Section 436 of the Code of Criminal Procedure provides that when any person other than a person who is accused of a non-bailable offence, is arrested or detained without a warrant by an Officer-in-charge of a Police Station, or is brought before the Court, and is prepared to give bail, such person must be released on bail. Thus, in the case of bailable offences, the grant of bail is a matter of course.
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If, however, such Officer or Court (as the case may be) thinks fit, he (or it) may, instead of taking bail from such a person, discharge him, on his executing a bond without sureties for his appearance before the Court. If such a person fails to comply with the conditions of the bail- bond, as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case, he appears before the Court or is brought in custody. Further, any such refusal is always without prejudice to the powers of the Court to call upon any person bound by such a bond to pay the penalty thereof under S. 446.
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The Kerala High Court has held that an order refusing a bail is not a “final order” contemplated by Art. 134(1) of the Constitution. This is so because bail may be refused at one stage, but may be granted at a later stage in the same proceedings. It can even be rescinded or modified or cancelled at any stage. It neither terminates the proceedings, nor does it decide a point for decision; it is, therefore, not a final order. (Vasu, — A.I.R. 1975 Ker. 15)
Under S. 436A (inserted by the 2005 Amendment), it is provided that if a person has, during the period of investigation, inquiry or trial under the Code, undergone imprisonment for a period extending upto one-half of the maximum imprisonment specified for that offence, he shall be released by the Court on his personal bond, with or without sureties. However, this cannot be done if the offence is one for which the death sentence has been specified as one of the punishments.
It is also provided that, in any case, a person cannot be detained during the period of investigation, inquiry or trial, for more than the maximum period of imprisonment for that offence.
As regards non-bailable offences, S. 437 (which was substantially amended by the 1980 Amendment) provides that when any person accused or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a Police Station, or appears, or is brought before the Court other than the High Court or a Sessions Court, he may be released on bail, subject to the following two conditions:
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(a) Such a person cannot be released on bail if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life-imprisonment.
(b) So also, such a person is not to be released on bail if the offence is a cognizable offence and he has been previously convicted—
(i) Of an offence punishable with death, life-imprisonment or imprisonment for seven years or more; or
(ii) On two or more occasions, of a non-bailable and cognizable offence.
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The only exceptions are in favour of a person under the age of sixteen, a woman, or a person who is sick or infirm. Such person may be released on bail even if they are covered by clause (a) or clause (b) above.
Moreover, the Court is also empowered to direct that a person covered by clause (b) above be released on bail, if it is satisfied that it is just and proper to do so for any other special reason.
It is also clarified that the mere fact that an accused person may be required for being identified by witnesses during investigation would not be a sufficient ground for refusing to grant bail to a person if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
If, at any stage of the investigation, inquiry or trial, it appears that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, pending such inquiry, the accused must be released on bail, or on the execution by him of a bond without sureties for his appearance in the Court.
S. 437 also provides that if any person accused or suspected of committing an offence punishable with seven years’ imprisonment or more, or of any offence under Chapters VI, XVI, or XVII of the Indian Penal Code (namely, offences relating to coins, government stamps, weights and measures, etc.) or abatement of, or conspiracy or attempt to commit any such offence, is released on bail, the Court may impose any condition which the Court may consider necessary—
(i) To ensure that such a person will attend the Court in accordance with the bond executed by him; or
(ii) To ensure that such a person shall not commit an offence similar to the one of which he is accused or suspected; or
(iii) Otherwise in the interests of justice.
Moreover, any Court which has released a person on bail as above may, if it considers it necessary to do so, direct that such a person be arrested and commit him to custody.
It is further provided that if the trial of a person accused of a non- bailable offence is not concluded by the Magistrate within a period of sixty days from the date fixed for taking evidence in the case, if such a person is in custody during the whole of the said period, he must be released on bail, unless the Magistrate otherwise directs, for reasons to be recorded.
So also, if after the conclusion of the trial of such a person and before the judgement is delivered, the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, the Court must release the accused if he is in custody, on the execution by him of a bond without sureties for his appearance to hear the judgement when it is delivered.
It will be seen that the basic rule underlying the above provisions is bail, not jail. That is, of course, subject to exceptions where there are circumstances suggestive of fleeing from justice or thwarting the course of justice. The gravity of the offence involved must weigh with the Court when considering the question of jail or bail. (Balchand, A.I.R. 1977 S.C. 2447)
In another case (Narasimhulu,—A.I.R. 1978 S.C. 429), the Supreme Court, commenting on bail provisions in the Code, observed as follows: “Bail or jail at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system, and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this point, and the Court prefers to the tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury.”
In Narasimhulu’s case (cited above), the Supreme Court laid down the following ten criteria for grant or refusal of bail, in the case of a person who has either been convicted and has appealed, or one whose conviction has been set aside, but leave has been granted by the Supreme Court to appeal against the acquittal:
(a) The nature of the crime;
(b) The nature of the charge, the evidence and the possible punishment;
(c) The possibility of interference with the course of justice;
(d) The antecedents of the applicant;
(e) Furtherance of the interest of justice;
(f) The intermediate acquittal of the accused;
(g) Socio-geographical circumstances;
(h) Prospective misconduct of the accused;
(i) The period already spent in prison, and the prospect of the appeal being delayed for hearing;
(j) Protective and curative conditions on which the bail might be granted.
The constitutional validity of S. 437 has been called in question and it has been held that just because the section makes a distinction between persons accused of graver offences and those accused of lesser offences, or that exceptions are made in favour of young persons, women and infirm persons, does not make the section violative of Art. 14 of the Constitution. This classification is based on intelligible differentia, and has a reasonable relation to the object of the legislation in the matter of granting bail to accused persons. (Nirmal Kumar, — 1972 Cr. L.J. 1582)
