Sample LLM – CrPC

                                PROVISIONS    OF   BAIL     AND    BONDS

 

Section 436                 Bail in bailable offences

• When a person not 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 to give bail
  • at any time while in custody of such officer or
  • at any stage of proceeding before such Court
• such person shall be released on bail

 

• Instead of taking bail from such person
  • such officer or Court may discharge him
  • on his executing a bond without sureties

• If such person is indigent and unable to furnish surety
  • such officer or Court shall discharge him
  • on his executing a bond without sureties

Indigent person

• Where a person is unable to give bail
  • within a week of his arrest
• it shall be sufficient ground
  • to presume that he is an indigent person

[Note:  Inserted w.e.f 23.6.2006]

 

• Where a person fails to comply with conditions of bail bond
  • as regards time and place of attendance
• Court may refuse to release him on bail
  • when on a subsequent occasion in the same case
  • he appears before Court or is brought in custody

 

Section 436A

• Where a person has undergone detention
  • upto half of maximum imprisonment specified for his offence
  • during investigation or trial
• he shall be released by court on his personal bond
  • with or without sureties

• Court may order
  • after hearing Public Prosecutor
  • and for reasons to be recorded in writing
• continued detention of such person
  • longer than one-half of maximum imprisonment
•  or release him on bail
  • instead of personal bond with or without sureties

• No such person shall in any case
  • be detained during investigation or trial
  • for more than the maximum imprisonment for his offence

 

Note:     What is bail?

• Traditionally bail is some form of property
  • deposited or pledged to a court
• to persuade it to release a suspect from jail
  • on the understanding that
• he will return for trial or forfeit the bail

Surety Bond

• By a surety bond
  • a third party agrees to be responsible
  • for debt or obligation of defendant

Property Bond

• Accused or a person acting on his behalf
  • pledges real property
  • having a value at least equal to amount of bail
• If the principal fails to appear for trial
  • State can institute foreclosure proceedings against the property
  • to recover the bail

 

Section 437                 Bail in non-bailable cases

• When a person accused of, or suspected 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
    • other than High Court or Court of session
• he may be released on bail, but

(i)

• such person shall not be so released
  • if there are 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 or imprisonment for seven years or more
  • or he had been previously convicted
    • on two or more occasions
    • of a cognizable offence punishable with imprisonment for 3 years or more
    • but not less than 7 years

 

• Court may direct that
  • a person in clauses (i) and (ii) be released on bail
  • if such person
    • is under sixteen years
    • is a woman
    • is sick or infirm

• Court may also direct that
  • a person under clause (ii) be released on bail
  • if it is just and proper so to do for any other special reason

• Mere fact that accused 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 directions of Court

• If offence is punishable with death or imprisonment for 7 years or more
  • no person shall be released on bail by court
  • without hearing Public Prosecutor

 

Section 437(2)

• If it appears to such officer or Court at any stage
  • that there are no reasonable grounds for believing
  • that accused has committed a non-bailable offence
  • but there are sufficient grounds for further inquiry into his guilt
• accused shall be released
  • on bail or
  • on execution by him of a bond without sureties

 

Section 437(3)

• When a person accused or suspected of
  • an offence punishable with imprisonment of seven years or more or
  • an offence under Chapters VI, XVI or XVII of IPC
• is released on bail
• Court shall impose these conditions:

(a)

• such person shall attend in accordance with conditions of bond

(b)

• such person shall not commit
  • an offence similar to the offence of which he is accused or suspected

(c)

• such person shall not
  • make any inducement, threat or promise
    • to any person acquainted with facts of case
    • so as to dissuade him from disclosing such fact
    • to court or to any police officer or
  • tamper with evidence

 

• Court may also impose
  • other necessary conditions in interest of justice

 

Section 437(4)

• An officer or Court releasing any person on bail
  • shall record in writing reasons or special reasons for so doing

Section 437(5)

• Any Court which has released a person on bail
  • may direct if necessary that such person be arrested
  • and commit him to custody

Section 437(6)

• In a case triable by Magistrate:
• If trial in case of a non-bailable offence
  • is not concluded in sixty days
  • from the first date fixed for taking evidence
• accused shall be released on bail
  • if he is in custody during the whole of this period
• unless for reasons to be recorded in writing
  • Magistrate otherwise directs

 

Section 437(7)

• In case of a non-bailable offence
  • at any time after conclusion of trial
  • but before judgement is delivered
• if Court has reasonable grounds for believing that accused is not guilty
  • it shall release him, if he is in custody
  • on execution by him of a bond without sureties

 

Section 437A

• Before conclusion of trial or disposal of appeal:
• court shall require accused
  • to execute bail bonds with sureties
  • to appear before higher court
  • when such court issues notice on any appeal filed against judgment

• Such bail bonds shall be in force for 6 months

 

Section 438(1)             Bail to person apprehending arrest

• Where any person has reason to believe
  • that he may be arrested on accusation of a non-bailable offence
• he may apply to High Court or Court of Session
  • for a direction that in the event of such arrest
  • he shall be released on bail

 

• After taking into consideration
  • nature and gravity of accusation
  • antecedents of applicant, including whether he has previously undergone
    •  imprisonment on conviction for a cognizable offence
  • possibility of applicant to flee from justice
  • whether accusation has been made with object of
    •  injuring or humiliating applicant by having him arrested
• High Court or Court of Session may
  • either reject the application forthwith
  • or issue interim order for grant of anticipatory bail

• Where High Court or Court of Session
  • has not passed any interim order
  • or has rejected application for grant of anticipatory bail
• it shall be open to police officer
  • to arrest applicant without warrant on the basis of accusation

 

Section 438(1A)

• Where Court grants an interim order:
• it shall forthwith cause
  • a notice of not less than seven days
  • together with a copy of such order
• to be served on Public Prosecutor and Superintendent of Police
  • with a view to give Public Prosecutor a reasonable opportunity of being heard
  • when application shall be finally heard by Court

 

Section 438(1B)

• Presence of applicant seeking anticipatory bail
  • shall be obligatory
  • at the time of final hearing and passing of final order
• if on application made by Public Prosecutor
• Court considers such presence necessary in interest of justice

[Note:  Inserted by CrPC Amendment Act 2005]

 

Section 438(2)

• When High Court or Court of Sessions makes such direction
• it may impose conditions including
  • a condition that the person shall make himself available
    • for interrogation by a police officer as and when required
  • a condition that the person shall not cause
    • any inducement, threat or promise to a person acquainted with facts of case
    • so as to dissuade him from disclosing such facts to Court or police officer
  • a condition that the person shall not leave India
    • without previous permission of Court
  • such other condition as may be imposed u/s 437(3)
    • as if bail were granted under that section

 

Section 438(3)

• If such person is thereafter arrested
  •  by a police officer without warrant on such accusation
  • and is prepared at the time of arrest or while in custody to give bail
• he shall be released on bail

• If a Magistrate taking cognizance of such offence decides
  • that a warrant should be issued against that person
  • he shall issue a bailable warrant in confirmity with direction of Court

Note:

• Section 18 of SCs and STs( Prevention of Atrocities) Act 1989 provides:
• Nothing in section 438 of Criminal Procedure Code shall apply
  • to a case involving arrest of any person
  • on an accusation of having committed an offence under this Act

 

Section 439            Bail powers of High Court, Court of Sessions

(1)

• High Court or Court of Sessions may direct
  • that any person accused of an offence and in custody
  • be released on bail

• If offence is of nature specified in Section 437(3)
  • Court may impose any condition necessary for purposes mentioned there

• High Court or Court of Sessions may direct that
  • any condition imposed by Magistrate when releasing any person on bail
  • be set aside or modified

(2)

• High Court or Court of Sessions may direct
  • that any person who has been released on bail
  • be arrested and commit him to custody

 

Section 440            Amount of bond

(1)

• Amount of every bond executed under this chapter
  • shall be fixed with due regard to circumstances of case
  • and shall not be excessive

(2)

• High Court or Court of Sessions may direct
  • that bail required by a police officer or Magistrate be reduced

 

Section 441            Bond of accused and sureties

(1)

• Before any person is
  • released on bail or
  • released on his own bond
• a bond for such sum of money as police officer or Court thinks sufficient
  • shall be executed by such person

• When he is released on bail
  • such bond shall be executed by one or more sufficient sureties
  • conditioned that such person
    • shall attend at the time and place mentioned in bond
    • shall continue so to attend until otherwise directed

(2)

• Where any condition is imposed for release of any person on bail
  • bond shall also contain that condition

(4)

• For determining whether sureties are fit or sufficient:
• Court may accept affidavits
  • in proof of facts contained therein or
• it may hold an enquiry
  • as to such sufficiency or fitness

 

Section 441A               Declaration by sureties

• Every person standing surety
  • to an accused for his release on bail
• shall make a declaration before Court
  • as to number of persons to whom he has stood surety including accused
  • giving therein all relevant particulars

 

Section 442(1)             Discharge from custody

• As soon as bond has been executed
  • person for whose appearance it has been executed
  • shall be released

• When he is in jail
  • court shall issue an order of release to officer in charge of jail
  • and such officer shall release him

 

Section 444            Discharge of sureties

(1)

• Any surety for attendance and appearance of a person released on bail
  • may at any time apply to a Magistrate to discharge the bond
  • so far as it relates to applicant

(2)

• On such application being made
  • Magistrate shall issue his warrant of arrest
  • directing that the person so released be brought before him

(3)

• On appearance of such person
  • pursuant to warrant or on his voluntary surrender
• Magistrate shall direct the bond to be discharged
  • so far as it relates to the applicant
• and shall call upon such person to find other sufficient surety
  • and may commit him to jail if he fails to do so

 

Section 445     Deposit instead of recognisance

• When a person is required by a Court or officer
  • to execute a bond with or without sureties
• such Court or officer may
  • except in case of a bond for good behaviour
  • permit him to deposit a sum of money to such amount as Court or officer may fix
  • in lieu of executing such bond

 

Section 446            Procedure when bond has been forfeited

(1)

• where it is proved that a bond has been forfeited
  • Court shall record grounds of such proof
  • and may call upon any person bound by such bond to pay the penalty thereof

(2)

• If sufficient cause is not shown and penalty is not paid
  • Court may proceed to recover the same
  • as if such penalty were a fine imposed by it

• Where such penalty is not paid
  • and cannot be recovered as aforesaid
• person so bound as Surety shall be liable
  • to imprisonment in civil jail upto six months

(4)

• Where surety to a bond dies before bond is forfeited
  • his estate shall be discharged from all liability in respect of bond

 

Section 446A               Cancellation of bond and bail bond

• Where a bond is for appearance of a person in a case
• and it is forfeited for breach of a condition
  • bond executed by such person
  • as well as bond executed by his sureties
  • shall stand cancelled
• and thereafter…
  • no such person shall be released only on his own bond in that case
  • if Police Officer or Court for appearance before whom bond was executed is satisfied that
  • there was no sufficient cause for failure to comply with conditions

• He may be released in that case
  • upon execution of a fresh personal bond for such sum of money
  • and bond by one or more of such sureties as Police Officer or Court thinks sufficient

 

 

 

 

 

            CASE    LAW   ON   BAIL   AND   ANTICIPATORY   BAIL

 

1.    Moti Ram                            v.               State of M.P.                   [1978 SC]
2.   Gurbaksh Singh Sibbia      v.                State of Punjab               [1980 SC]
3.   State                                    v.                Captain Jagjit Singh      [1962 SC]

 

 

 

 

                             Moti Ram      v.     State of M.P.     [1978 SC]

 

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” lampooned Anatole France.

 

Criminal appeal of the petitioner pends in this Court and he has obtained an order for bail in his favour “to the satisfaction of the Chief Judicial Magistrate”. The direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs 10,000 be produced which, in actual impact, was a double denial of the bail benefit.

For one thing the miserable mason, the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made an odd order refusing to accept the surety ship of the petitioner’s brother because he and his assets were in another district.

 

Geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a conglomeration of districts, untouchably apart.

When this Court’s order for release was thus frustrated by magisterial intransigence the prisoner moved this Court again to modify the original order “to the extent that petitioner be released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond”.

 

From this factual matrix three legal issues arise

(1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a nonbailable offence either as undertrial or as convict who has appealed or sought special leave?

(2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and

3) Is it within the power of the Court to reject a surety because he or his estate is situate in a different district or State?

The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well lie the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity.

 

There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means.

 

There is no definition of bail in the Code although offences are classified as bailable and non-bailable.

According to the American Jurisprudence, there is power in the court to release the defendant without bail or on his own recognizance. Likewise, the definition of bail as given in Webster’s Third Year International Dictionary: “The process by which a person is released from custody”.

 

The concept of bail has a long history and deep roots in English and American law. Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court.

 

The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

The legal literature on bail jurisprudence lends countenance to the contention that bail, loosely used, is comprehensive enough to cover release on one’s own bond with or without sureties.

 

Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ‘bail’ and ‘own bond without sureties’. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence ‘is prepared to give bail’.

Here, ‘bail’ suggests ‘with or without sureties’. And, ‘bail bond’ in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are hauled into a far-off court with obligation for frequent appearance:

‘Bail’ there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties.

 

Section 445 suggests, especially when read with the marginal note, that deposit of money will do duty for bond ‘with or without sureties’. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties. Superficially viewed, it uses the words ‘bail’ and ‘own bond’ as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read ‘bail’ as including only cases of release with sureties will stultify the sub-section; for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word ‘bail’ to include ‘own bond’ loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.

Section 441(2) and (3) use the word ‘bail’ generically because the expression is intended to cover bond with or without sureties.

 

The slippery aspect is dispelled when we understand the import of Section 389(1):

389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

 

The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the power of the court to release increases when the guilt is established. It is not the court’s status but the applicant’s guilt status that is germane. That a guilty man may claim judicial liberation, pro tempore without sureties while an undertrial cannot is a reductio ad absurdem.

Likewise, the Supreme Court’s powers to enlarge a prisoner, as the wide words of Order 21 Rule 27 (Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State agrees that this is so, which means that a murderer, concurrently found to be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.

 

The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the draftsman’s golden rule:

In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand.

 

If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, surety ship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet’s nest of Part III need not be provoked if we read ‘bail’ to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe judicial release from custodia juris.

Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents’ rights, we hold that bail covers both—release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.

 

Even so, poor men – Indians are, in monetary terms, indigents – young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances – put whatever reasonable conditions you may.

It shocks one’s conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000.

 

To add insult to injury, the magistrate has demanded sureties from his own district! What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies.

What law prescribes surety is from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland.

 

We mandate the magistrate to release the petitioner on his own bond in a sum of Rs 1,000.

We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the ‘bailee’ does not flee justice. The best guarantee of presence in court is the reach of the law, not the money tag. the judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language or province.

***************

 

 

 

 

 

                    Gurbaksh Singh Sibbia      v.      State of Punjab      [1980 SC]

 

These appeals by special leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests. Our task in these appeals is how best to balance these interest while determining the scope of Section 438 of the Code of Criminal Procedure.

 

Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in Punjab. Grave allegations of political corruption were made against him whereupon, applications were filed in the High Court under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. A Full Bench dismissed them.

 

The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438. The Law Commission of India, in its 41st Report in 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”.

 

The facility which Section 438 affords is generally referred to as ‘anticipatory bail’, an expression which was used by the Law Commission in the 41st Report. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s Law Lexicon, is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. An order of bail gives back to the accused freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested.

 

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.

In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.

 

Departing from Sections 437 and 439, Section 438(1) uses the language that High Court or Court of Session “may, if it thinks fit” direct that the applicant be released on bail.

 

It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage, at which anticipatory bail is sought, brings about its striking dissimilarity with the situation in which a person who is arrested for commission of a non-bailable offence asks for bail.

 

The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such condition as the case may warrant.

 

Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless the court at the stage of granting anticipatory bail is satisfied that such a charge appears to be false or groundless.

Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1).

 

That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision.

 

In cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In case falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing.

 

The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release there applicant on bail is, normally the credibility of the allegations contained in the first information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief.

 

While granting relief u/s 438(1), appropriate conditions can be imposed u/s 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery u/s 27 of Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.

 

Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [1960 SC] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to police.

The broad foundation of this rule is stated to be that Section 46 does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient.

 

Since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

 

As long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as punishment.

 

In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. But it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.

 

The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

It is of paramount consideration to remember that freedom of individual is as necessary for the survival of society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to presumption of innocence. He is willing to submit to restraints on his freedom, by acceptance of condition which the court may think fit to impose, in consideration of the assurance that if arrested he shall be enlarged on bail.

 

We would therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion.

 

Section 438(1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.

 

Grounds on which belief of applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, as  it is then alone that court can determine whether applicant has reason to believe that he may be so arrested.

Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

 

A ‘blanket order’ of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine.

 

The rationale of a direction u/s 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of exercise of power conferred by the section.

 

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                           State      v.     Captain Jagjit Singh         [1962 SC]

 

The respondent Jagjit Singh along with two others was prosecuted for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act. The respondent is a former captain of the Indian Army and was at the time of his arrest in December, 1960, employed in the delegation in India of a French company. The other two persons were employed in the Ministry of Defence and the Army Headquarters, New Delhi. The case against the three persons was that they in conspiracy had passed on official secrets to a foreign agency.

 

The respondent applied for bail to the Sessions Judge; but his application was rejected. Thereupon the respondent applied under Section 498 of the Code of Criminal Procedure to the High Court, and the main contention urged before the High Court was that on the facts disclosed the case against the respondent could only be under Section 5 of the Act, which is bailable and not under Section 3 which is non bailable.

 

The High Court was of the view that it was hardly possible at that stage to go into the question whether Section 3 or Section 5 applied; but that there was substance in the suggestion on behalf of the respondent that the matter was arguable. Consequently the High Court took the view that as the other two persons prosecuted along with the respondent had been released on bail, the respondent should also be so released, particularly as it appeared that the trial was likely to take a considerable time and the respondent was not likely to abscond. The High Court, therefore, allowed bail to the respondent. Thereupon the State made an application for special leave which was granted. The bail granted to the respondent was cancelled by an interim order by this Court, and the matter has now come up before us for final disposal.

 

There is in our opinion a basic error in the order of the High Court. Whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under Section 436 of the Code of Criminal Procedure without more ado; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations. The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the question whether the offence in this case fell under Section 5 which is bailable or under Section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under Section 3 and therefore not bailable. The High Court, however, did not deal with the application for bail on this footing, for in the order it is said that the question whether the offence fell under Section 3 or Section 5 was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under Section 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under Section 3 or Section 5, on the assumption that the case fell under Section 3 of the Act.

 

It should then have taken into account the various considerations, such as, 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 interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non-bailable offence. It is true that under Section 498, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. This, the High Court does not seem to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one.

 

The only reasons which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the respondent absconding, he being well-connected, and that the trial was likely to take considerable time. These are however not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non-bailable offence under Section 3.

 

The first question therefore that we have to decide in considering whether the High Court’s order should be set aside is whether this is a case which falls prima facie under Section 3 of the Act. It is, however, unnecessary now in view of what has transpired since the High Court’s order to decide that question. It appears that the respondent has been committed to the Court of Session along with the other two persons under Section 120-B of the Indian Penal Code and under Sections 3 and 5 of the Act read with Section 120-B. Prima facie therefore, a case has been found against the respondent under Section 3, which is a nonbailable offence.

It is in this background that we have now to consider whether the order of the High Court should be set aside. Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure. Now Section 3 of the Act erects an offence which is prejudicial to the safety or interests of the State. Obviously, the offence is of a very serious kind. The case against the respondent is in relation to the military affairs of the Government, and prima facie, therefore, the respondent if convicted would be liable upto fourteen years’ imprisonment. In these circumstances considering the nature of the offence, it seems to us that this is not a case where discretion, which undoubtedly vests in the court, under Section 498, should have been exercised in favour of the respondent. We advisedly say no more as the case has still to be tried.

 

It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order; but the case of the respondent is obviously distinguishable from their case in as much as the prosecution case is that it is the respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him. The fact that the respondent may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature. Further, as the respondent has been committed for trial to the Court of Session, it is not likely now that the trial will take a long time. In the circumstances we are of opinion that the order of the High Court granting bail to the respondent is erroneous and should be set aside. We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent.

 

We, however, direct that the Sessions Judge will take steps to see that as far as possible the trial of the respondent starts within two months of the date of this order.

 

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