CHAPTER XXXIII - PROVISIONS AS TO BAIL AND BONDS
436. In what cases bail to be taken.
(1)
When any person other than a person accused of a non-bailable offence is
arrested or
detained
without warrant by an officer in charge of a police station, or appears or is
brought
before
a Court, and is prepared at any time while in the custody of such officer or at
any stage of
the
proceeding before such Court to give bail, such person shall be released on
bail:
Provided
that such officer or Court, if he or it thinks fit, may, instead of taking bail
from
such
person, discharge him on his executing a bond without sureties for his
appearance as
hereinafter
provided:
Provided
further that nothing in this section shall be deemed to affect the provisions
of
sub-section
(3) of section 116 or section 446A.
(2)
Notwithstanding anything contained in sub-section (1), where a person has
failed 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 and any such refusal
shall be
without
prejudice to the powers of the Court to call upon any person bound by such bond
to pay
the
penalty thereof under section 446.
STATE AMENDMENT
Uttar Pradesh:
In
the first proviso, to section (1) of section 436, for the word
"discharge" the word "release"
shall
be substituted.
Vide U.P. Act 1 of 1984 (w.e.f.
1-5-1984).
Comments
It
is true that Supreme Court does not interfere with an order granting bail but
judicial discipline
will
be sacrificed at the alter of judicial discretion if jurisdiction under Article
136 is refused to
be
exercised; State of Maharashtra v. Captain Buddhikota Subha Rao, (1989) cr LJ 2317: AIR
1989
SC 2292.
437. When bail may be taken in case of non-bailable offence.
(1)
When any person accused of, 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 a Court other than the High Court or Court of Session, he may be
released on
bail,
but—
(i)
such person shall not be so released if there appear reasonable grounds for
believing
that
he has been guilty of an offence punishable with death or imprisonment for
life;
(ii)
such person shall not be so released if such offence is a cognizable offence
and he had
been
previously convicted of an offence punishable with death, imprisonment for life
or
imprisonment
for seven years or more, or he had been previously convicted on two or
more
occasions of a non-bailable and cognizable offence:
Provided
that the Court may direct that a person referred to in clause (i) or clause
(ii) be released
on
bail if such person is under the age of sixteen years or is a woman or is sick
or infirm:
Provided
further that the Court may also direct that a person referred to in clause
(ii)
be released on bail if it is satisfied that it is just and proper so to do for
any other special
reason:
Provided
also that the mere fact that an accused person may be required for being
identified
by witnesses during investigation shall not be sufficient ground for refusing
to grant
bail
if he is otherwise entitled to be released on bail and gives an undertaking
that the shall
comply
with such directions as may be given by the Court.
(2)
If it appears to such officer or Court at any stage of the investigation,
inquiry or trial as the
case
may be, that there are not 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, the
accused
shall, subject to the provisions of section 446A and pending such inquiry, be
released on
bail,
or, at the discretion of such officer or Court on the execution by him of a
bond without
sureties
for his appearance as hereinafter provided.
(3)
When a person accused or suspected of the commission of an offence punishable
with
imprisonment
which may extend to seven years or more or of an offence under Chapter VI,
Chapter
XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or
conspiracy
or attempt to commit, any such offence, is released on bail under sub-section
(1) the
Court
may impose any condition which the Court considers necessary—
(a)
in order to ensure that such person shall attend in accordance with the
conditions of
the
bond executed under this Chapter, or
(b)
in order to ensure that such person shall not commit an offence similar to the
offence
of
which he is accused or of the commission of which he is suspected, or
(c)
otherwise in the interests of justice.
(4)
An officer or a Court releasing any person on bail under sub-section (1), or
sub-section (2),
shall
record in writing his or its reasons or special reasons for so doing.
(5)
Any Court which has released a person on bail under sub-section (1), or
sub-section (2), may,
if
it considers it necessary so to do, direct that such person be arrested and
commit him to
custody.
(6)
If, in any case triable by a Magistrate, the trial of a person accused of any
non-bailable
offence
is not concluded within a period of sixty days from the first date fixed for
taking
evidence
in the case, such person shall, if he is in custody during the whole of the
said period, be
released
on bail to the satisfaction of the Magistrate, unless for reasons to be recorded
in writing,
the
Magistrate otherwise directs.
(7)
If, at any time after the conclusion of the trial of a person accused of a
non-bailable offence
and
before judgment is delivered the Court is of opinion that there are reasonable
grounds for
believing
that the accused is not guilty of any such offence, it shall release the
accused, if he is in
custody,
on the execution by him of a bond without sureties for his appearance to hear
judgment
delivered.
Comments
(i)
In non-bailable cases in which the person is not guilty of an offence
punishable with
death
or imprisonment for life, the Court will exercise its discretion in favour of
granting
bail
subject to sub-section (3) of section 437 if it deems necessary to act under
it; Anil
Sharma v. State of Himachal Pradesh, (1997)
3 Crimes 135 (HP).
(ii)
Unless exceptional circumstances are brought to the notice of the Court which
may
defeat
the proper investigation and fair trial, the Court will not decline bail to a
person
who
is not, accused of an offence punishable with death or imprisonment for life; Anil
Sharma v. State of Himachal Pradesh, (1997) 3
Crimes 135 (HP).
(iii)
The application of petitioner is dismissed by High Court by a cryptic order.
High
Court
to pass a reasoned order while disposing of application; Dhruv v. State of Bihar,
AIR
2000 SC 209.
438. Direction for grant of bail to person apprehending arrest.
(1)
When any person has reason to believe that he may be arrested on an accusation
of having
committed
a non-bailable offence, he may apply to the High Court or the Court of Session
for
direction
under this section; and that Court may, if it thinks fit, direct that in the
event of such
arrest,
he shall be released on bail.
(2)
When the High Court or the Court of Session makes a direction under sub-section
(1), it may
include
such conditions in such directions in the light of the facts of the particular
case, as it may
thinks
fit, including—
(i)
a condition that the person shall make himself available for interrogation by a
police
officer
as and when required;
(ii)
a condition that the person shall not, directly or indirectly, make any
inducement,
threat
or promise to any person acquainted with the facts of the case so as to
dissuade him
from
disclosing such facts to the Court or to any police officer;
(iii)
a condition that the person shall not leave India without the previous
permission of
the
Court;
(iv)
such other condition as may be imposed under sub-section (3) of section 437, as
if
the
bail were granted under that section.
(3)
If such person is thereafter arrested without warrant by an officer in charge
of a police station
on
such accusation, and is prepared either at the time of arrest or at any time
while in the custody
of
such officer to give bail, he shall be released on bail, and if a Magistrate
taking cognizance of
such
offence decides that a warrant should issue in the first instance against that
person, he shall
issue
a bailable warrant in conformity with the direction of the Court under
sub-section (1).
STATE AMENDMENTS
Maharashtra:
For
section 438, the following section shall be substituted, namely:—
439. Special powers of High Court or Court of Session regarding
bail.
(1)
A High Court or Court of Session may direct—
(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;
(b)
that any condition imposed by a Magistrate when releasing any person on bail be
set
aside
or modified:
Provided
that the High Court or the Court of Session shall, before granting bail to a
person
who is accused of an offence which is triable exclusively by the Court of
Session 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.
(2)
A 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.
STATE Amendments
Punjab and Union Territory of Chandigarh:
In
its application to the State of Punjab and Union Territory of Chandigarh after
section
439, following section shall be inserted, namely:—
440. Amount of bond and reduction thereof.
(1)
The amount of every bond executed under this chapter shall be fixed with due
regard to the
circumstances
of the case and shall not be excessive.
(2)
The High Court or Court of Session may direct that the bail required by a
police officer or
Magistrate
be reduced.
441. Bond of accused and sureties.
(1)
Before any person is released on bail or released on his own bond, a bond for
such sum of
money
as the police officer or Court, as the case may be, thinks sufficient shall be
executed by
such
person, and, when he is released on bail, by one or more sufficient sureties
conditioned that
such
person shall attend at the time and place mentioned in the bond, and shall continue
so to
attend
until otherwise directed by the police officer or Court, as the case may be.
(2)
Where any condition is imposed for the release of any person on bail, the bond
shall also
contain
that condition.
(3)
If the case so requires, the bond shall also bind the person released on bail
to appear when
called
upon at the High Court, Court of Session or other Court to answer the charge.
(4)
For the purpose of determining whether the sureties are fit or sufficient, the
Court may accept
affidavits
in proof of the facts contained therein relating to the sufficiency or fitness
of the
sureties,
or, if it considers necessary, may either hold an inquiry itself or cause an
inquiry to be
made
by a Magistrate subordinate to the Court, as to such sufficiency or fitness.
442. Discharge from custody.
(1)
As soon as the bond has been executed, the person for whose appearance it has
been executed
shall
be released; and when he is in jail the Court admitting him to bail shall issue
an order of
release
to the officer in charge of the jail, and such officer on receipt of the orders
shall release
him.
(2)
Nothing in this section, section 436 or section 437 shall be deemed to require
the release of
any
person liable to be detained for some matter other than that in respect of
which the bond was
executed.
443. Power to order sufficient bail when that first taken is
insufficient.
If,
through mistake, fraud, or otherwise, insufficient sureties have been accepted,
or if they
afterwards
become insufficient, the Court may issue a warrant of arrest directing that the
person
released
on bail be brought before it and may order him to find sufficient sureties, and
on his
failing
so to do, may commit him to jail.
444. Discharge of sureties.
(1)
All or any sureties for the attendance and appearance of a person released on
bail may at any
time
apply to a Magistrate to discharge the bond, either wholly or so far as relates
to the
applicants.
(2)
On such application being made, the Magistrate shall issue his warrant of
arrest directing that
the
person so released be brought before him.
(3)
On the appearance of such person pursuant to the warrant, or on his voluntary
surrender, the
Magistrate
shall direct the bond to be discharged either wholly or so far as relates to
the
applicants,
and shall call upon such person to find other sufficient sureties, and, if he
fails to do
so,
may commit him to jail.
445. Deposit instead of recognizance.
When
any person is required by any Court or officer to execute a bond with or
without sureties,
such
Court or officer may, except in the case of a bond for good behaviour, permit
him to deposit
a
sum of money or Government promissory notes to such amount as the Court of
officer may if
in
lieu of executing such bond.
446. Procedure when bond has been forfeited.
(1)
Where a bond under this Code is for appearance, or for production of property,
before a
Court
and it is proved to the satisfaction of that Court or of any Court to which the
case has
subsequently
been transferred, that the bond has been forfeited, or where in respect of any
other
bond
under this Code, it is proved to the satisfaction of the Court by which the
bond was taken,
or
of any Court to which the case has subsequently been transferred, or of the
Court of any
Magistrate
of the first class, that the bond has been forfeited, the Court shall record
the grounds
of
such proof, and may call upon any person bound by such bond to pay the penalty
thereof or to
show
cause why it should not be paid.
Explanation.—A condition in a bond
for appearance, or for production of property, before a
Court
shall be construed as including a condition for appearance, or as the case may
be, for
production
of property before any Court to which the case may subsequently be transferred.
(2)
If sufficient cause is not shown and the penalty is not paid, the Court may
proceed to recover
the
same as if such penalty were a fine imposed by it under this Code:
Provided
that where such penalty is not paid and cannot be recovered in the manner
aforesaid,
the person so bound as surety shall be liable, by order of the Court ordering
the
recovery
of the penalty, to imprisonment in civil jail for a term which may extend to
six months.
(3)
The Court may, at its discretion, remit any portion of the penalty mentioned
and enforce
payment
in part only.
(4)
Where a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from
all
liability in respect of the bond.
(5)
Where any person who has furnished security under section 106 or section 117 or
section 360
is
convicted of an offence the commission of which constitutes a breach of the
conditions of his
bond,
or of a bond executed in lieu of his bond under section 448, a certified copy
of the
judgment
of the Court by which he was convicted of such offence may be used as evidence
in
proceedings
under this section against his surety or sureties, and, if such certified copy
is so
used,
the Court shall presume that such offence was committed by him unless the
contrary is
proved.
Comments
(i)
Each surety liable for penalty in forfeiture of bond. Allotment of half share
not legal;
Mohammed Kunju v. State of Karnataka, AIR
2000 SC 6: 2000 Cr LJ 165 (SC).
(ii)
Forfeiture of a bond would entail the penalty against each surety for the
amount which he has
undertaken
in the bond executed by him. Both the sureties cannot claim to share the amount
by
half
and half as each can be made liable to pay; Mohd.
Kunju v. State of Karnataka, AIR
2000
SC
6: 2000 Cr LJ 165 (SC).
446A. Cancellation of bond and bailbond.
Without
prejudice to the provisions of section 446, where a bond under this Code is for
appearance
of a person in a case and it is forfeited for breach of a condition—
(a)
the bond executed by such person as well as the bond, if any, executed by one
or more of his
sureties
in that case shall stand cancelled; and
(b)
thereafter no such person shall be released only on his own bond in that case,
if the Police
Officer
or the Court, as the case may be, for appearance before whom the bond was
executed, is
satisfied
that there was no sufficient cause for the failure of the person bound by the
bond to
comply
with its condition:
Provided
that subject to any other provision of this Code he may be released in that
case
upon
the execution of a fresh personal bond for such sum of money and bond by one or
more of
such
sureties as the Police Officer or the Court, as the case may be, thinks
sufficient.
447. Procedure in case of insolvency or death of surety or when a
bond is forfeited.
When
any surety to a bond under this Code becomes insolvent or dies, or when any
bond is
forfeited
under the provisions of section 446, the Court by whose order such bond was
taken, or
a
Magistrate of the first class may order the person from whom such security was
demanded to
furnish
fresh security in accordance with the directions of the original order, and if
such security
is
not furnished, such Court or Magistrate may proceed as if there had been a
default in
complying
with such original order.
448. Bond required from minor.
When
the person required by any Court, or officer to execute a bond is a minor, such
Court or
officer
may accept, in lieu thereof, a bond executed by a surety or sureties only.
449. Appeal from orders under section 446.
All
orders passed under section 446 shall be appealable,—
(i)
in the case of an order made by a Magistrate, to the Sessions Judge;
(ii)
in the case of an order made by a Court of Sessions, to the Court to which an
appeal
lies
from an order made by such Court.
Comments
(i)
Challenging order imposing penalty by way of appeal as second appeal before
High Court not
maintainable;
Mohammed Kunju v.
State of Karnataka,
AIR 2000 SC 6: 2000 Cr LJ 165 (SC).
(ii)
The order in this case was passed by Chief Metropolitan Magistrate and hence
the appeals
preferred
by appellants before the Sessions Court were according to law. Clause (ii) of
section
449
will not apply in any case where the appeal lies to Session Court as the said
clause deals
with
a different situation when the original order has been passed by the Sessions
Court in which
the
case appeal normally lies to the High Court; Mohammed
Kunju v. State of Karnataka, AIR
2000
SC 6: 2000 Cr LJ 165 (SC).
450. Power to direct levy of amount due on certain recognizances.
The
High Court or Court of Session may direct any Magistrate to levy the amount due
on a bond
for
appearance or attendance at such High Court or Court of Session.
