ACKNOWLEDGMENT

Research is essential collective work, where step is taken with all the caution
and care. As investigator I feel duty bound to mention my thanks to all those have
helped one in my research work. The acknowledgement usually turns out to be the
most pleasant part of the dissertation to write

This is because; it is a place where the investigator can make explicit his debt
to many people, who have helped to make the work possible. Thanks are works poor
expression of the deep depth of gratitude which once feels in one’s heart, yet there is
no better way to express it.

I feel proud and privileged to express my deep feeling of gratitude and

indebtedness to my learned supervisor Dr. Ved Prakash Rai, Assistant professor,
B.S.A. College, Mathura, Dr. Bhim Rao Ambedkar University, Agra for
supervision, constructive criticism, constant encouragement and affectionate
guidance during the course if this study. His suggestion, guidance and cordial
relation would always remain source of light for me in my future career also. The
words are insufficient to express my feeling of indebtedness to him.

I am also thankful to Pro. (Dr.) Rajpal Sharma, Director, Institute of Law &
Prof. (Dr.) Sunil Yadav, Chairman, Department of Law Kurukshetra University for
their kind cooperative during the complete of this dissertation.

In last I would like to thanks my father, other family members and friends who
helped me and encourage me morally as well economically to fish this work.

(Prabhakar Sharma)
LL.M. Final Year
DDE Ref. No.:19239831
 INSTITUTE OF LAW

KURUKSHETRA UNIVERSITY, KURUKSHETRA

DR. Ved Prakash Rai Institute B.S.A. College,

Mathura

LL.M., NET, Ph.D. Dr. Bhim Rao Ambedkar

University, Agra

SUPERVISOR’S CERTIFICATE

This is to certify that Prabhakar Sharma bearing DDE Ref. No.

19239831 in the session 2019-2020 has completed this dissertation
entitled “RIGHT TO BAIL, LEGISLATION & JUDICIAL TRENDS”
under my supervision and guidance. This work is fit for submission and
evaluation. I wish him all success in his life.

Dated…………………….. (VED PRAKASH

RAI)
 CERTIFICATE OF DECLARATION

I hereby undertake that the dissertation titled “RIGHT TO BAIL,

LEGISLATION & JUDICIAL TRENDS” as partial fulfillment of the
requirement of LL.M. Degree of Kurukshetra University, Kurukshetra, is
my own original work and is the result of my own efforts. The research
work contained in the dissertation has not been used in award of any
other Degree or diploma.

(Prabhakar Sharma)
LL.M. Final Year
DDE Ref. No.: 19239831
 CONTENTS

Headings Page
No.

1. Certificate

2. Declaration by the candidate

3. Acknowledgement

Chapter-1 1-
11

INTRODUCTION

1. Philosophy of Bail
2. Concept of Bail
3. Meaning of Bail
4. Object of Bail

Chapter-2 12-
62

BASIC RULE OF BAIL IN CRIMINAL LAW

1. Disposal of Bail Application

A. Bailable offence & Non-Bailable offence
B. Cognizable offence & Non Cognizable offence
2. Preventive Action of Police
3. Detention in Custody
4. Competent Officer for Grant of Bail
A. Bail by Police:
 1. Power of Police to grant bail in an offence
subsequently becoming non-bailable one
B. Bail by Magistrate
1. Bail by Executive Magistrate u/s. 44(1) Cr.P.C.:
I. Bail by Executive Magistrate under section 81
II. Bail in Security Proceedings’
III. Bail by Executive Magistrate u/s 167 Cr.P.C.
2. Bail by Judicial Magistrate:
I. Bail during investigation:
II. Bail in case of person of unsound mind tried
before court:
III. When bail may be taken in case of non-bailable
offences:
IV. Bail after conviction:
V. Bail to a person including witness and surety
VI. Bail to person appearing in court:
C. Bail by Session Judge:
D. Bail by High Court:
E. Bail by Supreme Court:
5. Bail and delayed or improper trial:
6. Absence of prima facie case or insufficiency of evidence
7. Interim Bail
A. Interim bail-Inherent power of Court
B. Grounds for refusing interim or regular bail
C. No interim Bail in serious offences
D. No delay in release of accused where interim bail granted
8. Law of Parity:
9. Accused not likely to abscond or commit offence or tamper with
evidence
10. Absence of Over Act
11. Failure of delay in Identification Test:
12. Illegal detention and Bail-Non-compliance of Section 50, Cr.P.C.
and Article 22 (1) of Constitution of India-Effect.
13. Bail by default of investigation Officer :0-Bail under Default Clause
i.e. Section 167 (2) Cr.P.C.
Computation of detention:
14. Languishing of Accused in Jail for a longer period:
15. Failure to connect accused with the crime:
16. Recall of Bail Orders
17. Cancellation of Bail

Chapter-3 63-
116

PROVISIONS OF BAIL IN CODE OF CRIMINAL

PROCEDURE, 1973

1. Unconditional Bail:
A. Police Custody Remand:
B. Refusal of bail in bailable offence
C. Notice:
D. Executive instructions in consistent with Section 43 are
ultravires:
E. Security Proceedings:
2. Bail in Non-Bailable Offences:

Distinction between Sec. 436 and Sec. 437:

3. Whether custody of accused is necessary for bail:

A. Person appearance/custody of accused- must for bail—
 B. Accused to be permitted to surrender even without report
from police
4. Bail in Complaint Cases-Relevant Circular Letters
5. Discussion of evidence/merits of the case in Bail Order
6. Bail in Altered Sections
7. Defense plea at the time of disposal of Bail Application
8. Affidavits of P.Ws & Bail
9. Hearing of prosecutor & accused on Bail Application
10. Illegal remand, illegal Custody or detention of accused & Bail
11. Criminal History of accused & Bail
12. NBW and Bail
13. Second or successive bail application
14. Seven Judge Bench Decision & Law of Bail
15. Cancellation of Bail [Sec. 437(5) & Sec. 439(2) Cr.P.C.]
A. Ground for cancellation of bail
B. Cancellation of bail on the ground of threat to witnesses—
C. Cancellation of bail on the basis of post bail conduct and/ or
supervening circumstances
D. Cancellation of bail on protraction of trial by seeking
unnecessary adjournments.
E. Cancellation of bail on the basis of non-reasoned bail order
passed by ignoring material on record
F. Cancellation of bail by same Judge not necessary
G. Who can move application for cancellation of bail
H. Notice/Hearing to accused before cancellation of bail
I. Cancellation of bail in Bailable offences
16. Bail u/s 389 (3) Cr.P.C. by Trial Court on conviction
17. Bail u/s 389 Cr.P.C. by appellate court
A. Relevant consideration for grant of bail u/s 389 Cr.P.C.
 B. Second Bail Application u/s 436-A Cr.P.C.
18. Bail under Trials u/s 436-A Cr.P.C.
19. Bail on the ground of long detention on jail
20. (A) Cancellation of Bail by Magistrate granted by police
(B) Cancellation of bail by Magistrate granted by Court of
session or High Court.
21. Revision against grant or refusal of Bail
22. Bail by police officer whether survives after submission of charge
sheet?
23. Parity in Bail
24. Cross Cases & Bail
25. Bail on Medical Ground
26. Appeal Against grant of bail not maintainable
27. Accused in jail beyond local territorial jurisdiction of court Sec. 267
Cr.P.C.
28. Bail u/s 167(2) Cr.P.C.
A. Bail u/s. 167 (2) Cr.P.C. when can be granted
B. Computation of 60/90 Days
C. Bail u/s. 167 (2) Cr.P.C. after filing of charge sheet
D. Cancellation of bail granted u/s. 167(2) Cr.P.C.
E. Bail granted u/s. 167(2) Cr.P.C. not to be cancelled after
submission of charge sheet
F. Application must for bail u/s. 167(2) Cr.P.C.
G. Accrued right of bail u/s. 167(2) Cr.P.C. how long survives?
No bail u/s. 167(2) Cr.P.C. after filing of charge sheet
H. Section 173 (8) Cr.P.C. & Bail u/s. 167(2) Cr.P.C.
I. Submission of charge sheet before filling of bail bonds after
bail u/s. 167(2) Cr.P.C.
 J. Magistrate to inform the accused of his accrued right to bail
u/s. 167(2) Cr.P.C.
K. No Bail u/s. 167(2) Cr.P.C. during extended period of
investigation beyond 60/90 days.
L. Revision against order u/s. 167(2) Cr.P.C.
M. Accused to be released on bail u/s. 167(2) Cr.P.C. when
after filling of the application by the accused charge sheet is
filled.
N. Bail u/s. 167(2) Cr.P.C. after submission of charge sheet
during the pendency of proceedings before the higher forum
against magisterial order rejecting the application u/s. 167(2)
Cr.P.C.
O. Submission of charge sheet after grant of bail u/s. 167(2)
Cr.P.C. but before furnishing of bail bonds
P. Presiding Officers to write to SSP against the investigating
Officer failing in submitting police report u/s. 173(2) Cr.P.C.
within 60 or 90 days.
29. Compromise & Bail
30. Bail u/s. 88 Cr.P.C.
31. Bail u/s 81 Cr.P.C.
32. Bail order to be speaking

Chapter-4 117-
156

BAIL IN SPECIAL STATUTES

1. Bail Provisions in Narcotic Drug and Psychotropic Substances Act,

1985 (NDPS ACT, 1985)
 Provisions of the Code of Criminal Procedure, 1973 to apply to
warrants, arrests, searches and seizures:

Power to entry, search, seizure and arrest without warrant or

authorization:

Condition under which search of person shall be conducted

2. “The Terrorist and Disruptive Activities (prevention) Act (TADA,

ACT),1987
Bail under TADA : Duty of Designated Court
Bail applicability of Section 167(2) Cr.P.C. and other Provisions of
Code:
Cancellation of Bail by Designated Court:
Remand by Designated Court:
Grounds for Granting Bail:
Meaning and Scope of 20(8) of TADA:
3. Bail under conversation of Foreign Exchange and Smuggling
Activities Act, 1974 (COFEPOSA ACT, 1974)
4. Bail in Cases under Maharashtra Control of Organised Crime Act,
1999 (MCOCA)
5. Bail to Juvenile u/s. 12 of Juvenile Justice (care & protection of
children) Act, 2000
6. Bail under U.P. Gangster and Anti-Social Activities (Prevention)
Act, 1986.
7. Bail under U.P. Control of Goondas Act, 1970.
8. Bail under Essential Commodities Act, 1955
9. Bail under Prevention of Corruption Act, 1988
10. Bail under Prevention of Cow Slaughter Act, 1955
11. Plea of Sanction u/s. 197 Cr.P.C. at the time of Bail
12. Bail under U.P. Dacoity Affected Areas Act, 1983 & the SC/ST
(prevention of Atrocities) Act, 1989
13. Bail u/s. 7 Criminal Law Amendment Act, 1932
14. Bail by Magistrate under SC/ST (Prevention of Atrocities) Act,
1989
15. Bail in Bihar Fodder Scam Cases Illustrative Cases

Chapter-5 157-
180

BAIL & JUDICIAL DISCRETION

1. Right to speedy trial is a Fundamental Right

2. Discretion to be exercised in judicious manner, and not in a casual
or cavalier or arbitrary manner
3. Criteria for judicial discretion to grant or refuse bail.

Chapter-6 181-
190

Conclusion & Suggestions

Bibliography
 CHAPTER-1

INTRODUCTION

1. Philosophy of Bail

The institution of bail like any other branch of law has its own
philosophy and to understand the same it is necessary to go
through its various stages of development. In ancient period and
that too in uncivilized society one can hardly conceive the system
of bail while in the civilized society it has become the rule.

No one can question the importance of bail in the

administration of criminal justice system and it is a very valuable
branch or procedural law. In the ancient period criminal justice was
so quick and crime rate was so law that the criminal trial got
concluded in a day or two. That is why the provision of bail was
unknown to the society. With the passage of time the criminal trials
got delayed day by day and a basic principle of law developed that
one cannot be convicted unless the guilt of person is not proved.
On the basis of the principle it was deemed unjust to keep a
person behind the bar on the basis of an assumption that his guilt
is likely to be proved after the conclusion of a trial. The concept of
bail emerged to save a person from the police custody which may
be for a longer period because the justice delayed has become the
normal phenomenon of our criminal justice.

Personal liberty is deprived when bail is refused, is too

precious a value of our Constitutional system recognized under
Article 21 that the crucial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern for the
cost to the individual and the community. To glamorize
impressionistic orders as discretionary may, on occasions, make a
litigative gamble decisive of a fundament right. After all, personal
liberty of an accused or convict is fundamental one, suffering
lawful eclipse which is possible only terms of “procedure
established by law”. So deprivation of personal freedom,
ephemeral or enduring, must be founded on the most serious
considerations, relevant to welfare objectives of society, specified
in the constitution. Reasonableness postulates intelligent care and
predicates that deprivation of freedom by refusal of bail is not for
punitive purpose but for bifocal interests of justice to the individual
involved and society affected.1

Like any other constitution of civilized country, Article 21 of

our Constitution provides:-

“No person shall be deprived of his life and personal liberty

except according to procedure established by law”. So what if in
million of cases, people are routinely being deprived of their
personal liberty with “no bail but jail” in the absence of expedited
trials and year1 after KRISHNA IYER, J., having raised the
questions of “BAIL or JAIL?” in his oft-quoted words!.

Article 22 of Constitution of India Provides2:-

(1) “No person who is arrested shall be detained in custody

without being informed, as soon as may be, of the
grounds for such arrest not shall be detained the right to

1. Babu singh vs. State of U.P. AIR 1978 SC 527 (529).

2. Constitution of India.
 consult, and to be defended by, a legal practitioner of his
choice.
(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a
period of twenty-four hour of such arrest excluding the
time necessary for the journey from the place of arrest to
the court of the magistrate and no such person shall be
detained in custody beyond the said period without the
authority of magistrate.
(3) Nothing in clauses (1) and (2) shall apply
a. To any person who for the time being is an enemy
alien or
b. To any person who is arrested or detained under
any law providing for preventive detention.”

It is also recognized in the England Law and American

Constitution. VIth Article of American Constitution provided that in
all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial by an impartial jury of the State and District
where in the crime shall have been committed which District shall
have been previously ascertained by law and to be informed of the
nature and cause of accusation.

To the concept of bail in England may traced back to the system of

frank pledges adopted in England following Norman conquest
where the community as a whole was requires to pledge its
property as a security for the appearance of the accused at the
trial. The concept of community’s liabilities was later on replaced
by the system of third person responsibility and there still remained
the capacity of the accused to remain free till the conclusion of the
 trial by furnishing security. Thus under the Common Law of
England, the system of interim release pending trial was prevalent,
and the sureties had to be bound to produce the accused to face
the trial on his failure to appear or to face the trial in his place. It
was subsequently replaced by the issue of forfeiture of bond and
surety and imposition of penalty appointed date.

With the advent of British Rule in India, the common law rule
of bail was introduced in India as well and got statute recognition in
Codes of Criminal Procedure, 1861, 1872 and 1898.

The system of bail was also in use to some extent in the

ancient period in India and to avoid pre-trial detention, Kautilya’s
Arthasastra also advocated speedy criminal trial. The bail system
was also prevalent in the form of Muchalaka i.e. personal bond
and zamanat i.e. bail in Mugal period.

After independence, the Law Commission of India in its 411st

Report on Code of Criminal Procedure also recommended the
system of bail in the light of personal liberty guaranteed in the
constitution and recognized the bail as a matter of right if the
offence is bailable and matter of discretion if the offence is non-
bailable, denial of power of Magistrate to grant bail if the offence is
punishable with life imprisonment, death and conferring wide
discretionary power on High Court and Session Judge to grant in
such cases.

2. Concept of Bail
History of the concept of bail has been briefly set out in a
publication on “Programme in Criminal Justice Reform, as quoted”
by Supreme Court: “The concept of bail has a long history and
 deep roots in England and American Law. In medieval England,
the custom grew out of the need to free untried prisoners from
disease ridden jails while they were waiting for the delayed trials
conducted by travelling justices Prisoners went bailed, or
delivered, to reputable third parties of their own choosing who
accepted responsibility for assuring their appearance at trial. If the
accused did not appear, his bailor would stand trial in his place…
Eventually it became the practice for property owners who
accepted responsibility for accused person to forfeit money when
their charges to appear for trial. From the grew modern practice of
posting money through a commercial bondsman who receives a
cash premium for his service, and usually demands some
collateral as well. In the event of non-appearance the bond is
forfeited, after a grace period of a number of day during which
bondsman may produce the accused in court”
Commenting on the aforesaid brief extract from the history of
the concept of bail, the Supreme Court, speaking through
KRISHNA IYER, J., observed as under “It sounds like a culture of
bounded labour, and yet are we to cling to it! Of course, in the
United States, since then, the bondsman emerged as commercial
adjunct to the processes of criminal justice, which, in turn, bred
abuses and led to reform movements like Manhattan Bail Project33.
This research project spurred the National Bail Conference, held in
1964, which in its crucial chain reaction provided the major
impetus to a reform of bail law across the United States. The
seminal statutory outcome of this trend was the enactment of the
Bail Reform Act of 1966 signed into law by President Lyndon B

3 Conducted by the Verna Foundation and the Institution of Judicial Administration at New York University
School of Law.
Johnson. It is noteworthy that Chief Justice Earl Warren, Attorney
General Robert Kennedy and other legal luminaries shared the
view that bail reform necessary. Indeed, this legislative scenario
has a lesson for India where much later Criminal Procedure Code
1973 has largely left untouched ancient provisions on this subject,
incongruous with the Preamble to the Constitution.”
It goes without saying that the following challenge put forth
by KRISHNA IYER, J., way back in 1978, to the researches and
jurists in India, Calling for conducting detailed research for
improvements in the prevailing bail system in India, has remained
largely unheeded.
“Hopefully one wish that socio-legal research project in India
were started to examine our current bail system. Are researchers
and jurist speechless on such issues because pundits regard
these small men’s causes not worth while? Is the art of academic
monitoring of legislative performance irrelevant for India? The
reforms carried out in bail jurisdiction in U.S. through the American
Act of 1966, stipulated, inter alia, that release should be granted in
non-capital cases where there is reasonable assurance that the
individual will reappear when required; that court should make use
of variety of release options depending on the circumstances; that
information should be developed about the individual on which
intelligent selection of alternatives should be based. The
Manhattan Bail Project, conducted by the Verna Foundation and
the Institution of Judicial Administration at New York University
School of Law, found that about 65% of the felony defendants
interviewed could be recommended for release without bail. Of 2,
195 defendants released in this way less than one per cent can fail
to appear when required. In short, risk of financial loss is an
 insubstantial deterrent to fight for a large number of defendants
whose ties with the community are sufficient to being them court.

3. Meaning of Bail
Webster’s Dictionary defines bail as follows4:
“Bail is a security given for appearance of prisoner in order to
obtain his release from imprisonment; a temporary release of a
prisoner upon security; one who provide bail”.
Wharton’s Law Lexicon defines bail in the following manner:
“To set a liberty a person arrested or imprisoned, on security
being taken for his appearance on a day and at a place certain,
which security is called bail, because the person arrested or
imprisoned is delivered into hands of those who bind themselves
or become bail for his due appearance when required in order that
he may be safely protected from prison to which if they have, if
they fear his escape, etc, the legal power to deliver him.”
Stroud’s Judicial Dictionary defined “Bail” as followings5:
“Bail is when a man is taken or arrested for felony, suspicion
of felony, indicated of felony or any such case, so that he is
retrained of his liberty. And being by law bailable offered surety to
those which have authority to bail him, which sureties are bound
for him to the king’s use in a certain sum of money, or body for
body, that he shall appear before the justice of Gaole delivery at
the next session, etc.”
In Concise Oxford Dictionary and Chamber’s 20th Century
Dictionary, the meaning of the word “bail” has been explained as a
sum of money paid by or for a person who is accused for wrong

4 Webster’s 7th New Judicial Dictionary.

5 Stroud’s Judicial Dictionary 5th edition.
 doing, as security that he will appear at his trial, until which time he
is allowed to be free.
Etymologically the word “bail” has been derived from the
French old verb “bail” or having meaning “to deliver” or “to give”.
Another view is that the word is derived from the Latin term
“Bajalure”| which means, to bear burden.
Hon’ble Mr. Justice M.R. Malick, in his book “Bail” has
deduced the meaning of Bail6 as a technique evolved for effecting
a synthesis of two basic concept of human values, namely, the
right of an accused to enjoy his personal freedom and the public
interest on which a person release in conditioned on the surety to
produce the accused person in court to stand the trial.
The concept of bail denotes a form of pre-trial release or
removal of restrictive and punitive consequences of pre-trial
detention of an accused. Corpus Jurist Secundum defines bail as a
means to deliver an arrested to his sureties, on their giving security
for his appearance at the time and place designated, to submit to
the jurisdiction and judgment of the court. Halsbury’s Laws of
England defined it- “Bail in criminal proceedings means bail
granted in or in connection with proceedings for an offence to a
person accused or convicted of the offence.”
The word “bail” has, nowhere, been defined in Code of
Criminal Procedure. The old and the new code have defiened the
expression “bailable” and “non-bailable” in section 4(1)(b) and
section 2(a) respectively Bailable offence has been defined to
mean an offence which is made bailable by any law for time being
in force, and the expression “non-bailable” to mean any offence
other than bailable.

6 Kamlapati v. State of West Bengal, AIR 1979 SC 277,

 The main objective of bail is to remove the restrictive and
punitive consequences of pretrial detention of the accused which is
made by delivering the accused to the custody of a third party(s)
i.e. surety by way of furnishing of surety bonds or to one’s self by
way of execution of personal bond only. Bail may be ordered to be
allowed with appropriate conditions covering three different types
of situations:
(a) Where the custody is deemed to be safe with the accused
himself,
(b) Where it is delivered to the surety, and
(c) Where it may be given to the state for safe custody.

The institution of the bail has been made to keep the accused
available to answer the charge and in order to perform this function, the
institution of bail has been made to deliver the accused to safe custody
in aforesaid manner, but in all cases accused is assured of beneficial
enjoyment of freedom in regulated manner.

4. Object of bail

The system of bail establishes adjustment between the State’s

duty to protect its citizen from the onslaught of criminals and the basic
principle of criminal Law that no person can be convicted unless his guilt
is proved7. The object of taking surety bonds in the form of bail is to get
assurance of accused to remain available for facing trial. The court has
also the duty to see that while allowing the bail, accused must remain
available to face the trial without interfering into the process of criminal
justice. The Court has also to see that accused may not flout the
condition and terms of bail, in any.

7 Supdt. And L.R. v. Amity Jumar Roy Chaudhary, (1974) Cal. W.N. 320
 CHAPTER-2

BASIC RULE OF BAIL IN CRIMINAL LAW

Normally the bail must be granted except where there are
circumstances suggestive of fleeing 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 of bail form the court8. However serious an offence may be,
if it is bailable, the seriousness of the offence will not justify refusal of
bail.9 The principle underlying release on bail is that an accused person
is presumed in law to be innocent till his guilt is proved. As a presumably
innocent person, he is entitled to freedom and opportunity to look after
his case, provided his attendance in court at the appropriate time is
assumed by proper security.10 It is an inability of existing judicial system
to try an accused expeditiously. Therefore the accused cannot be
detained in judicial custody for a long time by refusal to grant bail.11
Order granting or refusal bail need not necessarily be speaking or
reasoned.12

1. Disposal of Bail Application :

The accused has a right to claim expeditious disposal of his bail

application by the court on the day of his surrender and the court should
dispose of the bail application of the accused the same day1314, which is
part of right to personal liberty. The right of speedy trial implicit in Article

8 State of Rajasthan v. Balchand, AIR 1977 SC 2447.

9
Abdul Habikhan v. Emperor, AIR 1928 All. 211.
10
Emperor v. H.L. Hutchinson, AIR 1931 ALL 356.
11
Babu Mulla v. State of M.P., 1978 Cr.L.J. 1846.
12
Jivaji Jadeja v. State of Maharashra AIR 1987 SC 1491 : 1987 Cr.L.J. 1850
13
Lateef v. State of U.P. 1990 All, L.J. 659
14
Babu Ram v. State of U.P., 1988 A.Cr.R.464.
21 and section 309 of Cr.P.C. has to take precedence over other
consideration, such as gravity of the offence, at the time of
consideration, bail application. Non framing of charge even after a lapse
of one year of the committal of case was considered fit case for bail.15
Hon’ble Allahbad High Court in writ petition16 17
held that bail applications
should be disposed of same or as expeditiously as possible. While
considering the bail, if the court has some practical difficulty in its
disposal, the court should release the accused on his furnishing
personal bond till such time the court is able to hear and dispose of the
bail application finally18, and where the bail application has been moved
at the time of grant of remand then the remand and bail application
should be dealt with together without postponement of the hearing of
either of them.19 But Hon’ble Justice Virendra Saran in a case20 held that
the Magistrate is justified in not hearing the bail application where
accused was not in judicial custody. Confinement to jail for indefinite
period refusing bail for want of relevant material supply of which is
mandatory for investigating agency, amounts to punishment and is
contrary to the philosophy of criminal jurisprudence21. In another case
Allahabad High Court (F.B.) held that right to speedy trail includes the
right to get bail application decided expeditiously and if possible the
same day and where the Magistrate comes to the conclusion that the
charges leveled against the accused do not make out any non bailable
offence, only in that event the accused certainly can be released on bail
but that too after ascertaining and hearing the prosecution subject to

15
Dilip Kumar v. State of U.P., 1989 All. L.J. 1204.
16
Malwati v. State of U.P., Crim. Misc. Writ Prtition No. -/1993d/0n 07.04.1993, All. H.C.
17
Dr. Vinod Narayan v. State of U.P., Crim. Misc. Writ Petition No. 3643/1992 decided on
01.02.1995(FB)(All.H.C.) 1995 ACC375 All. (F.B.)
18
Lateef v. State of U.P. 1990 All.L.J. 1396 All (DB).
19
K.K. Girdhar v. MS. Kathuria, 1989 Cr.L.J. 1094 Del.
20
Ranjeet Kumar alias Laddo Singh v. State of U.P. Crim. Misc. case No. 522/1994
21
Dr. Vinod Narayan v. State of U.P., 1995 ACC 375 All. (FB).
availability of record because State represents the society and every
crime is an offence against society.22

A. Bailable Offence & Non Bailable Offence:

Bailable offences are offences which are mentioned as such is

schedule I to the code of criminal procedure. In such cases the accused
has right to be released on bail. The Law Commission’s Report on the
basis of which is present Code of Criminal Procedure 1973 was enacted
observed that the broad principle adopted in the report was that bail was
a matter of right if the offence was bailable. And was a matter of
discretion if the offence was non-bailable.

As the word “Non-Bailable” denotes, there is no question of

claiming a right to bail by accused. Accused is non-bailable offence shall
not be released on bail as a rule like in bailable offence, but he may be
so released if there are reason to believe that the case against the
accused is not likely to succeed or there are special circumstances for
grant of bail.23

In a bailable offence court has no discretion to refuse bail as in the

case of non bailable offence, Bail granted in bailable offence, later be
cancelled except on development of situations which leads to conversion
of the offence into non-bailable one or when the accused misuses the
liberty and fails to appear before the court when required causing
hindrance in the progress of the trial.

But bail in non-bailable offence may be cancelled,24 bail in non-

bailable offence is a concession granted to the accused, and power of

22
Dr. Vinod Narain (Supra)
23
Mata Palat v. Emperor AIR 1923 All. 479; 26 Cr.L.J. 4.
24
Section 437(5) Cr.P.C. 1973
court are still restricted where the offence is punishable with life
imprisonment or death sentence, but the police officer is at all, not
empowered to grant bail in such offences, while the court may grant bail
of accused is infirm or sick person or woman or person under the age of
sixteen years. Thus bail in non-bailable offence is not a rule like in
bailable offence. Thirdly unlike bailable cases, in the case of non-
bailable offence a Court may impose any condition other than fixing of
the bail for the attendance of the accused. Such conditions are legal.25

B. Cognizable Offence and Non Cognizable offence:

The basic difference between the two is that in the former case the
police officer has the power to arrest the accused under section 41 of
the Code of Criminal Procedure without a warrant and without any order
of the Magistrate while in the latter, except when accused refused to
give his name and address26, the police officer has no power to arrest
the person who has committed or is accused of committing a non-
cognizable offence unless the Magistrate has ordered so. The list of
cognizable offences and non-cognizable offences has been given in the
First Schedule of the Code of Criminal Procedure.

2. Preventive action of police:

The code empowers a police officer to interpose for the purpose of

preventing commission of a cognizable offence to the best of his ability27
and every police officer is under a duty to communicate the information
of a design regarding commission of any such offence which he has
received to his superior who are under a duty to prevent or to take

25
In re Sardamma, AIR 1965 A.P., 444.
26
Section 42 of Cr.P.C. 1973
27
Section 149 of Cr.P.C. 1973
cognizance of such crime28. However such officer appears to have
understood that situation so grave that it may go out of control then he
may arrest such person going to commit any cognizable offence. Further
police has been empowered under Code to arrest without orders from
Magistrate where he gets knowledge of design of the commission of
cognizable offence and prevention of the same otherwise appears to be
difficult. Such arrest shall not exceed a period of twenty four hours from
the time of his arrest except otherwise permissible under the provisions
of the Code of any other law for the time being in force.29 Thus it is clear
that under section 151police officer can detain such person only for
twenty four hour and if his further detention is necessary he shall have to
obtain order from the competent jurisdiction.

3. Detention in Custody:

The Besides the aforesaid provisions of arrest given in section 43

and 44 of the Code there are certain other provisions in the Code in
which the accused person can be detained in custody. Such detention in
custody may involve release of such person on bail by court which are
given in the various provisions of the code.

In the case of trial of unsound mind whenever it is found that such

person or accused is of unsound mind and incapable of making his
defense, the Magistrate or Court as the case may be irrespective of
provisions of the bail in the Code or Law for the time being in force, may
release him o being given sufficient security firstly that shall be properly
taken care of and shall be prevented from doing injury to himself or to
any other person and secondly to secure his appearance in court
whenever required. But bail should not be taken if security is not

28
Section 150 of Cr.P.C. 1973
29
Section 151 of Cr.P.C. 1973
sufficient, and in that case Magistrate or court, as the case may be shall
order for the safe custody of the accused on an appropriate place and
manner. Same shall be reported to State Government30. Subsequent to
it if such person ceases to be of unsound mind, the Magistrate or Court
may order for production of the accused to face trial31. On production of
accused again if the Magistrate or court finds him capable of making
defense, the trial shall be proceeded with32 but if the accused is found
still incapable of making defense their accused shall again be dealt with
according to the provision of section 330 of Cr.P.C.

When any court on an application made to it in this behalf or other

is of an opinion that is necessary in the interest of justice to make an
enquiry into any offence given in clause (b) of section 195(1) Cr.P.C
appear to have been committed in or in relation to a proceeding in that
court as the case may be, in respect of a document produced or given in
evidence in a proceeding in that court such court may under section 340
Cr.P.C. make a preliminary enquiry and record a finding to effect and
send a written complaint there of the Magistrate having jurisdiction to
take cognizance of the offence. During such course the court shall
require the accused to give sufficient security for hi appearance before
the Magistrate but if the offence is non-bailable one, the court may send
the accused in custody to the Magistrate and bind over any person to
appear and give evidence before such court33. In other words, the
Magistrate may detain him into custody or grant bail. Above said power
has also been given to the appellate court under section 341 Cr.P.C. of
the trial court has refused to exercise such jurisdiction.

30
Section 330 of Cr.P.C.
31
Section 331(1) Cr.P.C.
32
Section 331(1) Cr.P.C.
33
Section 340 (1) Cr.P.C.
 4. Competent Officer for Grant Bail:

Under the Code, the officer in charge of police station and court
both have power to grant bail.

A. Bail by police

Police Officer in charge of police station has power to grant bail in

following circumstances:

(I) When the true name and residence of the person arrested,
who is accused of non cognizable offence and committed the
same in the presence of such police officer, has refused
disclose his identity or has given believably false identity, is
ascertained {Section 42(2)}.
(II) Where the true name and residence of the person arrested
by the private person subsequently handed over in the
nearest police station is ascertained. If the said person is
accused of non-cognizable offence and has refused to
disclose his identity or has given believably false identity
{Section 43(3)}
(III) When the evidence is sufficient to make prima facie case
against the accused regarding the commission of an offence
{Section 169}
(IV) In All Bailable offences.
(V) In non-bailable offences if the offence is not punishable with
death, life imprisonment or imprisonment for seven years or
more or if the accused had not previously been convicted on
two or more occasions of a non-bailable and cognizable
offence. But Police Officer should give reason in granting bail
in the non-bailable offences. The power of a police officer to
 grant bail cannot be curtailed by way of issuing executive
instruction34. The grant of bail to a person accused a non-
bailable offence by police officer is a discretionary one uner
section 437 Cr.P.C. But as soon as the officer in charge of
police station is satisfied during investigation that there are
sufficient grounds for believing that the accused has not
committed a non-bailable offence then at once accused
acquires the right to get bail35. But the officer in charge of a
police station while granting bail in non-bailable offence,
especially when the offence is punishable with death, or with
imprisonment for life or seven years or more, shall have to
give reasons for so doing.36

Power of Police to grant bail in offence subsequently

becoming non-bailable one:

As soon as offence becomes non-bailable one, the provisions of

section 436 Cr.P.C. cease to be applicable. The Police Officer or
investigating officer can in such circumstances arrest the accused if he
desires to investigate the case in the light of additional evidence to make
out the case non-bailable offence.37

The power of a Police Officer or In charge of a Police station to

grant bail and the bail granted by him comes to an end with the
conclusion of the investigation except in cases where the sufficient
evidence is only that of a bailable offence, in which eventually he can
make surety for appearance of the accused before the Magistrate on a
day fixed or from the day to day until otherwise directed. No party can be
34
State v. Lal Singh, AIR 1981 SC 368.
35
Section 437(2) of Cr.P.C.
36
Section 437 (4) of Cr.P.C.
37
Babu Bamboj v. State of Rajsthan, 1986 R.L.W. 699.
claimed with an order passed by Magistrate in view of enabling
provision, contained in clause (b) of Section 209, under which the
committal Magistrate has been empowered to grant bail until conclusion
of trial, which power was otherwise restricted to grant of bail by him
during pendency of committal proceedings under clause (1) of section
209 of the code.38

B. Bail by Magistrate
1. Bail by Executive Magistrate u/s. 44(1) Cr.P.C.

Section 44(1) empowers any Magistrate whether Executive or judicial

to arrest a person who commits “any offence” in the presence of such
Magistrate, even in respect of that offence which cannot be taken
cognizance without a complaint made under the authority to the State
Government. But such Magistrate is not a Court. Such detention for
more than twenty four hours is illegal one unless the a remand order to
custody under section 167(1) is obtained by producing him before
competent Magistrate. If this procedure is going to be not followed on
remand order is not going to be obtained, then the Executive Magistrate
can release such offender on bail under the provision of bail given in the
code under section 436 and 437 for bail and non bailable offences
respectively. But in such case, the Magistrate has to take undertaking of
appearance before the court having jurisdiction on any appointed day.

(I) Bail by Executive Magistrate under Section 81:

This section empowers an Executive Magistrate to release a person

on bail produced before him, if the offence is bailable one and the
person ready to furnish security bonds provided such person arrested a
warrant of arrest executed outside the district in which it was issued.

38
Hazi Mohd. Wasim v. State of U.P., 1992 Cr.L.J. 1299 ALL.
Such Magistrate, in case of granting bail, shall have to forward the bail
bonds to the court which issued the warrant

(II) Bail in Security Proceedings:

(a) When an Executive Magistrate makes an enquiry into breach of
peace and disturbance of police tranquility caused by a person
Section 107, or receives information regarding dissemination of
seditious matter by a person under section 108, or regarding a
person concealing his identity with a view to commit cognizable
offences or receive an information regarding residing of habitual
offender within his local jurisdiction or if such person does not
appear in spite of issuance of summon or warrant under section
133 of Code of Criminal Procedure, then the Executive Magistrate
may order to detain such person in custody till he furnishes surety
bonds with or without executing personal bond under section
166(3) of the code.
(b) If upon enquiry, it is proved that is necessary for keeping the
peace or maintaining good behavior that the person regarding
whom the enquiry is made should execute bond, with or without
sureties, the magistrate may make order accordingly.39
(III) Bail by Executive Magistrate u/s 167 Cr.p.c.:-

Where a judicial Magistrate is not available to grant remand in a case,

the section 167(2A) empowers the officer in charge of a police station or
the police officer make the investigation to forward the accused along
with relevant material and case diary to the nearest Executive Magistrate
on whom the power of Judicial or Metropolitan Magistrate have been
conferred. Such Executive Magistrate can grant remand for a Judicial
Custody of not more than seven days in aggregate. This exercise of

39
Section 117 of Cr.P.C.
power is valid only when judicial magistrate is not available. While
granting remand by Executive Magistrate he may release the accused
on bail in accordance with the provisions of section 436 and 436 of
Cr.P.C.

2. Bail by Judicial Magistrate:-

Bail before a Judicial Magistrate can be moved at any stage of

investigation, enquiry or trial, at the time of the commitment or after
conviction until & proper bail order is obtained from the appellate court.

(i) Bail during investigation:-

Bail during investigation by a Judicial Magistrate shall have to be

granted according to the principles of bail laid down in section 436
and 437 of code of criminal procedure except under circumstances
given in proviso (a) of section 167 Cr.P.C. Where the investigation
cannot be completed within a period of fifteen days the Magistrate
may authorized the detention of the accused in custody for a total
period of ninety days, and the investigation relates to an offence
punishable with death or imprisonment for life or imprisonment for a
term not less than ten years and sixty days when the investigation is
not completed within the aforesaid period, the accused shall be
released on bail if he is prepared and does furnish bail.

To grant bail the custody of the accused is essential for

considering the application for grant of bail.

The provisions of bail come into operation only when a person

accused of non-bailable offence is brought before th court and not
earlier to that40. The expression “appear” occurring in this section

40
1978 UCE (Bom.) 499(504).
 including voluntary appearance “as when a person accused of an
offence seeks bail by” appearing in Court, he is fact surrenders to the
custody of the court and the expression “appear” in that sense means
“present and surrenders” himself before the court. In such
circumstances there would be notional detention of the accused
person.41 Person not under restrain voluntarily appearing and
surrendering before court is not entitled to bail. Person(s) places
under restrain by arrest or otherwise cannot be granted bail.42 The
word “Court” under section 436 and 437 means the Court which has
jurisdiction to try the accused for the offence alleged to have
committed by him.43

(ii) Bail in the case of person of unsound mind tried before the
Court:-

When a person is on unsound mind is found incapable of making

his defense then in that case the Magistrate or Court of session may
release him on bail after taking adequate security on the condition
that he shall be taken care of and shall be prevented from doing injury
to himself or to any other person and for requiring his appearance
before any Magistrate or Court, order may also be passed for the
same.44

Where any person other than a person accused of non-bailable

offence is arrested or detained without warrant by an officer in charge
of police station or appears or is brought before a court, and is
prepared at any time while in the custody of such officer or at any
stage of proceeding before such court to give bail, such person shall

41
1979 Cr.L.J. 345 (350).
42
Bharmar v. State of Orissa, 1981 Cr. L.J. 1957 (1059).
43
1975 Cr.L.J. 1249 (1254) (D.B.) Cal.
44
Section 330(1) Code of Criminal Procedure.
 be released on bail.45 Under this provision the power to release a
person on bail in bailable offence is vested in the court.

(iii) When bail may be taken in case of non-bailable offences:-46

1. When any person accused of, or suspected of the commission
of any non-bailable offence is arrested or detained without
warrant by an officer-in-charge of a police station or appears or
is brought before a court other than the High Court or Court of
Session, he may be released on bail but:
a. Such person shall not be released if there appear
reasonable grounds for believing that he has been guilty
of an offence punishable with deal or imprisonment for
life.
b. 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
or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a non-
bailable and cognizable offence.

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

clause (1) or clause (ii) be released on bail if such person is under the
age of sixteen years or is a woman or 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 witness during investigation shall not be
45
Section 436(1) Code of Criminal Procedure.
46
Subs. By the Code of Criminal Procedure (Amendment Act, 1980 (63 of 1980) section 5 W.E.F. 23/09/1980
sufficient ground for refusing to grant bail if he is otherwise entitled to be
released in bail and gives an undertaking that he shall comply with such
directions as may be given the court.

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
166]A 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 thereinafter provided.

2. When a person accused or suspected the commissions 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 if the Indian Penal Code or abetment of, or
conspiracy or attempt, any such offence, is released on bail
under sub-section (1), the court may impose any condition
which the court considers necessary-
a. In order to ensure that such person shall attend in
accordance with the conditions of the bond executed
under this Chapter, or
b. In order to ensure that such person shall not commit an
offence similar to the offence of which he is accused or of
the commission of which he is suspected, or
c. Otherwise in the interest of justice.
 3. An officer or a Court releasing any person on bail under sub-
section(1) or sub-section(2), shall record in writing his or its47
(reason or special reason) for so doing.
4. Any Court which has released a person on bail under sub-
section (1) or sub-section (2), if it considers it necessary so to
do, direct that such person be arrested and commit him to
custody.
5. 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 time date fixed for taking
evidence in the case, such person shall if he in custody during
the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reason to be recorded
in writing, the Magistrate otherwise directs.
6. If, at any time, 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 there are reasonable
grounds for believing that the accused is not guilty of any such
offence, it shall released the accused, if he is in custody, on the
execution by him of a bond without suretied for his appearance
to hear judgment delivered.
(iv) Bail After Conviction:-

Where the convicted person satisfies the court by which he convicted

that he intends to present an appeal, then that court shall release the
convict on interim bail in following circumstances

(i) Where such person, being on bail during trial, is sentenced to

imprisonment for a term not exceeding three years, or

47
Subs. By the Code of Criminal Procedure (Amendment Act, 1980 (63 of 1980) section 5 W.E.F. 23/09/1980
 (ii) Where such person, being on bail, had been convicted for a
bailable offence.

Here the word “interim bail” mean the period till he presents an
appeal and get the order of bail form appellate court.-Section 398(3)
Cr.P.C.

(v) Bail to a person including witness and surety present in

Court:

Where any person for whose appearance or arrest the officer

presiding in any court is empowered to issue a summon or warrant, is
present in such court, such officer may require such person to execute a
bond, with or without sureties, for his appearance in such court, or any
other court to which the case may be transferred for trial. (section 88
Cr.P.C.)

It enables a court to release a person or witness including accused

and sureties on executing a security bond with or without sureties
provided such person is present in court not necessarily in pursuance of
nay summon or other process but such court must be empowered to
issue a process for compelling his appearance or arresting such person.
This power can be exercised only when the person is free and present in
court and not in custody or under detention after arrest.48 It cannot be
interpreted that a Magistrate may go to the house of a person and direct
him to execute bond for his appearance.49 This power is exercisable by
the police through Police Office may obtain bond for appearance before
Court under section 44(2).50

48
Madhu Limaye v. Ved Murti, AIR 1971 SC 2486.
49
Madhu Limaye v. Ved Murti, AIR 1971 SC 2486.
50
Om Prakash v. State (1971) 77 Cr.P.C. 865 All.
 Court has no inherent power to remand such person to custody in
case51 he defaults to execute bonds despite apprehension of non
appearance of such person.52 Supreme Court has held that court has no
inherent power to remand such person unless this power is conferred by
law. Thus there is a legal flow in the section 88 of the Code which
requires amendment in the Code and following provision be added in
section 88 Cr.P.C., “if such person does not execute bond with or
without sureties, the court may remand him to custody till the execution
of bonds or the purpose of appearance of such person extinguishes.

Allahabad High Court in a case53 held that in complaint case where

person is appearing before Magistrate or court in pursuance of summon
or warrant issued, proper procedure to be followed is as given in section
88 which was not approved by the Full Bench54 later in time.

(vi) Bail to person appearing in Court:

When a Magistrate of the 1st Class sees reason to believe that any
person within his local jurisdiction has committed outside such
jurisdiction (Whether within or outside India) an offence which cannot,
under the provisions of Section 177 to 185 (both inclusive), or any other
law for the time being in force, be inquired into or tried within such
jurisdiction but in under some law for the time being in force triable in
India, such Magistrate may enquire into the offence as if it had been
committed within such local jurisdiction and compel such person in the
manner hereinbefore provided to appear before him, and send such
person to the Magistrate having jurisdiction to enquire into or try such
offence, or, if such offence is not punishable with death or imprisonment

51
Vasudeo Ojha v. State of U.P. AIR 1958 All. 578
52
Kazim, (1901) ANN; Ram Chandra v. State, 1977 Cr.L.J. 1783; Natbar Parinda v. State, AIR 1971 SC 1465.
53
Vishwanath Jiloka v. I Addl. Munsif L.C.C. Bahriach, 1989 Cr. L.J. 2082.
54
Dr. Vinod Narain v. State, 1995 ACC 375 all (FB)
for life and such person is ready and willing to give bail to the
satisfaction of the Magistrate acting under this section, take a bond with
or without sureties for his appearance before the magistrate having such
jurisdiction (section 187(1) Cr.P.C.).

When there are more magistrate than one having such jurisdiction
and the Magistrate acting under this section cannot satisfy himself as to
the Magistrate to or before whom such person should be sent or bound
to appear, the case shall be reported for the Orders of the High court.
(Sec 187(2) Cr.P.C.)

C. Bail by Session Judge:

Session judge has been conferred with the power to release a person
on bail in the following case:

1. When any person has reason to believe that he may be arrested

on an accusation of having committed a non-bailable offence, he
may apply to the court of session for bail in anticipation of his
arrest to be made and that Court may, if it thinks fit, direct that in
the event of such arrest he shall be released on bail. (Section
438(1) Cr.P.C.
2. Court of Session may direct:
a. To release a person on bail who has been custody and
accused of an offence.
b. That any condition imposed by Magistrate while releasing
any person on bail be set aside or modified provided the
court of session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the
Court of Session of which, through not so triable, is
punishable with imprisonment for life, give notice to the
 application for bail to the Public Prosecutor unless, it is, for
reason to be recorded in writing, of opinion that is not
practicable to give such notice. (Section 439(1) Cr.P.C.)
3. An appeal is normally preferred against an order of conviction
recorded by the Magistrate in the Court of Session. During the
pendency of the appeal against such conviction, if such person
convicted under any offence is in custody, he may be released on
bail. Suspending the execution of sentence (section 389(1)
Cr.P.C.)
4. Similarly, the Court of Session, while exercising the power of
revision, may release an accused of an offence on bail if he is in
the custody suspending the execution of sentence. (Section 397(1)
Cr.P.C.)
D. Bail by the High Court:

Following powers to release a person on bail have been conferred on

High Court under the Code of Criminal Procedure:-

1. When any person has reason to believe that he may be arrested

on an accusation of having committed a non-bailable offence, he
may apply to the High Court for bail, in anticipation of arrest to be
made that court may, if thinks fit, direct that in the event of such
arrest he shall be released on bail, (section 438(1) Cr.P.C.)
2. The High Court may direct:
a. To release a person on bail who has been custody and
accused on an offence.
b. That any condition imposed by Magistrate while releasing
any person on bail be set aside or modified provided the
High Court shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the
 court of session, of which though not so triable, is punishable
with imprisonment for life, give notice of the application for
bail to the public prosecutor unless it is, for reason to be
recorded in writing, of opinion that it is not practicable to give
such notice, (Section 439(1) Cr.P.C.)
3. Where an appeal has been preferred in the High Court by a
convicted person, such person if he is in custody, may be released
on bail by the High Court. (Sec. 439(1) Cr.P.C).
4. Similarly, the High Court, while exercising the power of revision,
may release such person accused of an offence on bail if he is in
custody suspending the execution of sentence.(section 397(1)
Cr.P.C.)
5. Where an appeal has been preferred against the order of acquittal
recorded by subordinate court then High Court may issue a
warrant directing that the accused be arrested and brought before
it or any Subordinate Court, and the court before which he is
brought may release him on bail. (Section 390 Cr.P.C.)
E. Bail by Supreme Court:-
1. If a bail has been refused by the High Court then appeal against
such order of High Court refusing bail to a person while in custody
may be preferred in Supreme Court. Supreme Court may release
such person on bail. (Article 134 & 136 of Constitution of India.).
2. Under Articles 134 and 136 of constitution of India, appeal may be
preferred in Supreme Court against any judgment, final order or
sentence in a criminal proceeding or case. During the pendency of
such appeal if the accused is in custody, he may be released on
bail by the Supreme Court.
5. Bail and delayed or improper trial:-
 The Supreme Court has held that no person can be deprived of his
personal liberty without a reasonable, just and fair procedure, otherwise
deprivation would be violation of his fundamental right enshrined in
Article 21 of Constitution of India and he would be entitled for bail.55
There can be no doubt that speedy trial and expeditious trial is an
integral and essential part of the fundamental right to life and personal
liberty as enshrined in Article 21 of the Constitution. This view was again
echoed by the Supreme Court in cases56 & 57
and the Supreme Court
referred Article 3 of the European convention of Human Rights which
says that everyone arrested or detained shall be entitled to trial within a
reasonable time or to release pending trial. Delayed trial and
consequently incarceration of accused in jail during the pendency of
such delayed or improper trial would amount to imposition of punishment
without trial according to law. The Supreme Court further emphasized
that even a delay of one year in the commencement of trial is bad
enough.

The Supreme Court has observed that the trend today is towards
granting bail because it is now well settled by a catena of decision of this
court that the power to grant bail is not to be exercised as if the
punishment before trial is being imposed. The only material
consideration in such a situation are whether the accused be readily
available for his trial and whether he is likely to abuse the discretion
granted in his favor by tampering with evidence.58

55
Menka Ghandhi v. Union of India AIR 1978 SC 597.
56
Hussain-ara Khatoon v. State of Bihar AIR 1979 SC 1360.
57
A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225.
58
State v. Maksudan Singh, AIR 1986 pat. 38 (FB),
 59
Full Bench of Patna High Court laid emphasis on sixth Amendment
to the U.S. Constitution and Art. 3 of European Convention on Human
Rights observing that in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial and everyone arrested and
detained shall be entitled to trial within a reasonable time or to release
on bail during the pendency of trial. It was further held that inordinately
prolonged and callous delay of ten years or more occasioned entirely by
the prosecutions default in the context of reversal of a clean acquittal on
a capital charge would be per se prejudicial to the accused. If an
accused is not committed to the Court of Session for a period of nine
months in spite of the fact that the case was taken up for hearing on
several dates by the Magistrate, Allahabad High Court60 held that there
was inordinate delay in the trial of the accused and therefore accused is
entitled to bail.

Similarly Madhya Pradesh High Court in a case61held that

adjournment of a case for two months on the request of Public
Prosecutor that he had illegible copies of challan papers is unjustified
when the original papers were on record and in such case accused
would be entitled to bail. But the delay caused in trial due to adjournment
sought by the accused on one pretext or the other would not entitled him
to bail62 when accused did not allow the court to proceed and there was
sufficient material on record that there was danger of the accused to
tamper with or intimidate the witnesses, and aborting the case and also
the danger to the life of the main witnesses or to the life of the accused
being endangered.

59
Bhagirath Singh Juday v. State of Gujrat, AIR 1984 SC 372.
60
Sita Ram v. State of M.P. 1987 Cr.L.J. 645 All.
61
Ramroop Singh v. State of M.P. 1987 Cr.L.J. 1256.
62
Shahzad Hasan Khan v. Ishtiaq Hasan Khan, Air 1987 SC 1613.
 Mere fact after commitment of session trial case was not taken up for
one year would not entitle the accused to bail.63 In a case64Allahabad
High Court has held that accused will be entitled for bail if his case was
not committed for more than three and half year while accused was in
jail and FIR was lodged after 15 days and medical examination of the
prosecutor was conducted after forty days of the incident respectively.
Incarceration of accused in jail for nine months and failure of court to
commit the case to the Court of Session for no fault of accused would
entitle him for bail.65 But Hon’ble R.B. Lal J., of Allahabad High Court in a
case66 explained the observation of Supreme Court in Kadra Pahadia’s
Case67 “the reasonable period of trial cannot and should not exceed one
year for a session trial” should not be taken as laying down an absolute
and invariable rule for conclusion of session trial without having regard
to the nature of offence and other circumstances of such particular case.
This law laid down by Supreme Court in Kadra Pahadia’s Case provides
a guideline about the period of time during which session trial should
ordinarily conclude. However this does not mean that special
circumstances of a case which prolonged the period of trial are to be
ignored while considering the question of inordinate delay. The question
of inordinate delay in conclusion of trial of a case should be decided in
the light of its own facts and circumstances. Thus inordinate delay only
cannot become the sole criterion for granting bail68 if otherwise facts and
circumstances of a case are not favorable to the accused. It may
become one of the grounds for granting bail. A accused who has been in
jail for more than six years and trial did not conclude in spite of direction

63
Birendra Singh v. Advesh Kumar, 1984 ALL.L.J. 283.
64
Chintamani Tripathi v. State of U.P., 1991 All.L.J.681.
65
Narain Rai v. State, 1989 All.L.J. 272.
66
Virendra Singh v. Advesh Kumar 1983 A. Cr. R. 434 (439).
67
Kadra Pahadia v. State of Bihar, 1981
68
Hasan Abbas v. State of U.P., 1992 (3) Crimes 59.
of High Court and have been deprived of his personal liberty, was held
entitled to be released on bail.69 Trial did not commence even after 4 ½
years have passed and trial is not expected to commence in near future
and accused cannot be blamed for delay. Accused was held entitled to
bail.70

6. Absence of Prima Facie case or insufficiency of

evidence

For the refusal of bail for any offence, proof of prima facie case and
sufficiency of evidence is necessary. Where there is no prima facie case
or sufficient evidence or material shown in the charge-sheet, them bail
should be granted on the assumption that when conviction cannot be
based on such evidence and material, how can bail be refused.

The material shown in the charge sheet with regard to offence to

abetment to commit suicide was hardly prima facie establish the case
therefore bail was granted.71 Similarly in case72 bail was granted wherein
the FIR lodged after a period of one month where cause of death was
unascertainable as per the post mortem report.

In a case73 where an inference of guilt has to be drawn from

circumstances evidence and even one link is missing in the chain, no
inference of guilt can be drawn from any amount of suspicious or
incriminating circumstances the case will be fit for bail. Similarly,
partnership firm holding liquor license and one of the partner retired long
before the occurrences of offences under Excise Act and Excise
Department, was informed regarding his retirement through formal order
69
Kalika Prasad Shukla v. State of U.P. 1993(30) ACC 413.
70
Bhagat Singh v. State of U.P., 1993 (30) ACC 444.
71
Basant Kumar v. State of M.P.
72
Puran Singh v. State of M.P. (1992) 3 Crimes 371; (1993) 1 Cur. Cri. R. 291 (M.P.)
73
Sukhdev Singh v. union of India, (1987) Crimes 894 (P&H)
regarding absolving the partner as license was not passed by Excise
Authorities. It was held that no prima facie was established against the
accused therefore entitled for bail.74 Where an accused was charged
with the offence of rape while medical report did not support the
commission of rape and infliction of injuries on the person of
prosecutor75 and in another case,76 where accused was charged under
section 354 I.P.C. being subsequently converted into section 376 I.P.C.
on the complaint of Prosecution, Medical report did not support the
charge of rape and the prosecution was adult lady. Both the cases were
held fit for bail.

The confessional statement of accused cannot be considered as an

usable against the co-accused for the refusal of bail.77&78 Similarly where
the evidence of prosecution is meager and is not supported by sufficient
evidence, bail may be granted to the accused.79

Where the investigating officer did not make any effort know the
cause of death and no statement was recorded of any witness giving the
identifying made appears to be slipshod and perfunctory, bail should be
granted in such case.80

The property recovered and shown in the investigation was silver

Gajra, and Ornament which was not mentioned in the FIR as a stolen
property in a case under section 395/397 I.P.C. and Section 11 of M.P.
Dacoit Adhiniyam 1981 bail was granted.81 Where an accused is

74
Ishar Dass v. State of Haryana, 1981 Cri. L.J. 562
75
Bhyawal v. State of M.P. (1992) 3 Crimes 184 M.P.
76
Nanho v. State of M.P., (1993) 1 Crimes 1048 M.P..
77
Santu v. State of M.P., (1992) 3 j. Crimes 250 (251) M.P..
78
G. Shyamala v. State of M.P., (1993) 1 Crimes 730.
79
All. (1987) 1 All. Cri. L.R. 504 (P&H).
80
Ganapathi v. State, (1992) 3 Crimes 488 Mad.
81
Babu Singh v. State of M.P., (1985) 2 Crimes 259.
appearing to be a simple mute spectator of a crime like rape should be
granted bail.82

7. Interim Bail

A Seven Judges Full Bench of Allahabad High Court has held that the
Session Judge while considering a bail application under section 439
Cr.P.C. can grant interim bail till the final disposal of the bail application
subsequently. This will enable innocent persons to avoid going to jail
pending consideration of their bail application. The Supreme Court has
laid emphasis on the strict compliance of direction given in Amravati
case83 and held that it must be implemented in letter and spirit by
Session Courts in U.P..

(i) Interim Bail-Inherent power of Court

When a person applies for regular bail then the court concerned
ordinarily lists that application after a few days so that it can
look into the case dairy which has to be obtained from the
police authorities and in the meantime the applicant has to go to
jail. Even if the applicant is released on bail after thereafter, his
reputation may be tarnished irreparably in society. The
reputation of a person is his valuable asset, and is a facet of his
right under Article 21 of the Constitution. Hence, we are of the
opinion that in the power to grant bail there is inherent power in
the court concerned to grant interim bail to a person pending
final disposal of the bail application. Of course, it is in the

82
R.M. Shrirao v. State od Maharashtra, 1992 Cr. L. J. 2641.
83
Smt. Amravati v. State of U.P. 2005 Cr.L.J. 755 (FB-All) & Som Mittal v. Government of Karnataka AIR 2008
SC 1126.
 discretion of the court concerned to grant interim bail or not but
the power is certainly there.84
(ii) Grounds for refusing interim or regular bail
Based on a long line of judicial precedents of the apex and this
Court,85 some of the exceptional circumstances where the
Courts below would be justified in refusing interim or regular
bails.
Could be:-
(a) Where the Magistrate concerned is not empowered to grant
regular bail as there are reasonable grounds for believing his
complicity in offences punishable with death or imprisonment
for life or under the other circumstances enumerated in
Section 437 Cr.P.C.
(b) There is prima facie material to suggest the involvement of
the accused in a grave offence like murder, dowry death,
dacoity, robbery, rape, kidnapping for ransom, rape etc.,
unless it appears to the Session Court at the stage of initial
appearance itself that the accused appears to have been
falsely implicated for some bona fide reasons.
(c) The case involves and offence under U.P. Gangster Act and
in similar statutory provisions, where there are restrictions on
the Court power to grant bail.
(d) The accused is likely to abscond and evade the process of
law or where it is necessary to arrest the accused and bring
his movements under restraint to refuse confidence among

84
Deepak Bajaj v State of Maharashtra, (2008) 16 SCC 14 & Sukhwant Singh & others v. State of Punjab, (2009)
7 SCC 559.
85
Sheoraj Singh Alias Chuttan v State of U.P. & Others, 2009 (65) ACC 781 (All-DB). Also Circulated vide H.C.
Letter No. 15336/2010/Admin G-11 Dated 20/09/2010
 the terror stricken victims and society at large and for
protecting witnesses.
(e) The accused is given to violent behavior, or is a habitual
offender and is likely to commit further offences unless his
movements are brought under restrain.
(f) There is prima facie material showing the involvement of the
accused in offences which are in the nature of the scam, or
in grave crimes against society or the nation such as dealing
in counterfeit currency, or in narcotic, psychotropic drugs or
spurious medicines etc.
(g) If the Public Prosecutor/Investigating officer can satisfy the
Magistrate/Court concerned that there is a bona fide need for
custodial interrogation of the accused regarding various
facets of the motive, preparation, commission and aftermath
of the crime and the connection of other persons, if any, in
the crime or for obtaining information leading to discovery of
material facts, it may constitute a valid ground for non
granting bail, and the Court in such circumstances may pass
order for custodial interrogation, or any other appropriate
order.
(h) If there is an apprehension that there may be interference
with the investigation or for any other reason competent
Magistrate/Session Court feels that it is not a fit case for
releasing the appellant on interim bail pending the hearing of
the regular bail.
(iii) No interim Bail in Serious Offences:
 The order granting interim bail pending hearing of a regular bail
application may be passed in appropriate cases,86 but it ought
not to be passed where:
(i) The case involved a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused
and bring his movements under restrain to infuse
confidence among the terror stricken victims and society at
large and for protecting witnesses.
(ii) The case involves an offence under the U.P. Gangsters Act
in similar statutory provisions.
(iii) The accused is likely to abscond and evade the
processes of law.
(iv) The accused is given to violent behavior and is likely
to commit further offences unless his movements are
brought under restraint.
(v) The accused is a habitual offender and unless kept in
custody he is likely to commit similar offence again.
(vi) The offence is in the nature of a scam, or there is an
apprehension that there may be interference with the
investigation or for any other reason the Magistrate/Court
feels that it is not a fir case for releasing the appellant on
interim bail pending the hearing of the regular bail.
(vii) An order of interim bail can also not be passed by a
Magistrate who is not empowered to grant regular bail in
offences punishable with death or imprisonment for life or
under the other circumstance enumerated in section 437
Cr.P.C.

86
Pradeep Tyagi v State of U.P. & others, 2009 (65) ACC 43 (ALL-D.B.).
 (viii) If the public Prosecutor/Investigating officer can satisfy
the Magistrate/Court concerned that there is a bone fide
need for custodial interrogation of the accused regarding
various facts of motive, preparation, commission of the
crime and the connection of other persons, if any, in the
crime, or for obtaining information leading to discovery of
material facts, it may constitute a valid ground for not
granting interim bail, and the Court in such circumstances
may pass order for custodial interrogation, or any other
appropriate order.
(iv) No delay in release of accused where interim bail granted:
It is imperative for the Session Judge and Addl. Sessions
Judges to be circumstances enough in directing release of the
accused in appropriate cases, in which specified direction had
been issued by the High Court for releasing the accused on
interim bail pending hearing of regular bail by accepting the
bonds provisionally and no person who has been on interim bail
should be relegated to jail custody simply for purpose of
verification of sureties fails which they would make themselves
liable to be handled up….. The Session Judge/Addl. Session
Judges must invariably mention in their order in such cases that
the accused person must be released without least delay and
they should not be detained just for verification of sureties.87
8. Law of Parity:

The meaning of “parity” in chamber’s English Hindi Dictionary has

been stated to mean ‘samati’, ‘Barabari’, ‘Samanata’, ‘Tulayata’,
‘Anurupta’, ‘Samya’, ‘Sadrish’ and ‘Sama’, ‘Ulayata’. In new Lexicon

87
Shiv Shyam Pandey v. State of U.P. 2009 (5) ALJ 70 & C.L. No. 28/2010/Admin G II Dated 18/09/2010
Webster’s Dictionary 1987 edition, the word “parity” has been stated to
mean ‘equality in status’ and value etc. In shorter Oxford English
Dictionary 1936 ‘Parity’ has been stated to mean, “the state of condition
of being equal and on a level, equality, equality of rank or status’.

Thus the word “Parity” connotes a state when a person is placed on

the same footing as the other person.

Parity is only factor to be considered with an not a governing

consideration and parity cannot be the sole consideration for bail,88 but
successive bail application are not barred as Supreme Court observed
that in case the bail application of an accused had been rejected and the
second bail application for bail was moved the previous order refusing
an application for bail does not preclude another, on a latter occasion,
giving more materials, further developments and different
consideration.89 But parity cannot be claimed where the applicant’s case
is distinguishable from other co-accused person. The fact that the
respondent may not abscond is not by itself sufficient to induce the court
to grant him bail.90 Full Bench of the Allahabad High Court in a case,91
has held that by reason of the fact that co-accused had been admitted to
bail, the applicant cannot be granted bail. Thus Supreme Court and Full
Bench of Allahabad High Court have clearly laid down that parity alone
had not been consideration as a ground for release of bail.

But the Supreme Court in case92 laid down that the consideration for
grant of bail are inter alia the position and status of the accused with
reference to the victim and the witnesses; livelihood of the accused

88
Ashok Kumar v. State of Punjab, AIR 1907 (7) SC109, Said Kahn v. State, 1990 A. Cr. R. 54.
89
Babu Singh v. State of U.P. AIR 1978 SC 527.
90
State v. Capt. Jagjit Singh, AIR 1962 SC 253: R.M. Singh v. State 1990 A. Cr. R. 806; Janga Singh v. State, 1990
A. Cr. R. 39 All.
91
Sunder lal v. State of U.P., 1983 AWC 148 All. (FB).
92
Gurucharan Singh v. Delhi Administration, AIR 1978 SC 179.
feeling from justice; of repeating offences; of jeopardizing his own life;
being faced with grim prospect of possible conviction in case; of
tempering with witnesses and the like. These are additional factors
which are to be judged in the case of individual accused and it may
make the cases of different accused distinguishable from each accused.
At the same time if there is no real distinction between the individual
case of accused then the principle of parity comes into play and if bail is
granted to one accused it should also be granted the other accused
whose case stands identical footing.93

Nonetheless the principle of grant bail on parity cannot be allowed

to be carried to an absurd or illogical conclusion so as to put a judge in a
tight and straight jacket to grant bail automatically. There may be case
which may require an exception; where a judge may not simply take a
different view from the judge who granted bail earlier to a co-accused
but where the conscience of judge revolts in granting bail. In such a
situation, the judge may chose to depart from the rule of parity recording
his reason.94

The parity cannot be the sole ground for granting bail, even on
subsequent bail applications the court has to satisfy itself that on
consideration of material places, further developments in investigations
and other consideration for deciding applications for grant of bail.

9. Accused not likely to abscond or commit offence pr

tamper with evidence:

93
Shobha Ram v. State of U.P., 1992 (29) ACC 59; Kallu v. State, 1989 AAWC 65; Ali Hussain v. State of U.P.,
1990 U.P. Cr. R. 93.
94
Nanha v. state, 1992 A.Cr.R. 570 ALL, (DB):1992(3) Crimes 885.
 There is no hard and fast rule as to when bail should be granted. The
Supreme Court in case95 has observed, “the overriding considerations in
granting bail to which we adverted to earlier and which are common both
in the case of Section 437 (1) and Section 439(1) Cr.P.C. are nature and
gravity of the circumstances in which offence is committed the offence;
of tampering with evidence; 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.” Thus absences of
above factors have been recognized by the Supreme Court and High
Court Allahabad96 in granting bail. As Supreme Court97 further observe,
“we may repeat the two paramount considerations, viz. likelihood of the
accused from feeling from justice and tempering with prosecution
evidence relate to ensuring a fair trial of the case in a court of justice. It
is essential that due and proper weight should bestowed on these two
factors apart from others. There cannot be an inexorable formula in the
matter of granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or canceling bail.”

The Supreme Court also held in other case98 that if it if prima facie
established that the presence of the accused would not be readily
available or that he likely to abuse the discretion granted in his favor by
tampering with evidence, bail may be refused. Allahabad High Court
also in a case99 emphasized these two factors while considering the bail
application.

95
Gurucharan Singh vs. State 1978 Cr.L.J. 129:AIR 1978 SC; 179; M.P. Ramesh v. State of Karnataka, 1991(1)
Crimes 247 (258).
96
Rakesh Kumar v. State of U.P., 1992(2) Crimes 945.
97
1978 Cr.L.J. 129; AIR 1978 SC 179; M.P. Ramesh v. State of Karnataka, 1991(1) Crmies 247 (258)
98
Bhagirath Singh Judeja v. State of Gujrat, AIR 1984, SC 372.
99
Ram Kishor v. State, 1991 A. Cr.R. 378.
 While considering the bail application the Court has to bear in mind
the nature and seriousness of the offence, the character of evidence, the
circumstances which are peculiar to the accused, the reasonable
possibility apprehension of the witnesses being tampered at the stage of
investigation or during trial and the larger interest of the public. Two
criteria viz. where the accused, in the event of his release will flee from
justice and whether he will tamper with evidence have to be answered
against the accused. Just because a co-accused was enlarged on bail is
no ground for the release of accused on bail.100 Court must exercise its
discretion on merit and facts of the case irrespective of the consent
given by the prosecutor for release on bail.101

10. Absence of Overt Act:

Absence of the overt act cannot be said to be sound principle of

entitlement of bail. Nature of offence and other factors should be
considered while granting the bail.102 Besides the absence of over act. In
the absence of over act giving mare company to accused is not sufficient
to refuse bail.103 Similarly non attribution of over act in the judicial
confession104, absence of over act regarding the use of only weapon
which the accused was carrying105 is sufficient to bail.

11. Failure or delay in Indentification Test:

From series of pronouncements of the High Courts and Supreme

Court, the identity of accused may be said to be important factor to
determine the guilt of the accused and it is settled law where the identity

100
Channuppa G. Anadadi v. State of Karnataka 1993 (1) Crimes.
101
Ibid.
102
Bhagbn Bhai v. State, 1993 ALL. Cr.L.J. 286.
103
1983 ALL. Cr.R. 619.
104
1984 Chand Cri. C. 395 (P&H).
105
(1998) 1 Rec. Cr. R. 144(2) (145) P & H.
of accused is not established106 or the identity of giving of single blow is
not clear, the accused will entitled to bail.

Where the prosecution failed to hold identification parade on

application of the accused, the accused should normally be released on
bail but it would not be proper to grant bail in every case where prayer
for identification made by the accused has been rejected by the
investigating agency. If there appears to be some doubt in the conduct
of the prosecution for holding identification requested by the accused
with the assertion that the alleged eye witnesses did not know him
previously, then accused shall be entitled to bail.107

12. Illegal detention and Bail-Non-Compliance of

Section 50, Cr.P.C. and Article 22(1) of Constitution-
effect.

Every offender has to be informed of grounds of arrest and to right to

bail under Section 50 of Code of Criminal Procedure under Article 22(1)
of the Constitution. Thus this is a fundamental right. If in a case it has
not been complied with, accused will be entitled to bail,108 However
Allahabad High Court in a latest case109 held that ground of arrest has
not been proved to have communicated by itself would not be a sole
consideration for releasing an accused on bail, though it may be taken
into account with other relevant factors. Article 22(1) and Section 50
require only the communication of grounds of arrest “as soon as may be”
and not immediately at the time of arrest.110

106
607 (1985) 1 ALL. Cr.L.R. 66 (1) P & H.
107
1989 U.P. Cr. R., 393 All. 1986 U.P., Cr. R. 217 All.
108
Neeraj v. State of U.P., 1991 All. L.J. 426 (429).
109
(1993) 2 Cru., Cri.R. 981 (ALL).
110
Ashak Hussain Allah Detha v. Asst. Collector of Customes.
 Similarly when the accused has been illegally detained in jail for a
long period without seeking remand from a Magistrate, he will be entitled
to bail.111 But if the detention of accused at the time of consideration of
bail application is legal then illegality of his earlier detention will not
entitle the accused for grant of bail.112 Recording of statement of an
accused by coercion while he was in illegal detention may become one
of the grounds for granting bail.113 The Code does not contain any
provision entitling an accused merely on the ground and without more,
that his detention in prison was illegal. In order to obtain his release on
bail, the accused must show that his case was either covered proviso to
sub-section 2 of Section 167 Cr.P.C. or that he was entitled to bail under
the provision of Chapter XXXIII of the Code.114

Even under Section 309(2) of the Code for remanding an accused to

judicial custody the requirement of principle of natural justice particularly
that of Audi Alteram Partem should be complied with. Production of the
accused is an indispensable requirement of natural justice and fair
procedure as the order of remand seeks to deprive him to his personal
liberty. On these very analogy repetitive orders for remand without
production of accused before court prior to taking cognizance will entitle
the accused for bail?115

13. Bail by default of Investigation Officer: 0-Bail

under Default Clause i.e. Section 167(2) Cr.P.C.:

The proviso to Section 167(2) in novel provision to speed up the

investigation so a person does not have to languish unnecessarily in the

111
Vimal Kumar Sharma V. State of U.P., 1995(1) AWC 425 All. (DB)
112
1993 U.P. Cr. R. 112.
113
Deva Ram. v. State Of Rajasthan, 1984 Cr.L.J. Noc 129 Raj. 1983 Cr.L.J. 1231 Raj.
114
Ashak Hussain Allah Detha v. Asst. Collector of Customes.
115
A. Narayan Reddy v. State of A.P., 1992 Cri. L.J. 630 A.P. (DB).
prison facing trial. Section 167(2) proviso provides that if it is not
possible to complete the investigation within a period of 60 days (or 90
days in the case of offence punishable with death or imprisonment for
not less than 10 years) then even serious case of ghastly types of
Crimes, the accused shall be entitled to be released on bail, on the
expiry of period from the date of arrest.116 The Completion of
investigation means submission of charge sheet.

Failure to submit charge-sheet within stipulated time period of 60

days or as the case may be 90 days, will entitle the accused to bail and
Magistrate in such circumstances cannot grant further remand even on
the basis of a preliminary charge-sheet stating that investigation is not
yet complete117 and in such circumstances if the accused is prepared
and does furnish bail, the Magistrate is bound to release him on bail and
Magistrate will inform the accuser’s right to bail.118 It gives an absolute
and indefeasible right to bail prior to filing of Challan report and the right
is extinguished on the filling of challan.119 Bail once granted cannot be
cancelled on subsequent submission of charge-sheet.120

Computation of Detention:

The computation of detention 60 days or 90 days (as the case may

be) started from the first day of remand by the Magistrate.121

14. Languishing of accused in jail for a longer

period:

116
Natbar v. State of Orrisa, AIR 1975 SC 1465.
117
Hussainara v. State of Bihar, AIR 1979 SC1377.
118
Hussainara v. State of Bihar, AIR 1979 SC1377.
119
Devindrapal Singh v. Govt. of NCT, Delhi, S.C.C. (Cri) 5;l Dr. B.S. Panchal v. State of Gujrat, 1996 ACC (36)
126 (SC)
120
Shaukin v. State of U.P., 1996 ACC. 43 All; Mohd. Iqbal Madar Sheikh v. State of Maharashtra, 1996 (33)
ACC 136 (SC).
121
Satyanarayana v. State of A.P., AIR 198; SC 2130
 Nature of commission of crime is to be taken into consideration while
disposing of a bail application in non-bailable offence. Long detention of
an accused in heinous crime cannot be said to be a sole ground for
granting bail in the absence of over act especially when the trial is in
progress.122 It may become one of the ground in those cases where
offences are not heinous.

The Supreme Court in a case123 held accused who was about twenty
years old at the time of commission of crime had undergone more than
nineteen years of imprisonment and has had to remain in jail for even
eight months more and his case was deferred by the Sentence Revising
Board on the ground of non-availability ground if his long detention in
jail.

Thus where the accused has been languishing in jail for a long period
which is more or less equal to the maximum sentence of an offence the
accused should be released on bail.

15. Failure to connect accused with crime:

Where there is no direct evidence to connect the accused with the

crime or circumstantial evidence is not so strong as to connect the
accused with the commission of crime, bail should be granted.

Where the application was facing a charge of Killing his own wife and
concealed here dead body, however evidence showed that on that
particular night accused had a talk with his wife in the backyard of his in
law’s house and the next morning the wife was found hanging on a tree

122
Bhagwan Bhai v. State, 1993 Cri.L.J. 286; Ram Bhagwan v. State of U.P., 1996 ACC 414, ALL.
123
Shri Nivas v. Delhi Administration (1982) 3 S.C.C. 209; AIR 1982 SC 1391.
in the rear of the house but there was nothing to connect the accused
with the crime, bail was granted.124

Similarly, where the accused was tried for causing damage to the
railway engine by putting his tractor on the railway track, accused was
charge sheeted only because he was the owner of the tractor while he
was not named in the F.I.R., accused was held entitled to bail on the
ground of lack of direct or circumstantial evidence against the
accused.125

16. Recall of Bail Orders:

Every litigant must come before the court with clean hands, if an
accused obtains bail by playing deception on the court, the court itseld
may recall such bail order.126

17. Cancellation of Bail:

Whenever an accused is granted bail he should normally be not

required to appear before the court until charge-sheet is filled and he is
ordered to appear in court.127 The provisions of cancellation of bail are
given in section 437(5) and 439(2) of the code in identical words which
empower all the court to cancel the bail if circumstances warrant so.128
Cancellation of bail necessarily involve the review if a decision already
made and can be an large be permitted only, by reason of supervening
circumstances of it would be no longer conducive to a fair trial to allow
the accused to retain his freedom during the trial. The mere fact that the

124
Sawan Lal v. State of M.P., 1993(3) Crimes 382(2) 382.
125
Brij Mohan v. State of Rajasthan, (1989) Crimes 213 Raj.
126
Cirijesh v. State, 1990 A.Cr.R. 462 All.
127
Free Legal Aid Committee, Jashedpur v. State of Bihar, AIR 1982 SC 1463.
128
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
prosecution witnesses have turned hostile, bail cannot to cancelled129
because it cannot justify the inference that the accused has won then
over. The witnesses have turned hostile must be having casual
connection130 with the subjective involvement of accused in getting
witnesses hostile. In the absence of the same bail one granted cannot
be cancelled. Thus this power must be exercised with due care and
circumspection in appropriate cases131 in judicious manner. It is punitice
action, hence should not taken lightly.132

Bail in non-Bailable offence is a concession allowed to an accused

person, given to an accused with this hypothesis that accused will not
abuse this privilege or trust granted or created by court in any manner
and if is found that he has betrayed or misused the trust he disentitles
himself to the liberty granted to him.133 Because an accused who is
putting the trial in jeopardy by his misconduct then it is the solemn duty
of the court to get all the risk and obstacles removed to make the trial
smooth.134

But where the bail has been granted by the higher court in a
committal case then the court of Magistrate should not entertain the
application for cancellation of bail to maintain the judicial discipline
unless the bail order is not of temporary nature.135 This power may be
exercised suo motu or on moving application 136

129
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
130
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
131
Delhi Admn. V. Sanjay Gandhi, AIR 1978, 961.
132
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
133
Aslam Bab Lal Desai v. State of Maharashtra AIR 1993 SC 1.
134
Talab v. Mondkar, AIR 1958 SC 376; (1958) SCR 1226.
135
Seoti & other v. Rex, AIR 1948 ALL. 366.
136
Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureo, AIR 1990 SC 71.
 The court has power to cancel the bail even before the arrested
person is actually released and the court or Magistrate who has released
on bail has power to cancel the same.

Once the accused has been enlarged on bail under section 167(2) in
spite of the fact earlier to it bail application was rejected, his liberty
cannot be curtailed and bail cannot be cancelled on the ground of
subsequent filling of charge-sheet137 Cut conditional bail granted under
167 (2) may be cancelled, subsequently even by another Magistrate who
comes to be in sensing of the case.138

Bail may be cancelled where accused person were seeking

adjournment. Adjournments causing inordinate delay in trial and there
were serious allegation regarding tampering with evidences.139

Bail already granted should not ordinarily be cancelled merely on the

ground of mere likelihood to tampering with evidence in absence of
specific allegation, long period of liberty per se, vague allegation of
tampering with evidence, or making contact with some of the important
witnesses, setting up a plea of alibi by the accused, merely on the
ground of heinousness of crime, and in the absence of cogent evidence
with regarding to the threat given of the witnesses.

Thus where it is not shown any miscarriage of justice or abuse of

process of law in granting bail to accused or there is no direct evidence
of involvement of accused in crime, the bail should not be cancelled.

137
Aslam Baba Lal Desai v. State of Maharashtra, AIR 1993 SC 1.
138
Dhena Suren v. The State, 1997 Cri.L,J, 781 Pat.
139
Shahzad Hasan Khan v. Ishtiaq Hasan Khan AIR 1987 SC 1613.
 CHAPTER-3

PROVISIONS OF BAIL IN CODE OF CRIMINAL PROCEDURE, 193

Provisions of bail have been given in chapter 33 of the Criminal
Procedure Code, 1973. Sections 436 and 437 of the code have
conferred the power of bail on officer in charge of police station and
court of Magistrate. Here the word “Court” means the court having
jurisdiction over the area.

Thus while releasing a person on bail, the court has first to determine
his jurisdiction over the matter.

The power of bail under section 436 and 437 of the Code have been
conferred on that court only which has a jurisdiction to take cognizance
and try the person accused of an offence.140 Allahabad High Court has
also the same view141 and held that bail order passed by the court not
having jurisdiction to take cognizance and try the accused of such
offence is bad in law. In a Full Bench Case,142 Patna High Court held
that under section 437, Magistrate having jurisdiction to take cognizance
and try such offence will have power to grant bail.

Thus for the purpose of ascertaining the jurisdiction of taking

cognizance or try such offence, court has to see:

1. Whether the accused has been detained in custody?

2. Whether the said offence, leveled against the accused is bailable
or non-bailable?

140
Sidheshwar Singh v. State of Bihar, 1976 Cr.L.J. 1151.
141
Randhir Singh v. Desh Raj singh Chauhan, 1983 All. L.J. 1051 All.
142
Syed Zafrul Hasan v. State, AIR 1986 Pat. 186.
 With the position in society occupied by the person released on
bail.143

Demanding local surety or cash surety is improper and illegal.144 But

to avoid criticism accused may himself officer cash security in place of
bail bonds, cash surety is as much effective bail bonds.145

1. UNCONDITIONAL BAIL

While granting bail in the bailable offence, the officer or court has
no power to impose any condition except demanding of security
with surety. The conditions that till the conclusion of trial accused
shall not enter into the land in question146 or accused shall not
147
deliver any speech or make any demonstration during bail, are
illegal. Similarly accused cannot be bound down to appear in court
pre-trial stage.148

(ix) Police Custody Remand:

If the accused is ready to furnish bail-bonds then the accused

under section 167(2) of the code cannot given on police custody
remand in bailable offences.149

(ii) Police Custody Remand:

Subsection (2) of Section 436 of the Code empower the Court to
refuse bail in bailable offence if the person accused of a bailable
offence fails to comply with the conditions of bail bonds as regards

143
Buxi Sardari Lal v. Tehar Central Jail. 1968 Cr.L.J. 675; Moti Ram v. State of M.P., 1978 Cr.L.J. 1703; AIR 1978
SC 1594; 1978 S.C.C. (Cri.) 485.
144
Moti Ram (Supra)
145
Surendra Lal Das v. Latika Das, 1977 Cr. L.J. 485.
146
Kota Appal Knoda, 44 Cr.L.J. 1943 Page 202.
147
Rox v. Genda Singh, 51 Cr.L.J. 1950 Page 1377 (ALL).
148
Free legal Aid Committee v. State of Bihar, 1982 Cr.L.J. 1943 (SC).
149
Kanu Bhai Chagan Lal v. State of Gujrat, 1973 Cr.L.J. 533.
 time and place at attendance.150 But the High Court or Court of
Session under section 439(2) of the code is empowered to order
the arrest of a person already on bail in an offence including
bailable offence and commit him to custody canceling his bail
bonds. But the court of Magistrate has no such power.

The Magistrate or the court of session had no power to

cancel bail in bailable offence, yet the High Court had inherent
power to cancel bail in bailable offence granted to a person
accused of an offence and in proper case such power could be
exercised in the interest of justice.151 Now this power of High Court
is given in section 482 of the Code.152

Once the application for cancellation of bail after hearing the

parties has been rejected then subsequent application should not
been moved to harass the accused without new material against
him153

(iii) Notice:
There is no provision for any notice to be given to public
prosecutor before granting bail to a person accused in bailable
offence.
(iv) Executive Instructions Inconsistent with Section
436 are ultravires:

150
Suruk Narain Bhakhia v. Rajnikant, 1982 Cr.L.J. 2148.
151
Talab Hazi v. Madhukar, AIR 1858 SC 376.
152
Panna Lal v. R.P. Sinha, 1967 Cr.L.J. 980 All.
153
State of Maharashtra v. Anil Bolda, 1983 Cr.L.J. 1308.
 The executive instructions of District Superintendent of Police not
to release on bail the persons charged with bailable offence to all
the subordinate Sub-Inspectors is contrary to the mandatory
provision of Section 436 and as such ultra vires and illegal.

(v) Security Proceedings:154

Any person other than a person accused non-bailable
offence is to be released on bail as a matter of right. But the
second provision of sub-section (1) of Section 436 excludes the
provisions of section 116(3) Cr.P.C. or Section 446-A of Cr.P.C.
from the purview of Section 436. If a person has been directed to
furnish interim bond under Section 116(3) under security
proceedings, he can be taken into custody on his failure to furnish
the interim bond called under Section 116(3) Cr.P.C. Such person
cannot apply for bail under Section 436 Cr.P.C. He can be
released on his furnishing the interim bonds as ordered by the
Magistrate.
The object of Section 446A Cr.P.C. is to deal with habitual
criminals and anti-social elements and those creating enemity
between different groups of communities. As soon as the bond is
furnished under the Code of the appearance of person in a case is
forfeited for breach of condition then the bond executed by such
person as well as the bond, if any, executed by one or more of his
sureties shall stand cancelled automatically and if the police officer
or the court, as the case may be, for appearance before whom the
bond was executed is satisfied that there was no sufficient reason
for the failure of the person bound by the bond to comply with its
conditions, then such person shall not be released on his bond and

154
State of Maharashta v. Anil Baloda, 1983 Cr.L.J. 1308
 he can be released subject to any other provision of the code upon
execution of a fresh personal bond and or sureties as the police
officer or the court may deem fit. There is no doubt that the
provision of Section 446 A is not affected in any way by the
provisions of Section 436 Cr.P.C
2. Bail in Non-Bailable offences:
Section 437 of the Criminal Procedure Code lays down the
provisions regarding the circumstances under which the officer in
charge of police station or court other than High Court or a court of
session can release any person accused of, or suspected of, the
commission any non-bailable offence when arrested or detained
without warrant by an officer in charge of police station, or appears
or is brought such court.
Distinction between Section 436 & Section 437:

The Law commission in its 41st Report has observes that the board
principles adopted in the Code regarding bail are as below:

(a) Bail is a matter of right if the offence is bailable;

(b) Bail is a matter of discretion if the offence is non-bailable;
(c) Bail shall not be granted by the Magistrate if the offence is
punishable with death or imprisonment for life, but if the accused is
a woman, or minor under the age of sixteen years or a sick or
infirm person, the court has discretion to grant bail; and
(d) The court of Session and the High Court have as wider discretion
in granting bail, even in respect of offences punishable with death
or imprisonment for life.

All these above recommendations have been adopted in the Code of

Criminal Procedure.
 Bail in bailable offence is right of the accused while in non-bailable
offence it is discretion of the court or officer in charge of police station.

There are two exceptions to this rule that under section 436(2) the
court may refuse bail if the accused released on bail in bailable offence
fails to comply with the conditions of bail with regard to time and place of
his attendance. Secondly the High Court and the Court of Session can
cancel such bail in bailable offence under Section 439(2) when the
accused is tempering with the evidence or is likely to abscond.

But the bail in non-bailable offence which is a discretion of court or

officer in charge of police station may be cancelled under Section 437(5)
by the same court. But the power of police officer is restricted one in this
respect. The court or police officer in charge of police station cannot
grant bail in non-bailable offence if the offence is punishable with death,
life imprisonment or imprisonment of seven year or more or the accused
has been previously convicted on two or more occasions of non-bailable
offence and cognizable offence except where the accused is under the
age of sixteen years, or woman, or is sick or infirm person or court is
satisfied that it would be just and proper to release the accused on bail.

Thirdly police officer is under a duty to grant bail to a person in

bailabale offence but in non-bailable offence the police officer or court
while granting bail has to record his reason for granting bail.

Lastly, unlike bail in bailable offences, the court may order for
imposing conditions other than fixing of the bail for the attendance of the
accused for which a specific provision is made in Sub-Section (3) of
Section 436.

At the time of considering bail application the court, generally has

to decide the question whether the accused should be released on bail
to be remanded into the judicial custody. Thus bail in non-bailable
offence is discretionary one.155

The system of court with regard to bail in non-bailable offence is as

follow:

(1) The court of Magistrate, which can grant bail under Section 437 of
the Code.
(2) The court of Session or High Court, which can grant bail under
Section 439 of the code.

(i) Section 437

The provision of the Section 437 of the Code is application to the

Court of Magistrate only and the Court of Session and the High Court
are clearly debarred to grant bail under this provision. While considering
bail application, the non-bailable offences are divided into two-parts:-

Firstly, those non-bailable offences which are punishable with

death or imprisonment for life, and secondly all the rest non-bailable
offences.

In the first category of the offences, the officer in charge of police

station or the magistrate is restrained from granting bail while the second
category of offences the Magistrate has a judicial discretion to grant bail
which ordinarily goes in granting bail unless there is no exception to it.
Magistrate while granting bail may impose any condition u/s 437,
necessary to ensure his appearance in the Court.

Now the question arises, whether the Magistrate has power to

grant bail in non-bailable offence which are exclusively triable by the
Court of Session.

155
Pati Lal v. Asstt. Collector, AIR 1978 SC 1636.
 Allahabad High Court156 has observes that there is no limitation on
the power of the Magistrate to grant bail in session triable offences in the
provisions of the bail given in the Code. Only limitation in such offences
is punishment prescribed in the law. This view had been reiterated by
157
the High Court in another case and the High Court held that power of
the Magistrate in granting bail are not governed by the court which has
jurisdiction to try the case, rather are governed by the punishment
prescribed for the offence, A Magistrate has no jurisdiction to grant bail
only in such case where the prescribed punishment is imprisonment for
life or death penalty. It was further held that the offences lying under
section 363 and 366 are punishable with ten years imprisonment,
therefore Magistrate has power to grant bail,158 and Magistrate should
dispose of the bail application, if possible on the same day.

Whenever police arrest and produce any person in any non-

bailable offence before the Magistrate to seek remand then it must put
up sufficient evidence or material before the court to establish the
complicity of the accused in the commission of crime. Court has not to
see the merit and reliability of the evidence or material produced before
the Court. If the court after seeing the material comes to the conclusion
that the accused is guilty of offence punishable with death or life
imprisonment then the magistrate, ordinarily, has no option but refuse
bail to him and commit him to judicial custody. There are two exceptions
to this rule.

156
Vijay Kumar v. State of U.P. 1989 All. W.C. 569 All (DB)
157
Aftab Ahmed v. State of U.P. 1990 Cr. L.J. 1636
158
Aftab Ahmed v. State of U.P. 1990 Cr. L.J. 1636
 (a) Magistrate may grant bail to an accused person in case the
accused is woman, minor person up Sixteen years of age or
sick and infirm persons.
(b) Where the Magistrate has reason to believe that accused has
not committed an offence punishable with death or
imprisonment for life then magistrate may also grant bail.

But these two exceptions are found very rarely because it is

always seen that some evidence remains available to establish the
complicity of accused in the crime.

Now the question arises, whether in case of first exception bail is

mandatory or Magistrate has to exercise judicial discretion. Allahabad
High Court does not hold it (the first proviso of Section 437(i) of the
Code) mandatory provision to release an accused on bail.159

Now another question arises, who can be released on bail on the

ground of sickness or infirmity? Every infirmity or sickness does not
entitle an accused to be released on bail. The nature and seriousness of
sickness or infirmity, the suitability or otherwise of the remand to jail
custody and the availability of the necessary medical treatment an
reasonable amenities have to be taken into consideration along with
other circumstances before granting bail on the ground of illness. Where
the applicant was suffering from diabetes and blood pressure and proper
treatment was available, the applicant held was not entitled to bail on
that ground.160

3. Whether Custody of Accused is Necessary for

bail:
159
Pramod Kumar v. Sadhna Rani, 1989 Cr. L.J. 1772 (DB) All; ALL. W.C. 403 (Shakuntala devi v, State, 1986
Cri.L.J. 365: 1986 All. W.C. 51 over ruled).
160
Sangappa v. Satate oof Karnataka, 1978 Cr.L.J. 1367,
 The provision of Code of Criminal Procedure wherein the power of
bail to accused are given, lead us to the conclusion that no person can
be enlarged on bail unless he is in the detention or in custody. The
concept of bail and the provisions of bail in the Code contemplate
detention and subsequent release from the custody. This detention may
be either voluntary or involuntary. When an accused surrenders before a
court, then detention is voluntary but when police arrests an accused,
detention will be sail to be involuntary. Surrender of an accused is
essential for considering the bail application in a court. Person who is
not in custody cannot be released on bail.161 For the purpose of the
Section 436, 437 and 439, the appearance of accused for the purpose of
bail must be the personal appearance and without such personal
appearance bail application cannot be entertained.162

Where a person accused of or suspect of the commission of a

non-bailable offence appears before the magistrate having jurisdiction
and surrenders or submits himself to the jurisdiction and orders of the
court, he would be in custody and although no process is issued against
the person, the Magistrate would be required to accept the surrender
and deal with the bail application of such person. In such a case, the
person under duress and has placed himself under the power to restrain
and exercisable by the court by his physical presence before the court
and expressing his intention to submit himself to the order of the Court163
(1980 Cr.L.J. 436 (SC) Relied on). The Hon’ble Supreme Court
observed custody is physical control or at lease physical presence of
accused in court coupled with submission to the jurisdiction and orders
of the court.

161
Amir Chand v. Crown, AIR 1950 EP 53; State of U.P. v. Kailash, AIR 1955 All 98; State v. Batlu Panja, AIR
1954 Madhya Bharat 113.
162
Kripa Shankar V. State of U.P., 1984 All. Cr. C.160.
163
In Re Digendra Sankar,, 1982 Cri. L.J. 1297 Cal.
 (a) Personal appearance/Custody of accused- must for Bail:-
Bail application cannot be entertained/heard unless the accused
is in the custody of the court. If the accused is already lodged in
jail under some order of court, the bail application can be heard
and disposed of even without physical appearance/production
of the accused before the court. Since the provision of section
438 Cr.P.C. regarding anticipatory bail have been omitted in
State of U.P. vide U.P. Act no. 16 of 1976, so granting bail
without seeking custody of the accused would amount to bring
in vogue the omitted provision of Section 438 Cr.P.C. even u/s
88 Cr.P.C. bail cannot be granted to an accused without his
personal before the court.164 Present position in State of U.P.
Section 438 re-enforced by the State Govt. of Yogi Aditya Nath,
so anticipatory bail can be granted to the accused u/s 438 of
Cr.P.C. in State of U.P.
(b)Accused to be permitted to surrender even without report
from police:-
The practice of some of the subordinate Magistrate not to
permit an accused to surrender when they make such request
and simply ask the Public Prosecutor to report is not proper.
When an accused surrenders in court and make an application
stating that he is wanted in the crime, his prayer should be
accepted. The practice of postponing surrender application is
not fair and cannot to approve. Things may, however, stand
differently if surrender application does not specifically mention

164
Vaman Narain v. State of Rajasthan, 2009 Cr.L.J. (SC) & Sunita Devi v. State of Bihar, 2005(51) ACC 220 (SC)
& Mukesh Kumar v. State of U.P., 2000(40) SCC 306 (All) & Kamlesh Parihar v. State of U.P., 1999 ALJ. 1507
(ALL-DB) & Niranjan Singh v. Prabhakar Rajaraman, AIR 1980 SC 785
 that the person surrendering is wanted in a case or that the
police may be asked to report if he is wanted at all.165
4. Bail in Complaint Case- Relevant Circular Letter:

An accused of a complaint case, on appearance before court, cannot

claim to be released u/s 88 Cr.P.C. on bail on his personal bond only.
But the accused would have to apply for bail under chapter XXIII Cr.P.C.
i.e. Section 436, 437 Cr.P.C. and in case the offence is non-bailable, he
may or may not be granted bail.166

Note: (A) Giving approval to the principles of law laid down in chheda lal
and interpreting the law of bail u/s 436/ 437 Cr.P.C. in complaint cases
and bail to any other person like witnesses u/s 88 Cr.P.C., a Division
Bench of Hon’ble Allahabad High Court circulated in Criminal Misc.
Apllication No. 8810 of 1989, Babu Lal & Others v. Smt. Momina Begum
& Criminal Mics. Application No. 8811 of 1989, Parasnath Dubey &
others v. State of U.P. & other decided on 23.03.2006 and circulated by
Hon;ble Allahabad High Court amongst the judicial officers of the State
of U.P. vide C.L. No. 33/2006, dated 7.08.2008 has ruled as under—

“where section 436 and 437 Cr.P.C., under the provisions of

Chapter XXXIII would be applicable would not be dealt with by the
procedure u/s/ 88, inasmuch as, the considerations for granting bail are
different and includes several other aspects, which are not to be
consider while applying, Section 88. For example, where a person is
accused of a bailable offence and process are issued, as and when he
appears before the Court either after his arrest or detention otherwise, if
he shows his readiness to give bail to the Court, he shall be released on
bail. Therefore, a person accused of a bailable offence needs to be
165
Devendra Singh Negi v. State of U.P., 1993 A.Cr.R. 184 (ALL)
166
Chheda Lal v. State of U.P., 2002 (44) ACC 286 (ALL)
personally present before the court and has to be ready to give bail
before he has to be released on bail. But where a person is accused of
non bailable offence, as and when he appears before the Court whether
by arrest or detention or otherwise, he may be released on bail by a
court other than High Court and the Court of Session u/s 437, Cr.P.C.
subject to satisfaction of certain conditions, namely, that he does not
reasonably appear to have been guilty of an offence punishable with
death or imprisonment for life. The condition of not releasing the person
on bail with respect to offence punishable with death or imprisonment for
life is not applicable where such person is under 16 year of age or is a
woman or is sick or infirm subject to the conditions, as the Court may be
deem fit, may be imposed. Therefore, the power to release on bail u/s
437, Cr.P.C. is restricted and subject to certain conditions which cannot
be made redundant by taking recourse to Section 88 Cr.P.C. where
process has been issued taking cognizance on a complaint, where the
allegations of commission of non cognizable offence has been made
against person. These are illustrative and not exhaustive but are
necessary to demonstrate that Section 88, in all such matters will have
on application. This also shows that by necessary implication Section 88
in such general way, cannot be applied and has no scope for such
application. Where there is overlapping power or provision, but one
provision is specific while other is general, the law is well settled that
specific and special provision shall prevail over the general provision in
the matter of accused. Since the procedure with respect to bail and
bonds, is providing under chapter 33 of Cr.P.C. in our view, Section 88
would not be attracted.

…..the power u/s 88 is much wider. When the accused

approaches the Court for bail, the Magistrate in its discretion may require
him to execute bail bonds, since the language of statutes u/s 88 Cr.P.C.
is wider and the objective and purpose is to ensure the presence of the
person concerned. Therefore, speaking generally, it may be said that
where an accused is entitled to approach the Court for bail u.d 436 and
437 Cr.P.C., he may also be governed by Section 88 Cr.P.C., which is
not qualified and person. However, Section 436 and 437 Cr.P.C. deal
only with the “accused person”. Although the word ‘person’ has also
used in Section 436 and 437 Cr.P.C. but it is with the word “accused”
and therefore, the aforesaid provisions are applicable only to such
category of persons, who are accused of bailable or non-bailable
offence. It may thus be said, referring to section 88, in respect of
accused, that, it may have applicable where the Court has issued
process to an accused but it has not actually been served upon him yet
if he appears before the court, in such cases the Court is empowered to
ask for bail bonds from such accused person to ensure his presence
before the Court in future. This one aspect and demonstrates that the
scope of Section 88 and 89 Cr.P.C. is much wider qua section 436 and
437 Cr.P.C.

Thus, we are of the view that the “case which will be governed by
the section 436 and 437 Cr.P.C. it is not necessary to apply the
provisions of section 88 of Cr.P.C. for the reason that section 436 and
437 Cr.P.C., are specific provision and deal with particular kind of cases,
where as the scope of Section 88 and 89 of Cr.P.C. is much wider as
discussed above. The case in which Section 436 Cr.P.C. is applicable,
an accused person has to appear before the Court and thereafter only
the question of granting bail would arise. Any one, who is accused
person, has been conferred a right to appear before the Court and if the
Court is prepared to give the bail, he shall be released on bail. The some
equality applies with respect to Section 437 Cr.P.C. also. Therefore,
where a summon or warrant is issued by a Court in respect of an
accused, the procedure u/s 436 and 437 has to be followed and
summon or warrant, which have been issued by the Court, have to be
executed and honoured. The necessary corollary would be that Section
88 and 89 Cr.P.C. as such, would not be attached in such cases.”
However we make it further clear that the language of aforesaid
provisions, whether the bail bond is required to be executed u/s 88
Cr.P.C. or the Court gives bail u/s 436 and 437 Cr.P.C. the appearance
of the person before the Court is must and cannot be dispensed with at
all.

(B) A single Hon’ble Judge of Allahabad High Court had in the case167
ruled that if an accused of a complaint case appears in court in response
to summons, he should not be taken into custody and should be
released on bail u/s 88 Cr.P.C. with or without sureties. But the above
noted ruling has been overruled in the year 1995 by a Five Judge Bench
168
decision of the Allahabad High Court render in the case laying down
that Section 88 Cr.P.C applies only to a person who is present in court
as witness etc. if a person appear in court for purpose of bail in
accordance with the provision of Setion 437 Cr.P.C. and surrenders,
then he becomes an accused and the provision u/s 88 Cr.P.C. does not
apply to an accused.

5. Discussion of evidence/merits of the case in bail

order:-

167
Vishwa Nath Jiloka v. Munsif Lower Criminal Court, Bahriach, 1989 AWC 1235 (ALL)
168
Dr. Vinod Narain v. State of U.P., 1995 ACC 375 (ALL-Five Judge Bench)
While disposing of bail application u/s. 437/439 Cr.P.C., Court should
assign reasons while allowing or refusing an application for bail. But
detailed reason touching the merit of the matter should not be given
which may prejudice the accused. What is necessary is that the order
should suffer from non-application of mind. At this stage a detailed
examination of evidence and elaborate document of the merit of the
case is not required to be undertaken. Though the Court can make some
reference to materials but if cannot make a detailed and in-depth
analysis of the materials and record findings on their acceptability or
otherwise which is necessary a matter of trial.169

6. Bail in Altered Sections:-

(A) Where the accused was earlier grated bail for the offences u/s
324, 352, 506 IPC but during investigation the offences were
altered by the I.O. to Section 304 IPC and during the trial the
charge against the accused was framed for the offence u/s 302 IPC
and the Allahabad High Court allowed the accused to continue on
bail on his previous bail bonds furnished for the offences u/s 324,
352, 506 IPC, the Supreme Court has held that the High Court
illegally ordered the accused to continue to be on bail for the
altered offences u/s 304 or 302 IPC on his previous bail bonds as
the accused ought to have applied for fresh bail for the offences
under the altered penal sections.170
(B) Where the accused was initially granted anticipatory bail u/s. 438
Cr.P.C. by the Session Judge for the offence U/s. 498-A, 406, 306
IPC and after investigation of the matter and receipt of charge

169
Afzalkhan v. State of Gujrat, Air 2007 Sc 2111 & Nirja Radia v. Dheeraj Singh, (2006) 9 SCC 760 & Ajay Kumar
v. State of U.P., (2005) 7 SCC 507 (Three Judge Bench) & chamanlal v. State of U.P., 2004 (50) ACC 213 (SC)
170
Hamida v. Rashid, 2007 Cr.L.J. 3422 (SC) & Brijendra v. State of U.P., 2006 (55) ACC 391 (ALL) & Suresh v.
State of U.P., 2006 ALJ 52 (ALL) & Asha Ram v. State of U.P., 2005 (51) ACC 371 (ALL) & Rama Pati Yadav v.
State of U.P., 2002 (1) JIC 819 (ALL).
 sheet against accused from I.O. for the offence u/s. 302 IPC, the
Magistrate issued NBW the accused for appearance and the
accused was again directed by the Session Judge u/s. 438 Cr.P.C.
to appear before the Magistrate and the Magistrate then granted
bail to the accused for altered graver offence u/s 302 IPC, the
Supreme Court has held as under-
“with the charge of the nature of the offence, the accused becomes
disentitled to the liberty granted to him in relation to minor offence,
if the offence is altered for an aggravated crime. In case where the
offence is punishable with death or imprisonment for life which is
triable exclusively by a court of session, the Magistrate may, in his
wisdom, refrain to exercise the power of granting bail and refer the
accused to approach the higher courts unless he if fully satisfied
that there is no reasonable ground for believing that the accused
has been guilty of an offence punishable with death or
imprisonment for life.”171
7. Defense plea at the time of Disposal of Bail
Application:-

Defense plea (like plea of alibi etc.) taken by accused cannot be

considerable by the court at the time of hearing of the bail application.
Plea of defense can be tested by the court at the stage of trial of the
case and not at the stage of disposal of bail application.172

8. Affidavits of P.Ws. & Bail:-

171
Prahalad Singh Bhati v. N.C.T. Delhi, 2001 (42) ACC 903 (SC)
172
Naresh Rao v. State of U.P., 2005 (53) ACC 148 (ALL)
 In considering bail application, the Court should not consider affidavit
of prosecution witness filed denying the prosecution case.173

9. Hearing of Prosecutor & accused on Bail

Application:-

Last proviso added to Section 437(1) Cr.P.C. w.e.f. 2006

amendments reads under—

“Provided also that no person shall, if the offence alleged to have

been committed by him is punishable with death, imprisonment for life,
or imprisonment for seven years or more be released on bail by the
Court under this Sub-Section without giving an apportunity of hearing to
the Public Prosecutor.”

In a case u/s. 302 IPC, where the Session Judge had granted
interim/short term bail without hearing the Public Prosecutor, the
Allahabad High Court observed as under-

“Hearing of both the parties at the stage of bail is almost an

essentiality. By granting an easy bail, or for that matter, interim bail,
indirectly, the State is condemned. Therefore, State has a right to be
heard in all cases, like bail, unless in some exceptional cases in which
the court considers it proper to exempt itself from this obligation. In the
instant case, the learned Session Judge has not mentioned any reason
or exceptional circumstances which compelled him to pass the order for
short term bail without hearing the counsel for the State. There is not

173
Jaswant Singh v. State of U.P. 1994 AVV 424 (ALL).
even a faint suggesting as to what were the compelling circumstances
which necessitated the grant of short term bail then and there.”174

10. Illegal remand, illegal Custody or detention

of accused & Bail:-
(A) In the case noted below, the accused was into illegal judicial
custody for the offences u/s. 493-A, 304-B IPC as Magistrate has
not granted further remand of the accused u/s. 167 Cr.P.C.,
cognizance of the offence was not taken by the Magistrate on
receipt of charge sheet from the I.O., no remand order was passed
u/s. 209 (b) Cr.P.C., no order was passed remanding the accused
to judicial custody, case was committed by the Magistrate to Court
of Session ordering the production of accused before the Court of
Session no order by the Magistrate was passed even on that date
u/s. 209(b) Cr.P.C., there was no remand order though case was
pending before the Session Court but custody of the accused was
continuing, then it has been held by the Allahabad High Court that
the custody/detention of the accused without there being any
remand order was naturally illegal but no law recognizes grant of
bail to accused on the basis of such illegal custody/detention and
the bail was consequently refused.175
(B) Relying a Full Bench Decision of the Allahabad High Court in
the case of Surjit Singh176 a Division Bench of the Allahabad High
Court has held that record of reason for remand to custody u/s.
309 Cr.P.C. is not necessary. Remand u/s. 309 Cr.P.C. Stands on
a quite difference footing than the one u/s. 167 Cr.P.C. where the
remand is sought pending investigation and the Magistrate or
174
Sudhindra Kumar v. Distt. & Session Judge, Allahabd & Ors., 1998 (1) Crimes 270 (ALL).
175
Sheo Kumar v. State of U.P., 2001 (1) JIC 7 (ALL)
176
Surjit Singh v. State of U.P., 1984 ALJ 375 (All- Full Bench)
 Judge is required to apply his judicial mind to consider whether on
the material collected by the I.P. remand is necessary and
justified. Even if initial remand is invalid, the same can be rectified
by subsequent remand orders. The word “custody” used u/s. 309
Cr.P.C. embraces both legal as well as illegal custody.177
11. Criminal history of Accused & Bail:-

While granting bail to an accused, the court should also take into
consideration the criminal history of the accused.178

12. NBW and Bail:-

(A) In the case noted below, the Supreme Court has ruled that
BW and NBW against a person can be issued only under the
following conditions:-
a. Non bailable warrant should be issued to bring a person to
court when summons or bailable warrant would be unlikely to
have the desired result. NBW can be issued when it is
reasonable to believe that the person will not voluntarily
appear in the court, or
b. The police authorities are unable to find the person serve
him with a summons, or
c. It is considered that the person could harm someone if not
places into custody immediately.

As far as possible, if the court is of the opinion that summons will

suffice in getting the appearance of the accused in court, the
summons or the bailable warrants should be preferred. The

177
Mohd. Daud v. Supdt. of Distt. Jail Moradabad, 1993 ALJ 430 (ALL-DB)
178
Brij Nandan Jaiswal v. Munna Jaiswal, AIR 2009 Sc 1021 & Surendra Singh v. State of U.P., 2008 Cr.L.J. (NOC)
924 (ALL) & Anil Kumar Tulsiyani v. State of U.P., 2006 (55) ACC 1014 (SC) & Sompal Singh v. Sunil Rathi, 2005
(1) SCJ 107 & State of U.P. Amarmani Tripathi, (2005) & SCC 21.
 warrants either bailable or non-bailable should never be issued
without proper scrutiny of facts and complete application of mind,
due to the extremely serious consequences and ramifications
which ensure on issuance of warrants. In complaint cases, at the
first instance, the court should direct serving of summons. In the
second instance, when the court is fully satisfied that the accused
is avoiding the court’s proceedings intentionally, the process of
issuance of NBW should be restored.179

(B) Bail of warrantee

Case which would be governed by the section 436 and 437 Cr.P.C. it is
not necessary to apply the provisions of Section 88 of Cr.P.C. for the
reason that Section 436 and 437 Cr.P.C., are specific provisions and
deal with particular kind of cases, where as the scope of Section 88 and
89 Cr.P.C. is much wider. The case in which Section 436 Cr.P.C. is
applicable, an accused person has to appear before the Court and
thereafter only the question of granting bail would arise. Any one, who is
an accused, has been conferred a right to appear before the Court and if
the court is prepared to give bail, he shall be released on bail. The same
equally applied with respect of Section 437 Cr.P.C. also. Therefore,
where a summon or warrant is issued by a Court in respect of an
accused, the procedure u/s. 436 and 437 Cr.P.C. has to be followed and
summons or warrant, which have been issued by the Court, have to be
executed and honoured. The necessary corollary would be that Section
88 and 89 Cr.P.C. as such, would not be attracted in such cases.
However we make it further clear that considering the language of
aforesaid provisions, whether the bail is required to be executed u/s. 88
Cr.P.C. or the Court gives bail u/s. 436 and 437 Cr.P.C., the appearance

179
Inder Mohan Goswami v. State of Uttaranchal, AIR 2008, SC 251
of the person before the Court is must and cannot be dispensed with at
all.

(C) Bail in Bailable Offences----When to be refused Section

436(2) Cr.P.C. reads under:-

“Section 436(2) Cr.P.C.- Notwithstanding anything contained in sub-

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

(D) Penalty Awardable against Accused on breach of bail or

bond to appear in the Court (Section 299-A IPC):-

The newly added sections 174-A IPC & 299-A IPC since 2006
provided penalty to an accused in case of non-appearance in response
to proclamation u/s 82 Cr.P.C. and breach of bail or bond to appear in
court. Section 299-A IPC reads as under-

“Section 299-A IPC- Failure by person released on bail or bond

to appear in Court:- whoever, having been charged with an offence
and released on bail or bond without sureties, fails without sufficient
cause (the burden of proving which shall lie upon him), to appear in
the Court in accordance with the terms of the bail or bond, shall be
punished with imprisonment or either description for a term which
may extend to one year, or with fine, or with both.

Explanation- The Punishment under this section is-

 (a) In addition to the punishment to which the offender would be
liable on a conviction for the offence with which he has been
charged; and
(b) Without prejudice to the power of the Court to order for feature
of the bond.”
13. Second and Successive Bail Applications:-

Second or successive bail applications can be moved only on two

grounds noted below:-

(I) On change of facts or circumstances

(II) Change in law

Where the issues and grounds taken in the second or successive bail
applications were already agitated and rejected by the Court, the
same cannot be ordinarily allowed to be re-agitated. Findings of
higher Courts or coordinate bench rejecting the earlier bail application
must receive serious consideration at the hands of court entertaining
a subsequent bail application as the same can be done only in case
of change in factual position or in law. If the subsequent bail
application is moved on the same ground as in the previous bail
application, the subsequent bail application would be deemed to be
seeking review of earlier order which is not permissible under criminal
law.180

14. Seven Judge Bench Decision & Law of

Bail:-

180
Suheb c. State of U.P., 2006 (6) ALJ (NOC) 1362 (ALL) & Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav, 2005 (51) ACC 727 (SC-three Judge Bench) & State of T.N. v. S.A. Raja, 2005 (53) Acc 940 (SC) & State of
M.P. v. Kajad 2002 (1) JIC 563 (SC).
As regards the power and function of the Session Judges and
Magistrate regarding same day disposal of bail applications and short
term or interim bails etc., a seven Judges Bench Decision of the
Allahabad High Court, overruling and earlier Five Judge Bench Decision
of the Allahabad High Court in the matter of Dr. Vinod Narain rendered
in Smr. Amarawati.181 And circulated by the High Court amongst the
Judicial Officers of the State of U.P. vide.

15. Cancellation of Bail (Section 437 (5) &

Section 439(2) Cr.P.C.:-
(A)Grounds for cancellation of bail- Bail once granted to an
accused cannot be cancelled in a mechanical manner without
considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial to allow the accused
to retain his freedom by enjoying the concession of bail during
trial. Ground for cancellation of bail may be based on satisfaction
of court on (i) chance accused absconding (ii) inference or attempt
to interfere with due course of administration of justice and (iii)
abuse in any manner of bail etc. when a person to whom bail has
been granted either tries to interfere with the course of justice or
attempts to tamper with evidences and witnesses or threatens
witnesses or indulges in similar activities which would hamper
smooth investigation or trial, bail granted can be cancelled.182
(B)Cancellation of bail on the ground of threat to witnesses- Bail
Granted to an accused u/s. 437/439Cr.P.C. can be cancelled if the

181
Dr. Vinod Narain V. State of U.P., 1995 (32) ACC 375 (ALL-Five Judge Bench) Smt. Amrawati & Others v.
State of U.P., 2005 (1) Crimes 44 (All-Seven Judge Bench ).
182
Panchanan Mishra v. Digamber Mishra, AIR 2005 SC 1299 & Mehboob Dawood Shaikh v. State of
Maharashtra, AIR 2004 SC 2890 & Union of India v. Subhash Chandra. 2002 (2) JIC 314 (ALL) & Subhendu
Mishra v. Subrat Kumar Mishra. 2000 SCC (Cri) 1580 & Dolat Ram V. State of Haryana, 1995 Scc (Criminal) 237.
 accused threatens the witnesses to turn hostile or tempers in any
other manner with the evidence of the prosecution.183
(C)Cancellation of bail on the basis of post bail conduct and/or
supervening circumstances- For the cancellation of bail granted
to an accused u/s 437 or 439 Cr.P.C., post bail conduct of the
accused and supervening circumstances can also be taken into
consideration.184
(D)Cancellation of bail on protraction of trial by seeking
unnecessary adjournments- Bail granted to an accused u/s. 437
or 439 Cr.P.C. can be cancelled if the accused indulges into
deliberate protraction of trial or taking unnecessary
adjournments.185
(E) Cancellation of bail on the basis of non-reasoned bail order
passed by ignoring material on record- An order granting bail
u/s. 437 or 439 Cr.P.C. by ignoring material and evidence on
record and without reasons, would be perverse and contrary to the
principles of law of bail. Such bail order would by itself provide a
ground for moving an application for cancellation of bail. Such
ground for cancellation is different from the ground that the
accused misconduct himself or some new fact called for
cancellation of bail. Discussing evidence while granting bail is
totally different from giving reasons for granting of bail. High Court,
u/s 482 or 439 Cr.P.C., can cancel such bail granted by the
Session Judge u/s. 439 Cr.P.C. even if such bail order is
interlocutory order.186

183
Panchanan Mishra v. Digamber Mishra, AIR 2005 SC 1299 & Mehboob Dawood Shaikh v. State of
Maharashtra, AIR 2004 SC 2890 & Gurucharan Singh v. State of Delhi Admi., AIR 1978 SC 179
184
State Through CBI c. Amarmani Tripathi, 2005 (53) ACC 484 (SC).
185
Lali Prasad Yadav v. State of Jharkhand, (2006) 6 SCC 661.
186
Brij Nandan Jaiswal v. Munna Jaiswal, AIR 2009 SC 1021 & Puran Ram Bilas, (2001) 6 SCC 338.
 (F) Cancellation of bail by same judge -Not Necessary- Taking a
different view than what was said down earlier in the case of
Harjeet Singh v. State of Punjab, 2002 (1) JIC 254 (SC), the
Supreme Court, in the case noted below, has ruled that the
conventional practice of placing the application for cancellation of
bail before the judge who granted the bail is not necessary and
need not be followed.187
(G) Who can move application for cancellation of bail- It is
settled law that complainant can always question the order
granting bail if the said order is not validly passed. It is not as if
once a bail is granted by any Court, the only way is to get it
cancelled on account of its misuse. The bail order can be tested
on merits also and the complainant can question the merits of the
order granting bail. Either State or any aggrieved party (in the
instant case father of the deceased for offences u/s. 498-A, 304-B
IPC) can move application for cancellation of bail granted earlier to
the accused.188
(H)Notice/Hearing to accused before cancellation of bail- An
Accused must be given notice and opportunity of being heard
before the bail granted to him earlier is cancelled.189
(I) Cancellation of bail in bailable offences- A person accused of a
bailable offence is entitled to be released on bail pending his trial,
but he forfeit his right to be released on bail if his conduct
subsequent to his release found to be prejudicial to a fair trial. And
this forfeiture can be made effective by invoking the inherent
power of the High Court u/s. 482 Cr.P.C. Bail granted to an

187
Mehoob Dawood Shaikh v. State of Maharashtra, AIR 2004 SC 2890
188
Brij Nandan Jaiswal v. Munna Jaiswal, AIR 2009 SC 1021 & Puran Ram Bilas, (2001) 6 SCC 338.
189
P.K. Shaji v. State of Kerala, (2006) 2 SCC (Cri.) 174 & Gurudev Singh v. State of Bihar, (2005) 13 SCC 2868.
 accused with reference to bailable offence can be cancelled only if
the accsed:-
a. Misuse his liberty by indulging in similar criminal activilty.
b. Interferes with the course of investigations.
c. Attempts to tamper with the evidences or witnesses.
d. Threatens witnesses or indulging in similar activities which
would hamper smooth investigation.
e. Attempts to flee to another country.
f. Attempts to make himself scarce by going underground or
becoming unavailable to the investigation agency.
g. Attempts to place himself beyond the reach of his surety, etc.

However, these grounds are illustrative and not exhaustive190.

16. Bail u/s. 389(3) Cr.P.C. by Trial Court on

Conviction:-

Section 389(3) Cr.P.C. empowers the trial court to grant bail to a

convicted accused under the following conditions:-

“Section 389(3) Cr.P.C.- Where the convicted person satisfies the

Court by which he is convicted that he intends to present an appeal, the
Court shall-

(i) Where such person, being on bail, is sentenced to

imprisonment for a term not exceeding three years, or
(ii) Where the offence of which such person has been convicted
is a bailable one, and he is on bail.

Order that the convicted person be released on bail, unless there are
special reasons for refusing bail, for such period as will afford sufficient
190
Rasiklal v. Kishore, (2009) 2 SCC (Criminal)338.
time to present the appeal and obtain the orders of the Appellate Court
under sub-section (1), and the sentence of imprisonment shall, so long
as he is so released on bail, be deemed to be suspended.

17. Bail u/s. 389 Cr.P.C. by appellate Court:-

(A) Relevant Considerations for grant of bail u/s. 389 Cr.P.C.
During the pendency of an appeal, an appellate court is
empowered u/s. 389 Cr.P.C. to release the convict/appellant on
bail and may also, for the reason to be recorded in writing,
suspend the judgment of conviction and order of sentence passed
by the lower Court. The relevant consideration for releasing the
convict/appellant on bail u/s. 389 Cr.P.C. are as under191-
(i) Nature of accusation made against the accused.
(ii) Manner in which the offence as committed.
(iii) Gravity of the offence desirability of releasing the accused on
bail keeping in view the seriousness of the offence committed
by him.
(B) Second Bail application u/s. 389 Cr.P.C.- An order passed on a
bail application is only an interlocutory order and cannot be treated
as judgment or final order disposing of a case and the bar
contained u/s. 362 Cr.P.C. is not attracted to entertaining a second
bail application u/s. 389 Cr.P.C. by the appellate court. There is no
provision in Cr.P.C. creating a bar against the maintainability of a
second bail application u/s. 389 Cr.P.C. in an appeal. A second
Bail application would be maintainable only on some substantial
ground where some point which has a strong bearing on the fate
of the appeal and which may have effect of reversing the order of

191
State of Hariyana v. Hasmat, (2004) 6 SCC 175 & Vijay Kumar v. Narendra, (2002) 9 SCC 364 & Ramji Prasad
v. Rattan Kumar Jaiswal, (2002) 9 SCC 366.
 conviction of the accused is made out. A part from the ground on
the merits of the case, a second application for bail would also be
maintainable on the ground of unusual long delay in hearing of the
appeal as in the event the appeal is not heard within a reasonable
time and the convicted accused undergoes a major part of the
sentence imposed upon him, the purpose of filling of the appeal
itself may be frustrated. A strong humanitarian ground which may
not necessarily pertain to the accused himself but may pertain to
someone very close to him may also, in certain circumstances, be
a ground to entertain a second bail application. These are some of
the ground on which second bail application may be entertained. It
is only very difficult but hazardous to lay down the criteria on which
a second application for bail may be maintainable as it will depend
upon peculiar facts and circumstances.192
18. Bail under-trial u/s. 436-A Cr.P.C.:-

With the amendments in Section 436 Cr.P.C. vide amending Act No.
25 of 2005, a new Section 436-A has been inserted which deals with
the bail matter of under trials. Section 436-A Cr.P.C. reads as under-

“436-A. Maximum period for which an under trial prisoners can

be detained- Where a person has, during the period of investigation,
inquiry or trial under this code of an offence under any law (not being an
offence for which the punishment of death has been specified as one of
the punishments under that law) undergone detention for a period
extending up to one-half of the maximum period of imprisonment specific
for that offence under that law, he shall be released by the Court on his
personal bond with or without sureties.

192
Dal Chand v. State of U.P., 2000 Cr. L.J. 4579 (ALL-D.B.)
 Provided that the Court may, after hearing the Public Prosecutor
and for reasons to be recorded by it in writing, order the continued
detention of such person for a period longer than one-half of the said
period or release him on bail instead of the personal bond with or without
sureties.

Provided further that such person shall in any case be detained

during the period of investigation, inquiry or trial for more than the
maximum period of imprisonment provided for the said offence under
that law.

Explanation- in computing the period of detention under this section

for granting bail the period of detention passed due to delay in
proceeding caused by the accused shall be excluded.

19. Bail on the ground of long detention in jail:-

An Accused lodged in jail (even if he is a Member of Parliament)

cannot be granted bail u/s. 437, 439 Cr.P.C. on the ground of long
detention in jail.193

20. (A) Cancellation of bail by magistrate

granted by police-

Referring the case of Free Legal Aid Committee, Jamshedpur,194 the

Rajasthan High Court has, in case noted below, held that where the
accused was granted bail by police officer during investigation,
Magistrate does not have jurisdiction to order furnishing of fresh bail

193
Rajesh Ranjan Yadav Alias Yadav v. CBI, AIR 2007 SC 451 (case of M.P. in jail more than six years) & Pradeep
Kumar v. State of U.P., 2006 (6) ALJ (NOC) 1356 (ALL)- Accused in jail for the last 60 days from the date fixed
for evidence. & Ram Govind Upadhyay v. Sudarshan Singh, 2002 (45) ACC 45 (SC)- accused was in jail for the
last one year. & Prahlad Singh Bhatia v. NCT, Delhi, 2001 (42) ACC 903 (SC) & Hari Om v. State of U.P., 1992
Cr.L.J. 182 (ALL) – (Accused in jail for 8 months).
194
Janshedpur v. State of Bihar, AIR 1982 SC 1463.
 bonds after submission of charge sheet. There is no provision in the
Code of Criminal Procedure for asking an accused already released
on bail by the police officer to furnish fresh bail and bonds. The bail
bonds submitted before the police officer are for purpose of appearing
before the court and when this undertaking has already been given;
fresh undertaking for the same effect is not to be asked for. Bail and
bonds should ordinarily be for appearance not only before the court of
magistrate but also if the case is triable by the Court of session
unless there are particular reasons for not doing so.195

(B) Cancellation of bail by Magistrate granted by court of

session or High Court-The bail granted by Court of sessions or
by any other Superior Court cannot be cancelled by Magistrate
unless so directed by the Court of Session or by any other superior
court. The power of High Court to cancel the bail granted by any of
the subordinate courts under Chapter XXXIII of the Cr.P.C. i.e. u/s.
436 or 437 Cr.P.C.196
21. Revision against grant or refusal of Bail:-

A bail order being an interlocutory order within the meaning Section

397(2) Cr.P.C., revision does not lie against bail orders. Grant or refusal
of bail is only interlocutory order. Proper remedy is to move for
cancellation of bail or to file petition u/s. 482 Cr.P.C. to the High Court.197

22. Bail by police officer-whether survives after

submission of charge sheet?

195
Monit Malhotra v. State of Rajsthan, 1991 Cr.L.J. 806 (Raj)
196
P.K. Shaji v. State of Kerala, (2006) 2 SCC (Cri.) 174
197
Radhey Shyam v. State of U.P., 1995 Cri.L.J. 556 (ALL) & State of U.P. v. Karam Singh, 1988 Cri.L.J. 1434 (ALL)
& Bhola v. State of U.P., 1979 Cri. L.J.781.(All-DB) & Amar Nath v. State of Haryana, AIR 1977 SC 2185.
 The power of a police officer in charge of a police station grant bail
and the bail granted by him comes to an end with the conclusion of the
investigation except in cases where the sufficient evidence is only that of
a bailable offence, in which eventuality he can take security for
appearance of the accused before the Magistrate on a day fixed or from
day to day until otherwise directed. No parity can be claimed with an
order passed by Magistrate in view of enabling provision, contained in
clause (b) of Section 209 Cr.P.C. under which the Committal of
Magistrate has been empowered to grant bail until conclusion of trial,
which power was otherwise restricted to grant of bail by him during
pendency of committal proceedings under clause (a) of Section 209
Cr.P.C.198

23. Parity in Bail:-

It is not universal rule that bail should be granted to accused on the

ground of parity. Bail granted to co-accused on the basis of non-
speaking order cannot form the basis for granting bail on the ground of
parity. Similarly if co-accused is granted bail in ignorance or violation of
well settled principles of the law of bails, it cannot be the basis of
parity.199

24. Cross cases & Bail:-

When there are cross cases and both the sides have received injuries
and one party has been released on bail the other party has to be
released on bail as that is the settled view. The question as to which

198
Haji MOhd. Wasim v. State of U.P., 1992 Cri.L.J. 1299 (All-LB)
199
Sabir Hussain v. State of U.P., 2000 Cri.L.J. 863 (ALL) & Chander v. State of U.P., 1998 Cri.L.J. 2374 (ALL)
party was aggressor, is a question of fact and that will have to
determined on the basis of evidence that is adduced in these cases.200

25. Bail on Medical Ground:-

Where the accused was previously convicted for offences punishable

with life imprisonment and was granted bail on medical grounds, it has
been held by the Supreme Court that bail cannot be granted u/s. 437 or
439 Cr.P.C. to an accused on medical grounds as the medical treatment
can be sought by the accused in jail from the jail authorities.201

26. Appeal against grant of bail-not

Maintainable:-

An appeal against grant of bail is not maintainable. Use of expression

“appeal in respect of an order of bail” in some judgment is in the sense
that the accused can move higher courts.202

27. Accused in jail beyond local territorial

jurisdiction of court-Section 267 Cr.P.C. & Bail:-

Relying upon the Supreme Court decision in Niranjan Singh203 the

Allahabad High Court, while interpreting the provisions of Section 267
r/w. 439 Cr.P.C. has held that where the accused was arrested by the
police at Allahabad in relation to some crime registered at Allahabad and
was detained in jail at Allahabad and the accused was also wanted for
offence u/s. 302,307 IPC at Mirzapur, the Session Judge, Mirjapur had
got jurisdiction to hear the bail application of the accused treating him in

200
Jaswant Singh v. State of U.P., 1977 (14) ACC 302 (ALL).
201
Ram Prakash Panday v. State of U.P., 2001 ALJ 2358. SC
202
Dinesh M.N. (S.P.) v. State of Gujrat, 2008 Cr.L.J. 3008 (SC).
203
Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785.
custody of the Court of Session Judge at Mirjapur. Physical production of
the accused before the Court at Mirjapur or his detention in jail at
Mirzapur was not required.204

28. Bail u/s. 167(2) Cr.P.C.

(A) Bail u/s. 167(2) Cr.P.C.- when can be granted –

Where charge sheet is not filed within a period of 60 or 90 days and the
accused moves application for being released on bail u/s. 167(2),
proviso (a) of the Cr.P.C. and offers to furnish bail, he can be said to
have availed of indefeasible right for being released on bail. If the
application of the accused moved u/s. 167(2) Cr.P.C. is erroneously
rejected by the magistrate and the accused then approaches higher
forum for bail and the charge sheet is filed in the meantime, it does not
extinguish the accused right of the accused to be released on bail u/s.
167(2) Cr.P.C.

(B) Computation of 60 or 90 Days:-

Period of 60 or 90 days u/s. 167(2), proviso (a) of Cr.P.C. begins to run

from the date of order of remand and not from the date of arrest.

In the case of Rustam, the Supreme Court has clarified the

manner of computing the period of 60 or 90 days u/s. 167(2) proviso.
The facts of the case were thus-“Accused was detained in jail for the
offence u/s. 302 IPC, he was remanded to judicial custody on
03.09.1993, charge sheet was submitted in the court on 02.12.1993. For
the purpose of computing the period of 90 days u/s. 167(2) Cr.P.C. the
Supreme Court held “period of 90 days would instantly commence either
from 04.09.1993 (excluding from it 03.09.1993) or 03.12.1993 (includind

204
Billu Rathore v Union of India, 1993 L.Cr.R. 182 (ALL) & Chaudhari Jitendra nath v. State of U.P., 1991 (28)
ACC 497 (ALL)
in it 02.12.1993). Clear 90 days have to expire before the right begins.
Plainly put, one of the days on either side has to be excluded in
computing the clauses Act warrant such an interpretation in computing
the prescribed period of 90 days. The period of limitation thus computing
on reckoning 27 days of September, 31 days of October and 30 days of
November would leave to clear days in December to compute 90 days
and on which date the challan was filled, when the day running was the
90th day. The High Court was, thus, obviously in error in assuming that
on 02.12.1993 when the challan was filled, period of 90 days has
expired.”

(C) Bail u/s. 167(2) Cr.P.C. after filing of charge sheet:-

The Supreme Court has held that the statutory rights of accused to bail
u/s. 168(2) Cr.P.C. Should not be defeated by keeping the application
for bail pending till the charge-sheet is submitted. The Magistrate has to
dispose of such application forthwith.205

(D) Cancellation of bail granted u/s. 167(2) Cr.P.C.

Grant of bail to an accused u/s. 167(2) Cr.P.C. is different from bail

granted on merits u/s. 437 or 439 Cr.P.C. Cancellation of bail u/s. 437(5)
or 439(2) Cr.P.C. is different from refusal to grant bail. Cancellation
involves review on merits of the decision granting bail. Therefore, unless
there are strong grounds for cancellation of bail once granted u/s.
167(2), the same cannot be cancelled on mere production of charge-
sheet. The ratio of Rajnikant Jivanlal Patel206 to extent it was

205
Uday Mohan Lal Acharya v. State of Maharashtra (2001) 5 SC 453 (Three Judge Bench) & Mohamed Iqbal
Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC- Three Judge Bench).
206
Rajnikant Jiwanlal Patel v. Intelligence Officer, NCB, Delhi, (1989) 3 SCC 532.
inconsistent with the law down in Aslam Babalal Desai Case have been
held not to state the correct law has been overruled.207

(E)Bail granted u/s. 167(2) Cr.P.C. not to be cancelled after

submission of chargesheet:-

Bail granted u/s. 167 (2) Cr.P.C. is to be deemed to have been

granted under chapter XXXIII of Cr.P.C., i.e. u/s. 437 or 439 Cr.P.C. and
the same will remain valid till it is cancelled u/s. 437(5) or 439(2) Cr.P.C.
The receipt of charge sheet in court after grant of bail u/s. 167(2) Cr.P.C.
can by itself be no ground for cancellation of bail. Bail once granted u/s.
167(2) Cr.P.C. cannot be cancelled merely for subsequent filing of
charge-sheet and the same can be cancelled only u/s. 437(5) & 439(2)
Cr.P.C. for the reasons like abuse etc. of the bail.

(F) Application must for bail u/s. 167(2) Cr.P.C.:-

An Accused must file application for bail u/s. 167(2) proviso (a)
Cr.P.C. for being released on bail.

(G) Accrued right of bail u/s. 167(2) Cr.P.C.-how Long

survives? No bail u/s. 167(2) Cr.P.C. after filling of charge-
sheet:-

Right of the accused to bail u/s. 167(2) Cr.P.C. ensues on default of

the I.O. in submitting the charge sheet within the statutory period of
60/90 days and is enforceable by the accused only from the time of
default in the submission of charge sheet toll the filling of the challan and
it does not survive or remain enforceable on the challan being filed as
after submission of charge sheet section 167 Cr.P.C. cease to apply and
the custody of the accused is not governed by section 167 Cr.P.C. but
207
Dr. Bipin Shantilal Panchal v. State of Gujrat, (1996) 1 SCC 718 (three Judge Bench) & Aslam Babalal Desai v.
State of Maharastra, (1992) 4 DCC 272 (Three Judge Bench) & Ram Murti v. State of U.P., 1976 Cr.L.J. (ALL).
by different provisions in the Cr.P.C. If the right to be released on bail
u/s. 167(2) Cr.P.C. accrued to the accused but it remained unenforced
till the filling of challan, then there is no question of its enforcement
thereafter since it is extinguished the moment of the challan is filed. If
after expiry of 60 and 90 days, the charge sheet is filed and the accused
is in custody on the basis of order of remand then the accused cannot
be released on bail on the ground that charge sheet was not submitted
within the statutory period of 60 or 90 days. The bail application filled by
the accused after the submission of charge sheet would be decided on
merits and not u/s. 167(2) Cr.P.C.208

(H) Section 173(8) Cr.P.C. & Bail u/s. 167(2) Cr.P.C.

Right to bail u/s. 167(2) Cr.P.C. is available only till investigation is

pending and no police report u/s. 173(2) Cr.P.C. is submitted within the
statutory period of 60 or 90 days. But this right is lost once charge sheet
is filed. Such right to bail u/s. 167(2) Cr.P.C. does not get revived only
because further investigation u/s. 173(8) is pending.209

(I) Submission of charge sheet before filing of bail bonds after

bail u/s. 167(2) Cr.P.C.:-

An order for release on bail granted u/s. 167(2) Cr.P.C. is not

defeated by lapse of time, the filing of charge sheet or by remand to
custody u/s. 309(2) Cr.P.C. There is no limit of time within which the
bond may be executed after the order for release on bail u/s. 167(2)
Cr.P.C. is made.

(J) Magistrate to inform the accused of his accrued right of bail

u/s. 167(2) Cr.P.C.
208
Dinesh Dalmia v. CBI, AIR 2008 SC 78 & Sanjay Dutt v. State through CBI, Bombay, (1994) 5 SCC 410-Five
Judge Bench & Hari om v. State of U.P., 1992 Cr.L.J. 182 (ALL).
209
Dinesh Dalmia v. CBI, AIR 2008 SC 78.
 It is duty of magistrate to inform the accused of accrued right to be
released on bail u/s. 167(2) Cr.P.C.210

(K) No Bail u/s. 167(2) Cr.P.C. during extended period

investigation beyond 60/90 days:-

Where the court extends time to complete investigation before expiry

of 60/90 days, the court is empowered to remand accused to judicial pr
police custody during extended period and the right of accused to be
released on bail u/s. 167(2) Cr.P.C. is not lost.

(L) Revision against order u/s. 167(2) Cr.P.C.

Where after expiry of 90 days, the accused moved application for bail
u/s. 167(2) Cr.P.C. but the Magistrate postpone the disposal of
application to next day when police filled charge sheet, it has held that
the Magistrate acted violation of provision u/s. 167(2) Cr.P.C. and
revision lies against such an order. Where the court concerned adopts
dilatory tatics to defeat the right of the accused accrued u/s. 167(2)
Cr.P.C., it is open to the accused to immediately move the superior court
for appropriate direction.211

(M) Accused to be released on bail u/s. 167(2) Cr.P.C. when

after filing of the application by the accused charge sheet is
filed.

Magistrate is obliged to grant bail to accused u/s. 167(2) Cr.P.C. even

if after filing of the application by the accused, a charge sheet is filed by
the investigating Officer.

210
Sudhakar v. State of U.P., 1985 (1) Crimes 582 (ALL) & Hussainara Khatoon v. Home secretary, State of
Bihar, AIR 1979 SC 1377 (three Judge Bench).
211
Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 (Three Judge Bench) & Sudhakar v. State
of U.P. 1985 (1) Crimes 583 (ALL).
 (N) Bail u/s. 167(2) Cr.P.C. after submission of charge sheet
during the pendency of the proceedings before the higher
forum against the magisterial order rejecting the application
u/s. 167(2) Cr.P.C.:-

Where the application of the accused has been erroneously rejected

by the Magistrate u/s. 167(2) Cr.P.C. and the accused then moves the
higher forum but during the pendency of the matter before the forum, a
charge sheet is filed, the indefeasible right of the accused is not
affected. However, if the accused fails to furnish the bail as directed by
the Magistrate, his right to be released on bail would be extinguished.212

(O) Submission of Charge sheet after grant bail u/s. 167(2)

Cr.P.C. but before furnishing of bail bonds:-

If the accused is unable to furnish the bail as directed by the

Magistrate, then on a conjoint reading of Explanation I and the proviso of
subsection (2) of Section 167 Cr.P.C., the continued custody of the
accused even beyond the specific period in para (a)will not be

212
Uday Mohanlal Acharya c. State of Maharashtra, (2001) 5 SCC 453 (Three Judge Bench).