Section 439 CrPC.pptx

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1. Concept of Bail “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”. – Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977). The concept of bail, which is a basic part of the Indian criminal jurisprudence and it is well recognized principle among all the judicial systems of the world. Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The law lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation. What is contemplated by bail is to "procure 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”.

2. [ The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C . as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C . Thus, it is the discretion of the court to put a monetary cap on the bond.

3. In 2011, The Hon'ble apex court in Sanjay Chandra vs CBI AIR (2012) 1 SCC 40 also opined that : “The grant or refusal to grant bail lies within the discretion of the Court . The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”. Recently, Hon’ble Supreme Court, in Aasu vs. state of Rajastan (Criminal Appeal NO.511 of 2017 Dt.09-03-2017) issued a direction that Bail applications shall be disposed of normally within one week.

4. Section 439 Special powers of High Court or Court of Session regarding bail 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 subsection (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.

5. 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.“** (1A) 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.“** 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. ** - Inserted by the Criminal Law (Amendment) Act, 2018

6. Explanation to section 439 CrPC Section 439 reads as “ Special power of High Court or Court of session regarding bail” – Where sub-section (1) A high court or court of session- Under sub-clause (a) states that any person accused of an offence and in custody in a pending case shall be released on bail and if the offence is of the nature specified in subsection (3) of section 437 i.e. Offences Against the State (Chapter VI), Offences Affecting the Human Body (Chapter XVI) and Offence Against Property (Chapter XVII) then may impose any condition which it considers necessary for the purposes mentioned in that sub- section. Under sub-clause (b) states that any condition imposed by a Magistrate when releasing any person on bail in a pending case be either set aside or modified.

7. It is further provided 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 (Punishment for commission of rape on woman under sixteen years) or section 376AB (Punishment for rape on woman under twelve years) or section 376DA (Punishment for gang rape on woman under sixteen years) or section 376DB (Punishment for gang rape on woman under twelve years) of the Indian Penal Code, shall 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.“

8. Where clause (A) of section (1) states that the presence of the informant or any other 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. Where section (2) states about the cancellation of bail, that the High Court or Court of Session may direct any person who has been released on bail under this Chapter to be arrested and to commit him to custody.

9. Explanation to section CrPC The powers of the High Court in granting bail are very wide; even so where the offence is non- bailable , various considerations will have to be taken into account before bail is granted in case of non- bailable offence. Under Section 439(1) of the Code, the High Court can only release the accused in cases pending anywhere in the State on bail or reduce the amount of bail, but cannot order the arrest or commitment to custody of any person who has been released on bail by the lower Court but it can order to arrest the person who had been released on bail under Section 439(2) of the Code. In a recent judgment in Sundeep kumar bafna vs. State of maharashtra & anr Criminal appeal no. 689 of 2014 Hon’ble Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.

10. Now, Section 439(2) The Code of Criminal Procedure makes clear provisions for cancellation of bail and taking accused back in custody. The power of cancellation of bail can be resorted to broadly in the following two situations: ( i ) On merits of a case mainly on the ground of the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law; and (ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances. Bail in the first type of cases can be cancelled by superior courts only, whereas in the second category of cases bail can be cancelled by the very court which may have granted bail.

11. Cancellation of bail- certain grounds: The grounds for cancellation of bail under section 439(2) can be cancelled where the accused (1 ) misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5) attempts to flee to another country, (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive.

12. Relation between section 439 CrPC and Article 21 of the Indian Constitution Article 21 of Indian Constitution: Article 21 of the Indian Constitution, which specifically states, No person shall be deprived of his life or personal liberty except according to procedure established by law. Any individual, who violates the law of the land, is bound to face consequences as per the law and in such a case, his freedom may be restricted depending upon the gravity of offence as such committed. Every accused who has been frivolously charged with the allegations of a non- bailable offence is not only entitled to a good defense but also to be released on bail, by the Court upon taking into various factors such as nature or seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or the state and similar other factors. It is the solemn duty of the Court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Supreme Court observed that it had time and again stated that bail is the rule and committal to jail an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution .

13. When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so. The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

14. Important Case Laws The Hon'ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258 has stated few factors to be taken into consideration, before granting bail, namely: i ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; iii) Prima facie satisfaction of the Court in support of the charge. In the case of Ram Govind Upadhyay vs. Sudarshan Singh and Ors AIR 2002 SC1475 the Hon'ble Supreme Court held that while bail is not required, certain circumstances must be considered when granting bail, such as where the applicant has already been in custody and the trial is not expected to end for some time, which can be characterized as unreasonable.

15. The Hon'ble Supreme Court in the matter of   Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444 , has mentioned that other relevant grounds which play a vital role in deciding the bail application are - the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case. The Supreme Court in  Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : 1978 SCC (Cri) 115 , held that after setting out the discipline that the Court is bound to adhere to in the matter of exercise of judicial discretion in the matter of grant/ refusal of bail, it observed: An accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.

16. The Supreme Court also noticed its earlier judgment in  State of U.P. v. Amarmani Tripath i   (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) , wherein it held that the matters to be considered in an application for bail are: ( i ) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.

17. In  Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179; 1978 SCC (Cr) 41 it was held that considerations in granting bail which are common both in the case of Ss.437(l) and 439(1), Cr.P.C . Code 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.

18. In the case of  Satish Jaggi v. State of Chattisgarh & Ors. 2008 1 ALT ( Crol .) 438 (SC) , it was held by the Supreme Court that at the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. The Hon'ble Bombay High Court held in  Stefan Mueller v. State of Maharashtra Writ Petition No.2939 of 2009 dated 23/06/2010 in para no.10 , that it is well settled position of law that if the offence is bailable, the accused is entitled to be released on bail and even where he does not make an application for bail, it is the responsibility of the concerned police officer, if he has arrested or detained the accused for a bailable offence, to inform him about his right to be released on bail . Similarly, it is also settled position of law that where a person accused of bailable offence appears or is produced before a Magistrate, it is responsibility of such Magistrate to inform him of his right to be released on bail.

19. In   Sumit v. State of U.P. 2010 Cri.L.J . 1435 (SC) , it was held that even if there are other criminal cases pending, accused should be granted bail . Hon'ble Supreme Court in  Maulana Mohmmad Amir Rishadi vs. State of U.P. and another 2012(2) Mh. L. J. (Cri.) 412 held that, merely on the basis of criminal antecedents, bail cannot be denied. In Sanjay Chandra Vs. Central Bureau of Investigatio n (2012) 1 Supreme Court Cases (Cri) 26. , the dictum of Hon'ble Supreme Court was that gravity alone can not be decisive ground to deny bail.

20. In Subhash Bahadur @ Upender v The State (N.C.T. Of Delhi), [BAIL APPLN. 3141/2020] The Delhi High Court was posed with the question of whether an application for a bail under Section 439 Cr.P.C . would be sufficient for a court to construe that the accused had availed of his right to be released on bail under the provisions of Section 167(2) of the Cr.P.C . if the condition stipulated therein were met in the matter. The bench of the Delhi HC consisting of Hon’ble Mr. Justice Vibhu Bakhru  held that, “In the present case, there is no doubt that the petitioner had applied for being released on bail and had offered to abide by the terms and conditions of bail. Bearing that in mind, it is at once clear that the petitioner would be entitled to default bail even though he had not specifically mentioned the provisions of Section 167(2) of the Cr.PC in his application.

21. CONCLUSION Conclusively, the idea of bail is noble idea in criminal jurisprudence. Bail can be granted to the accused in case of non bailable offences subject to some limitation and conditions. The idea of bail conveys the meaning that the accused cannot be presumed to be guilty 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.

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