Powers of the High Court or Court of Session in granting bail (Section 439 of CrPc)

Legal provisions regarding powers of the High Court or Court of Session in granting bail under section 439 of the Code of Criminal Procedure, 1973.

According to Section 439(1) of the Code of Criminal Procedure, a High Court or Court of Session may direct,—

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(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

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(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

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

As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions may direct that any person who has been released on bail under Chapter XXXIII (i.e., relating to bail) be arrested and commit him to custody.


The powers of the High Court in granting bail are very wide; even so where the offence is non-bailable, various considerations will have to be taken into account before bail is granted in case of non-bailable offence.

Under Section 439(1) of the Code, the High Court can only release the accused in cases pending anywhere in the State on bail or reduce the amount of bail, but cannot order the arrest or commitment to custody of any person who has been released on bail by the lower Court but it can order to arrest the person who had been released on bail under Section 439(2) of the Code.

Orders refusing bail not revisable:

Where bail of juvenile offender was rejected by lower Courts. Held, that orders refusing bail was not revisable as these orders were not even interlocutory orders. Appeal lied to Board under Juvenile Justice Act but as no Board had been constituted as yet, hence, High Court, could grant relief but only under Section 439, Cr. P.C.


Claim of parity could not be allowed to persons similarly situated—Bail application of each accused to be considered on basis of material available against him:

Law is well settled that while granting bail even under Section 439 of the Code of Criminal Procedure the Court is to consider the materials as against the accused, chances of securing his presence during the trial, the possibility of tampering with the evidence of the witnesses and the public interest at large, even if the rigour of Section 37 (1) of the N.D.P.S. Act is not available to be applied in case of seizure of a quantity below the commercial quantity in view of the recent amendment to the Act.

The claim of parity is misconceived since parity is available to be claimed by a person in case any person similarly situated has been dealt with in a particular manner, Since on the date the petitioner’s bail application was considered in September, 2002, no other accused persons had been released by this Court and the subsequent orders of release are of no avail to the petitioner since in a bail application each accused is to be considered on the basis of the materials available as against him.

The accused was charged of abetment of organized crime of stamp paper scam. In considering his application for bail, where accused has spent long period of incarceration it was held that non-possibility of trial getting concluded in near future may not be a consideration for grant of bail.

The accused, a Director of Bank and others were involved in Bank scam siphoning off funds of Bank worth crores by bogus loans and fictitious letters of credit in the names of their friends and relatives, etc.

It was held that having regard to huge amounts involved there is danger of accused absconding, if released on bail or attempting to tamper with evidence by pressurising witnesses. Therefore grant of bail was refused.


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