Saturday, 26 May 2018

NOTES ON BAIL AND ANTICIPATORY BAIL UNDER CR.P.C


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.

Read important Judgments on bail:

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.

Read important judgments on anticipatory bail:
Click here

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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