punishment which the conviction will entail; (d) the nature of

the evidence in support of the accusation; (e) the danger of the applicant’s

absconding if he is released on bail; (f) the danger of witnesses being tampered

with; (g) the protracted nature of the trail; (h) opportunity to the applicant for

preparation of his defence and access to his counsel; and (i) the health, age and

sex of the accused. The aforesaid list of circumstances is not exhaustive but there

are other factors also which in peculiar circumstances of the case are to be

considered by the Court.49

The Courts are supposed to apply some tests while considering the

applications for bail, such as the nature and seriousness of the prosecution, the

nature of evidence in support of the prosecution, the severity of the punishment

which the conviction will entail, the character, behavior and standing of the

accused, a reasonable possibility of the presence of the accused not being secured

at the trial. Also it is the law that while disposing of the bail applications, the

Court are supposed to be guided prima facie by the allegations of the prosecution

and need not and invariably should not enter into defences which might be taken

by the accused unless those defences can thrown a light about the genuineness or

otherwise of the allegations of the prosecution. If the above principles of law are

kept in view while disposing of the bail applications, the scope of committing an

error on the part of the subordinate Courts becomes too remote.50

It is well settled that at the stage of consideration of bail what the court is

normally required to consider are : (1) the nature and seriousness of the

accusation; (2) severity of the offences; (3) nature of the evidence collected and

the character and behavior of the accused; (4) chances of the accused absconding

and not being available during the trial; (5) possibility of repetition of such crime;

49 Karan Dass v. State of H.P., 1995 Cri LJ 2995 at p. 2996-97 (HP).50 Ramesh v. State of Haryana, 1997 Cri LJ 2848 at p. 2852(P & H).

148

(6) chances of the accused of tempering with the evidence and witnesses; and last

but not least (7) larger interest of the people and the State.51

While considering the bail application, the Court should mainly consider

two aspects, the seriousness of the offence and the interest of the society at

large.52

The two paramount considerations viz. likelihood of the accused fleeing

from justice and his tampering with prosecution evidence relating to ensuring a

fair trial of the case in a Court of justice are relevant for grant of bail. It is

essential that due and proper weight should be bestowed on these two grounds

upon other factors. The Court shall take into consideration the important

circumstance to consider the application for bail whether accused will flee from

justice or tamper with the prosecution evidence in the event of bail. These are the

two important ingredients which are holding the field of granting bail even

today.53

Out of several considerations which are to be weighed for the purpose of

grant or refusal of bail two are uppermost. First, whether the accused will be

available for trail and not flee from justice. Second, that he will not influence

witnesses and tamper with evidence.54

The two paramount considerations would be very decisive factors in

exercise the judicial discretion of granting or refusing bail; they being likelihood

of accused fleeing from justice and his tampering with prosecution evidence,

relating to ensuring fair trial of the case. It is essential that due and proper

attention should be bestowed on these two factors.55

5.8 Factors to be Considered for Grant of Bail

It is also necessary for the court granting bail to consider among other

circumstances, the following factors also before granting bail; they are:56

51 Mohammad Masood v. State of Karnataka, 2002 Cri LJ 1381 at p. 1384 (Kant).52 Livarsing Tejsing v. State of Gujarat, 2004 Cri LJ 465 at p. 467 at p. 467 (Guj).53 M. Krishnappa v. State of Karnataka, 1992 Cri LJ 2648 at p. 2651 (Kant).54 Ram Kumar Tyagi v. State, 1995 Cri LJ 1877 at p. 1880 (del).55 Sis Rani v. State, 1998 Cri LJ 1877 at p. 1880(del).56 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004)7 SCC 528 at pp. 535-36.

149

(a) The nature of accusation and the severity of punishment in case of

conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension

of threat to the complaint.

(c) Prima facie satisfaction of the court in support of the charge.

At the time of grant of bail, the Court is duty-bound to consider all the

statements recorded under Section 161 Cr. P. C. examine the gravity of the

offence and also examine the question of possibility of the accused tampering

with the evidence and possibility of getting the attendance of the accused during

trial and then would be entitled to grant bail to an accused.57

The graver the offence the heavier the punishment. A person having

reason to believe that a very severe punishment is likely to be imposed on him

may have an incentive to jump bail unlike a person who has been accused of a

crime, the punishment for which may not be heavy or a person who may think

that there may not be any likelihood of punishment however serious the charge

may be. One of the main factors which should deter the court from granting bail,

particularly in a case where a person is accused of an offence punishable with

death or life imprisonment is the prospect of his fleeing from justice, forfeiting the

bail bond. This is particularly so when the accused has been convicted and the

bail is moved pending the appeal. The question of tampering with the evidence

may not arise at that stage. It would be too much of a gamble to order bail as a

matter of course in a case where a person has been convicted of an offence

punishable with life imprisonment unless it be that regard being had to various

factors the court feels that the accused is not likely to flee from justice.58

The factors considered relevant by the Court in either granting or refusing

the bail are the gravity of the offence; the nature of the evidence available against

the accused, the circumstances under which the offence is committed, the

apprehension of the accused of fleeing from justice if enlarged on bail, the

apprehension of their tampering with the evidence if they are at large, the larger

57 Salim Khan v. Sanhjai Singh, (2002)9 SCC 670 at p. 671.58 Uthama v. State of Kerala, 1983 Cri LJ 74 at pp. 76-77 (Ker)(FB).

150

interest of the public and the State, and the like, as also the fact that continuance

in custody of the accused before trial is never resorted to as a punishment. The

fact that the informant’s group is also involved in a criminal case is thus of no

relevance to the question.59

The overriding considerations in granting bail which are common both in

Sections 437(1) and 439(1), Cr. P. C., are the nature and gravity of the

circumstances in which the offence has been committed, position and status of the

accused with reference to the victim and the witnesses, likelihood of the accused

fleeing from justice and tampering with witnesses etc. No list of exhaustive

grounds can be set out. Facts differ from case to case.60

The nature and gravity of offence is one of the relevant factors to be

considered while deciding the bail applications.

5.9 Test Applied for Grant of Bail in Non-bailable Offence

Normally the courts apply the following tests while consideringapplications for bail in case of non-bailable offences:61

(i)nature and seriousness of the accusation;(ii)nature of the evidence in support of the accusation;(iii)severity of the punishment which the conviction will entail;(iv)the character, behavior and standing of the accused;(v)a reasonable possibility of the presence of the accused not being secured at thetrial;(vi)the danger of the alleged offence being continued or repeated;(vii)the danger of the witnesses being tampered with;(viii)the larger interest of the public or the State, and similar other consideration.5.10 Circumstances to be Considered for Grant of Bail

It is necessary for the courts dealing with application for bail to consider

among other circumstances, the following factors also before granting bail, they

are:62

59 Prafulla Kumar Pradhan v. Pabaneswar Subudhi, 1989 Cril LJ 2016 at p. 2017(Ori).60 Chandrawati v. State of U. P., 1992 Cri LJ 3634 at p. 3635(All).61 Bhagirathi Mahapatra v. State, 1975 Cri LJ 1681 at p. 1683 (Ori).62 State of Maharashtra v. Sitaram Papat Vetal, (2004)7 SCC 521 at p. 524 : AIR 2004 SC

4258 : 2004 SCC (Cri) 1971.

151

5.11 Nature of Evidence and Severity of Punishment

The whole object of arrest and detention of an accused person is obviously

to secure his appearance to abide the sentence of law. That being so except where

a statue specifically requires, the principle which should guide a court in the

exercise of its discretion to grant bail or not, is the probability of the accused

appearing to take the trial and not his supposed guilt or innocence. It is an error to

suppose that considerations such as the nature of the offence, the nature of

evidence, the severity of punishment awardable are themselves material in

deciding whether an accused person should or should not be admitted to bail.

They are relevant because they affect the likelihood of the accused person’s

failing to appear for his trial. That likelihood is affected, obviously, by the gravity

of the charge, the cogency of the evidence and the financial status of the accused

which renders him more willing to bear the forfeiture of the bail bond and also

less willing to bear the ignonimity of a conviction. The seriousness and gravity of

the charge and the severity of punishment are very probable factors which may

tempt an accused person to escape the clutches of law.63

On an application for bail it is not the certainty or the improbability of a

capital sentence or life imprisonment being imposed which is to be considered,

but simply whether the offence is one for which such a sentence may be

awarded.64 A charge may be serious either in itself or by reason of the

consequences that may flow therefrom.65 The seriousness of the charge is all that

matters because law not only permits but enjoins the arrest of a person accused of

or suspected of the commission of a serious crime and therefore the seriousness of

the offence is a most important factor to be considered while deciding the

question of bail.66 That is why the legislature has classified offences into

“bailable” and “non-bailable” offences and among the non-bailable offences it has

63 Ram Chandra Vs. State 1953 CrLJ 17.64 Rao Harnarain Singh Vs. State, 1958 CrLJ 563: AIR 1958 Punj 123.65 Ram Chand Vs. Emperor, 30 CrLJ 1129.66 Emperor Vs. Wahidino 30 CrLJ 845: 1929 Sind 137

152

further made a distinction between offences, punishable with death or

imprisonment for life, and offences punishable with other terms of imprisonment.

i) Instances - When bail allowed:

(a) Where an accused person was on bail during the committal

proceeding and there was no complaint or even a faint

suggestion by the prosecution that he tampered with the

evidence in the committing court, and the evidence against him

was also not very convincing, it is a fit case to allow bail67.

(b) When the investigating agency or the prosecuting agency

adopts dilatory tactics and the case against the accused is also

not case-iron, it is a fit case to allow bail.68

(c) Where both the husband and the wife were charged of

committing murder of their child and the wife applied for bail

on the ground that she had another small child at home, that

there was no body to look after him or the case, that the case

would take a long time to conclude, that the cultivation of the

petitioner would suffer, that the proviso to sub-section (1) of

section 497, Criminal Procedure Code (old) applied to the case

and she was allowed the bail.69

(d) Where the prosecution is not able to satisfy the court that there

are reasonable grounds for believing that the accused is guilty

of an offence punishable with death or imprisonment for life.

Even a Magistrate in such a case will be perfectly within his

rights to enlarge a person on bail even though the accusation is

of murder.70 The ratio of this decision now should be read in

67 Kashi Ram Vs. State (Case of dacoity) 1960 CrLJ 1339:AIR 1960 MP 312.68 Rattan Singh Vital Singh Vs. State (Case of dacoity) 1959 CrLJ 723:AIR1959 MB 216.69 Mst. Chokhi v. State 1957 CrLJ 102: AIR 1957 Raj 10.70 AIR 1955 NUC (Orissa) 6081.

153

the backdrop of the observations of the Supreme out that if a

police officer arrests a person on a reasonable suspicion of

commission of offence punishable with death or imprisonment

for life and forwards him to a Magistrate, the Magistrate will

have at that stage no reason to hold that there are no reasonable

grounds for believing that he has not been guilty of such

offence. At that stage unless the Magistrate is able to act under

the proviso to section 437 (i), bail is out of question.71

(e) Where an accused person is charged with offences falling

under sections 120, 489 (c), 489 (b), Indian Penal Code, but the

prosecution has no evidence worth the name which may

connect the accused with the crime, it is a fit case to grant bail.

(f) Even in a case of murder, a Sessions Judge is not bound by the

opinion of the committing Magistrate that there is prima-facie

evidence against the accused person. A Sessions Judge can

comes to its own conclusion and release the accused on bail.72

(g) Even though the High Court had made the observation in its

order refusing the bail that the accused shall remain in jail

during the period of trial, a Sessions Judge need not be

influenced by such observation. If he finds that there is no

reasonable ground to withhold bail any longer, he can allow

bail.73

(h) The powers of a Magistrate are restricted in the case of

offences punishable with death or imprisonment for life. But in

other non-bailable offences or in respect of persons mentioned

71 Gurcharan Singh Vs. State (Delhi Administration) (1978) 1 SCC 118: 1978 SCC(Cr)41:AIR 1978 SC 179: 1978 CrLJ 129: 1978 Mad LJ (Cr) 261.

72 Newad Ram Vs. Kishan, 1952 CrLJ 1194: AIR 1952 Raj 149: Nisar Ali Vs. AbdulHamid, 36 CrLJ 1141:AIR 1935 Pesh 101.

73 Nand Kumar Shukla Vs. State, 1952 CrLJ 1085: AIR Ori 219.

154

in the proviso to sub-section of section 437, a Magistrate has

absolute discretion to allow bail.74

(i) Where a warrant of arrest has been issued on a complaint under

section 409, Indian Penal Code, without making a preliminary,

inquiry it is a fit case for bail.75

As regards serious non-bailable offences, there is no such rule that the

grant of bail should be the rule and refusal of bail an exception. The policy of the

legislature is that the power to grant bail should be exercised sparingly for

exceptional reasons only. In capital cases, except perhaps in very exceptional

circumstances, it is neither advisable nor permissible to grant bail. In such cases it

is of no consequence that there is no one in his family who can look after his

defence.76 But where a non-bailable offence is not punishable with death or

imprisonment for life, the general policy of law is to allow bail rather than refuse

it. It should not be withheld as a measure of punishment.77

5.12 Instances – When Bail Refused:

(j) Where an accused is charged under section 302, 376, 109 and

201, Indian Penal Code, a Court will consider what punishment

it may award and not what it should award. Release of a person

charged under those offences is improper and unjustified.78

(k) Where property has been recovered from the possession of a

dacoit, grant of bail is improper. The fact that the name of the

accused was not mentioned in the FIR is of no consequence

because all the dacoits were unknown persons.79

(l) There must be some exceptional reason in support of an

application for bail in a dacoity case otherwise bail cannot be

74 Emperor v. Abhairaj Kunwar, 40 CrLJ 841: AIR 1940 Oudh 8.75 Htye Yar Vs. King. l 39 CrLJ 91: AIR 1937 Rang 474.76 Srichand Vs. Emperor, 36 CrLJ 184: AIR 1937 All 815.77 Kishan Singh Vs. Punjab State, 1960 CrLJ 850: AIR 1960 Punj 307.78 Rao Harnarain Singh Vs. State, 1958 CrLJ 563: AIR 1958 Punj 123; Also see Ramchand

Vs. Emperor, 30 (CrLJ 1129: AIR Lah 284.79 Heikrujam Ibobi Singh Vs. Manipur Administration, 1959 CrLJ 741:AIR 1959 Manipur

28.

155

claimed as of right,80 when the accused suspected of

committing dacoity concealed himself in a big basket in a

different village and continued to do so even after the FIR

being filed and process issued, it was held this ascendance

makes it probable that he would go underground if released on

bail and the bail was rejected.81

(m)When the trial is for murder and the accused is represented by a

counsel and the evidence of the prosecution is concluded, it is

wrong to enlarge an accused on bail on the ground that it would

facilitate his defence.82

(n) Save in very exceptional circumstances it is improper to grant

bail in capital cases.83

(o) Grant of bail to an accused person who is involved in a

Criminal Conspiracy for murder, on the ground that there is

some discrepancy in the evidence of approvers is improper84

(p) Young years of the offender and the fact that he belongs to a

respectable family are not always good grounds for grant of

bail in serious offence.85

(q) A person accused of an offence punishable with long term of

imprisonment should no ordinarily be released on bail because

the richer the accused, the more easy it is for him to find bail.86

(r) A person against whom there is some material to support the

accusation that he has been engaged in espionage against

India’s defence and was passing important military intelligence

to some foreign country should not be released on bail.87

80 Sujan Singh Vs. State of Ajmer, 1956 CrLJ 356: AIR 1956 Ajmer 37.81 Promod Chandra Vs. State of Tripura, AIR 1969 Tri 42: 1969 CrLJ 1534.82 State Vs. Balwant Singh, 51 CrLJ 1131: AIR 1950 MB 4383 Govt. of Hyd. Vs. Dharamayya AIR 1951 Hyd. 4684 Emperor Vs. Abu Baker, 42 CrLJ 703: AIR 1941 Sind 8385 Dhanpal Vs. Emperor, 37 CrLJ 1017: AIR 1936 All 656.86 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 209.87 State Vs. Jaspal Singh (1984) 3 SCC 555.

156

In England high treason consists of several offences, one being levying

was against the sovereign. A person commits high treason when he is adherent to

the sovereign enemy in her realm. In England in case of treason no person can be

admitted to bail, except by order of the secretary of State or a Judge of High

Court.88

5.13 Danger of Accused Absconding

One of the most serious objections which the prosecution makes when an

application for bail is moved and the most important circumstances which a court

considers is the possibility that an accused person may abscond and defeat the

ends of justice.

The primary object of arrest and detention is that the accused should not

only take the trial but also not to impede the progress of the trial by occasional

absences. If there is no such apprehension in the mind of the court, it would not

ordinarily refuse bail. When the prosecution evidence is over-whelming, the court

should presume that there is a danger of the accused not appearing to take the

trial.89 Where an accused person has been acquitted he is in a better position than

a person who has been convicted and, therefore, when an appeal against acquittal

has been filed, his release on bail is but proper because there it cannot be seriously

alleged that he would abscond.90 Where the offence alleged is not of a serious

nature an application for bail cannot be refused merely on the ground that the

prosecution apprehends that the accused would jump bail.91 Similarly when a

court is satisfied that there are reasonable grounds for believing that no case has

been made out or is likely to be made out against the applicant and there is no

reason to suspect that the accused would abscond, it should not withhold the grant

of bail.92

88 Halsbury’s Laws of England, 3rd Edn. Vol.10, Para 677, P.374 to in Ramchandra Vs.State, 1953

89 Observation of Kaul C. J. referred to in Ramchandra Vs. State, 1953 CrLJ 17, 18.90 State of Kutch Vs. Aher Vasta Hadhu, 1953 CrLJ 1916: AIR 1953 Kutch 50.91 Mirza Ishaw Ali Beg Vs. State, 1952 CrLJ 71.92 Hardwari Lal Vs. Emperor, 33 CrLJ 773.

157

5.14 Danger of Tempering of Prosecution Evidence

A Court must bear in mind whether as a result of the granting of bail to an

accused person, the prosecution witnesses are likely to be terrorized and would

experience considerable difficulty in stepping into the witness box at the time of

the trial.93 It is well established that the grant of bail in a non bailable offence is a

concession and not a right. It is a sort of trust reposed in the applicant by a court.

A court presumes that the privilege is not to be abused in any manner. An accused

person who has been enlarged on bail must not come into contact with the

prosecution witnesses with a view to either to destroy the evidence against him or

to minimize its effect. As soon as he misuses his liberty thus granted to him he

disentitles himself to that privilege granted to him.94 The most important ground

on which the prosecution resists an application for bail is that a person accused of

a serious offence, whatever his fortitude, cannot resist the temptation of

destroying the evidence against himself. A court ought not to show undue

leniency and misplaced sympathy and ignore human conduct completely. A man

accused of a serious offence will pay any price, if he can afford it, in order to save

his life or reputation; otherwise he will influence or create terror. The Patna High

Court has gone so far as to observe that opportunities in India for the corruption

of witnesses are so great that the risks involved in enlarging a person on bail

cannot be exaggerated.95 This is one side of the picture. But at the same time it is

the duty of the court to see that an accused person is not unnecessarily detained in

prison and hampered in his defence merely because there is an apprehension that

he would tamper with the prosecution witnesses. In two important

pronouncements the Oudh Chief Court has prominently brought out the other side

of the picture. Wazir Hasan C.J. observed in the case of Bishambhar Nath Vs.

Emperor,96 “The learned counsel for the crown, Mr. Gupta expressed

apprehension in the course of his arguments as to these accused tampering with

the prosecution evidence. The apprehension, however, will not be sufficient

93 State Vs. Pritam Dass, 1956 CrLJ 986: AIR 1956 Bom 559.94 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 209.95 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 20996 25 CrLJ 1132: 81 IC 956.

158

ground for me to refuse bail if I otherwise think that it should be granted. So far

these apprehensions are merely chimerical. But if they turn out to be real at any

stage of the trial, it will be open to the learned counsel who I understand is in

charge of the case for prosecution to move the trial court to cancel bail”. In the

case of K.E. Vs. Rani Abhairaj Kunwar,97 Thomas C.J. observed “All the

important witnesses for the prosecution have already been examined and if they

are witnesses of the type who are prepared to change their statements on receipt of

a few hundred rupees, they will do so whether the Rajmata and Kunwar Sahib are

on bail or are in the lock-up. If the accused are in the lock-up, there is no doubt

that they have got a host of people looking after the case who are just as capable

of tampering with the evidence as the accused themselves. It is my duty to see that

both sides are not hampered. I must see that the crown does not get a free hand

and the accused are locked up or hampered in their defence simply only the

ground that it is alleged or feared that they will tamper with the evidence”. It is

the usual slogan of the prosecution that the accused will destroy the prosecution

evidence if he is released on bail. If the allegation is of a vague and general

nature, it is not worth much consideration.98 The same view was taken by Sind

Chief Court in the case of Emperor Vs. Wahidino.99 It was observed by the

learned Judge “The accused have been at large for four weeks, and I think no real

damage is likely to occur at this stage if the accused are not locked up again. They

have had time to approach the prosecution witnesses and in any case whether they

are in prison or free, the defence will have no difficulty in tempering with

witnesses, if they are open to influence”. In the cases of Rani Abhiraj Kunwar

And of Wahidino and in the case of Jamini Mullick100 the learned judges have

observed that when the prosecution opposes an application for bail on the ground

that there is a likelihood of the witnesses being tampered with, it does not appeal

very highly of the efficiency of the police, nor of the integrity of the witnesses.

97 40 CrLJ 84198 Subbrama Ayet Vs. State, 1953 CrLJ 263: AIR 1953 Tra Co.25.99 30 CrLJ 845: AIR 1929 Sind 137: 23 SLR 340.100 9 CrLJ 409: 36 Cal 174

159

A vague and general allegation that the accused would tamper with the

evidence, is not enough. If there is material on record to show that the accused has

tried to tamper with the evidence a court will never enlarge the applicant on bail

so as to defeat the ends of justice.101

In the case of Madhukar Purshottam Mondkar and Another Vs. Talab Haji

Husain and others the Bombay High Court cancelled bail in a bailable case when

it was satisfied that the accused had tampered or attempted to tamper with the

prosecution evidence.102 The view was upheld by the Supreme Court.103

Where one of the accused persons was found to be tampering with the

prosecution evidence the other accused should not be penalized by refusing their

bail.104

5.15 Protracted Nature of Trial and Period of Detention of Accused

The Code of Criminal Procedure (Amendment) Act, 1955 had introduced a

new sub-section (3-A) in old section 497, Criminal Procedure Code. The purpose

underlying the sub-section was that a trial of a non-bailable case in a Magistrate’s

court should be concluded within sixty days from the first date fixed for recording

evidence provided the accused was in custody during the entire period. If the trial

was not concluded within the time specified, the accused should be released on

bail. Cases should not be allowed to linger for an abnormal length of time. This

amendment was for the benefit of the accused as well as the prosecution. An

accused person must not be allowed to be unduly harassed by the prosecution

agency. An early conclusion of the trial will also eliminate the possibility of the

accused tampering with prosecution evidence or manufacturing evidence in his

own defence. But the new amendment is confined to non-bailable cases in the

court of Magistrate only, for the simply reason, that in cases triable by a court of

Session it is not always possible to conclude a trial with any particular of time.

101 Subbarama Ayer Vs. State, 1953 CrLJ 263: AIR 1953 Tra Co. 25, MB Ramchandra Vs.State, 1953 CrLJ 17

102 1958 CrLJ 1308:AIR 1958 Bom 406103 Talab Haji Husain Vs. Madhukar Purshottam Mondker and another, 1958 CrLJ 701:

AIR 1958 SC 376.104 Bishambhar Nath Vs. Emperor, 25 CrLJ, 1132: 110 LJ 527.

160

There is, however, over-whelming authority for the contention that an accused

can demand as of right that the case against him be taken up without any

unreasonable delay and if it cannot be done without any fault on his part, he ought

to be enlarged on bail. Apart from other considerations, unreasonable delay in

prosecuting the accused is a cogent ground for the grant of bail. Delayed

investigation, or delayed trial is equally injurious to the prosecution and the

defence. If they are left pending for a long time, the possibility of the witnesses

for getting important details, or their being won over by the other side or the

danger of some material evidence being lost cannot be excluded. An accused

person should not be allowed to continue in police custody for an unlimited

period of time because the police does not care to file the charge-sheet in time.105

The question of delay does not lose its importance even after the trial has ended in

conviction. But what constitutes delay depends upon the peculiar facts of each

case. At the stage of appeal an appellate court may release a convict on bail

provided it is satisfied that either the case of the defence is arguable,106 or the

entire sentence of imprisonment would have run before the appeal comes up for

hearing, thereby rendering the purpose of appeal in fructuous.107 But if the delay

in hearing of appeal is occasioned by the convict-appellant himself, he cannot

make it a ground for his release on bail. As to what constitutes delay during the

stage of investigation, inquiry or trial will depend upon a variety of

circumstances. For instance in a case of conspiracy or dacoity where the

miscreants are unknown persons an investigating agency must take long time to

collect evidence and submit a charge-sheet.

In Emperor Vs. Sooha and others,108 as many as 66 persons were involved

n an inter-state conspiracy for the purpose of counterfeiting coins. Naturally, the

investigation could not be completed within a month or two. The Sessions

105 Santram Vs. State, 1952 CrLJ 1223: Jamini Mullick Vs. Emperor, 9 CrLJ 409: 36 Cal174: Raja Narendra Lal Jhan Vs. Emperor, 9 CrLJ 375: 36 Cal 166: Jiwan Lal Vs.Emperor, 10 CWN 163: Tule Ram Vs. Emperor, 27 CrLJ 1063: AIR 1927 Nag 53: LocalGovt. Vs. Gulam Jilani, 25 CrLJ 1363: AIR 1925 Nag. 228.

106 Ram Singh Vs. State, 6 DLR (Raj) 31.107 Ramsarup Vs. Emperor, 27 CrLJ 1377: 98 IC 593; Pitamal Vs Emperor, 25 CrLJ 672.108 32 CrLJ 1045: 53 ALL 729.

161

Judge allowed the bail applications on the general ground that the investigation

had already taken a long time and would still go on for some months more and

therefore it was not proper to keep the accused in custody for such long periods.

Vacating the order of the Sessions Judge, Kendall J. observed, “The Sessions

Judge has dealt with the accused in a body and released them merely on the

ground that the investigation has continued for along period and may still go on

for some months longer. The Sessions Judge’s order carries with it the implication

that in no case are the accused persons to be detained in custody during police

investigation for as long as seven months…It is very difficult to set down a

definite time limit where a person is accused on a charge of so serious a nature as

attempt to murder, bail should not be allowed on the ground that undue delay is

being occasioned on account of the failure of the injured person to be able to

attend the identification parade.109

Roy C.J. repelled the contention that at the stage of investigation a

Magistrate has no jurisdiction to grant bail because then the police dictation will

dominate the field. “This would be unduly and very riskily strengthening the

hands of the police while we know that they proceed leisurely and carry

investigation for months and months together and even while there is no evidence

available they want the accused persons in custody”.110

5.16 Character, Means and Standing of the Accused

Where a prisoner is possessed of considerable property as to rule out the

possibility of his jumping bail and there is no allegation that he is likely to

abscond, a court is entitled to release him on bail.111

It may, however, be noted that in this case bail was allowed not on the

ground of applicant’s status alone but because he had been acquitted on the

charge by the trial court and the question of bail arose an appeal against the order

of acquittal.

109 Emperor Vs. Pritam Singh, 33 CrLJ 335: AIR 1932 Lah 433.110 Nanda Kumar Shukla Vs. State 1952 CrLJ 1085.111 State of Kutch Vs. Aher Vasta, 1953 CrLJ 1916

162

The unanimous view of the High Court is that the social position or status

of an accused person should not be taken into consideration when rejecting or

allowing bail. The same view has been taken by the High Court of Allahabd,

Patna, Nagpur, Calcutta and Hyderabad.112 The grant or refusal of bail will not

depend upon the respectability or otherwise of an accused person. As a matter of

fact the richer the accused is, the more easy it is for him to find bail and the less

desirable it is to release him on bail. It is a stock argument on behalf of a young

offender coming from respectable family that he should not be allowed to come in

association with bad characters in jail. Though the argument has some force, yet

after all it is an argument which can be raised in almost every case because

respectable men even if they are older may suffer deterioration from detention in

jail. A man is kept in prison not only to prevent his absconding but if there is

reason to believe that he has committed crimes of a certain type to prevent him

from being a possible danger to the community. The mere respectability of a man

per se is not a sufficient ground to allow bail when he has been convicted of a

criminal offence. Sometimes the position and status of a person instead of being a

ground for allowance of bail becomes an impediment in that, it is feared that a

fair trial would be put in jeopardy. A court has then to consider whether as a result

of the grant of bail prosecution witnesses are likely to be terrorized and would

experience considerable difficulty in stepping into the witness box at the time of

the trial. Just as a high social position and status of the accused do not justify an

order of release on bail, in the same way the bad character of a man does not

disentitle him from being bailed out if the law allows it.113 A court, however, will

take into consideration the social status or the position of an accused person in

relation to other members of his family, if he happens to be the only adult male

member or the only earning member of the family, other being either women or

children, in deciding the question whether bail should or should not be allowed.

His Lordship observed in the case of Ahmad Ali Vs. Emperor.114 “His mother now

112 Fazal Nawaz Jung Vs. State of Hyderabad, 1952 CrLJ 873.113 Rao Harnam Singh Vs. State, 1958 CrLJ 563: AR 1958 Punj 123.114 16 CrLJ 705: 301 C 993.

163

puts in an affidavit complaining that she is in a serious distress as the petitioner is

the only member of the family who earns anything for its support. The family

consists of the petitioner’s wife and two small children in addition to his mother.

It further appears that innocent persons are suffering by the reason of the

petitioner’s incarceration”. In these circumstances, His Lordship enlarged the

accused on bail. This was a case under section 363, IPC. But in a case of murder

the fact that the accused was a ‘Gosain’ and there was no member in his family

who could look after his case was not considered a good ground by Bennet, J to

release him on bail.115

In the case of Raja Narendra Lal Khan,116 a superficial reading of the

judgment might give the impression that the accused was released on bail because

he was a man of wealth and position. The reason for his release was that there was

no convincing direct evidence against him when the application for bail was

moved on his behalf.

5.17 Previous Behaviour and Conduct of Accused

The learned judges in the case of Emperor Vs. Hutchinson considered in

details in which a bail could be allowed or refused. After enumerating those nine

circumstances a full bench of the Allahabad High Court held that many more

considerations could be added without any attempt to make the list exhaustive.

The previous conduct or behaviour of the accused is one or other circumstances

which can be taken into consideration for the allowance or refusal of bail. It must,

however be noted that any one circumstances by itself, in the face of other

circumstances to the contrary, would not be conclusive.117 In the case of Tula

Ram Vs. Emperor118 the fact that the accused surrendered himself in court even

before the date of hearing was considered good reason for allowing him bail

because it ruled out the possibility of his escaping the clutches of law.

115 Srichand Vs. Emperor, 36 CrLJ 184: AIR 1934 All 815.116 9 CrLJ 375: 36 Cal 166.117 Joglikar Vs Emperor, 33 CrLJ 94: AIR 1931 All 504: 1931 ALJ 773.118 27 CrLJ 1063: AIR 1927 Nag 53: 97 1C 39.

164

5.18 Health of Accused

The proviso to section 437, Cr. P.C. authorizes the Magistrate to admit a

sick or infirm accused to bail even when he is reasonably believed to be involved

in an offence punishable with death or life imprisonment etc. One M.

Hanumantha Reddy was charged with an offence under section 307, I.P.C. He

was the son of a responsible officer in government service. The doctor who was

treating the accused certified that the petitioner suffered from neurasthenia

associated with mental delusions and a suicidal frame of mind. In these

circumstances the Mysore High Court granted bail to the accused.119 But it is not

every sickness or infirmity that entitles a person to be released on bail. The

circumstances of the case and the cumulative effect, the seriousness of sickness or

infirmity, the availability of necessary medical treatment and reasonable amenities

have also to be borne in mind. Where a court does not consider it desirable to

enlarge an accused person on bail on the ground of sickness or infirmity, he may

request the court that is may recommend to the state government to afford him

adequate facilities and more genial surroundings, subject of course, to the jail

discipline.120 If an accused person desires to be released on bail on the ground of

the health, he must produce some evidence atleast in the shape of an affidavit to

enable the court to exercise the discretion in his favour. A mere medical

certificate of illness is not sufficient, the certificate must also show that the health

of the accused will deteriorate if he is not released. Bail on the ground of sickness

is to be refused when proper treatment is available in jail. When E. C.G. result is

not correlated to prescription of doctor and there is no illness necessitating

immediate release and there is assurance of better looking after in jail hospital and

proper medical assistance, bail is to be refused.121

Sickness contemplated in the proviso to section 437 is one which involves

danger to life of the accused. In a case Supreme Court released a lady-prisoner, a

foreigner who was serving life imprisonment and was also facing trial in other

119 M. Hanumanthe Reddy Vs. Govt. of Mysore, 1953 CrLJ 1548: AIR 1953 Mys 132.120 Fazal Nawaz Jung Vs,. State of Hyderabad, 1952 CrLJ 873.121 Sucheta Singh Vs. State of M.P. 1981 CrLJ (MP) Notes 132.

165

criminal cases, on bail she had been suffering from ovarian cancer at secondary

stage necessitating chemotherapy. In that case the Supreme Court permitted her to

go back to Canada, her home-land where her parents lived.122

In a case Simpson A.J.C. considered the extreme old age of the applicant

as one of the grounds for grant of bail to the petitioner.123

5.19 Age or Sex of the Accused

Under the proviso to sub-section (1) of section 437 a court may direct that

any person under the age of sixteen years or any woman, accused of an offence,

even though punishable with death or imprisonment for life, may be released on

bail. The question arose whether the proviso is discriminatory on ground of sex

and age and hence ultravires of the constitution in the case of Mst. Chokhi Vs.

State because article 15 of the constitution provides that the state shall not

discriminate against any citizen on grounds only of religion, race, caste, sex, place

of birth or any one of them. In the same article in sub-clause (3) it has been

provided that nothing in this article shall prevent the state from making any

special provision for women and children. Therefore, it is open to the state to

make laws containing special provision for women and children but no

discrimination can be made against them on account of their sex etc. The proviso

to section 437 which accords a special treatment to the case of women and

children, is, therefore, not inconsistent with article 15 of the constitution of India.

Although in this case his Lordship did not allow bail to Mst. Chokhi on the sole

ground that the petitioner was a woman, nonetheless, this consideration also

weighed with the court in the allowance of bail. In the case of K.E. Vs. Rani

Abhairaj Kunwar124 bail had been allowed to Rajmata by the Session Judge on the

ground that she was an old woman and suffered from heart trouble. The Oudh

Chief Court did not interfere with the discretion exercised by the Sessions Judge

and allowed her to remain on bail.

122 Marie Andra Leclerc Vs. State (Delhi Administration),(1984) 2 SCC 443.123 Abhairam Bali Vs. Emperor, 26 CrLJ 1286: AIR 1925 Oudh 489: 89 IC 150.124 40 CrLJ 841: AIR 1940 Oudh 8

166

The word “may” in the first proviso is not to be construed as mandatory. A

woman under 16 years of age may be released on the discretion of the

Magistrate.125. The 1st proviso to section 437 (1) does not mean that persons

specified in the proviso should necessarily be released on bail. The proviso is

an enabling provision.126 If “may” was ‘must’ there was no necessity to consider

any other factors like age and compassion at all.127 Where the applicant woman

though was charged for murder of another woman, was suffering from major

depressions/prolonged treatment as certified by the Medical Officer Central Jail,

two other accused women had been granted bail on ground of illness and being

women, the applicant was also enlarged on bail.128

In heinous offences like dowry death cases, the provisions of bail to

woman, sick and old persons are not mandatory, but discretionary. The provisions

of section 37, NDPS Act, 1985 override the provisions of section 437. First

proviso, the accused woman is not entitled to the special consideration in matter

of grant of bail.129

5.20 Previous Convict when not to be Released on Bail

According to sub section 1 (ii) A person shall not be released on bail if the

offence is cognizable offence and he had been previously convicted of an offence

punishable with death or imprisonment for life or imprisonment for seven years or

more, or he had been previously convicted on two or more occasions of a

cognizable offence punishable with imprisonment for three years or more but not

less than seven years unless such person is under the age of 16 years or is a

woman or is sick or infirm. This is a new provision added by Cr.P.C.

(Amendment) Act 2005 (25 of 2005). This amendment in the section has come

into force w.e.f. 23.6.2006 vide Notification No. S.O. 923 (E), dated 21.6.2006.

125 Pramod Kumar Manglik Vs. Sadli Ana Rani, 1989 CrLJ 1772 (All) [1986 CR.LJ] 365(All) overruled], Chandrawati Vs. State of U.P. 1992 CrLJ 3634 (All)

126 Prahlad Singh Bhati Vs. NCT Delhi AIR 2001 SC 1444: (2001) 4 SCC 280 (283).127 B.S. Rawat, Asstt. Collector of Customs Vs. Andre Christopher Mydlar, 1988 (2) Crimes

581, 588 (Bom)128 Zarereefa Vs. State, 2004 Cr. LJ 4088 (4089)) (J&K)129 Omana Vs. State of Kerala 1994 CrLJ 686 (ker) see however, Prem Narain Sharma Vs.

State of U. P. (1992) 2 Cur Cri R 2066 (All).

167

5.21 Danger of Repetition of Crime

When a court has reason to believe that an accused person is likely to

commit similar or any other offence if he is enlarged on bail, it would refuse bail

whatever other considerations there may be in favour of the accused. In a case

before Himachal Pradesh Judicial Commissioner’s Court one Paras Ram who was

charged with offences under sections 302 and 307 read with section 34 applied for

bail on a number of grounds. His case was that he had been acquitted by the

Sessions Judge and was facing a retrial on the orders of the judicial

commissioner’s court, that there was no possibility of his tampering with the

prosecution witnesses who were related to the deceased, that he was the only adult

member in the family who was outside the jail, that there was no one in the family

to make proper arrangements for his defence, that he had to raise money for his

defence by disposing of the property, that he had undergone a long ordeal in the

previous trial. Setting aside all those considerations Banerji J.C., observed as

follows: “It is true that a men is kept in prison not only to prevent his absconding

but if there is reason to believe he has committed crimes of a certain type, to

prevent him from being a possible danger to the community. From the materials

on record, it appears to this court that the parties were at daggers drawn. They

have been the bitterest foes for a long time. They have long standing civil and

criminal disputes between themselves. It has been said that the petitioner is a man

of violent and ungovernable temper. It is also stated that he is a man who has no

respect for life and property, when aroused. From the inferences dawn from

materials before me, after giving my anxious consideration, I feel that the

enlargement of the petitioner on bail will be fraught with considerable danger to

the parties of the deceased. Gopal (petitioner’s brother) being in jail and the

petitioner admittedly in some danger of his own life, it is quite reasonable to infer

that, after being released on bail, he may feel desperate for lack of funds or want

of suitable legal advice to take the life of some of the members of the opposite

party, especially of the complainant. I agree with the contention of the

Government counsel that the petitioner is very likely to feel that he can, after all

168

be hanged but once. He may run amuck and become a possible danger to the

community”. The same view was taken earlier by the High Court of Allahabad in

the cases of Achhaibar Misir Vs. K.E.130 and Hutchinson Vs. Emperor.131 The

Bombay High Court held as follows: “Very great weight must be attached to the

fact that according to the allegations before the Magistrate, the complainant was

under police prosecution and hardly left in a taxi, when he was surrounded by

several persons and struck with knives and sticks. This is a crime of a very

determined nature and any of his assailants might, if released on bail, renew the

attack and try to kill this man, so that his evidence may not be availed of against

them”.132

As has been pointed out earlier in this chapter the considerations which

have weighed with a court in the matter of allowing bail cannot be classified

exhaustively. But generally, it is the sum total of all the circumstances in a

particular case which determines whether a bail ought to be allowed or not. But

under no circumstances can an accused person claim bail on the ground that he

has not been “charged” with a particular offence so long as he is “accused” of that

offence. Hence the fact that the court did not frame a charge against the accused

will not entitle him to bail so long as the accusation is not disproved.133

5.22 Imposition of Conditions: [Sub-section (3)]

This sub-section empowers the Court to impose conditions in cases

mentioned in sub cls. (a), (b) and (c). Thus, the Court may, under this sub-section,

while granting bail to a person, ask him to surrender his passport. The accused

cannot be subjected to any condition other than the one contemplated in this

section. A duty is cast upon Courts to ensure that the condition imposed on the

accused is in consonance with the intendment and provisions of this section, and

not onerous. Where a civil suit was pending between the parties, imposition of

condition restraining the accused from entering on the suit land was held

unjustified, and as such set aside. When prayer for police custody was declined

130 Achhaibar Misir Vs. Emperor, 30 CrLJ 718: AIR 1929 All 614: 1929 ALJ 927.131 K. N. Joglekar Vs. Emperor, 33 CrLJ 94: AIR 1931 All 356.132 Emperor Vs. Narainji, 29 CrLJ 901: AIR 1928 Bom 244.133 Osman Piroo Vs. Emperor, 38 Cr.LJ 94: AIR 1936 Sind. 187.

169

but bail was confirmed with a condition that accused should make himself

available to police for investigation purposes, no error is committed in confirming

the order of bail. While granting bail a direction by the Sessions Judge to subject

himself for medical examination is a condition necessary for investigation.134

The words “the Court may impose any condition” appearing in Sub-

section (3) have been substituted by the words” the Court shall impose the

conditions”, by the Cr. P.C. (Amendment) Act, 2005 (25 of 2005).

Under sub-section (3) of Section 437 of the Code, the Court has got the

discretion to impose certain conditions for the grant of bail. Under Section 441

(2), where any condition is imposed for the release of a person on bail, the bond

shall contain that condition also. In order to make the provision stringent and to

see that the person on bail does not interfere or intimidate witness, sub section (3)

has been amended to specify certain conditions, which are mandatory. This

amendment in the section has come into force w.e.f. 23.6.2006 vide Notification

No. S.O. 923 (E) dated 21.06.2006.

The Court would not direct the accused to deposit the amount subject

matter of offence as condition for grant of bail. Where bail was granted subject to

furnishing of bank guarantee for a sum of Rs.10 lacs, the direction was held

arbitrary, would be set aside.135

5.23 Bail Condition Voilative of Article 20 (3) Constitution

It is true that while admitting an accused to bail in non-bailable offence,

the Magistrate or the Sessions Court or the High Court may impose any condition.

But Article 20 (3) Constitution of India, imposes a bar to testimonial compulsion.

It reads no person shall be compelled to be a witness against himself. So an

accused cannot be ordered to produce any document. To compel an accused to

make a statement leading to discovery of an incriminating article thus is also hit

by Article 20 (3), Constitution of India. So while granting bail, court cannot

impose a condition that he would enable a discovery under section 27, Evidence

Act. The court however, can give a direction that the accused should truly answer

134 Ananth Kumar Vs. State of A.P. 1977 CrLJ 1797 (AP).135 Vipin Mehra Vs. State, 2004 CrLJ NOC 41 (Del)

170

all the questions put by the investigating agency. But cannot direct him to show

the place where from police can recover some incriminating article.136

But the police desirous of having a discovery evidence from the accused is

not without any remedy, for as laid down by Supreme Court, while enlarging a

person on anticipatory bail conditions can be imposed and one of such conditions

can even be that in the event of the police making out a case of likely discovery

under Section 27, Evidence Act, the person released on bail shall be liable to be

taken to police custody for facilitating the discovery.137

Following this observation Rajasthan High Court held even when a bailed

out accused while on interrogation by the police makes any statement leading to

discovery of an incriminating fact or object, it would fall within the purview of

Section 27, Evidence Act. It may be recalled that first requirement of Section 27,

Evidence Act, is that the statement must come from the person in custody of

police. But it does not mean formal custody but includes such state of affairs in

which the accused can be said to be under some sort of surveillance or restriction.

So, the fact that accused may make a discovery statement is no ground for refusal

of bail.138

5.24 Recording of Reasons

While granting bail the Court shall mandatory record the reasons

therefore. An order bereft of any cogent reason would be unsustainable. It is the

obligation of the Court to give reasons while rejecting applications for bail.

However, elaborate reasons are not to be given while allowing/rejecting bail. At

the stage of granting bail a detailed examination of evidence and elaborate

documentation of the merits of the case has not to be undertaken. But that does

not mean that while granting bail some reasons for prima facie concluding why

bail was being granted is not required to be indicated.139

136 Shaikh Layak Vs. State of A.P. (1981)1 Andh LT 343: 1981 Mad LJ (Cr) 309: (1981) 2Andh WR: (1981)1 APLJ (HC) 344.

137 Gurbux Singh Vs. State of Punjab (1980) 2 SCC 565: 1980 SCC (Cr) 465: AIR 1980 SC1632.

138 Uma Shankar Vs. State of Rajasthan (ibid).139 State of Maharashtra Vs. Sitaram Popat Vita, AIR 2004 SC 4258: (2004) 7SCC 521:

2004 CrLJ 4189 (4191) Chaman Lal Vs. State of U.P. 2004 CrLJ 4243 (4245) (SC).

171

In order rejecting bail application it is necessary for the Court to record all

the submissions arguments of the counsel for the accused, it would be sufficient if

salient grounds are recorded in the order allowing the bail or rejecting the bail.140

The order would not be reviewed or recalled merely because all the points argued

by the parties have not been incorporated by the Court in its order.141 The Court at

the stage of deciding bail application would not work as a trial Court.142 Where

the Court grants bail to accused and not to co-accused without recording reasons,

the order is improper.143

5.25 Re-Arrest [Sub-Section 5 (1)]

The power to cancel a bail vests in the Court that granted it. But an order

made by one Magistrate releasing an accused person on bail pending trial can for

proper reasons be cancelled by another Magistrate to whom the case may be

transferred for trial. The provisions of this sub-section read with Section 482 of

the Code saving the inherent power of the High Court to give effect to any order

under this Code or to prevent abuse of the process of any Court or otherwise to

secure the ends of justice, will give it ample power to deal effectively with such

accused persons, released on bail pending appeal, who, by their continuing to

commit the crimes they denied in.

The appeal memorandum, render themselves liable to re-arrest and

recommitted to custody.144 The power under section 437 (5) or section 439 (2) can

be exercised for cancellation of bail already granted on supervening circumstance

i.e. where case is registered under section 307, IPC, but subsequently graver

offence under section 302 IPC is added and there is distinct possibility of the

accused absconding from the proceeding in future.145

There are five cases where a person granted bail may have the bail

cancelled and be recommitted to jail:

140 Dronendu Jha Vs. State of Jharkhand, 2004 CrLJ 2950 (2951, 2952) (Jhar).141 Dronendu Jha Vs. State of Jharkhand, 2004 CrLJ 2950 (2951, 2952) (Jhar)142 Dronendu Jha Vs. State of Jharkhand, 2004 CrLJ 2950 (2951, 2952) (Jhar)143 Mansab Ali Vs. Isran, (2003) 1 SCC 632: 2003 CrLJ 871 (872) (SC)144 Public Prosecutor Vs. Williams (1952) Mad 414.145 Sita Ram Singh Vs. State of Bihar, 2002 (2) Crimes 482 (486, 487) (Pat).

172

(i) Where the person on bail, during the period of the bail, commits

the very same offence for which he is being tried or has been

convicted, and thereby proves his utter unfitness to be on bail;

(ii) If he hampers the investigation as will be the case if he, when on

bail, forcibly prevents the search of places under his control for the

corpus deictic or other incriminating things;

(iii) If he tampers with the evidence, as by intimidating the prosecution

witnesses, interfering with the scene of offence in order to remove

traces or proofs of crime, etc;

(iv) If he runs away to a foreign country, or goes underground,

or beyond the control of his sureties; and

(v) If he commits acts of violence, in revenge, against the

police and the prosecution witnesses and those who have booked

him or are trying to book him.

The Magistrate has power to amend or effect necessary alterations, short

of cancellation, in the earlier bail order passed by him.

5.26 Computation of 60 Days Period [Sub Section 6]

The provisions of sub-section (6) are mandatory. The mandate of the sub-

section is that if the Magistrate is trying a case in which the accused has been

charged for a non-bailable offence and the trial has not concluded within a period

of sixty days from the first day of recording evidence in the case and the accused

has been in custody during this entire period, then the accused becomes entitled to

be released on bail. The Court is not precluded from considering the nature of the

allegations while dealing with a case under sub-section (6) of Section 437. The

expression “the first date fixed for taking evidence in the case” in this section

would mean the first date fixed for recording evidence after the accused is charge-

sheeted and the prosecution evidence is given notice of that date for its evidence

and, therefore, the period of sixty days under this section will start from that date.

173

The time spent in recording the pre-charge evidence which is usually recorded in

complaint cases before the charge is framed will not be counted.146

Where a person is facing trial under M.P. Excise act, if the trial is not

concluded within 60 days from the date fixed for recording of evidence, the

accused would be entitled to be released on bail.147

5.27 Refusal of Bail

The reasons for refusing bail under this provisions need not be restricted

to reasons which are germane to the cause of delay. There are no fetters on the

powers of the Magistrate and the only requirement of law is that should the

Magistrate refuse to grant bail, he must record his reasons for so doing in

writing.148

Speedy trial is a fundamental right of an accused and sessions case shall

normally conclude within one year. Reasoned order so that the same can assist the

higher Court in appreciating the reasons that have appealed to the Magistrate in

passing his order.

5.28 Duty of Court

Whenever an application for bail is made to a court, the first question that

it has to decide is whether the offence for which the accused is being prosecuted

is bailable or otherwise. If the offence is billable, the bail will be granted under

section 436 without more ado; but if the offence is not bailable, further

considerations will arise and the court will decide the question of the grant of bail

in the light of those further considerations. When there is some doubt as to

whether ultimately the offence will be proved to be bailable or non-bailable it

should proceed with the application on the assumption that the offence was not

bailable. The other considerations which a court ought to take into account are:

the nature and seriousness of the offence, the character of the evidence,

circumstances which are peculiar to the accused, a reasonable possibility of the

presence of the accused not being secured at the trial, reasonable apprehension of

146 B.S. Rawat Asstt. Collector of Customs Vs. Andre Christopier Mydla: 1988(2) Crimes581, 589 (Bom)

147 Rajendra Vs. State of M.P. 2003 Cr. LJ NOC 219: (2002) 4 MPHT 186 (MP)148 Robert Lendi Vs. Collector of Customs, 1987 CrLJ 55, 60 (Del-DB).

174

witnesses being tampered with, the larger interests of the public or the state and

similar other considerations which arise when a court is asked for bail in a non-

bailable offence.

Merely because co-accused persons have been allowed bail, that there was

no likelihood of the petitioner absconding, he being well connected and that the

trial was likely to take considerable time are not sufficient grounds to enlarge a

person on bail in a non-bailable case.149

5.29 Power to Cancel Bail

The provisions for cancellation of bail are contained in Sections 437(5)

and 439(2) of the Criminal Procedure Code. Sub-section (5) of Section 437

empowers the Court which has released a person on bail under sub-section (1) or

sub-section (2), if it considers it necessary to do so, to direct that such person be

arrested and commit him to custody. Similarly Section 439 empowers High Court

or a Court of Session to release on bail any person accused of an offence and who

is in custody. Sub-section (2) of the Section 439 provides that a High Court or

Court of Session may direct that any person who has been released on bail under

Chapter XXXIII of Cr. P.C. be arrested and commit him to custody. Therefore,

these two sections confer power on Courts for grant of bail and powers have also

been conferred for cancellation of bail in appropriate and fit cases.150

Under sub-section (5) of Section 437 of Cr. P.C. any Court which has

released a person on bail under sub-section (1) or (2) of that section, may, if it

considers it necessary so to do, direct that such person be arrested and commit

him to custody.151

S. 437(5) Cr. P.C. empowers the very Magistrate who has released the

person on bail under sub-section (1) or sub-section (2) of S. 437 Cr. P.C. to direct

that such person be arrested and committed to custody. Thus, this provision

pertains to a Court of Magistrate but not a High Court or a Court of Session.152

149 The State Vs. Captain Jagjit Singh, 1962 (1) CrLJ 215: AIR 1962 SC 253; Uma ShankarVs. State of M.P. 1982 CrLJ (MP) Notes 168

150 Surendra Kumar Patel v. State of Chhattisgarh, 2004 Cri LJ 988 at p. 990 (Chhattis).151 Khagendra Nath Bayan v. State of Assam, 1982 Cri LJ 2109 at p. 2111 (Gau).152 V. Chinna Reddy v. N. Vidyasagar Reddy, 1982 Cri LJ 2183 at p. 2184 (AP).

175

Sub-section (5) to S. 437 Cr. P.C. provides that any Court which has

released a person on bail under sub-section (1) or sub-section (2), may, if it

considers it necessary so to do, direct that such person be arrested and commit

him to custody. As under S. 167(2) a person who has been released on the ground

that he had been in custody for a period of over sixty days is deemed to be

released under the provisions of Chapter XXXIII, his release should be considered

as one under S. 437 (1) or (2). Section 437(5) empowers the court to direct that

the person so released may be arrested if it considers it necessary to do so. The

power of the court to cancel bail if it considers it necessary is preserved in cases

where a person has been released on bail under S. 437 (1) or (2) and these

provisions are applicable to a person who has been released under S. 167 (2).

The provisions of Section 497(5) of Cr. P.C. (of 1898) confer plenary

power on High Court and Sessions Court to cancel the bail of a person who has

been released not only by itself but by subordinate Court as well. There is no legal

bar for High Court to deal with an application for cancellation of bail under

Section 497 or 498(2) of Cr. P.C. (of 1898) apart from exercising its jurisdiction

under its inherent power under Section 561-A of the said Code.153

5.30 Magistrate can Cancel bail where it was Granted by Him

It is trite law that when the bail is granted by the Judicial Magistrate, the

Judicial Magistrate can cancel the bail. The Court of Session can cancel the bail

granted under Section 439(2) of the Code of Criminal Procedure.154

5.31 Bail Continues to be in Force Till it is Cancelled

When once the bail granted to the accused was governed by Cr.P.C., the

bail should continue to be in force till is cancelled under S. 437(5) or under S.

439(2) of Cr. P.C.155

5.32 Object Underlying Cancellation of Bail

The object underlying the cancellation of bail is to protect the fair trial and

secure justice being done to the society by preventing the accused who is set at

153 State v. Sardool Singh, 1975 Cri LJ 1348 at p. 1349 (J & K).154 VIvek Rai v. State of Jharkhand, 2007 Cri LJ 680 at p. 682 (Jhar).155 V. Chinna Reddy v. N. VIdyasagar Reddy, 1982 Cri LJ 2183 at p. 2184 (AP).

176

liberty by the bail order from tampering with the evidence in the heinous crime

and if there is delay in such a case the underlying object of cancellation of bail

practically loses all its purpose and significance to the greatest prejudice and the

interest of the prosecution. Once a person is released on bail in serious criminal

cases where the punishment is quite stringent and deterrent, the accused in order

to get away from the clutches of the same indulges in various activities like

tampering with the prosecution witnesses, threatening the family members of the

deceased victim and also creates problems of law and order situation.156

The object of Section 437(5), Cr. P.C. is not punitive but to protect the

interest of justice and to prevent it from being tampered with in any manner by

the accused. The bail granted to an accused can be cancelled if the accused, after

his release on bail, tried to tamper with the evidence or hampers the trial or

investigation, committing an act of violence or commits the same offence again.

The power vested with the Court for cancellation of the bail have to be exercised

with care and circumspection.157

The object of sub-section (5) of S. 437 of Cr. P.C. is to enable the Court,

on sufficient materials being placed before it, to cancel the bail granted or to

direct that such person be arrested and committed to custody. This sub-section

contemplates a situation where a person enlarged on bail has misused the freedom

granted or has disobeyed the conditions imposed or has imperiled the smooth

course of investigation of has done such acts as in the opinion of the Court are

sufficient to cancel the bail already given. To extend the principle contained in the

above sub-section to the instant case (committing a person to custody again for

the purpose of securing recovery under s. 27 of the Evidence Act) would not only

be doing violence to the sub-section but to override the principles under which a

citizen’s liberty is safeguarded. A Court has no right to direct a person to be

committed to custody for the purpose of securing recovery under Section 27. The

prayer to allow the person accused of a crime to remanded to police custody for

156 Panchanan Mishra v. Digambar Mishra, (2005)3 SCC 143.157 Karan Singh v. State of Rajasthan, 1993 Cri LJ 251 at p. 251 (Raj).

177

the specific purpose of securing a confessional statement has therefore to

negatives.

Sub-section (5) of S. 497 of Cr. P.C. (of 1898) is really designed to protect

the interest of administration of justice and to prevent its being hampered in any

manner. In case an order is either based on some misapprehension or being

otherwise infirm, is likely to prejudice the interest of administration of justice,

then this provision of law amply empowers the Courts mentioned there in to make

a suitable order canceling the order of release on bail so as to protect and

safeguard the cause of justice. This provision necessarily implies jurisdiction in

the Court concerned to cancel an order even before the person in question has

been actually released, and it is not intended to prohibit the court from canceling

the order of release on bail before it is executed. This seems to be just common

sense. This provision must be construed in a practical manner for the purpose of

achieving the general purpose and object which the Legislature can reasonably be

presumed to have in view. The argument that being at penal. Statute, this sub-

section should e construed strictly, seems to be wholly misconceived.158

5.33 Power to Cancel Bail to be used very Sparingly

While canceling the bail the Court must always remain mindful and

careful and should exercise these powers very sparingly in most deserving and

appropriate cases only so that the Court which has exercised the power to enlarge

the accused on bail should not exercise this power in a liberal and routine manner.

The legislature while incorporating the provisions for cancellation of bail was

aware that there may be cases in which the accused enlarged on bail may misuse

his position after being enlarged on bail, in order to take care of that situation

provisions have been incorporated in the Criminal Procedure Code for

cancellation of bail, so that the accused should always remain under control and

always remain careful that if he will breach any of the conditions of bail imposed

upon him while granting bail his bail can be cancelled and he will be put in

custody again. At the same time a heavy duty has been cast on the Court that

158 Bakshi Sardari Lal v. Superintendent, Tehar Central Jail, Delhi, 1968 Cri LJ 675 at p.680 (Del).

178

while deciding the cases of cancellation of bail the Court should satisfy its judicial

conscience and in order to satisfy the judicial conscience the Court must see

whether convincing grounds exits for the cancellation of bail, if these grounds

exists only then and then the Court should exercise this power vested in it. The

Court should also bear in mind that after releasing the accused on bail, the

complainant party will keep some sort of grudge against the accused who has

been released on bail. Moreover the Court must always remain very careful while

exercising these powers in the cases which relate to the offences against the

human body which are contained of the Indian Penal Code. IN such cases the trial

Court should also remain more careful and take care that if any fact is brought to

the notice of the trial Court that the witnesses are being pressurized and

threatened to turn hostile to the prosecution story, if it is possible the Court on

priority basis should record the statements of the witnesses in order to remove any

doubt and resolve the controversy.159

Ordinarily, the discretion of the lower Court in granting or refusing bail

would not be interfered. But, if the order suffers from irrelevant considerations,

which are not supported with any material on record, there should not be any

hesitation to interfere with such orders in order to meet the ends of justice.160

5.34 Cancellation of Bail to be with Care and Circumspection

The power to take back in custody an accused who has been enlarged on

bail has to be exercised with care and circumspection in appropriate cases, when

by a preponderance of probabilities, it is clear that the accused is interfering with

the course of justice by tampering with witnesses. The Court has to strike a

balance between two necessities, namely, necessity of not allowing the course of

justice to be deflected and that of allowing liberty to the accused until he is found

guilty.161

Cancellation of an order of bail could be a matter to be dealt with by the

Court under S. 437(5) Cr. P.C. which has released the accused on bail or by the

159 Surnendra Kumar Patel v. State of Chhattisgarh, 2004 Cri LJ 988 at p. 991 (Chhattis).160 Madurai Ganesan v. State of T.N., 2004 Cri LJ 2736 at p. 2739 (Mad).161 Khagendra Nath Bayan v. State of Assam, 1982 Cri LJ 2109 at p. 2111 (Gau).

179

Court of Session or the High Court by virtue of their powers under Section 439,

Cr. P.C.; but that could not be done as and when the Courts are approached with

such a prayer. Rejection of bail stands on one footing but cancellation of bail is a

harsh order because it takes away the liberty of an individual granted to him and

is not lightly to be resorted to. For canceling the bail of an accused there must be

grounds shown to the Court and to only shown, the Court has to be satisfied about

them that they existed on the basis of materials acceptable to it.162

The power to take into custody an accused who has been enlarged on bail

has to be exercised with care and circumspection. The power is of extraordinary

nature and is meant to be exercised in appropriate cases when with preponderance

of probabilities it is clear that the accused has misused the liberty, or compelling

reason exist or grant of bail was illegal and / or was by improper, arbitrary

exercise of discretion. It is easier to reject a bail application in a non-bailable

cases than to cancel a bail granted in such a case. Cancellation of bail necessarily

involves the review of a decision already made. When it would be no longer

conducive to a fair trial to allow the accused to retain his freedom of enjoying

bail, cancellation is called for.163

Section 437(5) and 439(2) of the Code of Criminal Procedure, 1973 deal

with powers of the Court to cancel bail. Unrestricted power is conferred on the

High Court and the Court of Session in the mater of cancellation of bail which, no

doubt, is to be exercised with due care and circumspection. Bail granted illegally

and / or improperly by wrong and arbitrary exercise of judicial discretion can be

cancelled by the High Court under S. 439(2) of the Code, even if there is no

additional circumstance against an accused appearing in record after granting of

bail.164

It is not in routine that bail already allowed is cancelled. Bail once granted

can be cancelled only on very cogent grounds.165

162 Dinesh Parwat v. State of Bihar, 2007 Cri LJ 2890 at p. 2896 (Pat).163 State of Orissa v. Jagannath Patel, 1992 Cri LJ 1818 at p. 1819 (Ori).164 State of Orissa v. Bansidhar Pradhan, (1986)62 Cut LT 699 (Ori) : (1986)2 Orissa LR

520.165 Kanwaljit Singh v. Central Bureau of Investigation, 2003 Cri LJ 1584 at p. 1585 (P & H).

180

5.35 Cancellation of Bail may be Done in Appropriate Cases

Power to cancel bail and take back an accused in custody who has been

enlarged on bail, though has to the exercised with care and circumspection, yet

the power, though extraordinary one, is meant to be exercised in appropriate

cases. Refusal to exercise the wholesome power in cases, few though they may

be, will reduce it to a dead letter and will suffer the Courts to be silent spectators

to the subversion of the judicial process.166

It is true that once an accused has been enlarged on bail, his liberation

from custody cannot be lightly interfered with, but this does not mean that even in

a proper case where ends of justice would be defeated unless the accused is

committed to custody, power of the High Court to cancel the bail cannot be

exercised.167

5.36 Bail may be Cancelled for Good Reasons

In Emperor v. Rautmal Kanumal,168 it was observed that every Judge or

Magistrate trying a criminal case has inherent power to see that the trial is

properly conducted and that the ends of justice are not defeated, and if facts are

brought to its attention, which suggested that unless the person who is being tried

is placed under arrest the ends of justice will be defeated, the Court has inherent

power to direct has arrest. In the instant case, the Magistrate was satisfied that the

accused person had been tampering with a prosecution witness; it was held that in

order to prevent a repletion of the offence the Magistrate was entitled to direct

that the accused be arrested notwithstanding the order for his release on bail. It

was held that it could not be said that an application could be made to the

Sessions Court or the High Court, because those Courts might not be available in

an emergency to make an immediate order.

It is the inherent nature of bail pending trial that it is always liable to be

cancelled for good reasons such as that the accused were tampering with the

prosecution evidence or were threatening the witnesses. The contention that

166 Kalyan Singh v. State of M.P., 1989 Cri LJ 512 at p. 515 (MP).167 State v. Veeramani, 1994 Cri LJ 184 at p. 191 (Mad).168 AIR 1940 Bom 40 : (1940)41 Cri LJ 251 : (1939)41 Bom LR 1232.

181

because there was no application filed by the State against the previous order of

the Sessions Judge granting bail, it was not open to the State to apply for

cancellation of the bail or to apply against the refusal to cancel, is without

substance. The High Court and even the Sessions Court have powers to cancel the

bail granted earlier pending the trial or investigation under S. 439(2) of Cr. P. C.

the High Court can further cancel it in exercise of its inherent jurisdiction under S.

482, Cr. P.C., apart from its powers under Article 227 of the Constitution.169

5.37 Nature of Prof Required for Cancellation of Bail

In Madhukar Purshottam v. Talab Haji Hussain,170 the Bombay High

Court was considering as to what is the nature of the material required for

cancellation of bail. A request had been made to the High Court for permission to

cross-examine the deponents of various affidavits filed before the Court and also

to permit to lead evidence on behalf of the party concerned. Terming it as a most

unusual and extraordinary application, it was observed that in all the years of the

existence of the High Court, an application for the granting of bail or cancellation

of bail or any application in regard to bail was always being disposed of on

affidavits. It was observed that the High Court had been canceling bail with

similar allegations and the cancellation had always been on a consideration of

affidavits filed in Court. In making such application, what was overlooked was

that this was not a trial; the court was not seeking for proof of facts in order to

convict the accused. The court was being asked to make a discretionary order and

it had to be satisfied that the materials placed before it were such as to lead it to

the conclusion that there was a strong prima facie case that if the accused were to

be allowed to be at large he would tamper with the prosecution witnesses and

impede the course of justice. It was held that the High Court had the power to take

evidence if it was so inclined, but that would be a very violent departure from

settled practice and there was no reason whatever in the instant case why such a

departure should be permitted.

169 State of Maharashtra v. Tukaram Shiva Patil, 1977 Cri LJ 394 at p. 399 (Bom).170 AIR 1958 Bom 406 : 1958 Cri LUJ 1308.

182

In Ripudaman Singh v. State of Haryana,171 the Punjab and Haryana High

Court, while considering the question as to which material could be accepted for

the cancellation of bail by the Session Judge, observed that neither police report

made to the District Attorney, nor the application field by the District Attorney,

Unsupported by any affidavit, was evidence in the case and the facts stated therein

could not be accepted as correct.

However, the Jammu & Kashmir High Court, in the case of Sant Ram v.

State,172 had held that there were only three sections in the Cr. P. C. (of 1898)

namely Section 74, 526 and 539-A, according to which a fact might be got proved

by an affidavit and that it implied that an affidavit not covered by these sections

was not legal evidence. It was further held that in an application for cancellation

of bail, the fact that the witnesses were intimidated by the accused persons ought

to be proved by such evidence as can be tested on the touchstone of cross-

examination and not by affidavit.

In Gurdip Singh v. State of Punjab,173 the bail granted to petitioners

accused had been cancelled by the Session Judge on the basis of an application

filed by the complaint. This finding was reached on the basis of a first information

report lodged against the petitioner-accused by the complaint on the allegations

that these accused, accompanied by another person, had threatened and assaulted

the complainant and his relatives with the object of dissuading them from

appearing against the accused in the present case. Support was also sought from

the medico-legal certificate of the complaint. When the matter went to the Punjab

and Haryana High Court, it was contended that the said order was illegal

inasmuch as the conclusion that the accused had misused the privilege granted to

them had been arrived at on the material which was not evidence, and reliance

was placed inter alia on the aforesaid case of Sant Ram v . State.174 However, after

reviewing the decided cases on this point, the High Court disagreed with the view

171 Criminal Misc. No. 510-M (1969 (Punj) decided by Punjab & Haryana High Court onApril 23, 1969.

172 AIR 1952 J&K 28 : 1952 Cri LJ 1223.173 1971 Cri LJ 496 at pp. 497-98(P &H) : AIR 1971 P & H 98.174 AIR 1952 J & K28 : 1952 Cri LJ 1223.

183

expressed in the said Sant Ram case, holding that the decision of an application

for cancellation of bail is not a trial and proof is not being sought of the facts

stated in the application for the purpose convicting or acquitting the accused. All

that is required in such a situation is to ensure that the material placed before the

Court is such so as to enable the Court to come to a conclusion that there was

strong prima facie case that if the accused were to be allowed to be at large, they

would tamper with the prosecution witnesses and impede the course of justice. It

was observed that from the language of Sub-Section(5) of S. 497 and Sub-Section

(2) of S. 498, of Cr. P.C. (of 1898) it was seen that the Court is making only a

discretionary order while canceling the bail, and in doing so can make use of any

material from which facts necessary to infer that the accused were tampering with

evidence could be concluded. It was also held that the facts necessary to come to

the conclusion that the accused had misused the privilege of bail can be

established on the basis of affidavits; however, the first information report or the

medical certificate relating to another case cannot be used as evidence to cancel

the bail in the first case and that the facts information report cannot be accepted as

true without there being affidavits in support of those facts. Accordingly, the

impugned order of cancellation of bail in the instant case was set aside with

liberty given to the State and the complainant to take fresh steps for cancellation

of bail of the said accused persons.

In a case, in support of the prosecution application for cancellation of bail

granted to the accused persons, the affidavit sworn by a Police Sub-Inspector inter

alia stated that it had been reliably learnt that the accused were threatening the

eye-witnesses who were to be examined in the case and that the accused being

influential persons in the village it was likely that they would try to tamper with

the prosecution evidence. In such circumstances, it was held that it was a well-

established practice in bail matter to receive such affidavits and consider their

contents. It was further held that the lower court was not justified in

characterizing the said affidavit as hearsay evidence and therefore as no evidence.

It was also held that as the trial had not yet commenced and the case was not even

184

committed to the Sessions Court, in such circumstances the allegations made by

the police against tampering, though serious, must be considered only on the

affidavits; and that there could not be a sort of semi-trial or an inquiry at such

stage.175

There cannot be any direct proof that the respondents have been tampering

with evidence, but that question will have to be considered by the appropriate

authority at the appropriate stage.176

Mere assertion of an alleged threat to witnesses should not be utilized as a

ground for cancellation of bail, routinely. Otherwise, there is ample scope for

making such allegation to nullify the bail granted. The Court before which such

allegations are made should in each case carefully weigh the acceptability of the

allegations and pass orders as circumstances warrant in law. Such matters should

be dealt with expeditiously so that actual interference with the ordinary and

normal course of justice is nipped in the bud and an irretrievable stage is not

reached.177

A bail cannot be cancelled merely on the basis of allegations that the

accused persons are misusing the privilege of bail when there is no other

convincing material on the record for the Court to come to that conclusion. In the

instant case, it was held by the Patna High Court that no material of convincing

nature was produced before the Sessions Judge to cancel the bail of the accused

persons which had already been allowed about seven months ago and that his

action to cancel the bail was merely on the basis of three reports which had been

lodged on behalf of the informant with the police but about which the police did

not even feel it necessary to make any enquiry to ascertain their truth or

otherwise. Moreover, it was observed that the cancellation petition was filed by

175 State of Maharashtra v. Tukaram Shiva Patil, 1977 Cri LJ 394 at pp. 399, 401 (Bom).176 State of Maharashtra v. Mohd. Sajid Hussain Modh. S. Hussain, (2008)1 SCC 213 at pl.

222.177 Mehboob Dawood Shaikh v. State of Maharashtra, (2004)2 SCC 362 at p. 368 : 2004 Cri

LJ 1359 : 2004 SCC (Cri) 551.

185

the private party, namely, the first informant and the State had not joined that

prayer; in fact, the impugned order vide which the bail was cancelled did not

show that the Public Prosecutor was present and heard in the matter. It was thus

held that the material was not sufficient for cancellation of the bail, and that to do

that, the Sessions Judge should have required some more convincing materials to

come to the conclusion that the accused persons were actually abusing the

privilege of bail. Accordingly, the cancellation of bail was set aside.

In Khaliq War v. State,178 the bail granted to the accused by the Magistrate

had been cancelled by the Sessions Judge. In such circumstances, the High Court

held that it is established principle of law that an order granting bail should not be

lightly interfered with. It was further observed that in the instant case while an

apprehension. It also appeared that the investigation was not complete and there

was incomplete challan even at the time when the Sessions Judge had passed the

order and complete challan had not yet been submitted even at the time of hearing

before the High Court. In the circumstances, it was held that it was not a fit case

in which there should have been an interference with the order of the Judicial

Magistrate granting bail. Accordingly, the order of cancellation of bail issued by

the Session Judge was set aside.

5.38 Trends with Regard to Discretionary Bail in Non Bailable Offence Cases

Where Bail was not Cancelled

i) In Kaplesh Dineshchanedrs Jariwala Vs. State of Gujarat179 where the

accused director of a co-operative Bank was charged under section 409

IPC, the amount involved was Rs.2.70 crores under various loan

transactions, was in jail for the last eight months, had deposited Rs.30.00

lacs, undertook to pay balance monthly there was no question of

repetition of crime, the accused was enlarged on bail.

178 Ibid.179 (2003) 1 Guj LR 706: 2003 CrLJ 2401 (2415)

186

ii) In Jeet Ram Vs. State of Himachal Pradesh.180 There was no material

that the accused after release on bail would abscond to evade trial or

tamper with prosecution evidence bail was allowed.

iii) In Rajesh Ranjan Vs. State of Bihar181 Under section 302 IPC

statement of eye-witnesses, confession of co-accused found not

sufficient to connect the accused with the commission of crime.

5.39 Cases where Bail was Cancelled

iv) In Ohana Kuttan Pillai Vs. State of Kerala182 in case against the accused

under sections 302/307/376, 273, 201, 120B for supplying spirit used in

the manufacture of illicit arrack, causing the death of seven persons and

loss of eye-sight of seven others, bail was refused.

v) In Vijay Kumar Mishra Vs. State of U.P.183 accused MLA facing

prosecution for screening under sections 302, 307, 134, 147, 148, 149

IPC involved in 32 cases including murder and rape, the bail refused.

vi) In Bhagirathi Adiwasi Vs. State,184 the accused charged for offences

under sections 498A, 306, 201, alleged to have physically tortured the

victim who committed suicide on account of non-fulfillment of dowry

demand, was refused to bail.

vii) In Satya Narayan Pillai vs. State of Chattisgarh,185 where accused

was charged under section 376 IPC injuries were found on the person of

the prosecutrix the accused had demanded money from the husband of

the prosecutrix for screening the offender in a murder case, bail was

refused.

Thus, the power to grant bail in case of non-bailable offences is at discretion of

the courts. The courts exercise this discretion in a cautious manner. A number of

180 2002 3 shim LC 349: 2003 CrLJ 736 (739) (HP)181 2005 CrLJ 242 (Pat).182 2004 CrLJ 3453 (3457) (Ker.)183 2003 All LJ 1634: (2003) CrLJ 3429 (3430) (All)184 2004 ACC 197 (All).185 (2003) 2 All In Case 681: 2003 CrLJ 2899 (2900) Chatt.

187

factors and material circumstances are to be taken into consideration before grant

of bail. If cautious approach is not adopted the bail mechanism may be misused

and the accused on bail may pose a threat to society or may repeat the offence

also. The Supreme Court has laid down various principles in this regard. These

principles must be followed in true spirit by the lower judiciary so that the dignity

of the courts may be properly held. While canceling the bail, all the surrounding

factors must be considered by the courts. The facts and circumstances should be

of such a nature, which justify the cancellation of bail.

---- o ----