S
436. In what cases bail is to be taken:-
In
bailable offence, bail can be claimed as a matter of right.
S
436A (inserted by 2005 amendment) provides that if a person has
during the period of investigation,inquiry or trial under the Code,
undergone imprisonment for a period extending upto one half of the
maximum imprisonment specified for that offence,he shall be released
by court on his personal bond with or without sureties. However this
can not be done if the offence is one for which death sentence has
been specified as one of the punishments.
It
is also provided that,in any case,a person can not be detained during
the period of investigation,inquiry or trial,for more than the
maximum period of imprisonment for that offence.
S
437.When bail may be taken in case of non-bailable offence:-
In non bailable offence,
accused can be released on bail,but-
1) Such person shall not be
released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for
life;
2) So also such person is not
to be released on bail if the offence is a cognizable offence and he
has been previously convicted-
a) of an offence punishable
with death,life-imprisonment or imprisonment for seven years or more;
or
b) on two or more occasions of
a non-bailable and cognizable
offence.
The only exceptions are in
favour of a person under the age of sixteen,a woman,or a person who
is sick or infirm. Such person may be released on bail even if they
are covered by above mentioned clauses.
Moreover
the court is also empowered to direct that a person covered by
clause(b) be released on bail,if it is satisfied that it is just and
proper to do so for any other special reason.
It is also clarified that the
mere fact that an accused person may be required for being identified
by witnesses during investigation would not be a sufficient ground
for refusing to grant bail to a person if he is otherwise entitled to
be released on bail and gives an undertaking that he shall comply
with such directions as may be given by the court.
It is further provided that
if the trial of person accused of a non-bailable offence is not
concluded by the magistrate within a period of sixty days from the
date fixed for taking evidence in the case,if such person is in
custody during the whole of said period,he must be released on
bail,unless magistrate otherwise directs for reason to be recorded.
S
437A. (inserted by Amendment Act 2008) Bail to require accused to
appear before next appellate court.
S
438. Direction for grant of bail to person apprehending arrest
(Anticipatory bail)
1) Where any person has reason
to believe that he may be arrested on accusation of having committed
a non-bailable,he may apply to high court or session court for
direction that in the event of arrest,he shall be released on
bail;and that court may after taking into consideration,inter alia,
the following factors, namely:-(Similar conditions are mentioned in
Maharashtra amendment)
a) the nature and gravity of
the accusation;
b)the antecedents of the
applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a court in respect of any
cognizable offence.
c) the possibility of the
applicant to flee from justice;and
d) where the accusation has
been made with the object of injuring or humiliating the applicant by
having him so arrested,
either reject the application
forthwith or issue an interim order for grant of anticipatory bail;
Police can arrest accused if
interim anticipatory bail is not given to him.
(1-A) Where interim
anticipatory bail is granted,court shall issue seven days notice
together with copy of such order to be served on public prosecutor
and superintendent of police with a view to give reasonable
opportunity of hearing.
(1- B) Court may direct
presence of accused at the time of final hearing of application on
prayer of prosecution.
High court or Session
court granting anticipatory bail can impose following conditions:
1) Accused shall remain
present for interrogation as and when required by police officer.
2) Accused shall not tamper
prosecution evidence.
3) Accused shall not leave
India without previous permission of court.
4) any other condition as
mentioned in S 437(3)
Sub S 3. Thereafter if
police wants to arrest accused, accused shall be released on bail.
Magistrate taking cognizance of offence shall issue bailable warrant.
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S
439. Special powers of high court or court of session regarding
bail:-
1) 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 S 3 of S 437 may impose any condition
which it considers necessary;
b) that any condition imposed
by a magistrate when releasing any person on bail be set aside or
modified;
Provided that high court or
session court shall before granting bail to a person who is accused
of an offence which is triable exclusively by session court or which
though not so triable is punishable with imprisonment for life, give
notice of the application for bail to public prosecutor.
2) 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.
S
440. Amount of bond and reduction thereof:-
1) Amount of bail shall not be
excessive.
2) High court or session court
may direct reduction of bail required by
police officer or magistrate.
S
441.Bond of accused and sureties;
S 441-A Declaration by
sureties:- Declaration as to number of persons to whom he has
stood surety along with details.
S
442- Discharge from custody;
S
443- Power to order sufficient bail when that first taken is
insufficient;
S
444.Discharge of sureties:-
1)Sureties
can apply to magistrate for discharge of bond
2) If accused is present
before court-surety will be discharged .
3) If accused is absent, court
shall issue warrant of arrest.
4) Accused shall be committed
in jail if he fails to furnish fresh surety.
S
445.Deposit instead of recognizance:- Court may permit deposit of
money in place of furnishing of surety.
S
446.Procedure when bond has been forfeited:-
1) Court shall call upon
surety to pay penalty.
2)If sufficient cause is not
shown and penalty is not paid,court shall recover such amount as a
fine.
3) court may direct surety to
be detained in civil jail which may extend to six month.
4) Court may remit portion of
penalty.
S 446-A. Cancellation of
bond and bail bond:- If bond is for appearance of person and it
is forfeited for breach of condition-
a) Bond executed by accused
and surety shall stand cancelled.
b) thereafter accused shall
not be released on his own bond if police or court is satisfied that
there was no sufficient cause for failure to comply condition.
S 447.Procedure in case of
insolvency or death of surety or when bond is forfeited:- Accused
shall furnish fresh surety.
S 448.Bond required from
minor:- If accused is minor,bond is to be submitted by surety.
S
449. Appeal from orders under section 446:-
1) Order by Magistrate,appeal
to session judge;
2) order by session judge,
appeal to high court.
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