Special power of High court & court of session regarding bail -By LegalPedia

CONTENTS What is Bail? Types of Bail in India. Section 439, CrPC,1973 Scope of Section 439 CrPC,1973 Grounds for granting bail Judicial Trend

WHAT IS BAIL ? Bail means the temporary release of a suspect in any criminal offence who is awaiting court trial after paying the bail bond. It becomes applicable after arrest and becomes effective from the moment of the arrest. An offence is any act or omission made punishable by law for the time being in force. It basically means the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.

TYPES OF BAIL IN INDIA Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused before the hearing for the grant of regular bail or anticipatory bail. Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the anticipatory bail has been granted by the court.

439. Special powers of High Court or Court of Session regarding bail 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 subsection (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 an 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.

CONTD. 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.

SCOPE OF SECTION 439 It appears special powers have been conferred on the High Court or Court of Sessions regarding exercising the power, or granting bail of a person who is in custody. Therefore, any person in custody can approach the Hon'ble Court or Sessions Court for grant of bail. Custody whether Judicial or Police is always a custody and the liberty of a citizen is curtailed, who is inside it. Therefore, if bail not jail, is the principle, a party not to suffer in pre-trial state for which, such type of beneficial legislation is incorporated in the statute.

Accused can directly approach the High Court and Sessions Court for regular Bail Two-Judge Bench of the Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail. The Court comes to a conclusion that since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a Superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC.

Grounds for granting bail The court can take into account the following facts concerning the accused before granting him bail: (1) The nature of the offence committed by the accused. (2) The length of his residence in the community. (3) His employment status history and his financial condition. (4) His family ties and relationships. (5) His reputation character and monetary conditions. (6) His prior criminal records, including any record or prior release on recognizance or on bail. (7) Identity of responsible members of the community who would vouch for his reliability. (8) The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance. (9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear.

State Through C.B.I vs Amaramani Tripathi Supreme Court observed that it is well settled that the following factors are to be considered in an application for 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 in the event of conviction; danger of accused absconding or fleeing if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being threatened; and danger, of course, of justice being thwarted by grant of bail (Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Chaman Lal v. State of U.P This Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: - “ (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge."

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