BAIL&JUDICIAL DISCRETION

THE CODE OF CRIMINAL PROCEDURE

SUBMITTED BY SUBMITTED TO

SATYAM KUMAR MISRA PROF. JULIAN SEAL

SEMESTER IV (A) ASSISTANT PROFFESOR

ROLL NO. 886 NUSRL RANCHI

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

ABSTRACT-

The objective of bail is to secure the appearance of the accused at the time of the trial, so that in
case if he found to guilty he is present at the court to receive the punishment on the other hand in
general perspective accused cannot be deprived of his liberty during the trial of the case because
it would be unjust to hold accused in the jail even guilt of that person is not proved. 1 The judicial
discretion given to Judges to decide that “whether the bail should be granted to the accused or
not” in cases it was argued that, this is adverse to the art. 21 of the Indian constitution i.e. Right
to life and personal liberty, but it was cleared by the Hon’ble Supreme Court, on the careful
analysis of art. 21 the main objective of art.21 is not attached in constitution to save offenders
also there is due sanction of law in the matters of having petitioners in custody and hence there is
no infringement of scope of art. 21.

1
Moti Ram v. State of M.P. (1978) 4 SCC 47: 1978 SCC (Cri) 485.
Research problem

The term bail is not defined under CRPC. Bail is a kind of security which is given by the accused
to the court that he will attend the proceedings against the accusations made upon him and
include personal bond and bail bond.

Bail is a mechanism used to ensure that the accused is present before the court.

The two authorities that can grant bail are police and courts.

The basic and fundamental object of bail is to ensure the attendance of accused at the trial before
court.

The sections from 436 to section 439 deal with the provisions of bail.

The code of criminal procedure, 1973 has defined the term bailable offence by stating that an
offence which is shown as bailable in the first schedule, or which is made bailable by any other
law for the time being in force; and the term non-bailable offence states the meaning that any
other offence other than bailable offence.

The distinction between bailable and non-bailable offences is based on the gravity of the offence,
danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of
the accused person. Though the schedule for classification of offences as bailable or non bailable
is provided in Crpc; however, it is mostly the offences which are punishable with imprisonment
for not less than three years that are classified as non-bailable.

The purpose of bail is to ensure the appearance of accused before the court whenever required
but in certain cases, granting bail is not required.

Research question

1.Analysing bail as a right to accused.

2.what are the reasoning associated for consideration of granting bail to non bailable offence.
Hypothesis

The concept of Bail implies a form of previous restraint. The meaning of the term ‘Bail’ is to set
free a person who is under arrest,detention or under some kind of restraint by taking security for
his appearance. Section 436 of Criminal Procedure Code read with form 45of Schedule II of the
Code contemplate two kinds of security:

(i) Security with sureties; and

(ii) Recognizance of the principal himself.

Research methodology

In this research, the researcher has adopted the doctrinal research method, for this the researcher

has consulted various books, articles, journals and newspaper. Researcher also has attempted

to analyse the topic with the help of case law available.

BASIC RULE

Whereas liberty of an Human being is invaluable and there should always be an almighty effort
on the part of Law Courts to protect such liberties of Human individuals – but this protection can
be made avail to only those deserving human individuals only since the term protection cannot
by itself be called to be absolute in any and every situation but stands qualified depending upon
the demand of the situation. It is on this aspect that in the event of there being commission of a
heinous crime it is the society that needs a protection from these scaring elements since the latter
are having the capacity of spreading a reign of terror so as to disrupt the life and tranquilly of the
people in the society. The protection thus is to be allowed upon proper circumspection depending
upon the fact situation of the matter. Examining the scope of invoking article 21 of the
Constitution, in a case, the Supreme Court observed that while it is true that Article 21 has not
been incorporated in the Constitution to safeguard the offenders, provided however that, there is
due sanction of law in the matter of having the petitioners in the custody.

Bail or jail? That’s the question. Every citizen in presumed to be law abiding and innocent. But
when the court speaks of presumption of innocence of the accused, it only means to stress that
the burden of proving guilt lies entirely on the prosecution and that strict proof must be given for
holding that the accused is guilty. This is based on the principle that every citizen is entitled to
live in liberty till he commits an offence; and nobody, including the state, should take away his
liberty without establishing before a court of law that he had committed the offence and thus
rendered himself disqualified for enjoying the liberties of a free citizen.2

BAIL

The definition and meaning of bail is not statuary defined, but it used to interpreted as a right
against the state for the freedom of an individual whose freedom has been restrain on security of
appearance based on an assurance, generally bail comes under the purview of judicial discretion,
while considering whether to give bail or not to an offender. Supreme Court defines bail as ‘a
technique which is evolved for affecting the synthesis of two basic concepts of human value,
viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a
person’s release is conditioned on the surety to produce the accused person in the Court to stand
the trial’. The main purpose of the bail is to assure that an accused person will return for trial if
he is released after arrest and the Supreme Court observed that general policy is to grant bail
rather than to refuse it.3

TYPES OF BAIL

For the purpose of granting bail offences have been classified into two categories in context of
offences there are, Bailable and non-bailable offences under Section 2 of the Criminal Procedure
Code. The basic distinction in these offences is that in bailable offences Bail can be claimed as a
matter of right, whereas in non-bailable offences it is at the discretion of the Courts whether to
grant bail or not. While granting bail in case of non-bailable offences various factors are to be
taken into account by the Courts Today the horizon of Human Rights is expanding. At the same
time, the crime rate is increasing swiftly. Observing this, Supreme Court has been held that there
is urgent need to make a balance between personal liberty and investigational powers of Police.
2
Bhola v. State, 1974 Cri LJ 1318 at p. 1319 (All).
3
State of Rajasthan v Balchand AIR 1977 SC 2477.
There can be no gain saying that freedom of an individual must yield to the security of the state.
However, not right can be absolute and reasonable restrictions can be placed on them.

2. BAIL AS A RIGHT

Bail In case of Bailable offence.

When an accused human being is arrested or detained with respect to commission of Bailable
offence the police officer or the court, instead of taking bail from him may release him on his
executing a bond without sureties, whereas if that individual fails to comply with the conditions
of the Bail bond in context of Time and Place of attendance, the court may refuse to release him
on bail when on subsequent juncture in the same case it appears or brought before the court.

In all Bailable offence the Bail can be claim as a right, “No act can take away liberty of a person
in case of Bailable offences, Apex court also held that in bailable offences, bail is a right of a
person.4

DEFAULT BAIL

Sec. 167(2) of Crpc, it is mention of a time-period that where a person is in custody and the
investigation not over in 90 days where such investigation is linked with an offence punishable
with death, imprisonment for life or imprisonment for ten years or more and in 60 days, where
such an investigation relates to any other offence, the accused is entitled to get bail as a right
after the period of 90 days or 60 days, as the case may be, is over. The language of section is
clear and it is mandate of the legislature. The right is absolute; it is also called as “order on
default”.

Limitations under Section 437 Inapplicable to Sessions Court and High Court

The powers of the Sessions Court and the High Court under this section in the matter of granting
bail are not circumscribed by the limitation imposed under Section 437 (1). Even then, it would
not be proper for High Court to grant bail to the accused on collateral considerations that they are
all poor agriculturists and their entire family would be subjected to starvation.
4
State of Gujrat v. Lalsingh AIR 1981 SC 368.
 1.4 Person applying for bail must be in custody.

No person accused of an offence can approach the Court for bail under Section 439 unless he is
in custody. Such a person can be stated to be in judicial person is not in police custody because
he happens to be in the judicial custody in another State, then he cannot be deemed to have been
arrested. Hence, the application for bail is liable to be dismissed.5 The bail of the petitioner was
cancelled by the Sessions Judge and without surrendering he applied to the High Court for the
cancellation of the order of the Sessions Judge. The High Court refused to consider the
application as he was not in custody.

A person was arrested but he escaped from the police custody; charges under the Penal Code and
the Arms Act were frame against him; then he filed a bail application in the High Court in which
he allege that there was danger to his life as his district Court and hence he approached the High
Court. The High Court held that the bail application was not maintainable because there is no
such provision for surrender in the Cr. P.C. before the High Court. If the High Court accepts
surrender and it cannot remand the accused to custody. As far as Rule 10, Chapter XVIII of the
Allahabad High Court Rules is concerned two pre-conditions are to be fulfilled before a bail
application be considered e.g. the first one being a copy of the order of the Sessions Judge and
the second is that he has surrendered.

1.5 When Bail May be Granted by High Court or Court of Session

There is no ban against the High Court of the Court of Session granting bail to persons accused
of an offence punishable with death or imprisonment for life. Still that Court will have to take the
several considerations enumerated by the Supreme Court in this case. 6 Though both the High
Court and the Court of Sessions have concurrent power, normal practice is to move the latter
first. The High Court would directly entertain an application only in exceptional cases or under
some special circumstances.

Bail should not be granted by the High Court suo motuwhether a bail petition has been moved in
a co-ordinate Court should be mentioned in the application for bail. It is also the duty of the

5
Lakhan Singh Vs. State of Rajasthan, 1987 R.L.W. 610
6
Gudikanti Narasimhlu Vs. Public Prosecutor, AP, AIR 1978:SC 429: 1978 Cr.LJ 502;
Gurcharan Singh vs. Delhi Administration, AIR 1978, SC 179: 1978 Cr.LJ 129
Court to obtain a statement about that fact before exercising its power. 7 ‘Court of Session’ means
the court presided over by the Sessions Judge.

1.6 General Policy is to Grant Bail Rather than to Refuse

In State of Rajasthan v. Balchand,8 which related to a case of an appeal filed in the Supreme
Court against an acquittal order passed by the High Court, the Supreme Court, speaking through
KRISHNA IYER, J., laid down the principle for bail by holding that the basic rule could perhaps
be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from
justice or thwarting the course of justice or creating other troubles in the shape of repeating
offences or intimidating witnesses and the like, by the accused who seeks enlargement on bail
from the Court. The Supreme Court clarified that this list was not exhaustive as only illustrative.
It was further held that the gravity of the offence involved, which is likely to induce the accused
to avoid the course of justice, must also weigh with the Court while considering the question of
jail, and likewise the gravity of the crime should also be taken into account. While granting bail
to the accused in the instant case, it was further observed that at any possibility of the absconding
or evasion or any other abuse can be deal by a direction that the accused would report to the
police station once every fortnight.

1.7 The power of the Court in granting bail is not to be exercised as if the punishment before trial
is being imposed.

The primary material considerations in such situations are: whether the accused would be
readily available for his trial or whether he is likely to abuse the discretion granted in his favour
by tampering with evidence. But, when there is no prima facie case, established then there is no
question of considering the other circumstances. But where there is a prima facie case is
established, the approach of the Court in the matter of granting bail should not be that the
accused should be detained by way of punishment, but whether the presence of accused would be
readily available for trial or that he is likely to abuse the discretion granted in his favour by
tampering with the evidence.
7
Harbans Signh Vs. State of Punjab, (1986) 13 Cr. LT 264: (1987-1) 91 PLR 103; Hari
Mohan Dixit Vs. State of M.P. 1986 Cr,LR 211 (MP)
8
(1977)4 SCC 308 at pp. 308-9: AIR 1977 SC 2447.
It must be remembered that pre-trial detention is merely to help the investigation and not to
punish the accused.9The power of grant of bail is not to be exercised as if the punishment before
trial is being imposed.10 Bail is not to be refused as a punitive measure, follows as a necessary
corollary from the golden rule-thread which runs throughout the web of criminal jurisprudence
that the law presumes an accused to be innocent till guilt has been proved. Yet bail is a matter of
procedural privileges at the most, and not an accumulated right, at least until it is granted. 11 The
Hon’ble Supreme Court has cautioned that pre-trial detention is not to be encouraged nor is
encourageable pretrial release on sureties, that if the court is satisfied after taking into
consideration that the accused has his roots in the community and is not likely to abscond he can
safely be released on his personal bond

1.8 Considerations for Grant of Bail in Non-Bailable Offence

The overriding considerations in granting bail which are common both in the case of Sec. 437(1)
and 439(1) Cr. P. C. of the new code are the nature and gravity of the circumstances in which the
offence is committed; the position and the status of the accused with reference to the victim and
the witnesses. The likelihood, of the accused fleeing from justice, of repeating the offence, of
jeopardizing his own life being faced with a stern prospect of possible conviction in the case, of
tampering with the witnesses and the previous record of case as well as of its investigation and
other relevant grounds which, in view of so many variable factors, cannot be exhaustively set
out. 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:12 (a) The nature of accusation and the severity of punishment in case of conviction and the
nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the compliant. (c) Prime facie satisfaction of the court in support of the
charge.

1.9 CONCLUSION

9
Irajit Sinha v. State of Tripura, 2004 Cri LJ 4485 at p. 4487 (Gau).
10
Vishwanath Tiwary v. State of Bihar, 1988 Cri LJ 333 at pp. 335-36 (Pat).
11
Kalyan Singh v. State of M.P., 1989 Cri LJ 512 at p. 513.
12
State of Maharashtra v. Sitaram Papat Vetal, (2004)7 SCC 521.
The mechanism of providing bail to an arrested person is thus geared on the twin principles of
securing the presence of any accused person in a criminal trial as well as to place only a
minimum of restraint on the freedom of the individual. However, the application of the law of
bails has been given an extended scope as a result of over emphasis on personal freedom, which
has increased as a result of conscious assertion of individual rights in contemporary years. This
has led the criminal law administration agencies to face some responsibilities not within their
traditional comprehension. It is true that the value of individual freedom cannot be minimized,
but it is necessary to consider to what extent the freedom of an accused can be regulated within
the bail system in the interest of criminal justice. While in actual practice, serious deviations are
reported affecting credibility as well as utility of the bail system. There has also been a
noticeable trend of bail jumping.

The main of question whether to grant bail or not depends upon a several aspects of
circumstances, while the cumulative effect of which must enter into the judicial verdict. Any
single circumstance cannot be treated as of universal validity or as necessarily justifying the
grant or refusal of bail.13 One of the considerations for granting bail in a non-bailable offence
must be consider the gravity and the nature of the offence.14

REFRENCES

BOOKS:

 Anticipatory Bail Law and Practice. By.Narayan Laxmanrao.Advocate .A.P.High court.

WEBSITES:

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 http://www.shoneekapoor.com/what-is-anticipatory-bail/
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