BAIL BY MAGISTRATES

1- Meaning of Bail
There is no definition of bail in the Code although offences are
classified as bailable and non-bailable. The definition of bail as given
in Webster’s Third New International Dictionary is “the process by
which a person is released from custody.” The other dictionary,
meaning of bail denotes a security for appearance of a prisoner for his
release. Bail is a conditional liberty which is said to be a security given
by an accused for his due appearance. The main purpose of bail is to
require an assurance from the accused that he will remain available for
the trial.

2- Custody is must for Bail

Bail cannot be granted without personal appearance of accused
before the Court. However if the accused is already lodged in jail
under some order of court, the bail application can be heard and
disposed of even without his appearance before the said court. Please
see---
1. Niranjan Singh and another vs. Prabhakar Rajaram Kharote
and other, AIR 1980 SC 785
2. Vaman Narain vs. State of Rajasthan, 2009 Cr.L.J. 1311 (SC)

3- Whether report from police is must before taking surrender of

accused
No. The practice to postponing surrender application is not fair
and proper. Please see---
Devendra Singh Negi vs. State of U.P., 1993 A.Cr.R. 184 (All)

4- Bail in bailable offences (Sec. 436 Cr.P.C.)

In all bailable offences when an accused is arrested or detained
without warrant by the officer-in-charge of the police station appears
or brought before the court and is prepared at any time while in
custody of the officer or at any stage of the proceedings before the
court to give bail, such person shall be released on bail. There is no
question of discretion of court and the right to claim bail in bailable
offences is an absolute and indefeasible right. Please see---
Rasik Lal vs. Kishore, (2009) 2 SCC (Criminal) 338

5- No condition should be imposed in bailable offences

 Hon’ble Apex Court has held that the court has no discretion to impose
any conditions while granting bail to an accused U/s. 436 Cr.P.C. for a
bailable offence except demanding security with sureties. Please see---
Vaman Narain Ghiya vs. State of Rajasthan, 2009 Cr.L.J. 1311
(SC)
6- No need to hear complainant
There is no need to hear complainant or prosecution while
disposing bail application of an accused in bailable offences. Please
see---
Rasiklal vs. Kishore, (2009) 2 SCC (Cri) 338
7- When accused is indigent & unable to furnish surety
The Code of Criminal Procedure (Amendment) Act, 2005 has
inserted an explanation which provides that where a person is unable
to give bail within a week of the date of his arrest, it will be sufficient
ground to presume that he is indigent person and he is entitled to be
released on his executing a bond without sureties under Ist proviso of
Sec. 436 Cr.P.C.
8- Refusal of bail in bailable offence
Sec. 436(2) Cr.P.C. provides that where an accused of bailable
offence 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.

9- Cancellation of Bail in Bailable Offences

It is well settled that bail granted to an accused with reference to
bailable offence can be cancelled only if 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 or 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 investigation agency,
(7) attempts to place himself beyond the reach of his surety,
etc. Please See---
Rasiklal vs. Kishore, (2009) 2 SCC (Criminal) 338
10- Bail in non-bailable offences (Sec. 437 Cr.P.C.)
Magistrate can grant bail in all non-bailable offences except the
offences punishable with death or imprisonment for life but he should
not grant bail in heinous offences even if the accused is a woman, sick
or old aged person. The proviso to Sec. 437(1) Cr.P.C. is only
directory/discretionary and not mandatory. Please see---
 Pramod Kumar Manglik vs. Sudha Rani, 1989 All.Cr.C. 1772 (All
—D.B.)
11- No bail in heinous crime
Bail should not be granted on the ground of old age to accused
in heinous crime like murder. Please see---
1. Abdul Rahman & Ors. vs. State of U.P., 2009 (5)
ALJ (NOC) 925 (All HC DB)
2. Kanhaiya Lal Sharma vs. State of U.P., 2009 (5)
ALJ NOC 906 (All HC)
12- Magistrate is competent to grant bail in Sessions Cases
The inhibition on the powers of the Magistrate to grant bail in
view of Section 437 Cr.P.C. applies to those sessions triable cases
which are punishable with imprisonment for life or with death. Thus
the Magistrate is not incompetent to grant bail in appropriate sessions
triable cases which are not punishable with imprisonment for life or
death. Please see---
Prahlad Singh Bhati vs. N.C.T. Delhi, AIR 2001 SC 1444
13- No refusal of bail mechanically
It has been held by Allahabad High Court that Magistrate should
not mechanically refuse bail by describing a matter as grave without
giving a reasoned order on merit, or by simply declaring a case to be a
sessions triable matter where arrests may strictly not be necessary in
the light of the observations in Joginder Kumar and Amaravati’s cases
or the nature of evidence against the accused is very weak and
unreliable or and there are no other attendant circumstances
disentitling the accused from bail. This will protect respectable
persons from being unnecessary harassed. Please see---
Crl. Misc. W.P. No. 6764/2009 Sheoraj Singh alias Chuttan vs.
State of U.P. & others- D/-17.4.2009 (All—D.B.). Also circulated
vide H.C. Letter No. 15336/2010/Admin G-11 dated 20.9.2010
14- Magistrate to exercise independent judicial mind in granting bail
in sessions triable cases
It has been held in catena of decisions of the Apex Court that the
Magistrate should have no undue apprehension when they fearlessly
exercise their independent judicial minds and grant bails in appropriate
sessions triable cases and not fear censure even when they commit
bonafide mistakes. Please see---
Crl. Misc. W.P. No. 6764/2009 Sheoraj Singh alias Chuttan vs.
State of U.P. & others- D/-17.4.2009 (All—D.B.). Also circulated
vide H.C. Letter No. 15336/2010/Admin G-11 dated 20.9.2010
15- Court to hear Public Prosecutor
The new 4th proviso to Section 437(1) Cr.P.C. provides that if
the offence is punishable with imprisonment exceeding 7 years, it is
mandatory to hear the public prosecutor but in the offences which are
 punishable with imprisonment of less than 7 years, bail can be granted
by court without hearing public prosecutor. Please see---
Sudhindra Kumar vs. D.J. Allahabad, 1998(1) Crimes 270 (All)

16- Maximum period of Detention---

The Code of Criminal Procedure (Amendment) Act, 2005 has
inserted a new Section 436A which provides where an accused has
undergone detention for a period extending upto one-half of the
maximum period of imprisonment specified for that offence, he shall
be released on his personal bond with or without sureties. It has also
been provided that reasons are to be recorded if the court orders the
continued detention of accused but such detention can not be more
than the maximum period of imprisonment provided for the said
offence.

17- Bail U/s. 437(6) Cr.P.C.

If, in any case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a period
of sixty days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate, unless
for reasons to be recorded in writing, the Magistrate otherwise directs.
Section 437(6) is mandatory in nature but the accused has no
absolute right to be released on bail as the Magistrate may for reasons
to be recorded in writing not release the accused on bail. The provision
of Sec. 437(6) is intended to speed up trial without unnecessarily
detaining a person as an undertrial prisoner. The provisions of Sec.
437(6) has to be construed strictly in favour of individual liberty.
Please see---
Riza Abdul Razak Zanzunia vs. State of Gujarat, 2009 Cr.L.J.
4766 (Guj H.C.)

18- Considerations in granting bail

While considering the application for bail, what is required to be
looked is—
(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 accused absconding or fleeing if released on bail.
(v) Character, behaviour, 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.
Please see---
State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21

19- Factors to be considered for granting bail

The considerations which normally weigh with the Court in
granting bail in non-bailable offences are the nature and seriousness of
the offence; the character of the evidence; circumstances which are
peculiar to the accused; a reasonable possibility of the presence of the
accused not being secured at the trial; reasonable apprehension of
witnesses being tampered with; the larger interest of the public or the
State and other similar factors which may be relevant in the facts and
circumstances of the case. Please see---
Jayendra Saraswati Swamigal vs. State of Tamil Nadu, AIR 2005
SC 716

20- Considerations for bail

It is necessary for the courts dealing with application for bail to
consider among other circumstances, the following factors also before
granting bail, they are :
1. The nature of accusation and the severity of punishment in case
of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Please see---
Lokesh Singh vs. State of U.P., 2008 AIR SCW 6980 (B) All HC

21- Criminal history to be considered

While granting bail to an accused, the court should also take
into consideration the criminal history of the accused. Please see---
1. Brij Nandan Jaiswal vs. Munna Jaiswal, AIR
2009 SC 1021
2. State of U.P. vs. Amarmani Tripathi, (2005) 8
SCC 21
22- Affidavits not to be considered
Affidavits of prosecution witnesses should not be considered by
deciding bail application. Please see---
Jaswant vs. State of U.P., 1994 ACC 424 (All)
23- No detailed discussion of Evidence
While considering an application for bail, detailed discussion of
the evidence and elaborate documentation of the merits should be
avoided. This requirement stems from the desirability that no party
should have the impression that his case has been prejudged. Existence
 of a prima facie case is only to be considered. Elaborate analysis or
exhaustive exploration of the merits is not required. Please see---
1. Kalyan Chandra Sarkar vs. Rajesh Ranjan @
Pappu Yadav and another, 2004 (7) SCC 528
2. Vaman Narain Ghiya vs. State of Rajasthan, 2009
CrLJ 1311 (SC)
3. Lokesh Singh vs. State of U.P. and another, 2009
Cr.L.J. 369
4.
24- Disposal of bail application same day
It has been held by Full Bench of Allahabad High Court in
Amarawati’s case that the High Court should ordinarily not direct any
subordinate court to decide the bail application the same day, as that
would be interfering with the judicial discretion of the court hearing
the bail application. It has also been held that ordinarily the Magistrate
should himself decide the bail application the same day, and if he
decides in a rare and exceptional case, not to decide it on the same day,
he must record his reasons in writing. Please See---
Amarawati vs. State of U.P., 2005 Cri.L.J. 755 (All—F.B.)

25- Interim Bail

In appropriate cases, the courts concerned may consider
releasing an accused on interim bail, pending consideration of his
regular bail. Please see---
Lal Kamlendra Pratap Singh vs. State of U.P., (2009) 4 SCC 437.
Also circulated vide H.C. Letter NO. 3700/2009 Admin G-11 dated
26.3.2009.

26- Interim bail pending disposal of bail application

When a person applies for regular bail then the court concerned
ordinarily lists that application after a few days so that it can look into
the case diary which has to be obtained from the police authorities and
in the meantime the applicant has to go to jail. Even if the applicant is
released on bail thereafter, his reputation may be tarnished irreparably
in society. The reputation of a person is his valuable asset, and is a
facet of his right under Article 21 of the Constitution. Hence, we are of
the opinion that in the power to grant bail there is inherent power in
the court concerned to grant interim bail to a person pending final
disposal of the bail application. Of course, it is in the discretion of the
court concerned to grant interim bail or not but the power is certainly
there. Please see---
1. Sukhwant Singh & others vs. State of Punjab,
(2009) 7 SCC 559
2. Deepak Bajaj vs. State of Maharashtra,(2008)16
SCC 14
27- Ground for refusing interim or regular bail
Based on a long line of judicial precedents of the apex and this
Court, some of the exceptional circumstances where the Courts below
would be justified in refusing interim or regular bails could be :
(i) Where the Magistrate concerned is not empowered to grant
regular bail as there are reasonable grounds for believing his
complicity in offences punishable with death or imprisonment
for life or under the other circumstances enumerated in section
437 Cr.P.C.
(ii) There is prima facie material to suggest the involvement of the
accused in a grave offence like murder, dowry death, dacoity,
robbery, rape, kidnapping for ransom, rape etc., unless it appears
to the Sessions Court at the stage of initial appearance itself that
the accused appears to have been falsely implicated for some
bona fide reasons.
(iii) The case involves an offence under the U.P. Gangsters Act and
in similar statutory provisions, where there are restrictions on
the Courts power to grant bail.
(iv) The accused is likely to abscond and evade the processes of law
or where it is necessary to arrest the accused and bring his
movements under restraint to refuse confidence among the
terror stricken victims and society at large and for protecting
witnesses.
(v) The accused is given to violent behaviour, or is a habitual
offender and is likely to commit further offences unless his
movements are brought under restraint.
(vi) There is prima facie material showing the involvement of the
accused in offences which are in the nature of the scam, or in
grave crimes against society or the nation such as dealing in
counterfeit currency, or in narcotic, psychotropic drugs or
spurious medicines etc.
(vii) If the Public Prosecutor/investigating officer can satisfy the
Magistrate/Court concerned that there is a bona fide need for
custodial interrogation of the accused regarding various facets
of the motive, preparation, commission and aftermath of the
crime and the connection of other persons, if any, in the crime or
for obtaining information leading to discovery of material facts,
it may constitute a valid ground for non granting interim bail,
and the Court in such circumstances may pass orders for
custodial interrogation, or any other appropriate order.
(viii) If there is an apprehension that there may be interference with
the investigation or for any other reason the competent
Magistrate/ Sessions Court feels that it is not a fit case for
releasing the appellant on interim bail pending the hearing of
the regular bail. Please see---
 Crl. Misc. W.P. No. 6764/2009 Sheoraj Singh alias Chuttan
vs. State of U.P. & others- D/-17.4.2009 (All—D.B.). Also
circulated vide H.C. Letter No. 15336/2010/Admin G-11
dated 20.9.2010
28- No Interim Bail in serious offences
The order granting interim bail pending hearing of a regular bail
application may be passed in appropriate cases, but it ought not to be
passed where :
(i) The case involves a grave offence like murder, dacoity, robbery,
rape etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the
terror stricken victims and society at large and for protecting
witnesses.
(ii) The case involves an offence under the U.P. Gangsters Act in
similar statutory provisions.
(iii) The accused is likely to abscond and evade the processes of law.
(iv) The accused is given to violent behaviour and is likely to
commit further offences unless his movements are brought
under restraint.
(v) The accused is a habitual offender and unless kept in custody he
is likely to commit similar offences again.
(vi) The offence is in the nature of a scam, or there is an
apprehension that there may be interference with the
investigation or for any other reason the Magistrate/Competent
Court feels that it is not a fit case for releasing the appellant on
interim bail pending the hearing of the regular bail.
(vii) An order of interim bail can also not be passed by a Magistrate
who is not empowered to grant regular bail in offences
punishable with death or imprisonment for life or under the
other circumstances enumerated in section 437 Cr.P.C.
(viii) If the Public Prosecutor/Investigating Officer can satisfy the
Magistrate/Court concerned that there is a bona fide need for
custodial interrogation of the accused regarding various facts of
motive, preparation, commission and aftermath of the crime and
the connection of other persons, if any, in the crime, or for
obtaining information leading to discovery of material facts, it
may constitute a valid ground for not granting interim bail, and
the Court in such circumstances may pass order for custodial
interrogation, or any other appropriate order. Please see-----
Pradeep Tyagi vs. State of U.P. & others, 2009 (65) ACC 443
(All—D.B.)
29- No arrest without permission of court
The Division Bench of Allahabad High Court has expressed
their view that in all cases where the Magistrate is not restrained from
granting bail under section 437 Cr.P.C., where an accused moves an
 application for consideration of his prayer for bail through his
Counsel, even without orders of the High Court, the Magistrate may
fix a convenient date for the appearance of the accused, and direct the
Public Prosecutor to seek instructions from the Investigating Officer in
the meanwhile. Between the date of moving of the surrender
application and the date fixed for appearance of the accused by the
Magistrate, the accused may not be arrested without permission of the
Court concerned. In case the Magistrate is not in a position to finally
dispose of the bail on the date fixed, he may consider releasing the
appellant on interim bail till the date of final hearing of the bail
application in the light of the observations hereinabove. This direction
is needed to prevent all accused persons whose cases do not fall within
the interdict of section 437 Cr.P.C. rushing to this Court seeking
protection and for this Court having to pass orders in each individual
case, creating a huge back log of criminal writ petitions, which then
engage the attention of a number of benches, and come in the way of
disposal of the larger number of pending division bench murder and
other appeals. Please see---
Pradeep Tyagi vs. State of U.P. & others, 2009 (65) ACC 443 (All—
D.B.)
30- Parity in bail
If the bail has been granted by the Sessions Court or High Court
to the co-accused, the other accused may be admitted to bail in view of
maintaining parity. Please see---
1. Sanwal Das Gupta vs. State of U.P., 1986 (23)
ACC 79 (All)
2. Uma Shankar and others vs. State of U.P. and
others, 2002 (45) ACC 609 (All)
31- No parity if bail procured by co-accused on misrepresentation of
fact
When bail has been granted to co-accused by misrepresentation
of facts and concealing this fact that the specific role of pouring
kerosene oil upon deceased has been assigned to co-accused also in
the dying declaration of deceased, the appellants cannot claim bail on
the ground of parity on the basis of a bail order which was procured by
misrepresentation of facts. Please see---
Abdul Rahman & Ors. Etc. vs. State of U.P., 2009 (5) ALJ (NOC)
925 (All HC DB)
32- No parity in all cases
A Judge is not bound to grant bail on the ground of parity even
where the order granting bail to an identically placed co-accused
contains reasons, if the same has been passed in flagrant violation of
well settled principle and ignores to take into consideration the
relevant facts essential for granting bail. Please see---
 1. Chander @ Chandra vs. State of U.P., 1997 (Suppl) ACC 518
(All—D.B.)
2. Bhagat Singh vs. State of U.P., 2009 (66) ACC 859
33- Parity is not sole ground of bail
In the case of unlawful assembly and murder—Parity cannot be
sole ground for granting bail—Even on the basis of long incarceration
in jail. Please see---
1. Jai Bhagwan vs. State of U.P., 2009 (5) ALJ
(NOC) 933 (All HC)
2. Amarnath Yadav vs. State of U.P., 2009 (67)
ACC 534 (All)
34- No parity if bail has been given in violation of law
If a co-accused has been granted bail on the basis of non-
speaking order or in ignorance or violation of well settled principles of
law of bails, it cannot be the basis of parity. Please see---
Sabir Hussain vs. State of U.P., 2000 Cr.L.J. 863 (All)
35- No bail by inferior court if already refused by Superior Court
Once bail has been refused to an accused person by a superior
court, the inferior court, even if it technically has the jurisdiction to do
so, should grant bail or parole sparingly and only in exceptional
circumstances. Normally it should be left to the superior court to
reconsider the matter.
Normally, the Session Judge should keep their hands off in bail
applications, which stand rejected by the High Court.
1. C.L. No. 28/VII b-47 dated 27.4.1983
2. Letter No. 2934 dated 1.4.1988
Second or successive bail applications
Second or successive bail applications can be moved only on
two grounds noted below---
(i) On change of facts or circumstances (ii) Change in law
Where the issues and grounds taken in the second or successive
bail applications were already agitated and rejected by the court, the
same cannot be ordinarily allowed to be re-agitated. Findings of higher
courts or coordinate bench rejecting the earlier bail application must
receive serious consideration at the hands of court entertaining a
subsequent bail application as the same can be done only in case of
change in factual position or in law. If the subsequent bail application
is moved on the same grounds as in the previous bail application, the
subsequent bail application would be deemed to be seeking review of
earlier order which is not permissible under criminal law. See----
1. Suheb vs. State of U.P., 2006 (6) ALJ (NOC) 1362 (All)
2. Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav,
2005 (51) ACC 727 (SC—Three Judge Bench)
36- Bail in cross cases
 When there are cross cases and both the sides have received
injuries and one party has been released on bail the other party has to
be released on bail as that is the settled view. The question as to which
party was aggressor, is a question of fact and that will have to be
determined on the basis of evidence that is adduced in these cases.
Please see---
Jaswant Singh vs. State of U.P., 1977 (14) ACC 302 (All)
37- Bail in added section of heinous offence
If the accused was already granted bail and subsequently some
sections of heinous offence are added, he can not be permitted to
remain on the same bail. The accused will have to surrender and the
provisions of Sec. 437 Cr.P.C. will apply for bail. Please see---
1. Prahlad Singh Bhati vs. NCT, Delhi and
another, 2001 Cr.L.J. 1730 (S.C.)
2. Hamida vs. Rashid, 2007 Cr.L.J. 3422 (S.C.)
38- Bail to warrantee
Where the warrant has been issued against an accused, the appearance
of such person is must and the procedure U/s. 436 and 437 Cr.P.C. has
to be followed. The procedure U/s. 88 and 89 Cr.P.C. would not be
attracted in such cases. Please see---
1. Chheda Lal vs. State of U.P., 2002 (44) ACC 286 (All)
2. C.L. No. 33/2006 dated 7.8.2006
39- Long incarceration is no ground for bail
The long incarceration in jail is no ground for bail. The gravity
of offence should be considered and the accused should not be
admitted to bail in heinous crimes. It has been held by Apex Court that
if the accused has committed offence, he has to remain behind bars.
Please see---
1. Pramod Kumar Saxena vs. Union of India and
others, 2008 (63) ACC 115
2. Amarnath Yadav vs. State of U.P., 2009 (67)
ACC 534
40- Illegality in remand or custody is no ground of Bail
It has been held by Allahabad High Court that the
custody/detention of the accused without there being any remand order
was naturally illegal but no law recognizes grant of bail to accused on
the basis of such illegal custody/detention and the bail was
consequently refused. Custody includes both legal and illegal
imprisonment and court can rectify its mistakes and transfer in the
illegal custody/imprisonment of the accused into legal
custody/imprisonment. Please see---
1. Surjit Singh vs. State of U.P., 1984 ALJ 375 (All
—F.B.)
2. Sheo Kumar vs. State of U.P., 2001 (1) JIC 7
(All)
41- No bail on the ground of alibi etc.
Defence plea (like alibi etc.) taken by accused at the time of
hearing of bail application, cannot be considered. Please see---
Naresh Rav vs. State of U.P., 2005 (53) ACC 148 (All)
42- No bail on the ground of assurance of compromise
No bail could be granted on the ground of assurance of any
compromise. Please see---
Biman Chatterjee vs.Sanchita Chatterjee, (2004) 3 SCC 388
43- No Bail on medical ground alone
Where the accused was previously convicted for offences
punishable with life imprisonment and was granted bail on medical
grounds, it has been held by the Supreme Court that bail cannot be
granted u/s. 437, 439 Cr.P.C. to an accused on medical grounds as the
medical treatment can be sought by the accused in jail from the jail
authorities. See---
1. Ram Prakash Pandey vs. State of U.P., 2001 ALJ 2358 (SC)
2. Bibhuti Nath Jha vs. State of Bihar, (2005) 12 SCC 286
44- No pre-emptive bail
Bail effective from future date is not permissible. If the accused
is due for bail, then he should get it then and there. Please see---
1. Dashrath Pandey vs. State of Bihar, 1995 JIC
353 (SC)
2. C.L. No. 36 dated 8.9.1995
45- Bail in complaint cases
There is no difference between the procedure of bail in cases
instituted on police report and cases instituted on complaint.
The provisions of Sec. 88 Cr.P.C. does not apply to an accused.
Please see---
1. Dr. Vinod Narain vs. State of U.P., 1995 ACC 375 (All—F.B.)
2. Chheda Lal vs. State of U.P., 2002 (44) ACC 286 (All)
3. C.L. No. 33/2006 dated 7.8.2008
46- Bail U/s. 167(2) Cr.P.C.
It is the duty of Magistrate to inform the accused of his accrued
right to be released on bail U/s. 167(2) Cr.P.C., Magistrate is obliged
to grant bail even if after filing of the application by the accused, a
charge sheet is filed by the Investigating Officer. Please see----
1. Hussainara Khatoon vs. Home Secretary, State
of Bihar, AIR 1979 SC 1377 (Three Judge Bench)
2. Uday Mohanlal Acharya vs. State of
Maharashtra, (2001) 5 SCC 453 (Three Judge Bench)
3. C.L. No. 52/2007 Admin (G) date 13.2.2007
47- Duty of Magistrate to inform the accused
Magistrate has a duty to inform the accused of his accrued right
to be released on bail u/s. 167(2) Cr.P.C. Please see---
Sudhakar vs. State of U.P., 1985 (1) Crimes 582 (All)
48- Bail U/s. 389 (3) Cr.P.C.
If a person is sentenced to imprisonment for a term not
exceeding three years and he was on bail, then he shall be released on
bail after satisfying the court that he intends to present an appeal
unless there are special reasons for refusing bail.
49- Accused to seek fresh bail from court even if he has already been
bailed out by police
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 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. Please see---
Haji Mohd. Wasim and others vs. State of U.P., 1992 Cr.L.J. 1299
50- Necessity of reasoned order in granting of Bail
It is stated that the death took place within seven years of the
marriage and it was an unnatural death. The High Court by a
practically non-reasoned order granted bail.
It is pointed out by learned Counsel for the appellant that no
reason has been indicated for directing grant of bail and even the
conclusions are contradictory in terms.
On the one hand it is stated that there was no dispute that the
death had taken place within seven years of the marriage and that it
was an unnatural death. Having said so, it is not understood as to how
the High Court observed that the provisions of Section 113-B of the
Evidence Act, 1872 (in short “the Evidence Act”) are not applicable
and this is not a case punishable under Section 304-B IPC. That being
so the Court set aside the impugned order of the High Court and remits
the matter to it for fresh consideration and disposal by a reasoned
order. Please see---
Subhash Chandra Singh vs. Dheemant Singh & Another, (2009) 3
SCC (Cri) 1284 (SC)
51- Bail order should be speaking
Court must indicate brief reasons for granting or refusing bail.
Bail order passed by court must be reasoned one but detailed reasons
touching merits of the case, detailed examination of evidence and
elaborate documentation of merits of case should not be done. Please
see---
1. Afzal Khan vs. State of Gujarat, AIR 2007 SC
2111
2. Km. Suman Pandey vs. State of U.P., (2008) 1
SCC (Criminal) 394
3. Ranjitsing Brahmajitsing Sharma vs. State of
Maharashtra, 2005 Cr.L.J. 2533 (SC—Three Judge Bench)
52- Cancellation of bail on the ground of seeking unnecessary
adjournments
If the accused indulges into deliberate protraction of trial or
taking unnecessary adjournments, his bail can be cancelled. Please
see---
Lalu Prasad Yadav vs. State of Jharkhand, (2006) 6 SCC 661
53- Grounds for cancellation of bail
Bail once granted can be cancelled on the ground of chances of
accused absconding, interference threat to witnesses or attempt to
interfere with due course of administration of justice and abuse in any
manner of bail. Please see---
Panchanan Misra vs. Digambar Misra, AIR 2005 SC 1299
54- Cancellation of bail on the ground of ignorance of material fact
Bail can be cancelled if it is found that material evidence
brought on record have been ignored and that too without any reasons.
Please see---
Guria, Swayam Sevi Sansthan vs. State of U.P. & Ors., 2010
Cri.L.J. 1433 (SC)
55- Cancellation of bail on the ground of concealment of fact
The bail can be cancelled if it is found that it was granted on the
basis of concealment of fact or on the basis of any fact, which is
against the record. Please see—
Tufail Ahmad vs. State of U.P. & Ors., 2010 (5) ALJ 102 (All HC)
56- Bail granted by High Court should not be cancelled by Sessions
Judge or Magistrate
If the bail application was allowed by the Sessions Judge, that
can be cancelled by the Sessions Judge as well as by the High Court
but the bail granted by High Court or Sessions Judge should not be
cancelled by Magistrate. Please see---
1. Tufail Ahmad vs. State of U.P. & Ors., 2010 (5)
ALJ 102 (All HC)
2. P.K. Shaji vs. State of Kerala, (2006) 2 SCC
(Cri) 174
57- Remand Magistrate to grant bail of other court
On a holiday, a remand magistrate may dispose of such work of
urgent nature like granting bail or remand and it will not be proper to
refuse to do any act or make any order urgently being a gazetted
holiday. Any magistrate who grants remand U/s. 167 Cr.P.C., he can
exercise the power of bail U/s. 436 or 437 Cr.P.C. Please see---
1. Senior Intelligence Officer D.O.R. Madras vs.
M.K.S. Abu Badar, 1990 Cr.L.J. 704
2. Rule 186 General Rules (Criminal), 1977
58- Bail to Foreigner
Law does not authorize or permit any discrimination between a
Foreign National and an Indian National in the matter of granting bail.
 What is permissible is that, considering the facts and circumstances of
each case, the Court can impose different conditions which are
necessary to ensure that the accused will be available for facing trial. It
cannot be said that an accused will not be granted bail because he is a
foreign national. Please see---
Anil Mahajan vs. Commissioner of Customs & another, 2000
Cr.L.J. 2094 (Del)
59- Who can apply for cancellation of bail
Prosecution as well as complainant can move application for
cancellation of bail. Please see---
Brij Nandan Jaiswal vs. Munna Jaiswal, AIR 2009 SC 1021
60- Notice to accused before cancellation of Bail
Prior notice to accused should be given before hearing the application
for cancellation of bail. Please see---
P.K. Shaji vs. State of Kerala, (2006) 2 SCC (Cri) 174
61- No need to take sureties in all cases---
If the Court is satisfied that accused has his roots in community
and is not likely to abscond, it can safely release the accused on
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 or prior release
on recognizance or on bail,
(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 or bearing on the risk of willful failure to appear.
Please see---
Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1360 (Three
Judge Bench)
62- Local sureties should not be insisted
Hon’ble Apex Court has held, “It was not within the power of
the court to reject a surety because he or his estate was situate in a
different district or state. There was no law prescribing the
geographical discrimination implicit in asking for sureties from the
court district. So the demand by the Magistrate, of sureties, from his
own district, was discriminatory and illegal.” Please see--
1. Moti Ram vs. State of M.P., AIR 1978 SC 1594
 2. C.L. NO. 95/IVf-69 dated 14.9.1984
63- Amount of bond should not be excessive
Hon’ble Apex Court has held, “The decision as regards the
amount of the bond should be an individualized decision depending on
the individual financial circumstances of the accused and the
probability of his absconding. 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. The enquiry 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 a
condition of acceptance of the personal bond.” Please see---
Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1360 (Three
Judge Bench)
64- Amount of Surety Bond in serious offences
1. In serious cases such as murder, dacoity rape and cases falling
under NDPS Act, two sureties should normally be directed to
be filed and the amount of the surety bonds should be fixed
commensurate with the gravity of the offence.
2. The address and status verification of the sureties shall be
obtained within reasonable time, say seven days in case of
local sureties, 15 days in case of sureties being of other
district and one month in case of sureties being of other
State, positively from the concerned Police and revenue
authorities and in case of non receipt of the report within
given time, the concerned Court may call for explanation for
the delay from the concerned authorities and take suitable
action against them and at the same time may consider
granting provisional release of the accused person in
appropriate cases subject to the condition that in case of any
discrepancies being reported by the verifying authorities, the
accused shall surrender forthwith.
3. The Courts must insist on filing of black and white photographs
of the sureties which must have been prepared from the
negative.
4. The copies of the title deeds filed in support of solvency of
status should be verified.
5. Incases where the Court feels that there are chances of
plantation of drugs to implicate a person in a case covered
under the NDPS Act, the amount of surety bonds may be
suitably reduced. Please see---
C.L. No. 3/Admin. (G) dated 16.2.2009
65- Amount of Surety Bond under NDPS Act
 In cases where the court feels that there are chances of plantation of
drugs to implicate a person in a case covered under the NDPS Act, the
amount of surety bonds may be suitably reduced. Please see---
C.L. No. 3/Admin. (G) dated 16.2.2009
66- No Polaroid or coloured photographs of sureties
Court must insist on filing of black and white photograph of the
sureties which must have been prepared from the negative. Please see
—
C.L. No. 3/Admin (G) dated 16.2.2009
67- Maximum period of detention after grant of bail
Address and status verification of the sureties should be obtained
within 7 days in case of local sureties, 15 days in case of sureties being
of other district and 1 month in case of sureties being of other state.
In case of non receipt of the report within given time the court may
call for explanation for the delay from the concerned authorities and
take suitable action against them. At the same time court may consider
granting provisional release of the accused person in appropriate cases
subject to the condition that in case of any discrepancies, the accused
shall surrender forthwith. Please see---
C.L. No. 3/Admin (G) dated 16.2.2009
68- Title deeds should be verified
The copies of the title deeds filed in support of solvency of status
should be verified. Please see---
C.L. No. 3/Admin (G) dated 16.2.2009
69- No delay in release of accused where interim bail granted
It is imperative for the Sessions Judges and Addl. Sessions Judges
to be circumspect enough in directing release of the accused in
appropriate cases, in which specific direction had been issued by the
High Court for releasing the accused on interim bail pending hearing o
f regular bail by accepting the bonds provisionally and no person who
has been on interim bail should be relegated to jail custody simply for
purpose of verification of sureties failing which they would make
themselves liable to be handled up….. The Sessions Judges/Addl.
Sessions Judges must invariably mention in their orders in such cases
that the accused persons must be released without the least delay and
they should not be detained just for verification of sureties. Please see-
1. Shiv Shyam Pandey vs. State of U.P., 2009 (5) ALJ 70
2. C.L. No. 28/2010/Admin GII dated 18.9.2010
70- P.O. should verify the status of surety
1. As far as possible the status of sureties should be verified by
presiding officers themselves on the basis of documentary evidence
produced in this behalf and supported by affidavits of sureties.
2. Receipts of income-tax, sales-tax, and house tax etc. and a
certificate, receipt or any other document from Municipal Board or
 Notified area showing the financial status of a surety may be
accepted in proof of status.
3. Receipts for payment of land revenue and extracts of Khataunis
etc., proving the title of a surety to the land supported by his
affidavits that the land in respect of which the land revenue has
been paid by him or to which the extracts of Khatauni relate
continues to be in his possession unencumbered, may be admitted
as good proof of status.
4. The surety should disclose in his affidavit whether he has stood
surety for any other accused in the same case or other case or cases
and, if so, whether the surety bonds in question are still in force.
Please see---
C.L. No. 93/VII-b-47 , dated 22.7.1975
71- Not to accept Passport of a foreigner as surety
It would not be desirable to accept the passport of a foreigner as
surety for any purpose even when a foreigner offers himself to stand
guarantee for any other foreigner for any purpose. Please see---
C.L. No. 12/VIIb-47, dated 17.1.1978
72- Information to High Court in respect of filing fake bail bonds
All such cases if, come to the notice of any court, be brought
to the knowledge of Hon’ble High Court for comprehensive enquiry
and action. Please see---
C.L. No. 13 dated 13.3.1996
73- Bail orders of High Court
Accused or appellant should not be released on bail by a
Magistrate only on production of a copy of the order of bail passed by
High Court. It is necessary for a Magistrate to know the nature of an
offence with which the person to be released has been charged. For
this purpose he should consult his own records, or insist on the
applicant’s supplying him with a copy of the grounds of appeal or of
the application for bail whenever a copy of the bail order alone is
produced. Please see---
C.L. No. 7 dated 15.1.1978
74- Bail orders of Supreme Court
To avoid release of convicts on forged bail orders more than
ordinary care should henceforth be taken before convicts are released
on the basis of orders which purport to have been passed by the
Supreme Court of India. The concerned authority should also satisfy
himself carefully whether the bail orders in fact have been passed by
the Supreme Court and the convicts should be released upon such
satisfaction. Convicts ought not to be released mechanically without a
 close scrutiny of the bail orders and satisfaction in regard to the
authenticity thereof. Please see--
C.L. No. 73/VIII-47 , dated 18.11.1982
75- Procedure of sending Release Order
In order to rule out the possibility of a prisoner securing his
release from jail on the basis of a forged release order, the Court has
issued following instruction, which should be strictly and faithfully
followed by the presiding officers and the officials concerned in
issuing and scrutinizing release orders.
(a) The release orders must contain the full name of the
Presiding officer of the issuing court below his signature and
bear the seal of the court invariably in a distinct manner;
(b) When an order for the release of a prisoner, who has already
been transferred to another jail outside the district, is
received and returned by the Superintendent of Jail to the
issuing court, with a report indicating the date of transfer and
the name of the jail to which the prisoner was transferred,
the court shall then send the release order by post to the jail
concerned and at the same time follow the procedure laid
down in para (c) below;
(c) When a release order is issued by post to a jail outside the
district, the Presiding Officer of the court shall immediately
give an intimation about its dispatch by radiogram to the
Superintendent of that jail.
(d) In addition to supplying a list containing the names and
specimen signatures of all Presiding Officers of courts to the
Superintendent of local district jail (and also to any other jail
or similar institution that functions in the district), changes in
the post of Presiding Officer should also be intimated from
time to time as they occur. Please see---
C.L. No. 124/VIIb-47, dated 24th October, 1979

76- Surety to declare details of previous sureties

Sec. 441-A Cr.P.C. as inserted since 2006 provides that every
person standing surety to an accused shall make a declaration before the
court as to the number of persons to whom he has stood surety including
the accused.

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