Section 436-450 deals with the provisions of bail under the Code of Criminal Procedure (the Code) 1973. Bail is conditional liberty of the accused when he has not been tried, from police or judicial custody. Along with police and Magistrates, the Sessions Court and High Court have the power of granting bail. However, the High Court’s power to grant bail has been discussed in the article.
When the bail is rejected at first instance then the accused moves to the High Court to apply for bail. The object behind granting bail is to ensure the accused appeared before the court as and when required. The following article deals with the bailable and non-bailable offence to give an understanding in what circumstances bail can be granted.
What Is Bail
Bail is the temporary release of an accused from custody pending his trial and which is granted to him with or without sureties.
Types Of Offences And Bail
As enshrined in our Indian Constitution, Article 21 provides that every individual has the right to life and personal liberty. This implies that no individual shall be detained illegally or restrained of his personal liberty except for a period as provided under the law.
The rule of law says that bail is the rule and jail is the exception. Offences committed by the accused are generally categorised into bailable offence and non-bailable offence. Bail is granted to the accused with or without sureties.
Bailable offences are of a less serious nature and bail is available without the discretion of the court whereas in non bailable offences bail is not available at the discretion of the court. Therefore, in case of non-bailable offence the court takes into consideration certain considerations which the court can grant bail.
In non-bailable offences, bail cannot be asked for by the accused as a matter of right. On failure to provide surety or comply with regulations of release on bail, the court can cancel such bail.
In India, generally, there are three types of bail available to the accused, namely, regular bail, interim bail and anticipatory bail.
Regular Bail- A regular bail is where the individual has already been arrested and committed to police custody is granted bail. Section 437 and 439 deals with provisions relating to regular bail.
Interim Bail- While interim bail is granted for a certain period of time by the Court pending disposal of the bail application. It implies that bail is granted to the accused prior to the hearing for granting regular bail or anticipatory bail.
Anticipatory Bail- Anticipatory bail is granted when an individual apprehends arrest of any non bailable offence. Anticipatory bail can be obtained by application under section 43 of the Code. Therefore, anticipatory bail is bail granted to the person before arrest is made.
Power Of High Court To Grant Bail
Bail is generally granted by the District Court and Sessions Court in case of serious offenses such as Murder. Only when the bail has been rejected by the Magistrate or has been canceled, does the convicted individual move to the High Court for Bail.
Bail is granted to the accused by the High Court or Court of Session under certain conditions. Powers of High Court or Court Session to grant bail has been provided under sections 49 and 439A of the Code of Criminal Procedure.
Section 439 of the Code of Criminal Procedure provides special powers of the High Court or Court of Session with respect to bail. An individual accused of an offense is released on bail when directed by the High Court or Court Session. If such offence committed by the accused is an offence punishable with imprisonment of seven years or more or offense related to abetment, conspiracy, the High has the power to impose conditions as necessary for granting bail. Any other conditions imposed by the Magistrate for releasing the accused on bail are set aside.
The High Court also has the power for directing any individual released on bail to be arrested and committed to custody.
If the High Court on the application for release on bail in the event of arrest shall release the accused bail except on one or more of the following grounds-
If there exist reasonable grounds for believing that such an individual is not guilty of the offense accused of;
Such individual is under the age of sixteen years or woman or sick or inform
The High Court while granting bail shall act judiciously. Even if the High Court does not exercise its appellate jurisdiction or court of revision, it can set aside the order of the Sessions Court. However, while setting aside the order and reasons set out by the Sessions Court, the High Court should exercise jurisdiction reasonably so that the order reflects that the High Court has applied mind in recording reasons for refusing bail.
Power Of High Court Regarding Bail Under NDPS Act And TADA Act
Narcotic Drugs and Psychotropic Substances Act (NDPS) is a special enactment that was enacted for making stringent provisions to control and regulate operations relating to narcotic drugs and psychotropic substances. Section 37 of the NDPS Act limits the scope and applicability of the provisions of bail under the Code. Therefore, the power of the High court to grant bail under section 439 of the Code is subject to limitations under 37 of the NDPS Act. In case of inconsistency between the two provisions, the provisions of the NDPS Act prevail.
Limitations on granting bail as specified in section 37 of the NDPS Act come into question only when questions with respect to granting of bail arise on merits.
Similarly, the power of the High Court to grant bail is curtailed in case of offense committed under the Terrorist and Disruptive Activities Prevention Act (TADA) as the latter is a special enactment. In Usmanbhai v. State, 1988, it was opined by the court that section 439, as well as 482 of the Code, cannot be availed for grant of bail under the TADA Act. Therefore, the power to grant bail to a person prosecuted under TADA Act lies with the designated authority. If the bail is refused by the designated authority, the High Court has no jurisdiction to entertain an application under sections 439 and 482 of the Code.
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