Bail and Arrest
The dictionary meaning of
bail is the
temporary release of an accused person awaiting trial, sometimes on condition
that a sum of money is lodged to guarantee their appearance in court.
The provisions bail
mentioned in Section 436 to 439 of The Code Of
Criminal Procedure, 1973
436.
In what cases bail to be taken.
(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 officer or at any stage of the proceeding before such Court to give
bail, such person shall be released on bail: Provided that such officer or
Court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance as
hereinafter provided: Provided further that nothing in this section shall be
deemed to affect the provisions of sub- section (3) of section 116 or section
446A 1 .
(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 bound by such bond to pay the penalty thereof under
section 446.
Section
437 in The Code Of Criminal Procedure, 1973
437.
When bail may be taken in case of non- bailable offence. 1
(1) When
any person accused of, or suspected of, the commission of any 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 other than the High
Court or Court of Session, he may be released on bail, but-
(i) such
person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;
(ii) such
person shall not be so released if such offence is a cognizable offence and he
had been previously convicted of an offence punishable with death, imprisonment
for life or imprisonment for seven years or more, or he had been previously
convicted on two or more occasions of a non- bailable and cognizable offence:
Provided that the Court may direct that a person referred to in clause (i) or
clause (ii) be released on bail it such person is under the age of sixteen
years or is a woman or is sick or infirm: Provided further that the Court may
also direct that a person referred to in clause (ii) be released on bail if it
is satisfied that It is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with such directions as may
be given by the Court.]
(2) If
it appears to such officer or Court at any stage of the investigation, inquiry
or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non- bailable offence, but that
there are sufficient grounds for further inquiry into his 1 guilt
the accused shall, subject to the provisions of section 446A and pending such
inquiry, be released on bail] or at the discretion of such officer or Court, on
the execution by him of a bond without sureties for his appearance as
hereinafter provided.
(3) When
a person accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under
Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment
of, or conspiracy or attempt to commit, any such offence, is released on bail
under sub- section (1), the Court may impose any condition which the Court
considers necessary-
(a) in
order to ensure that such person shall attend in accordance with the conditions
of the bond executed under this Chapter, or
(b) in
order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise
in the interests of justice.
(4) An
officer or a Court releasing any person on bail under sub- section (1) or sub-
section (2), shall record in writing his or its 1 reasons
or special seasons] for so doing.
1.
Subs. by Act 63 of 1980, s. 5 (w. e. f. 23. 9. 1980 ).
(5) Any
Court which has released a person on bail under sub- section (1) or sub-
section (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit him to custody.
(6) 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.
(7) If,
at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not guilty of
any such offence, it shall release the accused, if he is in custody, on the
execution by him of a bond without sureties for his appearance to hear judgment
delivered.
438. Direction for grant
of bail to person apprehending arrest (Anticipatory bail).
(1) When any person has reason to
believe that he may be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of Session for a
direction under this section; and that Court may, if it thinks fit, direct that
in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court
of Session makes a direction under sub- section (1), it may include such
conditions in such directions in the light of the facts of the particular case,
as it may think fit, including-
(i) a condition that the person shall
make himself available for interrogation by a police officer as and when
required;
(ii) a condition that the person
shall not, directly or indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer;
(iii) a condition that the person
shall not leave India without the previous permission of the Court;
(iv) such other condition as may be
imposed under sub- section (3) of section 437, as if the bail were granted
under that section.
station on such accusation, and is
prepared either at the time of arrest or at any time while in the custody of
such officer to give bail, be shall be released on bail; and if a Magistrate
taking cogniz-
ance of such offence decides that a
warrant should issue in the first instance against that person, he shall issue
a bailable warrant in conformity with the direction of the Court under sub-
section (1).
439. Special powers of
High Court or Court of Session regarding bail.
(a) that any person accused of an
offence and in custody be released on bail, and if the offence is of the nature
specified in subsection (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a
Magistrate when releasing an person on bail be set aside or modified: Provided
that the High Court or the Court of Session shall, before granting bail to a
person who is accused of an offence which is triable exclusively by the Court
of Session or which, though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public Prosecutor unless
it is, for reasons to be recorded in writing, of opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session
may direct that any person who has been released on bail under this Chapter be
arrested and commit him to custody.
Questions and answers:
1) How can one prove the presence in police station if he
is on anticipatory bail?
When court pass order of anticipatory bail at that time
normally court put conditions to attend the concern police station. And
thereafter that person should attend the police station as per the order of
Court and that person should keep diary and take acknowledgement of attendance
from the police station. And that diary is proof of presence in the police
station.
2) rashtrapati ki jamanat rashi kya hai
No arrest or
imprisonment shall be made against the President or Governor
during his term of office in respect of any act done by him in his
personal capacity.
3) Bail
application dismissed for non prosecution What is the remedy available to the
petitioner thereafter
If bail application is dismissed for
non-prosecution, then that person can make another application on any change of
circumstances or he may approach to higher court.
4) accused ki
bail ko cancel karne ka trika kya labh accused witness ko threatened karta hai
If accused is released on bail, then he
can not contact to the witness. If accused threaten the witness then witness
can approach to the higher court for cancellation of bail on the ground of
accused threatening the witness.
5) sc st act 3
1)(r act me jamanat lower court se hota hai ya high court se
If any case is registered against any
person under SC and ST act, that person should approach the special court or
sessions court. Lower court has no jurisdiction to entertain bail application
of SC and SC act. If the bail is rejected in sessions court then he can
approach to High Court.
6) What are the parties in a bail application called?
When a person makes bail
application at that time he should make parties i.e. 1) state government and 2)
Sr. Inspector of concern police station.
7) Can we change the lawyer after getting the bail
in a bailable/non bailable
offence under CR case?
The answer is yes. Person
can change is advocate during any stage of proceeding.
8) Restriction on station bail by central govt notification
There are no restrictions to get in bailable offence
from central government notification. Police station has powers to release the
accused in bailable offence.
9) If bail
application not made what happens
If bail application is not
made in bailable offence in that case accused may release from jail after 7
days and he has to stay in jail in non bailable offence.
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