The term Bail is not defined in Criminal Procedure Code, however, this term, in the most common sense, indicates that the accused is set free from jail against a kind of security which is given by the accused to the court that he will attend the proceedings in court against the accusations made upon him and include personal bond and bail bond. Bail is a mechanism used to ensure that the accused is present before the court and is available for Trial. The sections 436 to 439 of the Criminal Procedure Code deal with the concept of Bail.

When a person is arrested without a warrant, it is the duty of the police officer to inform such an arrested person whether the offence he has been accused of committing is a bailable or non-bailable offence. If it is a bailable offence, it is the person's right to be released on bail. There is no clear distinction between a bailable and a non-bailable offence. However, there are some established principles that are used by the courts to make this distinction. Generally, non-cognizable offence are considered to be bailable.

Difference between bailable and non-bailable offence

Non-bailable

If the offence committed is non-bailable, the police officer cannot himself grant bail to the accused. Only the magistrate can authorize the bail in a non-bailable offence. An offence is said to be non bailable and when the punishment for it is more than 3 years. It is to be noted that just because the offence is non-bailable does not mean that the person accused will not be granted bail at all. In such cases it is up to the discretion of the court as to whether grant bail or not.

Bailable

In a bailable offence, the police officer in charge has the power to grant bail to the person accused. An offence is said to be bailable when the punishment for that offence is lesser than 3 years. It is the right of the accused to be released on bail in a bailable offence. This right is subject to certain conditions which will be discussed later in this paper.

Bail under Section 436 of the Code

Sub-section (1): This section applies to only persons who are accused of committing a bailable offence. The presence of the word shall connote that it is mandatory that the person is let such a person out on bail. It is required that such a person seeking bail shall bring two persons as sureties and pay an amount as a bond. This is done to ensure such a persons' appearance in court during his/her trial.

However, if such a person is unable pay the specified sum of money or bring the sureties, bail will not be rejected. Such a person is termed as an indigent person. A person is said to be indigent when he is unable give bail within a week of his arrest.[1] The word appears in this section also includes a person who has voluntarily produced himself/herself before the court or police where no warrant or summons was issued. In Dharmu Naik v. Rabindranath Acharya, it was held that refusal to grant bail in contravention of this section will make the detention illegal and the police officer causing such detention may be held guilty of wrongful confinement under Section 342 of the Indian Penal Code.

Sub-section (2): According to this sub-section, if a person does not comply with the conditions of the bail-bond, the court can re-arrest such a person or issue a summons or a warrant. In Mohd. Shahabuddin v. State of Bihar, it was held that under no circumstances should the person be detained beyond the maximum period stated for the offence except when the delay is caused by the accused person itself.[2]

Lastly, if the person accused is in detention for one half of the actual of his maximum punishment, the magistrate is to call upon the prosecution and hear their sides and on recording their reasons, either continue such a detention or release the person.

Bail under Section 437 of the code

When the offence committed is a non-bailable offence, it is upon the discretion of the Court and Police officer whether to grant bail or not. This Section deals with bails for non-bailable offence. The word may in this section connotes a certain level of discretion upon the court or the police officer granting such a bail.

The discretion which is applied should be exercised according to certain rules and principles as laid down by the code and also in line with Judicial decisions. There is no fixed rule which the court use to determine their discretion. However, the probability of granting bail is inversely proportionate to the gravity of the offence committed.

Discretion when applied to a court of justice, means sound discretion guided by law, it must be governed by law not humor and should not be arbitrary, vague and fanciful.[3]

It is important to note that the object of detention during the criminal proceedings is not to punish the accused.[4]

Following are a few accepted factors which the court take into consideration while granting bail in case of non-bailable offences:

• The severity of the punishment upon conviction,
• Danger of the accused absconding if granted bail,
• Probability of the accused tampering with witnesses and evidence if granted bail,
• The health, age and sex of the accused seeking such bail,
• The probability of the person committing more offences if released on bail, etc.

The above list is not at all exhaustive and the discretion varies from case to case. In Shahnawaz v. State of U.P, it was held that if a bail is granted to an accused by a bench then, another bench is not bound to grant bail to another similarly placed accused.

Subclause (3) states that the court can lay down certain conditions while granting bail to the accused which have to be strictly adhered to. These conditions can be imposed only by the Court and not by the police. It is important that such conditions are reasonable in nature. The conditions imposed should be such that are linked with the preventing of the escape of the accused or preventing the accused to commit any further crime or such a condition in the interest of Justice.

In Mukeshbhai Nanubhai Patel v. State of Gujarat, the order of the Sessions Court granting bail on the condition that the accused should pay a certain amount, per month till the end of the proceedings was held incorrect[5]. Further, seizure of passport and order to return dowry articles as a condition for grant of anticipatory bail was held to be incorrect by the Court.[6]

Sub-clause (4) states that any officer or court releasing any person in a non-bailable offence is mandatorily required to record in writing the reasons for doing so. It has been held that this requirement helps the High Court or Court of Sessions to ascertain the correctness of such an order.[7]

While releasing a person on bail there is always going to be a conflict between personal liberty of the accused and the societal interest at large. In Meenu Dewan v. State, it was held that, if the offence is of such a nature that affects the vital interest of the society and has adverse effects on social and family life of victims then, bail would not be granted.[8]

Bail under Section 439 of Cr. P.C.

A person can move to the High Court or the Sessions Court to apply for bail under this Section only when he is in custody. In Naresh Kumar Yadav v. Ravindra Kumar, it has been held that a person is said to be in custody, within the meaning of this section only when he is in duress either because he/she is held by the investigation agency or other police or allied authority or is under the control of the court having been remanded by Judicial order, or having presented himself/herself to the court's jurisdiction and submitted to its orders by physical presence.[9]

The discretion granted to the High Court to grant bail is very wide and remains unfettered by Section 437 of the Code. In Kalyan Chandra Sarkar v. Rajesh Ranjan, it was held that Section 439 is in a way an expansion of Section 437.[10]

In Sanjay Chandra v. CBI[11], the followed points were clarified by the Supreme Court,
An accused is detained in custody not because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried and because the detention is necessary to ensure his presence during trial.

While granting bail, three main elements are necessary to be considered, the charge, the nature of the evidence by which it is supported and the punishment to which the party will be liable if convicted.

Bail discretion, on the basis of evidence about the criminal record of the defendant is also of an exercise of relevance.

A person is acquitted by the lower court for a grave offence, applying for bail at the High court will have a greater chance of getting bail as his chances of jumping the gauntlet of justice is much lesser as he already has confidence because of being acquitted once.

If the trial is to take a long period of time, it is not in the interest of justice that the accused are in jail for an indefinite period.

The accused should not be denied bail merely because of the sentiments of the community is against bail. According to the law, the accused is innocent until he is proven guilty.

In A.K Gopalan v. State of Madras, it was held that the liberty of a citizen is undoubtedly important but this is to balance with the security of the community.[12] A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

While granting bail there is always going to be a conflict between the personal liberty of the accused which is his Fundamental Right under Article 21 versus the society being exposed to the misadventures of a person alleged to have committed a crime. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have.

Further, it has been held in Siddharam Satligappa Mhetre v. State of Maharashtra[13] it was held, just as liberty is precious to an individual so is interest of the society with respect to maintenance of peace, law and order. Both are equally important.

In State of U.P v. Amarmani Tripathi[14] it was held that the following matters are to be considered while granting bail:

• Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.
• Nature and gravity of the charge
• Severity of the punishment if convicted.
• Danger of the accused absconding and fleeing if released on bail.
• Likelihood of the offence being repeated by the accused if released on bail and
• Reasonable apprehension of the witnesses being tampered with if the accused is granted bail.

In Sundeep Kumar Bafna v. State of Maharashtra, it was discussed, For the application of this section, it is necessary that the person seeking for bail is in custody. Custody, under this section includes when a person is arrested by the police, brought before a magistrate or when the magistrate orders remand to judicial or other custody. It is important to note that a person is said to be in (Judicial) custody even when he/she surrenders in court and submits to its direction.

Further, it was held, if the magistrate disallows bail, the accused can move the Court of Sessions for the same. There is no such provision in the Code that prohibits a High Court from hearing a bail application and subsequently granting bail provided such a person is in custody.

Bail under Section 389 of the Code

This section can be invoked for granting bail under three circumstances:

• The person seeking for release of bail is already convicted for an offence,
• The person is in confinement and
• Such a person's appeal against the conviction is pending.

This section is wide enough to include the hearing of the appeal seeking bail of a person who is convicted for an offence who's punishment is life imprisonment or death. If the court accepts such an appeal and releases such a person, the prosecution is entitled to file an application for the cancellation of such a bail.

In Manu Sharma v. State (NCT of Delhi)[15], it was held that while applying its discretion to hear such an appeal for bail, the court should inter alia consider the following things:

• Whether prima facie ground is disclosed for substantial doubt about the conviction and
• Whether there is any likelihood of unreasonable delay in the disposal of such an appeal.

An important feature of this section is that while exercising its power under this section, the appellant court can suspend the execution of the sentence as well as the conviction pending an appeal preferred by a convicted person, Held in V. Sundarami Reddi v. State.[16]. In addition to this, in Gopal v. State of M.P[17], it was held that the application for bail and the suspension of sentence under Section 389 is a class by itself maintainable only in a pending appeal. This is an essential component of the appeal.

The time taken by a court to dispose-off a case has to also be taken into consideration while granting bail. In Jadeja Ajitsinh Natubha v. State of Gujarat, it was held that as long as the appellant court is not in a position to hear the appeal of the accused regarding bail, within a reasonable timeframe, the court should, in the normal course release the accused on bail unless there are other valid reasons for doing otherwise.[18] However, in Rabindra Nath Singh v. Rajesh Ranjan, it was held that the delay in hearing the appeal by itself is not a sufficient ground to grant bail.[19]

In Khilari v State of U.P[20], it was held that irrespective whether the offence is bailable or non bailable, the discretion of releasing the person on bail lies in the discretion of the appellate court and this discretion is to be exercised judicially. Further, the appellate court is required to record the reasons for bail.

Bail under Section 395 of the Code

This section shall be invoked when there is a question of the Constitutional validity of any Act, regulation or Ordinance. A mere plea raised by a party challenging the validity of an act is insufficient for invoking this section and making a reference to the High Court. There should be a valid, substantial ground that challenges the validity of any Act for invoking this section. Before a lower court makes a reference to the High Court under this Section, it is required to record its reasons for doing so.

In line with this Section, Article 228 of the Constitution of India also empowers the High Court to withdraw a particular case from the subordinate court and take authority of such a case and dispose it off after hearing it.

Sub-section (2) of this Section specifies that only the Court of Sessions or the Metropolitan Magistrate have the power to make a reference to the High Court. Further, in Emperor v. Molla Fuzla Karim, it was held that such a reference can be made to the High Court only when there is a question of law and not of fact.

Section 397 of the Code

Under this section, the High Court or the Court of Sessions may call upon for the record of any proceedings before any inferior criminal court for the purpose of examining and satisfying itself as to the correctness and legality of any order passed by such an inferior court. The inferior court should be within the jurisdiction of the High Court.

In Purshottam v. State, it was held that the object of revisional jurisdiction is to confer upon the superior Criminal Courts a kind of supervisory jurisdiction.[21] In case the superior court finds any flaw in the legality or correctness of the order passed by an inferior court within its jurisdiction, Sections 398 to 401 empower the Superior courts to pass an order correcting such flaws.

For the purpose of this section, the High Court is superior to the Court of Sessions. Hence, the High Court is empowered to call upon for the records of any proceedings which was conducted In the Court of Sessions. However, in Ismat Sara v. State of Karnataka, it was held, that a magistrate holding an enquiry under section 176 of the code does not function as a Criminal Court and hence, the records of such an enquiry cannot be called upon by the High Court for the purpose of re-examination under Section 397.[22]

Sub-section (2) of the Code disallows the practice of revisional power in relation to any interlocutory order passed in any appeal, inquiry or trial. This is done with the object of speeding up the disposal of criminal cases.

In K. Sudhakaran v. State of Kerala, it was held that revision petitions against interlocutory orders would not only delay justice but also at times defeat it. Interlocutory order has not been defined by the Code. In the normal course, interlocutory order is an order which is passed at some intermediate stage of a proceeding to advance the cause of justice with respect to the final determination of the rights between the parties.

Bail under Section 360 of the Code

This section is a piece of beneficent legislation as it empowers the court to release an accused who has been convicted on the basis of good conduct under certain circumstances. The object of this section is to avoid sending the first offender to prison for an offence which is not of a serious nature. This enables a hope of reducing the risk of turning such an offender into a regular criminal.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Magistrate may direct, and in the mean time to keep the peace and be of good behaviour.

The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct. This section tries to reform the criminals by treating them leniently only in those cases where there is no serious danger or threat to the society.

In Hari Singh v. Sukhbir Singh[23], the learned judge held, the court is to use this discretion in respect to probation judicially, and having regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. The main of this section is to prevent youngsters from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime and further ruin their life due to bad influence, who may have committed the crime through ignorance or inadvertence, held in Jamal Haq v. State of Tripura[24]

Probation cannot be claimed as a matter of right. This provision lays a discretion upon the Court as to whether to grant probation or not. It is important to note that even if all the conditions as specified under sub-section (3) are fulfilled the convict cannot claim probation as a matter of right.

Concept of Bail to Lunatics:

Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been vested with great powers and wide discretion in the matter of grant or refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is charged of an offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed. An accused of unsound mind may be released on security, irrespective of the offence with which he is charged not only on the finding by the court that the accused is of unsound mind, but also prior to such finding, during the pendency of the inquiry into his state of mind [section 328 (2)]

In News item 38 years without trial published in Hindustan times v. Union Of India[25], it was held, as regard the under trial prisoners who have been charged under grave offences who's punishment is life imprisonment or death penalty, such persons shall be subjected to examinations periodically as provided in sub section 1,3 and 4 of section 39 of the act and the officers stated therein should send the reports to the courts whether the under trial prisoner is fit enough for trial and defend the charge.

Anticipatory Bails

The Code of Criminal Procedure (1898) did not contain any specific provision of anticipatory bail. The Law Commission of India, in its 41st Report dated September 24th 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant Anticipatory bail.

The necessity of granting anticipatory bail arises mainly because of two reasons:

• Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing or for other mala fide intentions by getting them detained in jail for some days.
• Where the likelihood of the person absconding or misusing the liberty is very insignificant.

The Indian Penal Code and Code of Criminal Procedure operates on the premise of innocent until guilty. Hence, unless there is a very strong reason to detain the person in jail before the actual conviction such a person is not detained.

Section 438 lays down the procedure for anticipatory bail. When an order of Anticipatory bail is passed by the court, what happens is that in the event of arrest at a future date, the person will be granted bail. In other words, it is a bail in the anticipation of an arrest in the near future. This section can be invoked only before the person is arrested. For invoking this section, there should be a strong belief that the said person is going to be arrested.

The belief of such a person should be on tangible grounds. This section can be invoked not only when the arrest is apprehended at the hands of the police but also when the arrest is apprehended at the instance of the magistrate. Anticipatory bail can be issued only by passing an interim order. It is mandatory for the person applying for anticipatory bail to be present in court during the final hearing of the application.

According to the Law Commission Report (41st Law Commission Report, page 321), it was stated that the need for this provision is that sometimes it is possible that influential persons with their power would try to fraudulently implicate any person in false causes to disgrace them or for malice by getting them detained in jail. This section works as a shield for such persons who are likely to be detained.

Sub-clause (2) of this section uses the words as it may think fit implying that the judges have a wide discretion with respect to granting anticipatory bail. According to the 48th Law Commission Report (page 10), it has been stated that the directions can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary for the interest of justice.

Initially, in the general course, an application for anticipatory bail had to be first filed In the court of Sessions and then the High Court. However, in Chendrasekhar Rao v. Y.V Kamala kumari.[26] it was clarified that an application under Section 438 could be pleaded directly in the High Court, without taking recourse to the Court of Sessions.

Section 438 has a very wide scope. If the offence is non-bailable it is immaterial whether the offence is cognizable or non-cognizable. Further, in B. Kuppa Naidu v. State [27]an anticipatory bail was granted to a person who was accused of committing an offence under the Custom Laws. This shows the wide scope of this Section that it can be invoked not only for offences under the IPC but other codes too. Anticipatory bail can even be granted to a person who is accused of committing a crime who's punishment is that of life imprisonment or death.

Gurbaksh Singh Sibbia v. State of Punjab[28] is a landmark case with respect to anticipatory judgement. A constitution bench had passed this judgement.

Following are the pointers of this case:

• The difference between a normal bail and an anticipatory bail – The normal bail is granted after the arrest whereas, an anticipatory bail is granted before the arrest. Anticipatory bail is granted in anticipation of an arrest.
   
• There is no restriction on granting anticipatory bail merely because the alleged offence is punishable with imprisonment for life or death.
   
• The imminence of a likely arrest founded on a reasonable belief can be shown to exist even when a FIR is not yet filed. Which is to say that the registration of an FIR is not a condition precedent for applying for anticipatory bail.
   
• Mere fear of being arrested with is not a sufficient ground for invoking this section. There have to be substantive grounds.
   
• It is true that the discretion to grant anticipatory bail is to be exercised with care and circumspection. However, it is not true to say that this power to grant anticipatory bail should be exercised only in exceptional cases.
   
• The limitations imposed in Section 437 on granting of bail is not completely implicit in Section 438.
   
• The High court or Sessions Court cannot leave the question behind with respect to anticipatory bail for the decision of the magistrate under Section 437. The High Court must use its own mind to check whether a case has been made out for granting such relief.
   
• Considering the antecedents of the accused, if it appears that he will take advantage of the anticipatory bail and flee from justice, the judge would not pass the order.

In Masroor v. State of U.P, it was held that even though the judges have a wide discretion to grant anticipatory bail, if they do grant, they should mandatorily record the reasons for doing so.[29] The conditions mentioned in sub-section (2) are not exhaustive and the courts may impose other conditions too.

The duration of the effectiveness of the anticipatory bail is not mentioned in this section. As soon as the person is enlarged on bail on the directions of the Anticipatory bail order, it would be deemed by implication that the bail was granted under Section 437.

However, in C.H Siva Prasad v. State of A.P ,it was held that the bail shall be effective until the conclusion of the trial, unless it is cancelled by the court taking action undersection 437(5) or under Section 439(2) of the code on the grounds known to law and filing of Challan in the court is by itself no ground to cancel the bail.[30]

Bail under Section 42 of the Code

This section displays the power of the police to arrest without a warrant. Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address or gives a name and address which the police officer considers to be false. If those particulars are within the knowledge of the police officer, neither the question of arrest nor the question of bail will arise. As soon as name and address has been ascertained the police officer cannot detain him, if he is willing to execute the necessary bonds.

The power to arrest and to release on bail can be exercised by any Police Officer not necessarily by an officer-in-charge of the Police station because this section has been enacted to provide for a particular non-cognizable offence does not put any restrictions on the power of a Police Officer to enlarge a person on bail after the correct name and residence have been ascertained.

In Kajal Dey v. State of Assam,[31] it was held, what is a reasonable complaint or a suspicion or what is a credible information depends upon the facts of each case. The presence of the words reasonable and credible refer to the mind of the police officer receiving the information and such information must afford sufficient materials for the exercise of an independent judgement at the time of making the arrest, held in M. Baskaran v. State[32].

Held in Emperor v. Vimlabai Deshpande,[33] when the legality of a person arrested without a warrant is challenged in court, the burden is on the police officer to satisfy the court that he had reasonable grounds of suspicion. In order to not give the police unrestricted powers under this section, malicious and excessive exercise of the powers of arrest under this section would be punishable under Section 220 of the Indian Penal Code. Moreover, if the police officer is unable get the information out of such a person within 24 hours, that person has to be taken to the nearest magistrate within such time limit.

(a) Bail under sections 56, 57 and 59 Cr. P.C.:

Section 56 mandates that a police officer affecting an arrest without warrant must take or send the offender arrested, before a magistrate having jurisdiction in the case of before the officer in charge of a police station. But in section 56, there is an inbuilt provision authorizing police officer to admit the arrested offender to bail, but power of the police officer is subject to the provisions herein contained as to bail. Section 56 of the new Code corresponds to section 60 of the old Code. The object of this section is to prevent the arrest and detention for the purpose of obtaining confessions and to lead a detained person to self-incriminate.

Section 57 provides that person arrested not to be detained more than twenty-four hours. The intention of the legislature is that an accused person should be brought before a Magistrate competent to try or commit with as little delay as possible. Section 57 is pointer to the intendment to uphold liberty and to restrict to the minimum curtailment of liberty.

It has been held in Sharifbai v. Abdul Razak[34], the failure of a police officer to produce an arrested person before a magistrate within 24 hours of the arrest will result in wrongful detention. There was a tendency in certain officers to report the wrong time of arrest so as to exceed the time limit of 24 hours before presenting the accused to the magistrate.

In Ashok Hussain Allah Dehta v. Collector of Customs[35] it was held that such a practice will not be permitted.

In DG & IG of police v. Prem Sagar,[36] it was clarified that this is a healthy provision that enables the magistrate to keep a check over the investigation and it is important that the magistrate should try to enforce this requirement and where it is found disobeyed, come heavily upon the police.

Bail under Section 71 of the Code

This section neither talks about bailable nor non-bailable warrants. It lays down a discretionary power of the court to elucidate regarding the security to be taken in case the person is to be released upon his arrest pursuant to the execution of his warrant issued under S. 70.

The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code. In Lachhmi Narain Vs. Emperor, it has been stated that it is a matter entirely in the discretion of the court issuing a warrant under this section to give a direction for the release of the arrested person on bail or not.

Even in bailable offence, a court may not give such direction. When a person who is to be arrested is not arrested until the date on which he has to attend the court, the direction regarding the taking of bail lapses.

In Karim Shah v. State of U.P, it was held that sub-section (2) of section 71 enumerates the endorsements which can be made on a warrant.[37]

Bail under section 80 & 81 Cr. P.C.:

When a warrant of arrest is executed outside the district in which it was issued any police officer who is not a District Superintendent of police or the Commissioner of Police may release an arrested person according to the directions contained in the endorsement. But a District Superintendent of Police, the Commissioner of Police in presidency town with in the local limits of whose jurisdiction the arrest was made shall release on bail the arrested person, if the offence is bailable and such person is ready and willing to give bail to their satisfaction. A police officer cannot release a person on bail simply because the arrested person is accused of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

In Raghuvansh Dewanchand Bhasin v. State of Maharashtra[38], an advocate came to be arrested though the warrant against him stood cancelled. However, the advocate failed to provide the documentary evidence to prove the same. The Supreme Court rejected his prayer for enhancement of compensation and stated merely because the warrant used the expression like non bailable did not make the warrant bad in law. In the same case, the Supreme Court also held that it is the duty of the High Courts to ensure proper maintenance of records by the subordinate courts.

Bail under Section 80 and 81 of the Code

When a warrant of arrest is executed outside the district in which it was issued any police officer who is not a District Superintendent of police or the Commissioner of Police may release an arrested person according to the directions contained in the endorsement. But a District Superintendent of Police, the Commissioner of Police in presidency town with in the local limits of whose jurisdiction the arrest was made shall release on bail the arrested person, if the offence is bailable and such person is ready and willing to give bail to their satisfaction. A police officer shall not release a person on bail simply because the arrested person is accused of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

In Raghuvansh Dewanchand Bhasin v. State of Maharashtra[39], an advocate came to be arrested though the warrant against him stood cancelled. However, the advocate failed to provide the documentary evidence to prove the same. The Supreme Court rejected his prayer for enhancement of compensation and stated merely because the warrant used the expression like non bailable did not make the warrant bad in law. In the same case, the Supreme Court also held that it is the duty of the High Courts to ensure proper maintenance of records by the subordinate courts.

Bail under Section 167 of the Code

This section lays down the procedure after a person is brought to court by the police as per Section 57. Once the such a person is presented before a magistrate by the police, the magistrate has the discretion to either commit such a person to remand (police custody) or Judicial custody.

In Chadayam v. State of Kerala, the object of this section was discussed where the court stated, the object is to ensure that persons arrested by the police are to be brought before a magistrate at the earliest so that the magistrate can decide whether such a person should be kept in police custody and also to allow them to make such representations as they may wish to make.[40]

It is to be noted that whether the accused is in police or judicial custody, such a person cannot be in custody for a period exceeding 15 days. However, if the executive magistrate is hearing such a case, he has the authority to authorise the detention for only a period of 7 days. During this period of 15 days, the detention can fluctuate between police remand and judicial custody as the magistrate prescribes.

In Directorate of Enforcement v. Deepak Mahajan, it was held that a person accused of an offence under FERA or the customs act will be entitled to remand under Section 167(2).[41] Moreover, the magistrate can take the accused into custody by taking into consideration the following : whether the arrested officer is legally competent to make such an arrest, that the particulars of the arrest or the accusation for which the person is arrested are well founded and lastly, the provisions of the special act in regards to the arrest of the person and the production of the arrestee serve the purpose of Section 167(1).

After the completion of the 15 days, the accused cannot be sent to police remand and has to be sent to judicial custody for a maximum period of 60 or 90 days (including the former 15 days) as prescribed by the magistrate. After the completion of such a period, the accused will be entitled to statutory bail. The police can continue their investigation even after such a bail is granted.

However, in State of M.P v. Rustam, it was held that, if a charge sheet is filed before the expiry of the prescribed 60 or 90 days, the accused loses his right to Statutory bail.[42] This stance was further clarified in Vipul Shital Prasad Agarwal v. State of Gujarat, where it was held that if a charge sheet is not filed within the period of 60 or 90 days, bail cannot be denied to the accused after such a period.[43]

Conclusion
Whenever, there is a discretion upon the court with respect to granting bail, there are certain established principles which have to be adhered to. However, this list of principles are not exhaustive. A good examples of the principles that the courts have to take into consideration are explained in Sanjay Chandra v. CBI (explained in Section 439).

When a person is detained before the final judgement, there is a question on such a person's personal liberty as prescribed by Article 21. In most bail cases there is always going to be a conflict between the interest of the society at large and the personal liberty of the accused.

End-Notes:

1. Inserted by Act 25 of 2005
2. Mohd. Shahabuddin v. State of Bihar, 2009 Cri LJ 3877 (Pat).
3. Gudikanti v. Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.
4. Gurcharan Singh v. State, (1978) 1 SCC 118.
5. Mukeshbhai Nanubhai Patel v. State of Gujarat, 1998 Cri LJ 194 (Guj).
6. Mohinder Kaur v. State of Punjab, (2008) 4 SCC 580.
7. Masroor v. State of U.P, [(2009) 14 SCC 286],
8. Meenu Dewan v. State, 2010 Cri LJ 2911.
9. Naresh Kumar Yadav v. Ravindra Kumar [(2008) 1SCC 632].; Niranjan Singh v. Prakash Rajaram Kharote, (1980) 2 SCC 559.
10. Kalyan Chandra Sarkar v. Rajesh Ranjan, [(2004) 7 SCC 528].
11. Sanjay Chandra v. Cbi [(2012) 1 SCC 40].
12. A.K Gopalan v. State of Madras, [AIR 1950 SC 27]
13. Siddharam Satligappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694].
14. State of U.P v. Amarmani Tripathi [(2005) 8 SCC 21].
15. Manu Sharma v. State (NCT of Delhi) 2010 6 SCC 1.
16. V. Sundarami Reddi v. State, Cri LJ 167.
17. Gopal v. State of M.P, 1999 Cri LJ 1438 (MP).
18. Jadeja Ajitsinh Natubha v. State of Gujarat, 1981 Cri LJ 1203.
19. Rabindra Nath Singh v. Rajesh Ranjan, (2010) 6 SCC 417.
20. Khilari v State of U.P [(2009) 4 SCC 291],
21. Purshottam v. State, 1982 Cri LJ 243 (MP).
22. Ismat Sara v.State of Karnataka, 1982
23. Hari Singh v. Sukhbir Singh [1988 4 SCC 551].
24. Jamal Haq v. State of Tripura [(2006) 9 SCC 757].
25. News item 38 years without trial published in Hindustan times v. Union Of India [2010 2 SCC (Cri) 759.
26. Chendrasekhar Rao v. Y.V Kamala kumari [(1993) Cri LJ 3508 (AP)]
27. B. Kuppa Naidu v. State [1986 Cri LJ 561
28. Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565]
29. Masroor v. State of U.P, [(2009) 14 SCC 286],
30. C.H Siva Prasad v. State of A.P [(1999) Cri LJ 1263 (AP)
31. Kajal Dey v. State of Assam,[1989 Cri LJ 1209].
32. M. Baskaran v. State [1989 Cri LJ 653].
33. Emperor v. Vimlabai Deshpande [AIR 1946 PC 123.].
34. Sharifbai v. Abdul Razak [AIR 1961 Bom 42].
35. Ashok Hussain Allah Dehta v. Collector of Customs [1990 Cri Lj 2201 (Bom)].
36. DG & IG of police v. Prem Sagar [(1999) 5 SCC 700].
37. Karim Shah v. State of U.P, 2008 Cr LJ 2974.
38. Raghuvansh Dewanchand Bhasin v. State of Maharashtra [(2012) 9 SCC 791].
39. Raghuvansh Dewanchand Bhasin v. State of Maharashtra [(2012) 9 SCC 791].
40. Chadayam Makki v. State of Kerala, 1980 Cri LJ 1195.
41. Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440.
42. State of M.P v. Rustam, 1995 Supp (3) SCC 221.
43. Vipul Shital Prasad Agarwal v. State of Gujarat, (2013) 1 SCC 197

Written By:

1. Swapana P. Kode &
2.  Dhruva Shetty