This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals with Section 439 CrPC, its scope, power of the High Courts and the Court of Sessions to grant, refuse or cancel the bail along with some recent cases in detail. 

This article has been published by Sneha Mahawar.

Introduction 

Bail is a fundamental component of any criminal justice system that ensures the accused will receive an equitable and fair trial. If someone is being held for a crime they didn’t commit, they have the right to request bail, and the police officer is required to present them in court. A person is released on bail if they agree to appear in court as instructed or summoned by the court to answer the charge.

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The Criminal Procedure Code,1973 does not define bail. According to Wharton’s Law Lexicon, bail is defined as “releasing a person who has been arrested or imprisoned on security being taken for his appearance on a day and at a certain place.” For the purpose of bail, offences are classified into two categories: bailable and non-bailable. Chapter XXXIII of the CrPC deals with bails and bonds. Bails in various circumstances are specifically covered in Sections 436, 437, 438, and 439. Section 436 provides for bail in bailable offences and Section 437 deals with bail in the case of non-bailable offences, Section 438 with anticipatory bail, and Section 439 with the special powers of the High Court or Sessions court regarding bail. This article mainly focuses on Section 439 of the CrPC.

Special powers of High Courts and Courts of Sessions regarding bail

The High Court and Sessions Court have some special powers under Section 439 of the Criminal Procedure Code, 1973, when it comes to bailing out someone who has been accused of an offence and is in custody. Only the High Court and the Sessions Court have jurisdiction under this section; if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may grant bail in appropriate cases.

Section 439 CrPC

According to Section 439 (1) (a), the High Court or Court of Session may direct the release on bail of any person who is in custody and has been charged with an offence, and if the crime is of the kind listed in subsection (3) of Section 437, the court may impose any necessary conditions for the purposes mentioned in that subsection.

Under Section 439(1) (b), the High Court or the Court of Sessions can set aside or modify any condition imposed by a magistrate when releasing an accused on bail.

However, before granting bail to a person accused of an offence that is exclusively triable by the Court of Session or that, though not so triable, is punishable with life imprisonment, the High Court or Court of Session shall give notice to the public prosecutor, unless it is of the opinion, for a reason to be recorded in writing, that such notice is not practicable. 

According to Section 439 (2), the 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.

Amendment to Section 439 CrPC

The Criminal Procedure Code was amended in 2018, and the following provisions were added to Section 439.

  1. After the first proviso, another provision was added to subsection (1), which states that “the high court and the session court shall, before granting bail to a person accused of an offence triable under sub-section (3) of Sections 376, 376AB, 376DA, and 376DB of the Indian Penal Code, give notice of the applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such notice.”
  2. Following sub-section (1), a new sub-section (1A) was added, which states that the presence of the informant or any person authorised by him is required at the time of hearing the application for bail of the person under sub-section (3) of Sections 376, 376A, 376DA, and 376DB of the Indian Penal Code.

Meaning of expression “In custody”

A person can move to the High Court or the Court of Session for bail under Section 439 only when he is in custody, and a person is considered to be in custody within the meaning of this section if he is being held under duress by the investigating agency, another police or allied authority, or because he is under the control of the court after being remanded by judicial order, or because he has offered himself to the court’s jurisdiction and submitted to its orders by physical presence.

According to Section 439, CrPC, a person is “in custody” not only when the police arrest him or present him before the magistrate for remand or other forms of custody, but also when he surrenders before the court and complies with its orders. 

In Niranjan Singh v. Prabhakar Rajaram Kharote and others (1980), Justice VR Krishna Iyer stated, “Custody, in the context of Section 439, is physical control or, at the very least, the physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.” Furthermore, it was noted that no person accused of an offence may apply to the Court for bail under Section 439 unless he is in custody. By surrendering to the court and submitting to its orders, he is declared to be in judicial custody and, as a result, is eligible for bail.

In Sundeep Kumar Bafna v. the State of Maharashtra (2014), the Supreme Court held that an accused in custody can approach the Sessions Court or the High Court directly for regular bail under Section 439 even if he has not approached the magistrate in the first instance.

Scope of Section 439 CrPC

The marginal note of Section 439 clearly shows that the section has used the term “special power,” which in a sense means special or greater, implying that these courts, specifically the High Court and the Court of Sessions, have greater power to grant and cancel bail. They have the power to modify the conditions and impose any other condition on bail granted by a magistrate under Section 437. The marginal note to Section 439 also demonstrates that the bail provision grants concurrent jurisdiction. However, this does not imply that the accused can file an application in both courts at the same time. So, in most cases, an application should be made first to the session court and then to the High Court if the Court of Sessions rejects it.

The powers given in section 439 are unrestricted by any limitation other than that which controls all discretionary powers vested in a court. Though the discretion granted by Section 439 is unrestricted in some ways and broad enough to allow bail in the case of a non-bailable offence of the worst kind, it must be exercised judicially in accordance with well-established principles.

In Kanwar Singh Meena v. the State of Rajasthan and Others (2012), the Court noted that even though Section 439 of the Code gives the Court of Session and the High Court more power in granting and cancelling bail, these courts also follow the same principles, including; 

  • The gravity of the crime, 
  • The character, evidence, position and status of the accused, 
  • The likelihood of the accused fleeing from justice, 
  • The likelihood of tampering with evidence and influencing witnesses, and so on. 

The Court also stated that each criminal case presents its own unique factual situation, which influences the court’s decision on bail.

The Supreme Court ruled in Sundeep Kumar Bafana v. the State of Maharashtra (2014) that there are no restrictions on the High Court or Sessions Court hearing a bail application if the accused is in custody. The decision has ended the long-standing practice of submitting a regular bail application to a magistrate with jurisdiction, having it denied, and then requesting bail from the Sessions Court or High Court.

Grant or refusal of bail 

The provisions of the Criminal Procedure Code give the criminal court’s discretionary jurisdiction to grant bail to accused pending trials or appeals convictions. Because the jurisdiction is discretionary, it must be exercised with great care and caution, balancing an individual’s valuable right to liberty with the interests of society as a whole. The granting of bail under Section 439 of the Criminal Procedure Code is a matter of judicial discretion. The court’s discretion in granting or refusing bail, like any other discretion vested in it as a judicial institution, is not unstructured. The courts are required to state the reasons for granting or refusing bail, which may be in brief .

The historical context of the bail provision has been elaborately and clearly explained in a decision delivered in Nikesh Tara Chand Shah v. Union of India (2018) dating back to the days of the Magna Carta. It was noted in that decision that bail should not be withheld as a punishment. This assertion was supported by the case of Gurbaksh Singh Sibbia v. the State of Punjab (1980). A reference to Emperor v. H.L. Hutchinson (1931) was also made, in which it was stated that bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

Although bail is a rule and jail is an exception, the accused who has committed grave, serious, and heinous offences falls under the exception rather than the rule. The court is not required to determine whether the accused is guilty or not while considering a bail application. It is sufficient if adequate grounds are established to connect him to the offences.

In Dataram Singh v. State of Uttar Pradesh and Anr., (2018), the Court decided that while the judge hearing the case has complete discretion to grant or deny bail, that discretion must be used judiciously, humanely, and compassionately. Furthermore, bail conditions should not be so stringent that they are impossible to satisfy, thereby making the grant of bail illusory.

In the case of Lt. Col. Prasad Shrikant Purohit v. the State of Maharashtra (2018), the law governing the granting or refusal of bail is well settled. The Court should exercise its discretion sparingly and not as a matter of course while granting bail. Though a detailed examination of evidence and elaborate documentation of the merits of the case are not required at the stage of granting bail, it is still important to explain in such orders the reasons for reaching a prima facie conviction that bail was appropriate, especially in cases where the accused is charged with a serious offence. Any order that lacks these reasons suffers from non-application of mind.

Further, it was stated that the following factors must be taken into account by the court while deciding on the granting of bail;  

  1. The nature of the accusation, the severity of the punishment if convicted, and the nature of the supporting evidence. 
  2. Reasonable apprehension of tampering with the witness or of a threat to the complainant. 
  3. Prima facie court satisfaction in support of the charge.

The Supreme Court ruled in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and another (2021) that Section 439 of the CrPC mandates that the reasons for granting or denying bail must be recorded.  No matter how briefly, the courts that grant bail must use their judicial judgement when making their decision. It should be noted that when issuing a bail order, the Court is required by law to provide (at least brief) reasons. As a result, a bail order that doesn’t have sufficient reasons to support it may be set aside for lack of due diligence. 

Cancellation of bail 

According to subsection (2) of Section 439, the High Court or Court of Session has the power to cancel any bail that has been granted by it or another criminal court in accordance with Chapter XXXIII, re-arrest him and place him in custody. Cancellation of bail shouldn’t be done frequently. If it appears to the superior court that the court granting bail acted without using its judgement or on irrelevant information, or if the court neglected to take into account any statutory prohibition against granting bail, an order for cancellation of bail may be issued. The court must consider all pertinent factors when deciding whether to deny a bail cancellation application.

In the cases of Mahipal v. Rajesh Kumar @ Polia and another (2020) and Neeru Yadav v. State of Uttar Pradesh (2016), the Supreme Court has categorically held that the court may exercise its power under Section 439(2) of the CrPC to cancel the bail granted in favour of the respondent if the order in question is absolutely perverse and completely unjustifiable.

In the case of Myakal Dharmarajam and others v. State of Telangana and others (2020), the Supreme Court discussed the criteria to be taken into account while granting and cancelling bail; the principles are also summarised. The rejection and cancellation of bail were also distinguished, and it was decided that while the former stands on its own, the latter is a harsh order because it restricts the individual’s liberty and should not be used carelessly.

The Supreme Court ruled in X v. State of Telangana (2018) that bail should not be cancelled unless a cogent case based on supervening events is made and that the Court cannot exercise its power under Section 439(2) of the CrPC.

Grounds for cancellation of bail

The section gives the court the power and discretion to cancel the bail, but it makes no suggestions regarding when or how the discretion is to be exercised. 

In Public Prosecutor v. George Williams (1951), the Madras High Court listed five instances where a person granted bail may have the bail cancelled and be recommitted to jail:

  1. Committing the same offence for which they are facing charges or have already been found guilty while free on bail, proving they are completely unfit to be out on bail.
  2. If he obstructs the investigation, as he will if he prevents a search for the corpus delicti or other incriminating evidence in locations under his control while out on bail.
  3. If he tampers with the evidence by coercing prosecution witnesses, altering the crime scene to erase signs of the crime, etc. 
  4. If he flees the country, goes underground, or goes beyond the control of his sureties; and 
  5. If he engages in acts of violence against law enforcement, witnesses for the prosecution, and those who have or are attempting to bring charges against him.

The Supreme Court considered the elements to be taken into account while directing the cancellation of bail in Dolattam v. State of Haryana (1995). It stated that generally, the grounds for the cancellation of bail are as follows :

  • Abuse of any concession made to the accused in any way, including interference with or attempts to interfere with the administration of justice and evasion or attempts to evade it. 
  • Another reason for bail cancellation is the court’s satisfaction with the possibility of the accused absconding based on the evidence presented.

According to Tulaseedharan Nair v. State of Kerala, 2006, interference with the administration of justice, hindering the investigation, abusing the freedom granted by the Court, intimidating witnesses, and other similar offences are typically and ordinarily cited as justifications for cancelling bail. Further, it was noted that these are merely illustrative and are not exhaustive grounds. Additionally, it has been noted that the cancellation of bail is a harsh order because it restricts the individual’s liberty and should not be used carelessly. It is up to the competent judicial discretion of the superior courts. The court has the authority to cancel bail when the investigation requires it to do so.

The court stated in Krishna Reddy v. State (2007) that the likelihood of an accused fleeing justice and tampering with evidence while on bail are two factors for cancellation of bail.

In Shabana Taj v. State of Karnataka (2022), the Karnataka High Court ruled that courts may use their power under Section 439(2)in two circumstances: first, when the court’s conditions are violated; and second, when the trial court makes an arbitrary or perverse decision.

The High Court and the Court of Session have extensive powers over bail under Section 439 of the Criminal Procedure Code. However, the High Court and the Sessions Court follow the same guidelines as other courts while granting bail. The seriousness of the crime, the nature of the evidence, the accused’s relationship to the victim and the witnesses, his likelihood of eluding justice and committing the same crime again, his potential to tamper with the witnesses and obstruct the administration of justice, and other factors must all be taken into account.

Each criminal case presents a distinct factual scenario, and as a result, the court may be required to consider grounds specific to that case. The court is only required to rule on whether the accused has a prima facie case. The court is not required to conduct an in-depth examination of the evidence gathered by the police and make comments on it. Such evidence evaluation and premature comments will almost certainly deny the accused a fair trial.

Concurrent jurisdiction 

It is now well established that there is no legal impediment to a party approaching the High Court or the Sessions Court with an application for ordinary bail under Section 439, Cr PC. The power granted to the High Court or the Sessions Court by Section 439 is an independent power, and when the High Court exercises such power, it does not exercise any revisional jurisdiction, but rather its original special jurisdiction to grant bail.

As a result, even though the High Court and Sessions Court have concurrent jurisdiction under this section, the fact that the Sessions Court has refused bail under this Section does not preclude the High Court from hearing a similar application on the same facts and for the same offence. 

The decorum and hierarchy of the courts, however, demand that if the party chose to approach the High Court first and the High Court dismissed the application, the application will be dismissed if the Sessions Court is approached with a similar application based on the same facts. The accused is not permitted to file for bail in the Sessions Court and the High Court at the same time.

Some recent cases

Kirankumar Vanmalidas Panchasara v. State of Gujarat (2022) 

Facts 

As per the facts of the case, an FIR was filed against the petitioner for offences punishable under Sections 406, 420, 114, and 120(B) of the IPC, as well as Section 3 of the Gujarat Protection of Depositors’ Interests (In Financial Establishments) Act, 2003. The petitioner was arrested in response to the aforementioned FIR, and an application for regular bail was filed under Section 439 of the CrPC. The trial court agreed, subject to certain conditions. The first condition was that the applicant produce a bank guarantee of Rs.33,06,695/- within two weeks of his release from custody. The second condition stated that if the I.O. failed to recover the amount, the bank guarantee would be forfeited in favour of the complainant state.

Issue

Whether the Court, in exercising its power under Section 439 of the CrPC, could impose a condition that amounted to exercising powers envisaged under a different law, namely the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003.

Judgment

After reviewing the provisions of the Act, the Court determined that the Act itself had an inbuilt mechanism for dealing with offences related to the Act. The Competent Authority was to take the necessary actions in relation to the financial establishment, after which the Designated Court was to either make an order of attachment absolute or a portion of the assets or money realised from the attachment or to cancel the order of attachment. As a result, the trial court’s conditions imposed under Section 439 of the CrPC were determined to be completely beyond its jurisdiction because they amounted to usurping powers contemplated by Section 10(6) of the Act without following any prescribed procedure.

It was held that while exercising its powers under Section 439 of the CrPC, the Court could not impose any condition that amounted to the court exercising powers contemplated by another enactment. The court ruled that any such condition would be completely outside of the court’s jurisdiction. As a result, the order was modified.

Narugahr Songhar Goswami v. the State of Gujarat (2022)

Facts

The brief facts of this case are that 69 bags of poppy straw weighing 1371.72 kg were seized from the property of a 66-year-old man. As a result, an FIR was filed for offences of Sections 15, 25, and 29 of the NDPS Act. The FIR was filed in 2020 after police received information that several people were transferring liquor from one truck to another in an abandoned Essar Company petrol pump. The police discovered several vehicles, including a truck, and several people transferring goods. The goods being transferred were later revealed to be poppy straw rather than liquor.

The applicant asserted that neither he nor anyone else was located close to the crime scene, nor was he mentioned in the FIR. He did not possess the illegal substance, nor had he instigated or participated in such activities, either intentionally or by illegal omission. 

The APP objected to this contention on the grounds that the applicant, one of the property’s owners, had permitted the use of the property’s premises for the commission of the crime. As a result, Sections 25 and 37 of the Act were applicable.

Section 25 imposes penalties for allowing property, etc., to be used in the commission of an offence. The Court also took Section 37 of the Act into account, which specifies strict bail requirements when recovered contraband is in commercial quantities.

Issue

Whether the court can grant bail to a senior citizen who was not present at the scene of the crime or in the near vicinity?

Judgment

The Gujarat high court rejected a 66-year-old man’s request for regular bail under Section 439 of the Criminal Procedure Code, from whose property the contraband (Poppy Straw) worth Rs. 16.6 lakh was seized.

Justice SH Vora observed that even though the elderly man was not present at the crime scene or in the immediate area, Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was applied to the case because he was the property owner.

Conclusion

Section 439 of the Criminal Procedure Code grants the High Court or Court of Session special powers regarding bail. Even if a Magistrate denies bail, the High Court or Court of Session may grant it in appropriate circumstances. The granting of bail under Section 439 of the Criminal Procedure Code is at the discretion of the judge. As a result, the court’s discretion in granting or refusing bail, like that of any other judicial institution, must be exercised with great care and caution. 

Frequently Asked Questions (FAQs)

What are the special powers of the High Court and the court of sessions regarding bail?

Both the courts have the powers of granting bail, modification of conditions, and cancellation of bail.

Can a court grant conditional bail while exercising its powers under Section 439?

Yes, the court can grant conditional bail under section 439 of the CrPC. The Andhra Pradesh High Court recently granted conditional bail to the petitioner who was charged with a non-bailable offence because there had been significant progress in the investigation since the time of the arrest in Mara Manohar v. the State of Andhra Pradesh (2022).

Can a court cancel bail based on vague allegations? 

No, the court cannot cancel bail on the basis of vague allegations. The Andhra Pradesh High Court recently ruled in Vaddu Lakshmidevamma @ Lakshmi Devi v. the State of Andhra Pradesh (2022) that if there are vague allegations against the accused without any solid evidence, bail granted under Section 439(2) of the Code of Criminal Procedure cannot be cancelled.

References

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