JAMIA MILLIA ISLAMIA

NEW DELHI

FACULTY OF LAW

Code of Criminal Procedure

Bail in Bailable Offences

Submitted by: - Submitted TO: -

Priyam (48)(s/f) Prof. Asad Malik

Semester- IX (CrPC)
 Bail in bailable offences

INTRODUCTION

The word “Bail” means the security of a prisoner’s appearance for trial. The effect of
granting bail is, accordingly not to get the prisoner free from jail or custody, but to release him
from the custody of Law and to entrust him to the custody of his sureties who are bond to
produce him at his trial at a specified time and place. Grant of bail is a rule and refusal is an
exception. A person accused of a bailable offence has the right to be released on bail. Bail in case
of bailable offences is compulsory. In the matter of admission to bail the Code of Criminal
Procedure makes a distinction between bailable & non-bailable offences.
The grant of bail to a person accused of non-bailable offence is discretionary. But a
person accused of bailable offence at any time while under detention without a warrant at any
stage of the proceedings has the right to be released on bail in view of section 436 Cr. P.C. 1973.
When the offence is bailable and accused is prepared to furnish bail, police officer has no
discretion to refuse bail. Even when a person suspected of committing a bailable offence is
produced before a magistrate and he is prepared to give bail, Magistrate has no option but to
release him on appropriate bail. Magistrate cannot refuse to accept surrender and to bail out an
accused against whom a petition or complaint of bailable offence has been filed. The offence
when is bailable, bail has to be granted. If the offence is non-bailable further considerations arise.
While adjudicating a bail application detailed examination of evidence and elaborate
documentation of the merits of the case is however to be avoided.

SECTION 436 CR. P.C.

(1) When any person other than a person accused of a 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 and is prepared at any time while in the custody of such person shall be released
on bail:
Provided that such officer or court if he or it thinks fit may (may and shall if such person is
indigent and is unable to furnish surety instead of taking bail) from such person discharge him on
his executing a bond without sureties for his appearances as hereinafter provided:

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 Bail in bailable offences

(Explanation – where a person is unable to give bail within a week of the date of his arrest it
shall be sufficient ground for the officer or the court to presume that he is an indigent person for
the purpose of this proviso.)
Provided further that nothing in this section shall be deemed to affect the provisions of sub-
section (3) of section 116 [or section 446A.]
(2) 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
powers of the court to call upon any person bond by such bound to pay the penalty thereof under
section 446.
In Morit Malhotra v. State of Rajasthan1, the accused was granted bail under section
436 by the police. But when he appeared before the court he was advised to take bail from the
court. He challenged the orders in the Rajasthan High Court which ruled that it is not necessary
for an accused to get bail granted by the court if he has already been granted bail by the police.
The court drew support from the Supreme Court decision in Free Legal Aid Committee,
Jamshedpur Vs. State of Bihar2, wherein it was ruled that in a sessions case if the magistrate
has granted bail, the accused need not seek bail from the court of sessions.
Having regard to the nature of relationship of the person on bond with the court and the
powers conferred on the court under section 436, it appears that the above ruling may not be
generally followed by the courts.
An interesting question arose in Haji Mohamed Wasim vs. State of U. P.3 before the
Allahabad High Court as to the validity of bail granted by police officers. In this case the accused
who was on bail granted by police preferred nor to appear before the court. The trial court issued
a non bailable warrant which came to be challenged by the accused under section 482. The court
ruled that he has to take fresh bail from trial court. It reasoned:
The power of a police officer 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

1
1991 Cri. LJ 806 (Raj).
2
AIR 1982 SC 1463
3
1992 Cr. LJ 1299.

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 Bail in bailable offences

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 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 (a) of section
209.
The real situation, as it obtains today in the society, is amply clear that police discretion is
not always being properly exercised in the matter of arrest. The citizens are being deprived of
their liberty and the police have become a kind of terror for the citizens because of their undue
harshness with the public in general and the suspects in particular. The newspapers are replete
with examples of police high-handedness. It is a matter of common knowledge that in order to
extract information from a suspect, the police beat a person in the course of investigation, in
custody to the extent that sometime an accused person even succumbs to injuries. On many
occasions departmental inquiries have been conducted; but these have been used mainly to cover
up the taint. Furthermore, instances are known where in order to secure conviction of an accused;
the police have concocted the whole prosecution story and have tutored the witnesses to
implicate innocent persons. Such police activities once led a high court judge to form an opinion
that police is itself an organization of goondas,4 although the remarks were expunged later by the
Supreme Court. Even then no echo of these remarks continues to be heard till today.

SCOPE AND APPLICATION

‘Bail’ connotes the process of procuring the release of an accused charged with certain
offence by ensuring his future attendance in the court for trial and compelling him to remain
within the jurisdiction of the court.5 Where a person who is arrested is not accused of a non-
bailable offences no needless impediments should be placed in the way of his being admitted to
bail. In such cases the man is ordinarily to be at liberty and it is only if he is unable to furnish
such moderate security, if any as is required that he should remain in detention. The section is

4
Amin v. State, AIR 1958 All. 293.
5
Nathurasu v. State, 1998 Cri LJ 1762 (Mad).

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 Bail in bailable offences

imperative and under its provision the magistrate is bound to release the person on bail or
recognizance. But bail means release of a person from legal custody; it presupposes that he is in
custody. Person who is under no such restraint cannot be granted bail. The fundamental principal
of our system of justice is that a person should not be deprived of his liberty except for a distinct
breach of law. If there is no substantial risk of the accused fleeing there is no reason why he
should be imprisoned during the period of his trial. The basic rule is to release him on bail unless
there are circumstances suggesting the possibility of his fleeing from justice or thwarting the
course of justice. When bail is refused it is a restriction on personal liberty of the individual
guaranteed by Article 21 of the Constitution and therefore, such refusal must be rare. Where
delay take place in the disposal of criminal proceedings 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.
Appearance under this section includes voluntary appearance. When he so surrenders is
in judicial custody of the court and the magistrate cannot reject the bail on the ground that the
person was neither arrested nor had been summoned by court order of Magistrate has granted
interim bail the interim bail would subsist so long as the fresh bail application is not decided by
the Magistrate. As offence under sections 8/21 NDPS Act is bailable offence. The power to grant
bail given by sections 436 and 437 of the Code vests in the Court before whom an accused
appears and is brought. The expression “Court” means the Court which has power to take
cognizance of the case. A Court which has only the power to remand under section 107 is not a
competent Court for granting bail. Similarly as Executive Magistrate has no jurisdiction to grant
bail except in respect of offences punishable with fine and or imprisonment up to three months.
In relation to a person not accused of such offences the Magistrate, who has jurisdiction to take
cognizance has power to grant bail even when the accused is in custody on the basis of an order
of remand passed by an Executive Magistrate.6
BAIL IS A SECURITY FOR APPEARANCE
Bail in its fundamental concept is a security for the prisoner’s appearance to answer the
charge at a specified time and place. It is natural and relevant for any Court to consider such
security in relation to and in the light of the nature of the crime charged and the likelihood or

6
Singeshwar Singh Vs. Bihar, 1976 [Link] 1511 (Pat).

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 Bail in bailable offences

otherwise of the guilt of the accused there under. At any early stage when accused asks for bail,
the Court has necessarily to act on a reasonable and intelligent anticipation which ex-hypothesis
must, to a certain extent, be problematical because the trial has not run its course. A person
released on bail is still considered to be detained in the constructive custody of the Court through
his surety. He has to appear before the Court whenever required or directed. Therefore, to that
extent, his liberty is subjected to restraint. He is notionally in the custody of the Court and hence
continues to be a person arrested. Even in spite of the fact that the accused had been released on
bail, he continues to be a person arrested on a charge of commission of an offence.

CONSIDERATIONS FOR GRANT OF BAIL

The first duty of the Court in granting or refusing bail would be to see whether there is
possibility of the accused being available to trial and also whether there is any possibility of
accused jumping out the bail.7 Where an accused was granted bail in a case arising out of police
report and subsequently a complaint with additional charges have been filed, accused may be
directed to surrender and then apply for bail in respect of additional charges. Once the accused
had incurred the liability of the forfeiture of the earlier bonds, he is not entitled to bail as a matter
of right, even in bailable cases. Where after the grant of bail in bailable offence, subsequently
non-bailable offence is added the accused would not be allowed to remain on the same bail
bonds, fresh bail application would be referred for non-bailable offence.

POWER TO REFUSE BAIL

Sub Section (2) of section 436 empowers the Court to refuse bail to an accused person
even if the offence is bailable, where the person granted bail fails to comply with the conditions
of the bail bond. Such refusal will not affect the powers of the Court to forfeit the bond and
recover penalty from the surety as laid down by section 446. Even in bailable offence the Court
has power to refuse to release a person on bail. The person committed to custody under the order
of the High Court cannot ask for his release on bail under this section, but the High Court may by
subsequent order admit him to bail again. An order granting or refusing bail is interlocutory.
Order refusing bail is not a final order. Bail may be refused at one stage but may be granted at a
later stage in the same proceedings. It can be even rescinded or modified or cancelled at any
7
Sukar Narayan Bakhia Vs. Rajnikant [Link], 1982 [Link] 2148 (Guj).

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 Bail in bailable offences

stage. It does not terminate the proceedings or decides a point for decision in the case and
therefore is not a final order.

WHO MAY BE RELEASED ON BAIL

A person who is accused of a bailable offence will be entitled to a bail under this section.
He will be entitled to bail if:8
a. he is accused of a bailable offence;
b. he is arrested or detained without warrant by an officer-in-charge of a police station or
appears or is brought before a court;
c. a complaint or a police report of a bailable offence is made against him, or he is
suspected of having committed such an offence.
But even though the offence is bailable, bail will not be granted if the accused stultifies
the process of the court or breaks his bond of appearance.
When a bail application is moved before the subordinate Courts, the same shall be
disposed of the same day. Power under Section 436 should be exercised sparingly by the High
Court.
Bail can be taken by the police officer who has arrested or detained the person concerned
or by the Court before whom the person appears or is brought. Under Section 440, the High
Court or the Court of Session may in any case direct that the bail required by a police Officer or
Magistrate be reduced. When a police officer makes an arrest under Section 41 he is bound to
give the person arrested the option of the bail and bail bond should be not excessive but in
accordance with position in life occupied by the person arrested. In Superintendent and
Remembrancer of Legal Affairs, Bengal Vs. Jairali,939 the decision in the matter of the petition
of Daulat Singh,10 was doubted and it was held that there was no indication in that section that
the police are bound, after arrest, to inform the persons arrested that they are entitled to be
released on bail. But Section 56 lays down that a police officer making an arrest shall, without
unnecessary delay and “subject to the provisions herein contained as to bail”, take or send the
person arrested before Magistrate having jurisdiction in the case or before the officer-in-charge

8
[Link] Vs. MS. Kathuria, 1989 [Link] 1094 (Delhi).
9
ILR 63 Cal. 189: 37 CrLJ 1070.
10
ILR 14 ALL 45.

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 Bail in bailable offences

of a police station. From the words “italicsed” it is clear that if the police officer effecting an
arrest is an officer-in-charge of a police station and if the offence is bailable, such officer shall
release the arrested person on bail when the arrested person is prepared to give bail. If, however,
the police officer arresting a person is not an officer-in-charge of a police station, then the
arrested person has to be produced before the officer-in-charge of a police station, as required
under this section. Where a person at the time of his arrest, holds a very high position under the
Government of India, it is a fit case in which a personal bond would be deemed enough.

HEAVY AMOUNT NOT TO BE DEMANDED

Bail covers both release on one’s own bond and one’s bond with surety or sureties. What surety
amount should be demanded is dependent on several variable factors. Heavy amount should not
be demanded as surety amount. There is no provision in law to insist that surety must hail from
within the district where the Court is situated.11 When the accused is not likely to abscond and
has his roots in the community, he can be safely released on personal bond. Enquiry into
solvency of the accused can become a source of harassment and often result in deprivation of
liberty and should not be insisted upon as a condition of acceptance of the personal bond.
In the under noted case12 the Supreme Court has laid down the guiding principles when accused
can be released on personal bond without sureties. The observations may be perused with
advantage: “If the Court is satisfied, after taking into account, on the basis of information placed
before it, that the accused has his roots in the community and is not likely to abscond it can
safely release the accused on his personal bond. To determine whether the accused has his roots
in the community which would deter him from fleeing, the Court should take into account the
following factors concerning the accused:
1. the length of his residence in the community;
2. his employment status, history and his financial condition;
3. his family ties and relationships;
4. his reputation, character and monetary condition;
5. his prior criminal record including any record of prior release on recognizance or on
bail;

11
Moti Ram Vs. State of Madhya Pradesh AIR 1978 SC 1594;1978 [Link] 1703
12
Hussainara Khatoon Vs. Home Secretary State of Bihar, AIR 1979 SC 1360: [Link] 1036

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 Bail in bailable offences

6. the identity of responsible members of the community who would vouch for his
reliability;
. 7. the nature of the offence charged and the apparent probability of conviction and the
likely sentence in so far as these factors are relevant to the risk of non-appearance; and
8. any other factors, indicating the ties of the accused to the community bearing on the
risk and willful failure to appear.
“If the Court is satisfied on a consideration of the relevant factors that the accused has his
ties in the community and there is no substantial risk of a non appearance, the accused may as far
as possible be released on his personal bond. The amount of the bond should be determined
having regard to these relevant factors and should not be fixed mechanically according to a
Schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to
secure his release even by executing a personal bond. The inquiry into the solvency of the
accused can become a source of great harassment to him and often result in denial of bail and
deprivation of liberty and should not, therefore, be insisted upon as condition of acceptance of
the personal bond.

CONDITIONAL BAIL
The Court or the police officer has to grant bail to an accused in a case relating to a
bailable offence. Bail has, therefore, to be granted to the accused in such cases, and any
condition in the order granting the bail, other than the one for attendance of the accused, would,
therefore, be illegal.13In respect of bailable offences, a Magistrate cannot impose a condition that
the accused should appear before the police.14 The Rajasthan High Court while rejecting the
prayer for cancellation of bail however imposed condition for a short period of one week that
the non petitioner Nos. 1 and 2 should appear before the Investigating Officer for further
interrogation. The said non-petitioners were not to leave the town during the week and were to
present themselves for interrogation before the Investigating Officer or such Police Officer and
at such time during the week, as they may be directed by the Investigating Officer. Non-
petitioner Nos. 1 and 2 could leave after seeking permission of the Investigating Officer. With
these conditions the application for cancellation of bail was rejected.

13
Sardamma In re (1965) 2. Andh W.R. 289, AIR 1965 AP 444 at 446,447 .
14
Paulose Vs. State, 1978 Ker. LT 337.

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 Bail in bailable offences

The condition that a person accused of a bailable offence has to surrender his pass-port is
not a term as to bail and therefore cannot be imposed by a Magistrate under Section 436. But the
High Court can restrict the appellant’s departure from India. These terms and conditions do not
fetter inherent powers of the High Court.

BAIL BOND EXECUTED BEFORE POLICE OFFICER

A bail bond executed before a Police Officer on account of the fact that the person,
involved in a bailable offence, should be released as his detention in custody, if he is prepared to
offer bail, will be contrary to law. So a bail bond executed before a police officer is not for the
appearance before the police because a person accused is an offence, during investigation, is
made an obligation to make himself available before the police officer for investigation and for
that, strictly speaking, no bail bond is required to be furnished and that being so, the bail bond so
furnished before the police officer, in such circumstances, is definitely for appearance before a
court where definitely such person involved in a bailable offence, is required to appear if and
when chargesheet is submitted and the process of trial takes place. The police have no power to
require an accused person released on bail to appear before them. They can only require the
accused person to appear before the Magistrate at the time and place mentioned in the
bond.6Once police has released an accused on bail after taking bonds for appearance before the
Court, on the submission of charge-sheet, the accused need not be asked to file fresh bail
bonds15.

CANCELLATION OF BAIL, GRANTED UNDER THIS SECTION

Section 436 (2) of the Cr. P.C. lays down that where a person had 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 subsequent occasion in the same case he appears before the Court
or is brought in custody. Therefore, it cannot be said that orders passed by the Judicial
Magistrate, for further remand to custody is in any away without jurisdiction. In such
circumstances, it cannot be held that the custody of the accused is illegal. The Supreme Court16
has recognized the power to cancel the bail granted under section 436 in exercise of the inherent

15
Mohit Malhotra Vs. State of Rajasthan, 1990 Raj. Cri. Cas. 68.
16
Ratilal Bhanji Mithani Vs. Asstt. Collector of Customs, Bombay, AIR 1967 SC 1939

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 Bail in bailable offences

powers of the High Court. The Supreme Court has observed that the Code makes no express
provision for the cancellation of a bail granted under Section 436. Nevertheless, if at any
subsequent stage of the proceedings, it is found that any person accused of a bailable offence is
intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the
High Court has the power to cause him to be arrested and to commit him to custody for such
period as it thinks fit. This inherent power of the High Court exists and is preserved by Section
482 of the Code. The person committed to custody under sub section (2) of section 439 confers
upon the High Court or the Court of Session power to cancel bail in regard to cases of persons
accused of any offences where such persons were admitted to bail under this chapter,73 though
ordinarily a Magistrate has no power under the Code to cancel the bail of the accused persons
who are on bail in bailable offences.
When an accused has been released under section 436 and later a non bailable offence is
added, even then the bail granted cannot be cancelled. Bail can be cancelled only either under
section 439 (2) or Section 437 (5). Once bail is granted under Section 436 and a charge-sheet for
a non bailable offence also is filed, bail cannot be cancelled unless there is misuse of the
liberty granted. But in case an order has been made for releasing a person on bail and it is later
found that such order is either based on some misapprehension or being otherwise infirm, is
likely to prejudice the interest of administration of justice, then this provision of law seems to
amply empower the Courts mentioned therein to make a suitable order canceling the order of
release on bail so as to protect and safeguard the cause of justice.

POWER OF MAGISTRATE
The powers 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 commission of
the crime. A Magistrate has no jurisdiction to grant bail only in such case where the prescribed
punishment is imprisonment for life or death penalty. The Magistrate is empowered to grant bail
in the case of an offence under section 366 IPC, where the punishment is that of 10 years.17 The
Court has discretion in the matter; it may release accused by taking only a personal bond without

17
Aftab Ahmed Vs. State of U.P. 1990 Cr. LJ 1636 (All-DB).

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 Bail in bailable offences

insisting surety for the appearance. The insistence of the personal bond and surety is essentially a
matter of discretion and within the jurisdiction of the Court.
In regard to a bailable offence Magistrate is not competent to impose condition. The
accused has a right to be enlarged on bail. The imposition of condition in bail order that accused
shall appear before the investigating officer once in three days was held unsustainable and hence
set aside. The condition that a person accused of bailable offence has to surrender his passport in
Court is not a term as to bail and therefore cannot be imposed by a Magistrate.18 The Supreme
Court has held that unnecessarily inhibitive condition ought not to be imposed while granting
bail. An order rejecting surety because he or his estate was situated in a different district was
held to be discriminatory and violate of Article 14 of the Constitution.
In an Orissa case19 it has been held that Magistrate has power to cancel bail, be the
offence bailable or not, the deciding factor being whether the accused by his behavior and
conduct forfeited the concession shown to him. Affirming the decision it was held the power to
forfeit bail bond is inherent in any court and when circumstances justify the court is competent to
cancel the bail which was granted earlier. The question is not whether the offence is bailable or
non bailable. A person accused of bailable offence when is committed to custody by reason of
his bond being forfeited cannot claim to be released on the ground of the bailability of the
offence, for his commitment to custody is not for reason of the fact that he is alleged to have
committed a bailable offence but by reason of a judicial order forfeiting his bond is a
consequence of the conduct of the accused showing pending trial be should not be at large.
Section 446-A provides that for breach of a condition a bond furnished for release on bail in
bailable offence may stand forfeited and cancelled. And once this is done no such person shall be
released only on his own bond, in that case, 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
cause for the failure of the person bound by the bond to comply with its condition. Subject to
other provisions of the Code of Criminal Procedure the accused may be released in that case
upon execution of fresh personal bond for such sum of money and bond by one or more of such
sureties as the police officer or the court, as the case may be, thinks sufficient.
18
Azeez Vs. State of Kerala, 1984 [Link] 1059: 1984 (2) Crimes 413.
19
Daya Nidhi Sarangi Vs. State of Orissa 1978 CrLJ (NOC) 104(Ori.): (1977)44 Cut LT
466.

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 Bail in bailable offences

CANCELLATION OF BAIL WHERE ACCUSED ABSENT HIMSELF

In Panna Lal v. R.K. Sinha,20 it was contended that the applicant was accused of a
bailable offence for which he had already been granted bail under the provisions of Section 496
Cr. P.C. (of 1898) [equivalent to S. 436 of Cr. P.C. of 1973], which was an absolute and
indefeasible right; therefore, the Sessions Judge had no jurisdiction to cancel his bail and order
his arrest in spite of the fact that he had absented himself and had failed to attend the court.
Relying upon the decision of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam
Mondkar,21 it was held by the Allahabad High Court that in the said case the Supreme Court had
made it abundantly clear that if an accused has abused his bail (by not attending the Court or
otherwise ) his commitment to custody thereafter is not by reason of the fact that he was charged
of a bailable offence; on the other hand, his subsequent commitment to the custody is on the
ground that he has forfeited his bail. It was held that in such a case the accused could not fall
back upon his original right under Section 496 Cr. P. C. (of 1898) [equivalent to S. 436 of Cr. P.
C. of 1973] which had ceased to be applicable to his case, because of his default.
It was further held by the Allahabad High Court that it was true that the Supreme Court in the
said Talab Haji Hussain case had also remarked that there was no specific provision for the
cancellation of the bond and re-arrest of a person accused of a bailable offence; but this remark
was evidently with reference to the powers of an appellate or revisional authority, like the High
Court, and that it was not meant to cover the case of first instance which had initially granted bail
as there was a specific provision in Section 92, of Cr. P. C. (of 1898), conferring a right of
cancellation of bond and re-arrest of the offender. It was also observed by the High Court that it
appeared that in said Talab Haji Hussain case, the provisions of Section 92 of Cr. P. C. (of 1898)
had not been brought to the notice of the Supreme Court.

20
1967 Cri LJ 980 at p. 983 (All) : AIR 1967 All 304.
21
AIR 1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.

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 Bail in bailable offences

AFTER CANCELLATION, CAN ACCUSED DEMAND BAIL AGAIN AS OF

RIGHT?
In Talab Haji Hussain v. Madhukar Purshottam Mondkar,22 where the High Court in
exercise of its inherent powers had cancelled bail granted to the accused in a bailable offence, it
was contended that the provisions of S. 496 of Cr. P.C. (18980 [ equivalent to S. 436 of Cr. P.C.
of 1973] were plainly inconsistent with the exercise of inherent power by the High Court under
S. 561- A of Cr. P. C. (of 1898) [ equivalent to S. 436 of Cr. P.C. of 1973] against the instant
case, that despite the order of cancellation of bail passed by the High Court, the accused would
be entitled to move the trial Court for bail again and the trial Court would be bound to release
him on bail because the right to be released on bail recognized by S. 496 of Cr. P.C. (of 1898)
was an absolute and an indefeasible right; that despite the order of the High Court, that right
would still be available to the accused; and that in such a scenario, the order passed for
cancellation of bail using inherent powers would be rendered ineffective and that itself would
show that there was a conflict between the exercise of the said power and the provisions of S.
496 of Cr. P.C. (of 1898). of a person accused of a bailable offence; but the does not mean that
S. 496 entitles such an accused person to be released on bail, even though it may be shown that
he is guilty of conduct entirely subversive of a fair trial in the Court
In this regard, the Supreme Court further held that under S. 498(1) of Cr.P.C. (of 1898)
[equivalent to S. 436 of Cr. P.C. of 1973], the High Court or the Court of Session may, even in
the case of persons accused of bailable offences, admit such accused persons to bail; and that if a
person accused of a bailable offence is admitted to bail by an order passed be the High Court or
the Court of session, the provisions of sub-section (2) become applicable to his case; and under
these provisions the High Court or the Court of Session is expressly empowered to cancel the
bail granted by it and to arrest the accused and commit him to custody. The Supreme Court thus
held that the result was that with regard to class of cases of bailable offences falling under S.
498(1) of Cr. P.C. (of 1898), even after the accused person are admitted to bail, express power
had been conferred on the High Court or the Court of Session to arrest them and commit them to
custody; that clearly then it could not be said that the right of a person accused of bailable

22
1958 SC 376 at pp. 379-80 : 1958 SCR 1226 : 1958 Cri LJ 701.

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 Bail in bailable offences

offence to be released on bail could not be forfeited even it his conduct subsequent to the grant of
bail was found to be prejudicial to a fair trial.

CONVERSION OF CASE FROM BAILABLE TO NON-BAILABLE OFFENCE

In the case of Hamida v. Rashid,23 bail had been granted to the accused for offences
under Ss. 324,352 and 506 IPC ( which were bailable offences) on the day of their arrest itself.
Subsequently, the victim succumbed to the injuries and died after which the offence was
converted into S. 304 IPC. The accused filed a petition under S. 482 before the High Court
seeking a direction to allow them to continue on same bail even after the conversion of the
offence into S, 304 IPC. The High Court accepted their prayer. On appeal, the Supreme court
held that the accused could have applied for bail afresh after the offence had been converted into
one under Section 304 IPC. They deliberately did not do so and filed a petition under section 482
Cr. P. C. in order to circumvent the procedure where under they would have been required to
surrender as the bail application could be entertained and heard only if the accused were in
custody. It was held that as no order adverse to the accused had been passed by any court nor
was there any miscarriage of justice or any illegality, in such circumstances, the High Court
committed manifest error of law in entertaining a petition under Section 482 Cr. P. C. and
issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence
under Section 304 IPC. It was observed that the effect of the order passed by the High Court was
that the accused after getting bail in an offence under Sections 324,352 and 506 IPC on the very
day on which they were taken into custody, got an order of bail in their favour even after the
injured had succumbed to his injuries and the case had been converted into one under Section
304 IPC without any court examining the case on merits, as it stood after conversion of the
offence. The procedure laid down for grant of bail under Section 439 Cr. P. C., though available
to the accused, having not been availed of, the exercise of power by the High Court under
Section 482 Cr. P.C. was clearly illegal. Accordingly, the aforesaid order passed by the High
Court was set aside.
In the aforesaid case of Hamida v. Rashid,24 in a petition under S. 482 Cr. P. C., the High
Court had allowed the continuation of the same bail which was granted to accused in a bailable

23
(2008) I SCC 474 at pp. 479-80
24
(2008) I SCC 474 at p. 480.

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 Bail in bailable offences

offence even after its conversion into an offence under S. 304 IPC. While setting aside the said
order, the Supreme Court held that in spite of its repeated pronouncements that inherent power
under Section 482 Cr. P. C. should be exercise sparingly with circumspection in rare cases and
that too when miscarriage of justice is done, the High Court entertained the petition under
Section 482 Cr. P. C., the ultimate result where of was that the order of bank granted in favour of
the accused for an offence under sections 324,352 and 506 IPC ensured to their benefit even after
the offence had been converted into one under section 304 IPC and also subsequently when
charge had been framed against them under section 302 read with Section 34 IPC. The accused
did not remain in custody even for a single day nor did they approach the Court of Chief Judicial
Magistrate or sessions Judge for being granted bail under section 304 or 302 IPC, yet they got
the privilege of bail under the aforesaid offences by virtue of the said order passed by the High
Court. Highlighting that the dockets of the High Court are full and there is a long pendency of
murder appeals in the High Court from which the instant case had arisen, the Supreme court held
that ends of justice would be better served if valuable time of the High Court is spent in hearing
those appeals rather than entertaining petitions under Section 482 Cr. P. C. at an interlocutory
stage which are often filed with some oblique motive in order to circumvent the prescribed
procedure, as was the case in the instant case, or to delay the trial which would enable the
accused to win over the witnesses by money or muscle power or they may become disinterested
in giving evidence, ultimately resulting in miscarriage of justice.
In a case, the accused were arrested for the commission of bailable offence and
accordingly they were released on bail by the Magistrate. Subsequently, the charge was altered
and S. 307 IPC was included which is non-bailable and exclusively triable by the Court of
Session. Only on that ground the police arrested the accused without the bail being cancelled by
the Court. In other words, the police did not move the Court to cancel the bail, making out a case
that they are required for an offence under S.307, IPC. Therefore, the arrest by the police itself
was illegal. Subsequently when the accused were produced before the Magistrate, the Magistrate
also did not look into the fact that they were released by the same Court on earlier occasion in
the same crime number. Therefore, before remanding the accused, the Magistrate ought to have
considered whether their bail application should be cancelled or not. Without cancelling the bail
which was granted by the same Court and remanding the accused without assigning any reasons,
the said order was illegal. If the police is allowed to arrest the accused who has been released on

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 Bail in bailable offences

bail by the Court, it will lead to disastrous consequences as the police will be able to arrest the
same accused under the same crime number by altering the section, making it a non-bailable
offence. Therefore, it is absolutely necessary that before the accused is re-arresting in the same
crime number, if he is released on bail, the prosecution has to seek cancellation of bail making
out prima facie case for non-bailable offences or for arresting him in view of the serious nature
of the offence, etc. In the event the bail is cancelled by the Court either under S. 437(5) or S.
439(2), Cr. P.C., as the case may be, the accused can be arrested. In the event the accused is re-
arrested and produced before the Magistrate, it is incumbent on the Magistrate to look into all the
material particular and after being satisfied only, he may pass orders according to law.
In Nathuram v. State of Rajasthan,25 initially a case under ss. 447, 323 IPC was
registered against the petitioners. However, subsequently, Ss. 307 and 325 IPC were also added
to the case. They approached the High Court under S. 482 Cr. P. C. alleging that by addition of
these section, the bailable offence was converted into a non-bailable offence and their right to
bail had been divested by the police due to that reason. The High Court refused to intervene in
the matter on the ground that so long as the investigation proceeds in conformity with the
mandates of the Cr. P. C., the domain of investigation circumscribed by the provisions of the
Cr.P.C., on attempt should be made by the Court to stifle or impinge upon the progress of the
progress of the investigation unless the salient features of illegality, irregularity, or mala fide,
misuse of power by the police conscientiously persuades the Court to believe that personal
liberty of the citizen is at stake at the hands of arbitrary exercise of power by the State
machinery. Moreover, it was clarified that on the apprehension of arrest by the police, the
citizens have the right to move for anticipatory bail for the reasons available to them in the facts
and circumstances.

25
2007 Cri LJ 2533 at p. 2537(Raj).

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 Bail in bailable offences

CONCLUSION

It is indisputable that an unnecessarily prolonged detention in prison of under trials

before being brought to trial is an affront to all civilized norms of human liberty and any
meaningful concept of individual liberty which forms the bedrock of a civilized legal system
must view with distress patently long periods of imprisonment before persons awaiting trial can
receive the attention of the administration of justice. Thus the law of bails must continue to allow
for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the
humanization of criminal justice system and to sensitize the same to the needs of those who must
otherwise be condemned to languish in prisons for no more fault other than their inability to pay
for legal counsel to advise them on bail matters or to furnish the bail amount itself.
While concluding, it seems desirable to draw attention to the absence of an explicit
provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an
under trial prisoner on his bond without sureties and without any monetary obligation. There is
urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in
Indian prisons today include many who are unable to secure their release before trial because of
their inability to produce sufficient financial guarantee for their appearance. Where that is the
only reason for their continued incarceration, there may be good ground for complaining of
invidious discrimination. The more so under a constitutional system which promises social
equality and social justice to all of its citizens. The deprivation of liberty for the reason of
financial poverty only is an incongruous element in a society aspiring to the achievement of
these constitutional objectives. There are sufficient guarantees for appearance in the host of
considerations to which reference has been made earlier and, it seems to me, our law-makers
would take an important step-in defense of individual liberty if appropriate provision as made in
the statute for non-financial releases.
.

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