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Deep Dive into Bail Laws under the Code of Criminal Procedure in India

Laws On Bail:

  • What Is Code Of Criminal Procedure?
  • Types Of Offences Under Crpc?
  • Arrest Under Section 41 Crpc?
  • Arrest How Made?
  • Sec 57 Of Crpc To Be Read With Sec 157 Of The Code?
  • After Arrest Procedure?
  • No Immediate Arrest Under The Offences Punishable With Upto Seven Years Or Less?
  • Categories Of Bail Under 437/438/439 Of Crpc.
  • Bail Not Jail
  • Bail Under Special Offences Like UAPA And NDPS?

Code Of Criminal Procedure

Code of criminal procedure deals with the procedural aspect of the criminal jurispuredence of india it is purely a procedural law as its term indicate. The crpc is not only the procedural law for ipc but also for all the criminal laws like pocso, uapa, ndps and pmla functioning within the territory of india so basically crpc is the backbone of the criminal jurisprudence of india. It replaced the old code 1898 and the code of 1973 was introduced with the primary aim of separation of executive from judiciary as per the terms of article 50 of the constitution of india.

Types of offences under this code
The offences under crpc have been classified under two categories cognizable and non cognizable. This classification of offences is based upon the nature of seriousness and the gravity of the offence. Cognizable offences are those which are serious in nature while the non cognizable one are non serious in nature.

As per section 41 of this code
Any police officer may without an order from a Magistrate and without a warrant, arrest any person;
  • who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
  • who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
  • who has been proclaimed as an offender either under this Code or by order of the State Government; or
  • in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
  • who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
  • who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
  • who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
  • who, being a released convict, commits a breach of any rule made under Sub-Section (5) of section 356; or
  • for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
The arrest are generally made in the cognizable offences considering the nature, gravity and the seriousness of the offence and because non cognizable offences are non serious in nature the police cannot initiate the investigation without the order from magistrate as per sec 155 of this code. The majority part of this code deals with the cognizable offences.

Arrest How Made

As per section 46 of this code:
  • In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
  • If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all me ansnecessary to effect the arrest.
  • Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
  • Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

The Hon'ble Supreme Court, in D.K.Basu Vs State of West Bengal, has laid down specific guidelines required to be followed while making.
The principles laid down by the Hon'ble Supreme Court are given hereunder:

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.
  3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having an interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
  7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The �Inspection Memo' must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  8. The arrestee should be subjected to a medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
  9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
  10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

As Per Sec 57 Of This Code No Person Detained Without A Warrant Shall Be Kept In Custody For More Than 24 Hours And Only The Judicial Magistrate Is Empowered To Extend The Custody Of The Accused Beyond 24 Hours Through The Procedure Laid Down Under 167 Of This Code.

As Per Crpc The Purpose Of Arrest Is To Secure The Presence Of Accused During The Trial.

Bail Is A Matter Of Right In Bailable Offences Which Means The Accused Shall Be Set Free While In Non-Bailable Offences The Granting Of Bail Is Upon The Discretion Of The Magistrate Or The Judge.

Section 437 in The Code Of Criminal Procedure, 1973
437. When bail may be taken in case of non- bailable offence. 1
  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-

    1. 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;
    2. 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:

    3. 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 he 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.

Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280:
Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code.

The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction. - even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail.

This may be applicable to many cases, wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is exclusively triable by court of Sessions for example offences punishable under Sections 306, 308, 314, 315, 316, 399, 400 and 450

This Section Of This Code Expressly Deals With The Power To Grant Bail By The Court Other Than The Court Of Session Or High Court.

Section 438 in The Code Of Criminal Procedure, 1973

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 a 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 think fit, including-

    • a condition that the person shall make himself available for interrogation by a police officer as and when required;

    • 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;

    • a condition that the person shall not leave India without the previous permission of the Court;

    • 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).

This Clause Of This Code Purely Deals With The Pre Arrest Bail And The Power To Grant Such Bail Rests Purely With High Court Or Court Of Sessions The Magistrate Court Does Not Have Power To Grant Bail When Application Is Filed Uner This Section.

Section 439 in The Code Of Criminal Procedure, 1973
439. Special powers of High Court or Court of Session regarding bail.
  1. A High Court or Court of Session may direct-

    1. 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;

    2. that any condition imposed by a Magistrate when releasing a 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.

This Section Of This Code Deals With Regular Bail By The Court Of Sessions Or High Court It Must Be Noted That Application Under This Section Can Only Be Filed Before Sessions Or High Court And The Offence Must Be Tried Exclusively By The Court Of Sessions.

Bail Under Special Offences Like Pocso And Ndps.
  1. The bail under special offences is a tough exercise, especially when the offence involves social and economic dynamics. The bail under special offences can only be granted by the special courts, which are constituted for that purpose, and the court has to satisfy certain parameters first before granting bail.
  2. The statutes like UAPA and NDPS carry a reverse burden of proof, and the court has to prima facie look that the accused is not guilty of the offence at the preliminary stage of bail.
  3. Due to the complex nature of crime involved, securing bail is an even more difficult task under these offences.
Sanjay Chandra v. CBI (2012) 1 SCC 40 "the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. Necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test.

Any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson"

No immediate arrest Where offence is punishable with seven years or less than seven years as per Arnesh Kumar Vs State Of Bihar judgement(2014) .

41A. Notice of appearance before police officer- Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with mandatory duty on the part of the officer.

Arnesh Kumar v. State of Bihar,
(2014) 8 SCC 273 -From a plain reading of Section 41 and 41A, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid.

Bail Not Jail

In Sanjay Chandra Vs CBI

Sanjay Chandra v. CBI (2012) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship.

From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances

Bail Under Special Offences

The embargo imposed under special offences such as in ndps and uapahas made securing of bail even more tougher due to stringent provisions attached to it the securing of bail under these special offences is a Sisyphean task however in some of the judgements apex court has tried to strike the balance between the grave nature of these offences and the personal life and liberty of an individual particularly the prolonged delay in trial.

In Supreme Court Legal Service Committee Vs UOI Case

In view of the above Supreme Court decision, it was categorically noted that:
"�where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years."

Further, the Bench expressed that:
"It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial."..

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