Provisions as to bail and bonds

Sec. 436 : In What Cases Bail To Be TakenSec436a :Maximum Period For Which An Undertrial Prisoner Can Be Detained Sec.437 :When Bail May Taken In Case Of Non-bailable OffenceSec.437a:bail Ta Require Accused To Appear Before The Next Appellate CourtSec.438 :Directions For Grant Of Bail To Person Apprehending BailSec.439 :Special Powers Or High Court And Court Of Session Regarding Bail

Section 436

436(1) 436(2)No

reasonable ground

That no commission of non bailable offence

Accused shall be

released on bail . As a matter of

right

PROVIDED THAT:-Where such person indigent And is unable to furnish suretyDischarged him on his executing a bond without sureties.

Where a person has failed to comply with the conditions of bail bond as regards the time & place of place of attendance

Court may refuse to release him on bail

--When on the same occasion in the same case appears before the court--person bound by such bond to pay the penalty thereof under sec. 446

SEC. 436 in what cases bail to be taken [r.w . 50(2)]

• When any person• other than a person accused of a non- bailable

offences• is arrested or detained without warrant by an officer

in charge of a police station• or appears or is brought before a court• and is prepared at any time while in a custody of such

officer• or at a stage of the proceeding before such court to

give bail • such person shall released on bail.

firstly • That the person has been accused of a bailable offence

Secondly

• That such person has been arrested or detained by an officer in charge of a police station without warrant or has been appeared or brought before the court.

Thirdly• That he is

prepared to give bail.

CONDITIONS:----

JUDGEMENTS1. SANJAY CHANDRA VS. CBI [AIR 2012 SC] Held:- The principle purpose of bail is to ensure that the accused person will return for trial ,if he is released after arrest.

2. STATE OF RAJASTHAN VS. BAL CHAND [AIR 1977 SC 224]Held:- The provision of bail restore the liberty of the arrested person without jeo-paradize the object of arrest . Therefore the general rule of bail is not jail.

LEADIND CASE:- MOTI RAM VS. STATE OF M.P. [AIR 1978 SC 1594]

Held:- The right to released on bail u/s 436(1) cannot be nullified indirectly by fixing too high the amount . Sec. 440(1) specifically provide that amount of every such bond [BAIL BOND SHOULD NOT BE EXCESSIVE]

Insertion of new section 436-A Max. period for which an Under-trial can be detained [By 2005 amendment]

------This section allows a person to be released on his own surety if he has already spent half the minimum sentence period for the alleged crime in jail. However ,this does not apply if death is punishments specified for the offence.

SEC.437 When bail may be taken in case of non-

bailable offence

Sec.437(2)No reasonable ground then grant of bail

Sec.437(4)Given reason in writing by court to grant bail or not.

Sec.437(6)If trial is not concluded within 60 days

Sec.437(7)Reasonable grounds for believing that accused is not guilty ,it shall release the accused

Sec.437(5) cancellation of bail:- Re- arrest and commit him to custody

Sec.437(3):- conditions may be imposed in following cases.Accused suspected of the commission of an offence which may extend to 7 years imprisonment or under IPC chapter VI,XVI,XVII---any such offence is released on bail. Three conditions (1) shall attend the court. (2) not commit similar offence (3) no inducement, threat or promise

Sec.437(1)>accused or suspected person committed of non- bailable offence>Accused arrested or detained without warrant. Except in following cases Committed offence shall not be punishable with death or life imprisonment

He Shall not be previously convicted

Non bailable u/s 437

Discretion of the

court

Shall not be released on bail if the following conditions are fulfilledConditions:

-• Below 16 years of age• Sick• Infirm, for other

reasons .

Conditional bail

1. punishable with death or life imprisonment

2. Previously convicted of an offence:-

• Punishable with death or life imprisonment

• Or imprisonment for 7 years or more

• Or had been previously convicted on two or more occasions

JUDGEMENTGURCHARAN SINGH VS. STATE(DELHI ADMINISTERATION)

[AIR 1978 SC 179]HELD:- Guidelines by supreme court:-• Nature and gravity of charge • The danger of the likelihood of the accused

person’s absconding if he is released • The danger of witness being tempered with.• Position and status of the accused• Health ,age & sex of the accused • Prevention of offence being repeated.

JUDGEMENTDR. VINOD BHANDHARI VS .STATE OF M.P. (AIR 2015 SC) HELD:- Court should certainly be taken into consideration the delay in concluding the trial while deciding the bail application. Other factors viz., seriousness of the offence and the possibility of the accused influencing course of trial are equally important.

Sec.437(5)

Sec. 439(2

)

CANCELLATION OF BAIL

Any court which has released person an bail u/s 437(1)&(2)May considers it necessary so To do , direct that such person be arrested and commit him to custody.[ Re- arrest of person]

A High Court or Court Of Session mayDirect any person released on bail under this Chapter be arrested and commit him to custody.

Grounds for cancellation of bail:-----

1.Accused misuses liberty2.Interferes with the course of investigation3.Attempts to temper with evidence4.Threaten witnesses which would hamper

smooth investigation5.Liklihood of the accused fleeing away to another

country6.Attempts to make himself scare by going

underground grave offences7.Others.

JUDGEMENTSURENDRA SINGH VS. STATE OF BIHAR

[ AIR 1990 CR.LJ 1904(Pat)]Held:- some grounds are mentioned 1. 1.when the committed offence

created serious law and order in the society2. If the High Court finds that the lower court

granting bail has exercised its judicial power wrongfully

3. If the life if the accused itself be in danger.

SECTION 438 :PRE ARREST BAIL[ANTICIPATORY BAIL]Section 438 of cr.p.c. empowers high court and session court to grant pre arrest bail in case of exceptional nature.

CONDITIONS:-

• Genuine proved apprehension of imminent arrest • Petitioner should physically surrender to the

court• Apprehension of harassment and under

irreparable humiliation by unjustified arrest• It should be otherwise fit case on merits

CANNOT BE CLAIMED AS MATTER OF RIGHT

JUDGEMENTGURBAKSH SINGH SIBBIA V. STATE OF

PUNJAB [AIR 1980 SC 1632]HELD:- Guidelines by supreme court

• Court must consider particular facts & circumtrances of the case

• Use of expression of believe in sec 438 (1) [mere fear is not belief

• Legally it is impossible to pass ex-parte order• No anticipatory bail after arrest• Grant only in exceptional cases

JUDGEMENT

STATE [CBI] V. ANNIL SHARMA[ AIR 1997 SCC 187]

HELD:- In this case the court accepted the argument that it is a case of corruption,.And court refused anticipatory bail to an M.L.A. and son of former union minister for tele- communication

LEGAL PROVISIONS RELATING TO BAIL BY POLICE AND MAGISTRATE

BAIL BY POLICE Arrest made without

warrant Arrest was made in

pursuance of warrant of arrest [sec. 71 & 81]

Powers:- Sections 42,43,56,59,169,170,436,437 and schedule 5 of the code.

BAIL BY MAGISTRATESections:-

59,81,88,106-110,116,117,124,309,330,340,346,349,360,389,395,397,437,

Sec.440 :Amount Of Bond And Reduction ThereofSec.441 :Bond Of Accused And SuretiesSec.441A :declaration By Sureties Sec.442 :Discharge From CustodySEC443 :power to order sufficient bail when that first taken is insufficient.SEC444 :discharge of suretiesSEC445 :Deposit instead of recognizanceSEC446 :Procedure when bond has been forfeitedSEC446A :Cancellation of bail and bail bond SEC447 :Procedure in case of insolvency or death of surety or when a bond is forfeitedSEC448 :Bond required from minorSEC449 :Appeal from orders under section 446SEC450 :Power to direct levy of amount due on certain recognizance.