Introduction

Black’s Dictionary defines bail as “Procuring the release of a person from legal
custody, by undertaking that he/she shall appear at the time and place
designated and submit him/herself to the jurisdiction and judgment of the
court”.
Bail is the conditional release of a person accused of a crime, for an amount,
pledged for the appearance of the accused when the same is due in court. The
person paying the money acts as the surety. Getting bail is one of the rights of the
accused in a civil case while it is the discretion of the bail granting authority in a
criminal case.

SECTION 439 CrPC Bail through High Court

Section 439 CrPC clarifies about the power given to the High court and Session
court regarding the grant of bail. In committal case, the bail application can only
be filled before session court under sec 439 CrPC and also there are other
offences which having punishment Death or Life imprisonment (which exclusively
triable by Session) mentioned under sec 437(3) and for other cases, if person
want to be made an application for a bail, then should he also make an
application under sec 437.
Section 439 give certain special powers of High Court or Court of Session
regarding bail and states that:
(1) A High Court or Court of Session may direct—
a. that any person accused of an offence and in custody be released on bail, and if
the offence is of the nature specified in Sub-Section (3) of section 437, may impose
any condition which it considers necessary for the purposes mentioned in that Sub-
Section;
b. that any condition imposed by a Magistrate when releasing any person on bail be
set aside or modified;
Provided that the High Court or 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 or 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
reasons to be recorded in writing, of opinion that it is not practicable to give such
notice.
Provided further that the High Court or the Court of Session shall, before granting
bail to a person who is accused of an offence triable under sub-section (3) of
section 376 or section 376AB or section 376DA or section 376DB of the Indian
Penal Code, give notice of the application for bail to the Public Prosecutor within a
period of fifteen days from the date of receipt of the notice of such application
1. The presence of the informant or any person authorized by him shall be
obligatory at the time of hearing of the application for bail to the person under sub-
section (3) of section 376 or section 376AB or section 376DA or section 376DB of
the Indian Penal Code, 1860.
(2) A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.

Essential conditions of Section 439:

1. A person can move to the High Court or Court of Session for bail under Section
439 CrPC only when he is in custody i.e., held within the meaning of Duress (or
coercion) against his will by the investigating authority or police officer or other
appropriate authority or is under the control of the court having been remanded
by judicial order, etc.
2. A person has to apply with bail application under Section 439 CrPC to the High
court or Session court.
3. Section 437 (3) doesn’t impose restriction on Sec 439(1) but it explicit the
power to grant bail only for the offences triable by session court or in case a bail
application is filed as an appeal against order granted under Sec 437. It put
emphasis on appellate jurisdiction and original jurisdiction (offences only triable
by sessions court) of the Court.
4. The paramount conditions to be fulfilled under sec 439(1) and under sec
437(1) before granting the bail have been decided in several cases that varies
upon different facts and circumstances.
Some of them are:
• In Gurcharan Singh vs. State (Delhi Administration)( AIR 1978 ) , it was held
that considerations in granting bail which are common both in the case of Section
437(l) and 439(1) are: (i) the nature and gravity of the circumstances in which the
offence is committed; (ii) the position and the status of the accused with
reference to the victim and the witnesses; (iii) the likelihood of the accused
fleeing from justice; (iv) of repeating the offence; (v) of jeopardizing his own life
being faced with a grim prospect of possible conviction in the case; (vi) of
tampering with witnesses; (vii) the history of the case as well as of its
investigation; and (viii) other relevant grounds which, in view of so many variable
factors, cannot be exhaustively set out.
•In the case of Prahlad Singh Bhati vs. N.C.T. Delhi, the Hon'ble Supreme Court
has mentioned that other relevant grounds which play a vital role in deciding the
bail application are – (i)the possibility for repetition of crime; (ii)the time lag
between the date of occurrence and the conclusion of the trial; (iii)illegal
detention; and (iv)undue delay in the trial of the case.
5. Though the discretion given by Section 439 of CrPC is unrestrained and wide
enough to permit bail even in case of a non-bailable offence of the grievous type,
it has to be exercised judicially in consistent to the well-established principles. In
Inspector of Police v. M. Murugesan, the Hon’ble Supreme Court interpret that,
Section439 give wide powers to the High Court and Session court in terms of
granting the bail and it is limited to the extent of granting or refusing the bail only.
It was observed that the high Court has committed grave illegality in retaining the
file after grant of bail to the accused. The jurisdiction of the High Court came to
an end when an application for grant of bail under Section 439 of the Code was
finally decided.
6. The powers of the High Court in the matter of granting bail are very wide;
however, where the offence is non-bailable, various conditions have to be taken
into consideration before bail is granted during a non-bailable offence. In the case
of P.K. Shaji v. State of Kerala (2005) 13 SCC 283, Session Court granted bail to the
accused for the offences under Sections 120-B and 307 of IPC under certain
conditions. Conditions included that he had to report on all the Mondays and
Fridays to the investigating officer. The accused also had to issue a bond of Rs.
50,000 with two solvent sureties.
7. The court while granting bail has the power to set forth any condition which
they consider necessary in the pursuit of justice. Where a judge ordered the
release on bail of the respective appellants on furnishing a bond but the effective
release had been ordered on a future date ranging between 6 months to 1 year,
the Supreme Court held it pre-emptive of the duties of the Court. In the case of
Ram Govind Upadhyay vs. Sudarshan Singh and Ors (AIR 2002 SC1475), the
Hon’ble Supreme Court held that it is not necessary to grant bail but certain
circumstances need to be considered while grant of bail like where the applicant
has already been in custody and the trial is not likely to conclude for some time,
which can be characterized as unreasonable.
8. The High court or the session court has the power to examine the correctness
of that order in all its aspects and to modify or set aside any portion of the same if
it is considered necessary.
9. With a view to prevent the person accused of grave offences to get released on
bail by an ex-parte order, and be in a position to tamper the investigation process,
a proviso has been made that in every case where the offence is punishable with
imprisonment for life or is triable exclusively by Session Court. No court shall
grant bail except after giving notice in writing of the application to the public
prosecutor; if this is not done then the reasons for not giving such notice are to be
recorded in writing.
10. A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter, to be rearrested and take him back into
custody.

Conclusion
The idea of bail is noble idea in criminal jurisprudence. Under sec 439 bail can be
granted to the accused in case of non-bailable offences subject to some limitation
and conditions by the high court and the sessions court. The idea of bail conveys
the meaning that the accused cannot be presumed to be a convict until his guilt is
proved. Provision of bail also brings the noble idea of personal liberty into
existence. The provisions are incorporated with a view to give effect to the
personal liberty mentioned in Indian Constitution.
Dushyanth M Gowda
3rd BBA LLB
St Josephs college of law