Section 439 of the Code of Criminal Procedure reads as 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
- 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
- Article 21 of Indian Constitution: Article 21 of the Indian
Constitution, which specifically states, No person shall be deprived of
his life or personal liberty except according to procedure established by
law. Any individual, who violates the law of the land, is bound to face
consequences as per the law and in such a case, his freedom may be
restricted depending upon the gravity of offence as such committed. Every
accused who has been frivolously charged with the allegations of a non-bailable
offence is not only entitled to a good defense but also to be released on
bail, by the Court upon taking into various factors such as nature or
seriousness of the offence, the character of the evidence, circumstances
which are peculiar to the accused, reasonable apprehension of the witnesses
being tampered with, the larger interests of the public or the state and
similar other factors. It is the solemn duty of the Court to decide the bail
applications at the earliest by a reasoned order, based on the bona fides of
the applicant in light of prevailing facts and circumstances.
- The Hon'ble Supreme Court in the matter of State of Maharashtra vs.
Sitaram Popat Vital has stated few factors to be taken into
consideration, before granting bail, namely:
i) The nature of accusation and
the severity of punishment in case of conviction and the nature of
ii) Reasonable apprehension of tampering of the witness
or apprehension of threat to the complainant;
iii) Prima facie satisfaction
of the Court in support of the charge.
- The Hon'ble Supreme Court in the matter of Ram Govind Upadhyay vs.
Sudarshan Singh and Ors held that it is not necessary to grant bail
but certain circumstances need to be considered while grant of bail like
where the applicant has already been in custody and the trial is not likely
to conclude for some time, which can be characterized as unreasonable.
- The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs.
N.C.T. Delhi and Ors, has mentioned that other relevant grounds which
play a vital role in deciding the bail application are - the possibility for
repetition of crime, the time lag between the date of occurrence and the
conclusion of the trial, illegal detention, and undue delay in the trial of
- The Supreme Court observed that it had time and again stated that bail
is the rule and committal to jail an exception. Refusal of bail is a
restriction on the personal liberty of the individual guaranteed
under Article 21 of the Constitution.
- The Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor,
held that after setting out the discipline that the Court is bound to adhere
to in the matter of exercise of judicial discretion in the matter of grant/
refusal of bail, it observed: Let us have a glance at the pros and cons and
the true principle around which other relevant factors must revolve. When
the case is finally disposed of and a person is sentenced to incarceration,
things stand on a different footing. We are concerned with the penultimate
stage and the principal rule to guide release on bail should be to secure
the presence of the applicant who seeks to be liberated, to take judgment
and serve sentence in the event of the court punishing him with
imprisonment. In this perspective, relevance of considerations is regulated
by their nexus with the likely absence of the applicant for fear of a severe
sentence, if such be plausible in the case. An accused party is detained in
custody because of his guilt, but because there are sufficient probable
grounds for the charge against him as to make it proper that he should be
tried, and because the detention is necessary to ensure his appearance at
trial. It is a very important element in considering whether the party, if
admitted to bail, would appear to take his trial; and I think that in coming
to a determination on that point three elements will generally be found the
most important: the charge, the nature of the evidence by which it is
supported, and the punishment to which the party would be liable if
- The Supreme Court also noticed its earlier judgment in State of U.P.
v. Amarmani Tripathi , wherein it held that the matters to be
considered in an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that
the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail.
- In Gurcharan Singh vs. State (Delhi Administration) it was
held that considerations in granting bail which are common both in the case
of Ss.437(l) and 439(1), Cr.P.C. Code are:
(i) the nature and gravity of the circumstances in which the offence is
(ii) the position and the status of the accused with reference to the victim
and the witnesses;
(iii) the likelihood of the accused fleeing from justice; (iv) of repeating
(v) of jeopardizing his own life being faced with a grim prospect of
possible conviction in the case;
(vi) of tampering with witnesses;
(vii) the history of the case as well as of its investigation; and
(viii) other relevant grounds which, in view of so many variable factors,
cannot be exhaustively set out.
- In the case of Satish Jaggi v. State of Chattisgarh & Ors., it
was held by the Supreme Court that at the stage of granting of bail, the
Court can only go into the question of the prima facie case established for
granting bail. It cannot go into the question of credibility and reliability
of the witnesses put up by the prosecution. The question of credibility and
reliability of prosecution witnesses can only be tested during the trial.
- Section 439 empowers the Session Court or High Court to grant bail if
accused is in custody.
- In the case of P.K. Shaji v. State of Kerala, Session Court
granted bail to the accused for the offences under Sections 120-B and 307 of
IPC under certain conditions. Conditions included that he had to report on
all the Mondays and Fridays to the investigating officer. The accused also
had to issue a bond of 50,000 Rs. With two solvent sureties.
- When bail is refused, it is a restriction on personal liberty of the
individual guaranteed by Art.21 of the Constitution and therefore such
refusal must be rare. Where delays in the disposal of criminal proceedings
take place, the accused ought not to be kept in custody for an inordinately
long time and must be released on bail except when under extremely rare
circumstances it is not possible to do so.
- The Hon'ble Bombay High Court held in Stefan Mueller v. State of
Maharashtra that it is well settled position of law that if the
offence is bailable, the accused is entitled to be released on bail and even
where he does not make an application for bail, it is the responsibility of
the concerned police officer, if he has arrested or detained the accused for
a bailable offence, to inform him about his right to be released on bail.
Similarly, it is also settled position of law that where a person accused of
bailable offence appears or is produced before a Magistrate, it is
responsibility of such Magistrate to inform him of his right to be released
- In Sumit v. State of U.P., it was held that even if there are
other criminal cases pending, accused should be granted bail.
- Hon'ble Supreme Court in Maulana Mohmmad Amir Rishadi vs. State of
U.P. and another held that, merely on the basis of criminal
antecedents, bail cannot be denied.
- In Khemlo Sakharam Sawant v. State of Maharashtra , it was
held that Bail is rule, and jail an exception.
- In Sanjay Chandra Vs. Central Bureau of Investigation, the dictum of
Hon'ble Supreme Court was that gravity alone can not be decisive ground to
- The right to free legal assistance is an essential element of any
reasonable, fair and just procedure for a person accused of an offence and
it must be held implicit in the guarantee of Article 21. Thus the Supreme
Court spelt out the right to legal aid in criminal proceeding within the
language of Article 21 and held that this is a constitutional right of every
accused person who is unable to engage a lawyer and secure legal services on
account of reasons such as poverty, indigence or incommunicado situation and
the State is under a mandate to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so require, provided of
course the accused person does not object to the provision of such lawyer.
- The idea of bail is noble idea in criminal jurisprudence. Bail can be
granted to the accused in case of non bailable offences subject to some
limitation and conditions. The idea of bail conveys the meaning that the
accused cannot be presumed to be guilty until his guilt is proved. Provision
of bail also brings the noble idea of personal liberty into existence. The
provisions are incorporated with a view to give effect to the personal
liberty mentioned in Indian Constitution.
- Ratanlal & Dhirajlal, THE CODE OF CRIMINAL PROCEDURE, 20th ed. 2016,
- SCC OnLine.
- Legit Quest.
- Section 439 of CrPC
- AIR 2004 SC 4258
- AIR 2002 SC1475
- AIR 2001 SC 1444
- (1978) 1 SCC 240 : 1978 SCC (Cri) 115
- (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)
- AIR 1978 SC 179; 1978 SCC (Cr) 41
- 2008 1 ALT (Crol.) 438 (SC)
- (2005) 13 SCC 283
Page 2, para 1.
- Writ Petition No.2939 of 2009 dated 23/06/2010 in para no.10.
- 2010 Cri.L.J. 1435 (SC).
- 2012(2) Mh. L. J. (Cri.) 412.
- 2002 (1) BOM C.R. 689.
- (2012) 1 Supreme Court Cases (Cri) 26.