bail

This article is written by Anvita Bhardwaj, a student pursuing B.A. LL.B. from Symbiosis Law School, NOIDA. This article analyses Section 437 of the Code of Criminal Procedure (1908), which lays down the provisions for bail in non-bailable offences. 

it has been published by Rachit Garg.

Introduction

The Indian Penal Code, 1860 makes a distinction between bailable and non-bailable offences. Suppose someone known to you has been apprehended by the police and taken into custody for a non-bailable offence. In such a case, you can look to Section 437 of the Code of Criminal Procedure (1973), which enlists the provisions of bail in cases of non-bailable offences. Let us first try to understand what non-bailable offences are.

In bailable offences [Section 2(a) of CrPC], bail is a matter of right for the accused, whereas, in non-bailable offences, it is a matter of discretion. The judge has to think carefully about all the factors and decide if the bail should be granted to the accused while keeping a balance between the accused’s freedom and the safety of society. Let’s start with a few examples of non-bailable offences for a better understanding. Murder, rape, culpable homicide, etc., can all be classified as non-bailable offences. These offences disrupt the smooth operation of an average person’s life. Not to mention the negative impacts such offences have on social harmony. Due to these factors, these offences have been classified as non-bailable.

Non-bailable offences are classified due to the gravity of the offence, the impact they have on the lives of ordinary people, and the overall impact they have on society. In this article, we will analyse Section 437 of the CrPC, which provides for bail for non-bailable offences. 

Legislative intent behind Section 437 CrPC 

If the crime falls under the category of a non-bailable offence, the question of whether bail can be granted arises for consideration. In this regard, it is necessary to study Section 437 of the CrPC. The court may release an accused individual on bail under Section 437 of the Criminal Procedure Code. It’s interesting to consider how the Constitution of India‘s definition of the right to liberty balances with legal norms when it comes to the commission of non-bailable offences.

When someone is suspected of committing a crime, the goal of the arrest is to make sure that the individual does not flee from the legal system before he is found guilty or tamper with the prosecution’s evidence. A person is entitled to their liberty even if they are accused of a non-bailable offence, and the right of an accused person should not be treated by a court in a superficial manner, as has been maintained while discussing the question of the grant of bail in non-bailable offences. 

In fact, the CrPC says that the accused should be given bail if the court has good reason to think that more investigation is needed to prove the accused’s guilt. The courts have also said that a request for bail should not be processed mechanically because the right to freedom is a fundamental human right.

Bail in non-bailable offences: clause by clause analysis of Section 437 CrPC

Section 437 subsection (1) 

Any person accused of or suspected of committing a non-bailable offence who is detained without a warrant by a police officer in charge of a police station or who appears in court apart from the High Court or Court of Session may be released on bail. 

However, he may not be released on bail: 

  1. If there are reasonable grounds to believe that he has committed an offence bearing the death penalty or life imprisonment; or
  2. If the offence is cognizable but the person has previously been convicted of an offence bearing the death penalty or life imprisonment or imprisonment for seven years or they have been convicted for a non-bailable/cognizable offence on two or more occasions. 

It is pertinent to note the caveat that the court may order a person mentioned in subsubsection (1) or subsubsection (2) to be released on bail if they are under the age of sixteen, a woman, or are ill or infirm.

Furthermore, the court may order the release of a person mentioned in sub-subsection 2 on bail if it determines that doing so is just and proper under any other set of special circumstances.

It is also provided that if an accused person is otherwise eligible for release on bail and provides an undertaking that he will follow any instructions the court may issue, the mere possibility that witnesses may need to identify him or her during the course of the investigation shall not be grounds for refusing the grant of bail.

Section 437 subsection (2) 

Subject to the provisions of Section 446A and pending such inquiry, the accused shall be released on bail, or at the discretion of such an officer or court, on the execution by him of the terms of his release if it appears to such an officer or court at any stage of the investigation, inquiry, or trial, as the case may be, that there are not sufficient grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt.

Section 437 subsection (3) 

When a person accused or suspected of committing a crime punishable by imprisonment for seven years or more, a crime under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, or of abetting in the commission of a crime, conspiring to commit a crime, or attempting to commit a crime, is released on bail under subsection (1), the court may impose any condition that the court considers necessary.

  • It is necessary to ensure that the person will appear in accordance with the terms of the bond made under this Chapter, or 
  • that the person will not commit an offence that is comparable to the one of which he is accused or of which he is suspected, or
  • any other condition necessary for maintaining the interests of justice.

Section 437 subsection (4) 

If an officer or a court releases a person on bail in accordance with subsection (1) or subsection (2), they must document their reasoning—including any special circumstances—in writing.

Section 437 subsection (5) 

If a court has granted someone bail under subsections (1) or (2) of Section 1, it can order that person to be arrested and taken into custody if it deems it appropriate. 

Section 437 subsection (6)

If, in any case, triable by a magistrate, the trial of a person accused of any non-bailable offence is not completed within sixty days of the first date set for taking evidence in the case, such person shall, if he is in custody for the entirety of the said period, be released on bail to the satisfaction of the magistrate unless the magistrate otherwise directs, and the reasons for that direction must be recorded in writing.

Section 437 subsection (7) 

If at any time following the conclusion of a person’s trial for a non-bailable offence and before judgement is rendered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty, it shall release the accused, if the person is in custody, upon the execution of a bond without sureties by that person for the appearance to hear judgement delivered. 

Factors considered while granting bail in non-bailable offences

In the event of a non-bailable offence, the court has the option to grant bail; hence, an accused individual is not necessarily entitled to be released on bail upon the filing of sureties and a bond. The decision to release them is up to the judge and police officer. When figuring out how far this discretion goes, the following things must be taken into account:

  • The seriousness of the crime, for instance, if the offence is severe and is punishable by death or life in prison, the likelihood of obtaining bail is lower;
  • The nature of the accusation or if it is serious, credible, or light;
  • The severity of the penalty, the length of the sentence, and the possibility of the death penalty.
  • The credibility of evidence, whether it is trustworthy or not;
  • Risk of accused escaping or running away if released; 
  • Prolonged trials, that go beyond what is necessary;
  • Giving the petitioner the chance to prepare his defence;
  • Health, age, and sex of the accused; for example, a person who is under the age of 16, a woman, ill, or infirm may be released;
  • The nature and seriousness of the circumstances surrounding the offence;
  • Position and social status of the accused in relation to the witnesses, especially if the accused will have the power to control witnesses after release;
  • The interest of society and potential for further criminal activity after release.

Authorities empowered to grant bail under Section 437 CrPC

The provisions of Section 437 empower the court and the officer-in-charge of the police station who arrested or detained a person without a warrant who was charged with or suspected of committing a non-bailable offence the authority to decide whether to grant bail. 

Although this Section addresses a court’s and a police officer in charge of a police station’s authority or discretion to grant bail in non-bailable offences, it also establishes certain limitations on a police officer’s authority to grant bail, as well as certain rights of an accused person to obtain bail when he is being tried by a magistrate.

Section 437 of the Criminal Procedure Code says that the trial court and the magistrate have the power to grant or deny bail to anyone who has been charged with or is suspected of committing a crime for which there is no way to get out on bond.

Under Section 437 subsection (1), only one class of police officials, namely the officer-in-charge of the police station, is given the authority to release on bail a person accused of a non-bailable offence. Given the danger and stakes involved, the option to grant bail must be used very carefully because it is permissive rather than mandatory. A station officer should be confident that using his authority will not jeopardise the prosecution’s ability to prove the accused is guilty before acting. The officer-in-charge must keep the bail bonds until they are released, either by the accused appearing in court or by an order from a competent court, and must note the reasons or exceptional grounds for releasing the accused in the case diary.

The legislature has divided non-bailable offences into two categories for the purpose of determining bail: (1) those that are punishable by death or life imprisonment; and (2) those that are not. If a station officer has reasonable reasons to suspect that a person has committed an offence for which the penalty is death or life imprisonment, the offender cannot be released on bond. A police officer is not permitted to consider the accused’s age, sex, illness, or disability while deciding whether to issue bail. Only a court may take these issues into consideration. Only where there are no good reasons to suspect that the accused has committed a non-bailable offence or when the non-bailable offence is not punishable by death or life imprisonment may the officer-in-charge of the police station grant bail.

Power of High Court or Sessions Court under Section 439 CrPC

A High Court or Court of Sessions may order the following in accordance with Section 439(1) of the Code of Criminal Procedure: 

(a) That any person accused of an offence and in custody be released on bail; 

(b) That any condition imposed by a magistrate when releasing any person on bail be set aside or modified if the offence is of the nature specified in subsection (3) of Section 437.

However, the High Court or Court of Sessions must notify the public prosecutor of the application for bail before granting it to a person who is accused of a crime that can only be tried by the Court of Sessions or, even if not, carries a life sentence. This is correct unless the High Court or the Court of Sessions determines that it is impractical to do so for reasons that must be recorded in writing.

Under Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions can order that a person who was released on bail under Chapter XXXIII (which is about bail) be arrested and sent to jail. Even though the High Court has broad authority to grant bail, there are a number of factors that must be taken into account in cases of non-bailable offences.

Cancellation of bail: Section 437(5) CrPC

The cancellation of bail and placement of the accused back in custody is clearly outlined in the Code of Criminal Procedure. According to Section 437(5), a court that has released a person on bail in accordance with subsubsections (1) or (2) of Section 437(1) may, if it deems it appropriate, order that the person be arrested and committed to custody. In a similar manner, Section 439 grants the High Court and the Court of Sessions the authority to revoke bail. Section 439(2) of the Code of Criminal Procedure makes it clear that the accused can be taken back into custody if their bail is revoked.

The power of cancellation of bail may be resorted to in the following situations: 

  1. On the merits of a case, primarily on the grounds that the order granting bail was perverse, or given without adequate consideration or in violation of any substantive or procedural law; and 
  2. On the grounds of misuse of liberty after the grant of bail or other supervening circumstances.

A court other than the High Court or a Sessions Court may cancel bail in accordance with Section 437(5). Meaning that it gives the magistrate court the authority to cancel. It specifies that a court other than the High Court or Sessions Court may order the arrest and commitment of a person released on bail to custody if it deems it necessary to do so. This Section has been construed by the courts to mean that any court that has granted a defendant bail has the authority to order their arrest and commit them to custody if the situation warrants it after their release on bail. However, once granted, bail should not be revoked mechanically without taking into account whether any new developments have made it impossible for the accused to be fairly tried while still being accessible due to the grant of bail.

Relevant case laws regarding Section 437 CrPC

The following are some of the relevant case laws regarding Section 437 CrPC: 

Bail and personal liberty 

Kalyan Chandra Sarkar v. Rajesh Ranjan (2005)

In this case, the Apex Court held that denial of bail in cases of non-bailable offences is not a violation of the fundamental rights of the accused under Article 21 of the Constitution of India

The Court stated, under the criminal laws of India, a person accused of offences that are not subject to bail is likely to be held in custody while the case is pending unless he is released on bail as per the requirement of the law. Since such detention is permitted by law, it cannot be argued that it violates Article 21 of the Constitution. However, even for those charged with crimes for which bail is not permitted it may be granted if the court determines that the prosecution has not proven its case beyond a reasonable doubt and/or if the court determines that, despite the existence of a prima facie case, the accused must be released on bail in certain circumstances.

Siddharam Satlingappa Mhetre v. State of Maharashtra (2010) 

In this case, the Supreme Court put a lot of emphasis on Article 21 and said that personal freedom is a very important fundamental right that should only be limited when it is necessary based on the facts and circumstances of the case.

Interpretation of Section 437 

Gurcharan Singh and Ors. v. State (Delhi Administration) (1977)

The Supreme Court, in this case, adopted the stance that if it believes it necessary to act in accordance with the provision under Section 437 of the CrPC, it will utilise its judicial discretion in other non-bailable cases in favour of providing bail, subject to subsection (3) of that section. The Court will not refuse to grant bail to an accused who is not charged with an offence carrying the death penalty or life imprisonment unless special circumstances are brought to the Court’s attention that may thwart a thorough investigation and a fair trial. It is also to be noted that when an accused person is brought before a magistrate’s court and is accused of a crime that carries a death sentence or a life sentence, he or she typically has no choice but to reject bail, subject, however, to the first proviso of Section 437(1) of the Code of Criminal Procedure and in a case where the magistrate entertains a reasonable belief based on the evidence that the accused has not actually committed the crime. However, this will be a special circumstance because there will be some evidence at the time of the initial arrest for the accusation or for a strong suspicion that the person had committed the offence.

Prahlad Singh Bhati v. N.C.T., Delhi and Another (2001)

The Supreme Court determined in this case that the fact that the legislature substituted “reasonable grounds for believing” for “the evidence” when deciding whether to grant bail must also be kept in mind. As a result, the court deciding on the grant of bail can only determine whether there is a solid case against the accused and whether the prosecution will be able to present prima facie evidence to support the charge. At this point, it is not anticipated that the evidence will prove the accused’s guilt beyond a reasonable doubt.

Shakuntala Devi v. the State of Uttar Pradesh (2002)

The Allahabad High Court in this case explained that the legislative intent behind the word “may” used in Section 437 CrPC confers a discretionary power on the court and should not be construed as mandatory. 

Factors to be taken into consideration while granting bail 

State of Kerala v. Raneef (2011)

In this case, the Hon’ble Supreme Court has held that the delay in the trial’s conclusion should undoubtedly be taken into account by the court when assessing bail applications.

Sanjay Chandra v. CBI (2011)

The Apex Court, in this case, held that when deciding whether to grant bail, community sentiments should not be taken into account. The court held that judges should not act arbitrarily or according to the whims of society. 

Some pointers to keep in mind while filing for bail under Section 437 CrPC

The application for a grant of bail under Section 437 can be viewed here. Following are some pointers to keep in mind while filing for bail under Section 437 CrPC:

  • The court of the concerned magistrate, also known as the “Ilaka Magistrate”, receives the bail application under Section 437 of the CrPC first.
  • The bail application is made according to Section 437 of the CrPC after the police have taken the accused into custody.
  • If the bail application is being made while the accused is not in front of the court, the bail application required by Section 437 of the CrPC may be filed on behalf of the accused by any close relative or “Parokar”.
  • The attorney who is filing the bail application must also sign it, either directly or through a power of attorney or through his memo of attendance.
  • When the accused is in custody, there is no court fee due on the bail application.
  • In the bail application, the contents of the FIR, the accused’s name, and his father’s name should be given so that jail officials can identify the right person when the court gives a release order.

Conclusion 

For the grant of bail in the case of a non-bailable offence, an application laying out the grounds for bail must be filed. After the hearing, the court issues an order if it determines bail should be granted. A bail bond must be submitted in order to be granted bail for a bailable or non-bailable offence. The surety submits the bail bond. The surety is the person who agrees to be in charge of turning the accused in as needed to appear in court or before the investigative agency. Also, that bail is the rule and jail is the exception (unless otherwise provided) must be duly followed while applying judicial discretion.

Frequently asked questions (FAQs) 

What is Section 437 of the CrPC?

Section 437 of the CrPC establishes the authority of a Court of Magistrate to issue bail in circumstances of non-bailable offences. The Section’s broad wording gives the magistrate plenty of leeway to grant or deny bail in the circumstances involving non-bailable offences. It begins by explicitly saying that a person who has been arrested without a warrant and is brought before a magistrate may be granted bail. However, the Magistrate’s ability to grant bail is restricted in two situations: first, if there are reasonable grounds to believe that the person has committed a crime that carries a death penalty or life imprisonment, and second if the crime is cognizable and the person accused has previously been convicted of a crime that carries a death penalty or life imprisonment or a sentence of at least seven years in prison. Even in these two situations, the magistrate has some discretion to grant bail if the accused is younger than sixteen years of age, a woman, or is ill or infirm.

What is the difference between Section 437 and Section 439 of CrPC? 

These are two vital sections of the CrPC that deal with bail for an accused person who has been arrested.

When someone is charged with a crime that is not subject to bail, Section 437 of the CrPC provides for the prospect of bail. Depending on the facts and circumstances of the case and the accused’s role in it, he may be released on bail when he appears or is arrested and brought before a court other than a High Court or Court of Sessions.

According to Section 439 of the CrPC, the High Court or Court of Sessions has explicit authority to put restrictions on bail when it grants it pursuant to Section 437 of the Criminal Code or to waive or alter such conditions.

References

  1. R V Kelkar’s Criminal Procedure, EBC publication 8th Edition.
  2. https://districts.ecourts.gov.in/sites/default/files/6-Bail%20Anticipatory%20Bails%20-%20Sri%20M%20Sreenu.pdf 
  3. https://www.iilsindia.com/study-material/320679_1601207180.pdf
  4. https://www.writinglaw.com/bail-under-crpc/#in-non-bailable-offence  
  5. https://indiankanoon.org/doc/848468/ 
  6. https://indiankanoon.org/doc/1290514/ 

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