In which cases bail will be granted in non bailable offence?

Section 437 and 439 of the Criminal Procedure Code 1973 deals with the provision regarding
bail in non-bailable offences. As per section 437 & 439 bail in non-bailable offences is not a
matter of right. Bail-in offences of grievous nature are at the discretion of the Court. The
Court shall look into the facts and circumstances of the case before granting bail.

The procedure for procuring bail in non-bailable cases is completely different than in the
case of bailable offences. Although as per sub-section 4 of Section 437 of the Code,[1] the
police officer, while writing sufficient reasons, has the power to grant bail even in non-
bailable cases, but in real practical practice in the court, the police officer does not allow the
accused to be free on bail. They present the accused in court and advise him to go for
judicial bail.
Section 437 of the Criminal Procedure Code lays down the provision for granting bail for non-
bailable offences. The following are the provisions for bail in a non-bailable offence:

The granting of bail for non-bailable offences is totally at the discretion of the court or the
concerned police officer.When a person who has been accused of committing a non-bailable
offence appears before the judicial magistrate,the judicial magistrate can exercise
discretion in granting him bail.

However, the magistrate cannot exercise this power in any of the following circumstances:

1. There are reasonable grounds for believing that he is guilty of committing an

offence that prescribes a punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous conviction for an offence
punishable with death, life imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused for a cognizable offence
that prescribes a punishment of imprisonment of 3 years to 7 years.

Though there are restrictions to this discretionary power as mentioned above, the judicial
magistrate may grant bail to the accused if the accused is a woman, a person under the age
of 16, or a person who is sick or infirm. In the situations mentioned in points the magistrate
may still grant bail if there is any special reason for doing so.[5]

 While releasing a person on bail, the officer or the magistrate must record the
reasons or any special reason for doing so in writing.

 The mere fact that an accused has to be identified by witnesses during the
investigation process does not disqualify him from being granted bail if he is entitled
to bail otherwise.

 If the offence that the accused is alleged to have committed is punishable with death,
life imprisonment, or imprisonment for 7 years or more, then the public prosecutor
must be given an opportunity of hearing in order to grant bail to the accused.

 If at any stage of the case, whether it is during the investigation, enquiry or trial, the
police officer or the magistrate finds that there are no reasonable grounds for
 believing that the accused has committed a non-bailable offence, then the accused
shall be granted bail. On doing so, the reasons or special reasons must be written
and recorded.

 The trial should conclude within 60 days from the first date which was fixed for
taking evidence. If not, the accused person must be mandatorily released on bail if
he was in custody. If he is not released, the officer or the magistrate must record
the reasons for doing so.

The High Court and the Sessions Court have some special powers under Section 439 of the
Criminal Procedure Code, 1973, if a Magistrate refuses to grant bail to an accused person,
the High Court or the Court of Session may grant bail in appropriate cases.[6]

High Court or Court of Session may direct the release on bail of any person who is in custody
and has been charged with an offence, and if the crime is of the kind listed in subsection (3)
of Section 437, the court may impose any necessary conditions for the purposes mentioned
in that subsection and can set aside or modify any condition imposed by a magistrate when
releasing an accused on bail. The High Court or Court of Session shall give notice to the public
prosecutor, unless it is of the opinion, for a reason to be recorded in writing, that such notice
is not practicable.

As per section 389 of CrPC,[8] If the lower court passed the order of conviction against such
accused person & against such order of conviction if the accused prefer an appeal in an
appellate court, then in such cases appellate court can suspend the sentence against which
such appeal was made by the accused till the time appeal is disposed off or if the accused is
in the custody.

Then in such cases appellate court can order such person to be released on bail or on his
own bond and it is mandatory for the court to provide a chance to the public prosecutor so
that he can present his views in writing against such release of accused on bail in the cases
where the accused is convicted with life imprisonment, imprisonment more than ten years
or with death before granting bail to the accused also its upon the discretion of the
appellate court that whether it will provide a bail or not to the accused. If the public
prosecutor is not satisfied with the orders of the appellate court, then in such cases the
public prosecutor can file an application regarding the cancellation of the bail in that court
only by which the accused person was granted bail.

Section 437 (5) and 439 (2) of CrPC provides that if a bail granted to an accused can be
subsequently cancelled and the accused shall be re-arrested on the satisfying of any of the
following conditions (Cancellation of Bail.
Commission of the same offence by the accused, hampering of the investigation process by
the accused, tampering of evidence by the accused, whether it is through intimidating
prosecution witnesses or by eliminating the evidence of the commission of the crime, if he
flees the country, goes underground, or goes beyond the control of his sureties; and if
violation of any of the conditions imposed by the court while granting bail.

Gurucharan Singh vs State (Delhi Adminstration)1978 The Supreme Court stated that
"Allowing the petitioner to remain in custody because of the reason that the offences
alleged to have been committed by him are serious in nature, would amount to inflicting pre
-trial punishment upon him. Every person is presumed to be innocent unless duly tried and
duly found guilty. Withholding of bail cannot be as a measure of punishment."

Sanjay Kumar Gupta v. the State of U.P., (2021) The Supreme Court observed that after
being taken into custody, the accused person does not possess the right to file anticipatory
bail, but he is at full liberty to go for regular bail under Sections 437 and 439, as the case
may be.

DISTINGUISH BETWEEN BAIL AND ANTICIPATORY BAIL?

Difference between Regular Bail and Anticipatory Bail

Anticipatory bail is bail that is granted to a person, even before an arrest,
in anticipation that he might be getting arrested in some days for a
certain criminal offence. This bail is essential nowadays when influential
persons may involve their opponents, in false and frivolous criminal issues
to either damage their image or to get them arrested for some time, to
enable them to get what they want.
There is no need for a First Information Report (FIR) to be filed against a
person to make an application for anticipatory bail. When a person
anticipates the reasonable grounds that exist for his arrest, he will be able
to apply for anticipatory bail even before lodging an FIR.
A person has the right to apply for anticipatory bail even after lodging an
FIR but only before the arrest is made. Once a person is arrested, it is
compulsory to move an application for regular bail or interim bail as the
case may be.

On the other hand, regular bail is bail that is granted by the Court to a
person after he has been arrested. When any person commits a
cognizable (offences for which police can arrest without a warrant) and
non-bailable offence the police will take him into custody. After the
termination of the period of police custody if any, the accused must be
sent to Jail. Under sections 437 and 439 of Cr.P.C., such an accused has a
right to be released from custody.

5 Main Differences Between Bail and Anticipatory Bail

1. Bail provisions are covered in Sections 436 and 437 of the Criminal
Procedure Code (Cr. P.C.), while Section 438 pertains to anticipatory
bail.
2. In the past, the Act of 1898 did not include provision for anticipatory
bail. It is a relatively new concept introduced in the 1973 Code of
Criminal Procedure.

3. Bail can be granted to accused individuals by Judicial Magistrates or

Courts. However, anticipatory bail can only be granted by the High
Court or Sessions Court.

4. Bail and anticipatory bail are both legal processes related to arrest.
where Bail is granted after a person has been arrested, Anticipatory
bail, on the other hand, is a legal process that occurs before a
person is arrested. It's sought in anticipation of the possibility of
arrest.
5. Bail is usually granted as a matter of right for bailable offences. It is
worth noting that under Section 437 of the Criminal Procedure Code,
there is a possibility of considering bail even for non-bailable
offences. However, while granting anticipatory bail, the court must
do so cautiously and sparingly, as it is an exceptional authority.

What are the Special powers of High Courts and

Courts of Sessions regarding bail?
Ans)

The High Court and Sessions Court have some special powers under Section 439 of
the Criminal Procedure Code, 1973, when it comes to bailing out someone who has
been accused of an offence and is in custody. Only the High Court and the Sessions
Court have jurisdiction under this section; if a Magistrate refuses to grant bail to an
accused person, the High Court or the Court of Session may grant bail in appropriate
cases.

Section 439 CrPC

According to Section 439 (1) (a), the High Court or Court of Session may direct the
release on bail of any person who is in custody and has been charged with an
offence, and if the crime is of the kind listed in subsection (3) of Section 437, the
court may impose any necessary conditions for the purposes mentioned in that
subsection.

Under Section 439(1) (b), the High Court or the Court of Sessions can set aside or
modify any condition imposed by a magistrate when releasing an accused on bail.

However, before granting bail to a person accused of an offence that is exclusively

triable by the Court of Session or that, though not so triable, is punishable with life
imprisonment, the High Court or Court of Session shall give notice to the public
prosecutor, unless it is of the opinion, for a reason to be recorded in writing, that
such notice is not practicable.

According to Section 439 (2), the 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.

Amendment to Section 439 CrPC

The Criminal Procedure Code was amended in 2018, and the following provisions
were added to Section 439.

1. After the first proviso, another provision was added to subsection (1),
which states that “the high court and the session court shall, before
granting bail to a person accused of an offence triable under sub-section
(3) of Sections 376, 376AB, 376DA, and 376DB of the Indian Penal Code, give
notice of the applicant for bail to the public prosecutor within a period of
15 days from the date of receipt of such notice.”

2. Following sub-section (1), a new sub-section (1A) was added, which states
that the presence of the informant or any person authorised by him is
required at the time of hearing the application for bail of the person
under sub-section (3) of Sections 376, 376A, 376DA, and 376DB of the
Indian Penal Code.

Narugahr Songhar Goswami v. the State of

Gujarat (2022)

Facts
The brief facts of this case are that 69 bags of poppy straw weighing 1371.72 kg
were seized from the property of a 66-year-old man. As a result, an FIR was filed
for offences of Sections 15, 25, and 29 of the NDPS Act. The FIR was filed in 2020
after police received information that several people were transferring liquor from
one truck to another in an abandoned Essar Company petrol pump. The police
discovered several vehicles, including a truck, and several people transferring goods.
The goods being transferred were later revealed to be poppy straw rather than
liquor.
The applicant asserted that neither he nor anyone else was located close to the
crime scene, nor was he mentioned in the FIR. He did not possess the illegal
substance, nor had he instigated or participated in such activities, either
intentionally or by illegal omission.

The APP objected to this contention on the grounds that the applicant, one of the
property’s owners, had permitted the use of the property’s premises for the
commission of the crime. As a result, Sections 25 and 37 of the Act were applicable.

Section 25 imposes penalties for allowing property, etc., to be used in the

commission of an offence. The Court also took Section 37 of the Act into account,
which specifies strict bail requirements when recovered contraband is in
commercial quantities.

Issue
Whether the court can grant bail to a senior citizen who was not present at the
scene of the crime or in the near vicinity?

Judgment
The Gujarat high court rejected a 66-year-old man’s request for regular bail under
Section 439 of the Criminal Procedure Code, from whose property the contraband
(Poppy Straw) worth Rs. 16.6 lakh was seized.

Justice SH Vora observed that even though the elderly man was not present at the
crime scene or in the immediate area, Section 25 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 was applied to the case because he was the
property owner.

Conclusion
Section 439 of the Criminal Procedure Code grants the High Court or Court of Session
special powers regarding bail. Even if a Magistrate denies bail, the High Court or
Court of Session may grant it in appropriate circumstances. The granting of bail
under Section 439 of the Criminal Procedure Code is at the discretion of the judge.
As a result, the court’s discretion in granting or refusing bail, like that of any other
judicial institution, must be exercised with great care and caution.

When a Bail and Bail Bond will be declared

cancelled from the Court?
Bail has not been per se defined in the Code however, in common parlance, bail is
understood as the process of obtaining the release of an accused who is charged
with certain offences by ensuring his/her future appearance in the court for trial
and compelling such person to remain within the jurisdiction of the court. One of the
important elements of bail is the concept of bail bonds and the provisions governing
the same. A bail bond is an arrangement carried out by an arrested suspect
assuring an appearance for trial or payment of a certain sum in the form of
security or guarantee of appearance. The amount for which bail is set is decided
upon by the court, which is proportionate to the gravity of the alleged offence and
as per the provisions of the Code. Hence the accused has to compulsorily comply
with the bail bond and appear before the court.

Cancellation of Bond
Section 446A is concerned with the cancellation of the bond. The provisions of this
Section do not influence the provisions pertaining to the forfeiture of the bond. The
Hon’ble High Court of Rajasthan in the case of Johny Wilson vs State Of
Rajasthan held that “It is true that forfeiture of the bail-bond does not amount to
cancellation of bail. The legislature has not used the word “cancellation”. When a
bond for the purpose of securing the appearance of a person in a case before the
court is forfeited for breach of an expressly stipulated condition, then in such a
scenario, the bond executed by the accused and sureties shall stand cancelled; and

Thereafter, the accused is not released on his personal bond in that case.

The proviso with respect to this section states that an accused can be released
after 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 deems fit.

Cancellation of bail
While exercising its powers under Section 482 of the Code, a high court may revoke
the bail bond. According to this Section, a person accused of a bailable offence has
the right to be granted bail pending his trial, but he forfeits that right if his conduct
after his release is judged to be detrimental to a fair trial. And this confiscation can
be rendered effective by exercising the high court’s inherent powers under Section
482 of the Code.

Section 439 of the CrPC also gives the high court and the court of session the
authority to terminate bail. Section 439 (2) of the CrPC contains explicit procedures
for bail revocation and the return of an accused to jail.

The power of bail cancellation can be used in the following two circumstances:

1. On the grounds of a case, primarily on the basis that the decision granting
bail was erroneous, made without sufficient consideration, or violated any
 substantive or procedural legislation; and

2. On the basis of abuse of freedom following the grant of bail or even other
supervening circumstances.
It should be noted that subsection (2) of Section 436 of the Code permits any court
to reject bail without prejudice to proceedings under Section 446 if an individual fails
to adhere to the terms of the bail bond, giving effect to the Court’s decision in the
preceding instance. However, it is well established that bail granted to an accused in
relation to a bailable offence can be revoked only if the accused-

1. abuses his liberty by engaging in similar criminal behaviour,

2. interferes with the investigation’s progress,

3. makes an attempt to interfere with witness evidence,

4. threatens witnesses or engages in similar activities that would impede

smooth inquiry,

5. attempts to escape to some other country,

6. makes himself unavailable by going underground or being unreachable to

the investigating agency, and

7. places himself outside the range of his guarantor, and so on. These are
only examples and are not exhaustive.
A bail given to a person accused of a bailable offence, on the other hand, cannot be
revoked on the grounds that the complaint was not heard.

WHEN CAN A COURT GRANT ANTICIPATORY BAIL AND ITS

FACTORS?

Ans) Anticipatory bail

This is a direct order of Sessions or High Court to provide pre-arrest bail to an
accused of a crime. When the person has an apprehension of being arrested, the
person can apply for anticipatory bail. Sometimes, an application for anticipatory
bail may go against the person, as it might alert an investigation agency regarding
the involvement of that person in a crime.

Important factors to be considered while granting anticipatory bail in India

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and
exhaustive list of considerations while deciding anticipatory bail. They are as follows:
-
  Gravity of crime and role of accused must be understood before the
arrest.

 Previous record of accused, any imprisonment on conviction in respect of

non bailable offence, should be checked.

 Possibility that applicant will flee from justice.

 Chances of repetition of similar or other offences.

 Intention behind accusation is whether to injure or humiliate the applicant

by arresting him or her.

 Consider the exact role of the accused.

 Reasonable apprehension of tampering with evidence, witnesses and

threatening the complainant.

Standard conditions while granting anticipatory bail

 Accused should present himself / herself for interrogation by the
investigation office as and when asked to appear.

 Accused should not directly or indirectly try to induce, threaten, or

promise to any person related to the case who knows the facts of the case,
so that he can be dissuaded from disclosing the fact to the court or
investigation officer.

 Accused should not leave the country with prior permission of the court.

 Any other condition which the honourable court deems fit.