Exploring the Bail System in India: An Overview

When bail may be taken for non-bailable offence

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-change of a police station or appears or is brought before a court other than the High Court or Court of session, he may released on bail, but such person will not be so released if:

1. there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; or
2. such offence is a cognisable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven days or more, or he had been previously convicted on two or more occasions of a cognisable offence punishable with imprisonment for three years or more but not less than seven years.

However, the court may direct that a person referred to in the code of Criminal Procedure 1973 be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.  Further, the court may also direct that a person referred to in the provision dealing with when bail may be taken in case of non-bailable offence under the Criminal Procedure 1973 be released on bail if it is satisfied that it is just and proper so to do for any other special reason.  Also the mere fact that an accused person may be required for being identified by witnesses during investigation will 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 will comply with such directions as may be given by the court.  However, no person alleged to have been committed an offence punishable with death, imprisonment for life, or imprisonment for seven years or more will be released on bail by the court under the said provision without giving an opportunity of hearing to the public prosecutor.

Where 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 guilt, the accused will, subject to the provisions of the Code 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.

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 the Indian Penal Code 1860 or abetment of, conspiracy or attempt to commit, any such offence, is released on bail under the Code of Criminal Procedure 1973, the court will impose the conditions that: (i) such person will attend in accordance with the conditions of the bond executed under the Code (ii) such person will not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (iii) such person will not directly or indirectly make any inducement, threat or promise to any person acquainted make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him form disclosing such facts to the court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.

An officer or a court releasing any person on bail under the Code of Criminal Procedure 1973 will record in writing his or its reasons or special reasons for so doing.  Any court which has released a person on bail under the provision of the Code of Criminal Procedure 1973, providing for ‘when bail may be taken in case of non-bailable offence’ may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.  Where, 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 will, 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.  Where, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it will 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.

In non-bailable cases in which the person is not guilty of an offence punishable with death or imprisonment for life, the court will exercise its discretion in favor of granting bail subject to the Code of Criminal Procedure 1973 if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat the proper investigation and fair trial, the court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life.

When bail may be granted in non-bailable offence

Bail is a matter of right if the offence is bailable.  In the case of a non-bailable offence, bail is a matter of judicial discretion.  Bail will not be granted by the magistrate if the offence is punishable with death or imprisonment for life if he is of the view that there appear reasonable grounds for believing that the person concerned accused or suspected of the commission of the offence has been guilty of the offence, provided that he may, in his discretion, grant bail to a woman or a minor under the age of sixteen years or a sick or infirm person.  In a case involving a non-bailable offence, a court may impose reasonable conditions besides fixing the bail amount for the attendance of the accused.  Bail under the Code of Criminal Procedure 1973 is after arrest, and bail under the provision pertaining to direction for grant of bail to person apprehending arrest in the Code of Criminal Procedure 1973 is in anticipation of arrest and becomes effective form the moment of arrest.  Power under the Code of Criminal Provision 1973 is not subject to the conditions or limitations contained in the provision providing for when bail may be taken in case of non-bailable offence in the Code of Criminal Procedure 1973.

The grant of bail in non-bailable cases is generally a matter in the discretion of the authorities concerned.  The Code of Criminal Procedure 1973 first gives discretion to the court, particularly a magistrate, to order release on bail even in cases of non-bailable offences.  However, the wide discretion is to some extent controlled by two restrictions; the Code provides that if there appear reasonable grounds for believing that accused, not being a person under the age of sixteen years or a woman or a sick or infirm person, has been guilty of an offence punishable with death or imprisonment for life, then he must not be released on bail.  On the other hand, the Code of Criminal Procedure 1973 provides that as per the contingencies mentioned in them, the accused may be released on bail.  Thus, the provisions dealing with when bail may be taken in case of non-bailable offence under the Code of Criminal Procedure 1973 lays down that where it appears that there are not reasonable grounds for believing that the accused has committed a anon-bailable offence, but further inquiry is still considered necessary, the accused will be released on bail.  The Code lays down that where the trial of a person accused of a non-bailable offence is not concluded within a period of sixty days from the first day fixed for taking evidence in the case, such person will, if he is in custody during the whole of the said period, be released on bail unless for reasons to be recorded in writing, the magistrate otherwise directs.  The provision of the Code providing for when bail may be taken in case of non-bailable offence lays down that where the court is of opinion, after the conclusion fo a trial, that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, he will be released on bail till the delivery of the judgment.  In all other cases the officer-in-charge of the police station and the magistrates are free to exercise their discretion having regard to all the circumstances of the case.

The provisions dealing with when bail may be taken in case of non-bailable offence under the Code of Criminal Procedure 1973 provides for imposition of conditions while granting bail in specified bailable and non-bailable offences.  The complaint has no right to oppose bail of the accused, and only the public prosecutor may oppose the bail application.  A counsel representing the complainant may act under the instructions of the public prosecutor and oppose the bail applications within the limitations provided by the Code.  Expect in exceptional case, the complainant, who has no other role than to appear as a witness in the case, may not be allowed to oppose the bail application.

The provisions dealing with the cases ‘when bail may be taken in case of non-bailable offence’ under the code of Criminal Procedure 1973 refers to a stage when the accused is first brought before a court.  At this stage there is little or no evidence for a court to act upon and the matter of granting bail to the accused is entirely in the discretion of the court subject to the restriction that it there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, the accused will not be released on bail except when the accused is a minor under sixteen years of age or a women or a sick or an infirm person in which case he may be released on bail.  Where the accused is not released at the initial stage of his appearance in a court, he may still be released subsequently during investigation, inquiry or trial if there are no reasonable grounds for believing that he has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt.  Then, again, if after the conclusion of the trial and before the delivery of the judgment, the court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, the court must release the accused if he is custody on the execution by him of a bond without sureties for his appearance to hear the judgment delivered.  The provisions dealing with special powers of High Court or court of session regarding bail under the Code of Criminal Procedure 1973 gives an unfettered discretion to the High Court or the Court of session to admit an accused person to bail.  The power of grant bail under the provision of the Code the Criminal Procedure 1973 providing for when bail may be taken to case of non-bailable offence is clearly unfettered by any conditions or limitations imposed by it.

Granting bail under the Code of Criminal Procedure 1973 is discretionary which must be exercised judicially.  Though discretion is unfettered, it may not be exercised arbitrarily but must be exercised judicially.  There is no hard and fast rule and no inflexible principle governing such discretion.  The only principle that is established is that there must be a judicial exercise of that discretion.  It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the court.  The considerations are too numerous to be classified or catalogued exhaustively.

A few prominent matters to be considered for granting bail are:

1. whether there is prima facie or reasonable ground to believe that the accused has committed the offence;
2. nature and gravity of the change;
3. severity of the punishment in the event of conviction;
4. danger of the accused absconding or fleeing, if released or bail;
5. character, behavior, means, position and standing of the accused;
6. likelihood of the offence being repeated;
7. reasonable apprehension of the witnesses being tampered with, and
8. danger, of course, of justice being thwarted by grant of bail.

No invariable rule or formula can be laid down for exercise of the discretion in granting bail.  It has to be exercised as per guidelines laid down by the Supreme Court in its judicial pronouncements in the backdrop of the facts and circumstances of the case at hand.

It is, nevertheless, necessary to stress upon the fact that since the jurisdictions discretionary, it is required to be exercised with grant care and caution by balancing valuable right of liberty of an individual and the interest of the society in general.

The Supreme court of India has construed the scope and amplitude of the provisions dealing with ‘when bail may be taken in case of non-bailable offence’ and the ‘special powers of High Court or Court of Session regarding bail’ as specified in the code or criminal procedure 1973.  It has pointed out that the provision of the Code of Criminal Procedure 1973 providing for the instances when bail may be taken in case of non-bailable offence is concerned only with court of magistrate.  Though there is no restriction on the powers of a High Court or a court of session to release a person accused of having committed an offence punishable with death or imprisonment for life, the court will always advert to the overriding considerations for granting bail which are common to both provisions of the Code of Criminal Procedure 1973.  The condition laid down for the grant of bail in case of a non-bailable offence under the Code is sine qua non for granting bail even by High Court or court of session by using its special powers under the Code. The provisions dealing with when bail may be taken in case of non-bailable offence under the Code of Criminal Procedure 1973 confers pm the court, in the case of a person released by itself, power to direct that a person who has been released on bail under any of the provisions of the Code must be arrested and committed to custody.        

Bail in non-bailable offences under the Indian Panel Code 1860 read with the provision providing for causing disappearance of evidence of offence, or giving false information to screen offender of the Indian Penal Code 1860, the gravity and nature of offence is of prime consideration.

 

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