The concept of bail, which is a basic part of the Indian criminal
jurisprudence and it is well recognized principle among all the judicial systems
of the world. Bail, in law, means procurement of release from prison of a person
awaiting trial or an appeal, by the deposit of security to ensure his submission
at the required time to legal authority. The monetary value of the security,
known also as the bail, or, more accurately, the bail bond, is set by the court
having jurisdiction over the prisoner.
The security may be cash, the papers giving title to property, or the bond of
private persons of means or of a professional bondsman or bonding company.
Failure of the person released on bail to surrender himself at the appointed
time results in forfeiture of the security. Courts have greater discretion to
grant or deny bail in the case of persons under criminal arrest. The law
lexicon defines bail as the security for the appearance of the accused person
on which he is released pending trial or investigation.
What is contemplated by bail is to:
procure the release of a person from legal custody, by undertaking that he/she
shall appear at the time and place designated and submit him/herself to the
jurisdiction and judgment of the court.
The Criminal Procedure Code, 1973, does not define bail, although the terms
bailable offence and non-bailable offence have been defined in section 2(a)
Cr.P.C. as follows:
Bailable offence means an offence which is shown as bailable in the First
Schedule or which is made bailable by any other law for the time being enforce,
and non-bailable offence means any other offence.
Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds
in criminal cases. The amount of security that is to be paid by the accused to
secure his release has not been mentioned in the Cr.P.C. Thus, it is the
discretion of the court to put a monetary cap on the bond. In 2011, The Hon'ble
apex court in Sanjay Chandra vs CBI
 also opined that:
The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances
of each particular case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the accused.
The primary purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused constructively in the custody
of the Court, whether before or after conviction, to assure that he will submit
to the jurisdiction of the Court and be in attendance thereon whenever his
presence is required. Recently, Hon�ble Supreme Court, in Aasu vs. state of
(Criminal Appeal NO.511 of 2017 Dt.09-03-2017) issued a direction
that Bail applications shall be disposed of normally within one week.
Bail for Bailable offences: According to section 436 of CrPC, If the offence
alleged is bailable, then, the Accused is entitled for Bail as a matter of
right, may be before Police station itself, or if forwarded to Magistrates
Court, before Magistrates court. In bailable offences bail is a right and not a
favour. In such offences there is no question of any discretion in granting
bail. Bail can be claimed as of right and there is a statutory duty imposed upon
the Police Officer as well as the Court to release a person on bail if he is
prepared to give bail. Such a person can also be released on his own bond in a
It is only where the accused is unable to furnish bail then he should be kept in
detention. The Hon'ble Supreme Court in a case held that: As soon as it
appears that the accused person is prepared to give bail, the police officer or
the court before whom he offers to give bail, is bound to release him on such
terms as to bail as may appear to the officer or the court to be reasonable.
It would even be open to the officer or the court to discharge such person on
his executing a bond as provided in the Section instead of taking bail from
him. However, where the offences alleged are both Bailable and Non-Bailable,
the offence would be tried as Non Bailable offence, and benefit of securing Bail
on the premise of Bailable offence would not be available to the accused.
Bail u/s 436-A: There had been instances where under trial prisoners were
detained in jail for periods beyond the maximum period of imprisonment provided
for the alleged offence. A new section 436 is inserted in the Code to provide
that where an under trial prisoner other than the offence for which death has
been prescribed as one of the punishments, has been under detention for a period
extending to one half of the maximum period of imprisonment provided for the
alleged offence, he should be released on his personal bond, with or without
sureties. It is also provided that in no case the under trial be detained beyond
the maximum period of imprisonment for which he can be convicted for the alleged
Bail for non-Bailable offences: The provisions of section 437 empower two
authorities to consider the question of bail, namely (1) a court and (2) an
officer-in-charge of the police station who has arrested or detained without
warrant a person accused or suspected of the commission of a non-bailable
Although this section deals with the power or discretion of a court as well as a
police officer in charge of police station to grant bail in non- bailable
offences it has also laid down certain restrictions on the power of a police
officer to grant bail and certain rights of an accused person to obtain bail
when he is being tried by a Magistrate. Section 437, Criminal Procedure Code,
deals with the powers of the trial court and of the Magistrate to whom the
offender is produced by the police or the accused surrenders or appears, to
grant or refuse bail to person accused of, or suspected of the commission of any
The power to release on bail a person accused of a non-bailable offence is
conferred upon only one class of police officers, namely an officer-in-charge of
the Police Station under section 437 sub Section (I). Since the power to grant
bail is permissive and not obligatory, it has to be exercised with great caution
because of the risk and stakes involved.
Before exercising his power, a station officer ought to satisfy himself that the
release on bail would not prejudice the prosecution in bringing home the guilt
of the accused. In case the officer in charge admits an accused to bail, it is
mandatory for him to record the reasons or special reasons in the case diary and
preserve the bail bonds until they are discharged either by the appearance of
the accused in court or by the order of a competent court. For the purpose of
bail in non-bailable offence, the Legislature has classified them under two
- those which are punishable with death or imprisonment for life;
- those which are not so punishable.
In case of an offence punishable with death or imprisonment for life a
station officer cannot enlarge a person on bail, if there appears reasonable
grounds for believing that he has been guilty of such offence. The age or sex or
sickness or infirmity of the accused cannot be considered by a police officer
for the purpose of granting bail. These matters may be taken in view by a court
only. An officer- in-charge of the police station may grant bail only when there
are no reasonable grounds for believing that the accused has committed a
nonbailable offence or when the non-bailable offence complained of is not
punishable with death or life imprisonment.
Powers of the High Court or Court of Session in granting bail (section 439 of
the Code of Criminal Procedure, 1973): According to Section 439(1) of the Code
of Criminal Procedure, a High Court or Court of Session may direct:
- 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;
- That any condition imposed by a Magistrate when releasing any person on
bail be set aside or modified. However, the High Court or the Court of
Sessions shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Sessions 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.
As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court
of Sessions may direct that any person who has been released on bail under
Chapter XXXIII (i.e., relating to bail) be arrested and commit him to custody.
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.
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.
In a recent judgment, Hon�ble 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.
Cancellation of Bail:
The Code of Criminal Procedure makes clear provisions for
cancellation of bail and taking accused back in custody. Section 437(5) states
that any court which has released a person on bail under sub-section (1) or
sub-s. (2) of s. 437, may, if it considers it necessary so to do, direct that
such person be arrested and commit him to custody. Similarly s. 439 confers on
the High Court and the Court of Session power to cancel bail. Section 439(2) The
Code of Criminal Procedure makes clear provisions for cancellation of bail and
taking accused back in custody.
The power of cancellation of bail can be
resorted to broadly in the following two situations:
- On merits of a case mainly on the ground of the order granting bail
being perverse, or passed without due application of mind or in violation of
any substantive or procedural law; and
- On the ground of misuse of liberty after the grant of bail or other
Bail in the first type of cases can be cancelled by superior courts only,
whereas in the second category of cases bail can be cancelled by the very court
which may have granted bail. There appears to be confusion galore in the
judicial pronouncements on the aspect of cancellation of bail on merits and on
the ground of subsequent conduct of accused already on bail or on the ground of
supervening circumstances. Sometimes the principles of cancellation of bail on
the ground of subsequent conduct or intervention of new circumstances have been
wrongly brought in and applied to the cases where cancellation of bail is sought
on the merits of the case.
It is therefore necessary to clearly understand the
aforesaid distinct principles of cancellation of bail operating in these two
different fields. As stated herein above the legal provisions pertaining to
cancellation of bail under Cr.P.C are mainly contained in S.437 (5) and 439(2).
Section 437(5) provides for the cancellation of bail by a court other than a
High Court or a Sessions Court. Meaning thereby it confers power of cancellation
on the Magistrate court. It states that a court other than High court or
Sessions Court, may, if it considers necessary to do so, direct that a person
released on bail by it be arrested and committed to custody.
pronouncements this provision has been interpreted to mean that any court that
has released the accused on bail has power to direct arrest of such person and
commit him to custody if subsequent to the release on bail, the circumstances
justify to do so. Ordinarily the court would be entitled to exercise this power
only where the person released on bail is guilty of misuse of the liberty
granted by the court or where there is new development in the investigation or
recovery of cogent material prima facie involving accused with heinous crime.
However, bail once granted should not be cancelled in a mechanical manner
without considering whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain his freedom by
enjoying the concession of bail during the trial.
Cancellation of bail- certain grounds: The grounds for cancellation of bail
under ss. 437(5) and 439(2) are identical, namely, bail granted under S.437(1)
or (2) or s.439(1) can be cancelled where the accused
- misuses his liberty by indulging in similar criminal activity
- interferes with the course of investigation,
- attempts to tamper with evidence of witnesses
- threatens witnesses or indulges in similar activities which would
hamper smooth investigation
- attempts to flee to another country,
- attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency,
- attempts to place himself beyond the reach of his surety, etc.
These grounds are illustrative and not exhaustive. Section 439(2) confers powers
on the High Court and the Sessions Court to direct re-arrest of the accused who
might have been released on bail by any court and commit him to custody. A
comparison of s. 439(2) and s. 437(5) makes it clear that the powers of
cancellation of bail vested in the High Court and the Sessions Court are very
wide vis--vis the powers of the Magistrate court. s. 439(2) confers powers of
cancellation of bail on the High Court and the Sessions Court in respect of
orders of bail passed itself as well as by any court subordinate to it also. The
power to cancel an order of bail passed by itself by the High Court or the
Sessions Court as the case may be, can usually be exercised only where the
person released on bail is guilty of misuse of the liberty granted by the court
or there is substantial change in the facts of a case.
However so far as the
cancellation of bail order passed by a court subordinate to it is concerned no
such restricted interpretation is justified. Section 439(2) clearly provides
that any person who has been released on bail or may be arrested and committed
to custody by a High Court or Court of Sessions. So it is legally permissible to
a High Court or a Court of Session to review and examine an order of bail passed
by a court subordinate to it on merits and decide whether such order is legally
sustainable or not. Magistrate has power to pass the subsequent order altering
or amending or deleting the conditions of the earlier bail order in any manner
whatsoever. Section 437 (5) of Cr.P.C. impliedly confers such power on him.
the Magistrate is conferred with the power to cancel his order, then, as a
logical corollary, it follows that he does have the power as well to amend or
effect necessary alterations, short of cancellation, in the earlier bail order
passed by him. It is now a settled law that complainant can always question
the order granting bail if the said order is not validly passed. It is not as if
once a bail is granted by any court, the only way is to get it cancelled on
account of its misuse. The bail order can be tested on merits also. Bail
already granted cannot be cancelled on the ground that police needs custodial
interrogation of the accused.
Anticipatory bail (Section 438 Cr.P.c): The post-emergency year has witnessed a
spate of petitions for anticipatory bail. The petitioners were in many cases
influential persons who had wielded enormous powers during emergency and who
were, in the post emergency era, apprehensive of arrests on the charges of
corruption, misuse or abuse of official positions, etc. The persons involved in
the anticipatory bail proceedings being rich and mighty, they made every effort
to use the law and its machinery to their maximum advantage. In this process the
courts were required to interpret the law discreetly and with great precision
The law relating to anticipatory bail has received, thereby,
impetus in the process of its growth and sophistication. Right to life and
personal liberty is an important right granted to all the citizens under Article
21 of the Indian Constitution and it is considered as one of the precious right.
Under Indian criminal law, there is a provision for anticipatory bail under
Section 438 of the Criminal Procedure Code 1973. The Law Commission of India, in
its 41st Report dated September 24, 1969 pointed out the necessity of
introducing a provision in the Code of Criminal Procedure enabling the High
Court and the Court of Sessions to grant anticipatory bail.
allows a person to seek bail in anticipation of an arrest on accusation of
having committed a non-bailable offence. The very basic purpose of insertion of
this provision was that no person should be confined in any way until and unless
Anticipatory bail under criminal code of procedure
Where any person has a reason to believe that he may be arrested on 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 that in the event of
such arrest he shall be released on bail and the court shall provide him
anticipatory bail after taking into consideration the following factors, namely:
- the nature and gravity of the accusation.
- the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of any
- the possibility of the applicant to flee from justice.
- where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for the grant of
Where the High court or court of session grants interim bail to the applicant
then the court forthwith a show cause notice attested with a copy of such order,
served to the Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a reasonable opportunity of being heard when the
application shall be finally heard by the Court. The presence of the applicant
seeking anticipatory bail shall be obligatory at the time of final hearing of
the application and passing of final order by the Court, if on an application
made to it by the Public Prosecutor, the Court considers such presence necessary
in the interest of justice.
Who is eligible to obtain anticipatory bail? When any person has a reason to
believe that there is a chance to get him arrested on false or trump up charges,
or due to enmity with someone, or he fears that a false case is likely to be
built up against him, he has the right to move the court of Session or the High
Court under Section 438 of the code of Criminal Procedure for grant of bail in
the event of his arrest, and the court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail.
Accused who has been
declared as an absconder/proclaimed offender in terms of Section 82 of the
Criminal Procedure Code and not cooperated with the investigation should not be
given an anticipatory bail. Hon�ble APEX Court in State of M.P vs. Pradeep
(criminal Appeal No.2049 of 2013 dt.06-12-2013) held that when a
person against whom a warrant had been issued and is absconding or concealing
himself in order to avoid execution of warrant and declared as a proclaimed
offender in terms of Section 82 of the Code he is not entitled to the relief of
Conditions for obtaining the anticipatory bail: The High Court or the court of
the session may include such conditions in the light of the facts of the
particular case, including:
- a condition that the person shall make himself available for
interrogation by the 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
- a condition that the person shall not leave India without the previous
permission of the court.
Hon�ble Supreme Court while dealing the case of Siddharam Satlingappa
Mhetre held certain conditions imposed by High Court to be not required &
contrary to provisions of anticipatory bail. An accused is free on bail as long
as the same is not cancelled. The High Court or Court of Session may direct that
any person who has been released on bail to be arrested and commit him to
custody on an application moved by the complainant or the prosecution.
Singh Sibbia v. State of Punjab
, the Hon�ble Supreme Court held that The
distinction between an ordinary order of bail and an order of anticipatory bail
is that where the former is granted after arrest and therefore means release
from the custody of the police, the latter is granted in anticipation of arrest
and is, therefore, effective at the very moment of arrest.
No Regular Bail shall be granted When Interim Anticipatory Bail Is Granted By
Higher Courts And Matter Is Pending: Recently, Hon�ble Supreme Court, in Rukmani
mahato vs. state of jharkhand (S.L.P Criminal no.2411 of 2016 dt.03-08-2017) has
directed Trial Courts to not grant regular bail to an accused, if he/she has
already obtained an interim anticipatory bail by a superior Court and the matter
is still pending before the higher Court.
The Court held that:
Once a regular
bail is granted by a subordinate Court on the strength of the interim/pre-arrest
bail granted by the superior Court, even if the superior Court is to dismiss the
plea of anticipatory bail upon fuller consideration of the matter, the regular
bail granted by the subordinate Court would continue to hold the field,
rendering the ultimate rejection of the pre-arrest bail by the superior Court
meaningless, a Bench comprising Justice Ranjan Gogoi and Justice Navin Sinha
Mandatory bail: Section 167(2) of the Criminal Procedure Code, 1973 empowers
judicial magistrates to authorize custody of an accused person in cases wherein
investigation cannot be completed in twenty-four hours. It provides for the
maximum period of custody that can be authorized. It further contains a mandate
that if the investigation is not completed within the stipulated maximum period,
the accused is to be released on bail whatever may be the nature of accusation
Section 167(2) lays down:- The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has no jurisdiction to try the case,
from time to time, authorize the detention of the accused person in such custody
as such Magistrate thinks fit, for a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction. Provided that:
Bail After conviction: (Section 389 of the Cr.P.C)
Suspension of sentence pending the appeal, release of appellant on bail:
- the Magistrate may authorize the detention of the accused person,
otherwise than in the custody of the police, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for doing so, but no
Magistrate shall authorize the detention of the accused person in custody
under this paragraph for a total period exceeding:
- ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less
than ten years;
- sixty days, where the investigation relates to any other offence, and on
the expiry of the said period of ninety days, or sixty days, as the case may
be, the accused person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail under this subsection
shall be deemed to be so released under the provisions of Chapter XXXIII for
the purposes of that Chapter.
- Section 167(2) deals with powers of the magistrate to detain the accused
in custody and release him on bail on expiry of the statutory period. It is
quite clear that power is conferred on the magistrate to release the accused
on bail under the proviso. The position is well settled by the Supreme Court
judgment. The prevalent impression in some judicial circles that in case
of offences that are required to be tried by sessions court, it is only the
sessions court which has power to release the accused on bail under section
167(2) is not correct. Restrictions imposed on the powers of the magistrate
with regard to grant of regular bail under section 437 of the Code would not
be applicable when magistrate exercises power under section 167(2).
Parinda Hon�ble Supreme Court noted that the accused has a right to be
released on bail under this provision even in serious and ghastly types of
crimes. The period of 90 or 60 days would begin to run from the day on which the
accused is remanded to custody by the magistrate at the first instance. Since
person arrested is to be produced before a magistrate within 24 hours of arrest,
date of remand to custody may not necessarily be the same as the date of arrest.
The period of 90/60 days is the total period of custody - police custody and/or
judicial custody - that can be authorized by the magistrate. In the case
of Union of India Vs Nirala Yadav our Hon'ble Apex court held that
Magistrate should decide the application for statutory bail on the same day it
In Thangavel Ravi Vs. State of A.P our Hon�ble High Court opined
that where the petitioner therein was alleged to have committed the offence
punishable under Section 307 IPC and did not cause any hurt, held that case
falls under the first part of Section 307 IPC and the prescribing imprisonment
which may extent to ten years and the maximum period of detention in custody
would be 60 days as contemplated under the proviso (a) (ii) of Section 167(2) of
Cr.P.C Accordingly, if the charge sheet is not filed within 60 days of date of
detention, petitioner is entitled to be released on bail.
Recently, Hon�ble Apex
Court in Rakesh Kumar Paul vs. State of Assam (16-08-2017), held that an
accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2)
of Code of Criminal procedure if the police failed to file the charge-sheet
within 60 days of his arrest for the offence punishable with �imprisonment up to
The main question in this case was �whether in a case regarding
offence for which the punishment imposable may extend upto ten years, the
accused is entitled to bail under Section 167(2) of the Code of Criminal
Procedure 1973 due to default on the part of investigating agency in not filing
the charge sheet within sixty days? Hon�ble Apex Court answered this question
Offences punishable with imprisonment of not less than ten years have been
kept in one compartment equating them with offences punishable with death or
imprisonment for life. This category of offences undoubtedly calls for deeper
investigation since they provide for a lesser minimum sentence, even though the
maximum punishment could be more than ten years imprisonment.
Section 389(3) is applicable only in the following conditions:
- Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond. Provided that
the Appellate Court shall, before releasing on bail or on his own bond a
convicted person who is convicted of an offence punishable with death or
imprisonment for life or imprisonment for a term of not less than ten years,
shall give opportunity to the Public Prosecutor for showing cause in writing
against such release: Provided further that in cases where a convicted
person is released on bail it shall be open to the Public Prosecutor to file
an application for the cancellation of the bail.
- The power conferred by this section on an Appellate Court may be
exercised also by the High Court in the case of an appeal by convicted
person to a Court subordinate thereto.
- Where the convicted person satisfies the Court by which he is convicted
that he intends to present an appeal, the Court shall:
- where such person, being on bail, is sentenced to imprisonment for a
term not exceeding three years, or
- where the offence of which such person has been convicted is a bailable one,
and he is on bail, order that the convicted person be released on bail unless
there are special reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders of the Appellate
Court under Sub-Section (1), and the sentence of imprisonment shall, so long as
he is so released on bail, be deemed to be suspended.
- When the appellant is ultimately sentenced to imprisonment for a term or
to imprisonment for life, the time during which he is so released shall be
excluded in computing the term for which he is so sentenced. Section 389 (1)
and (2) of Cr.P.C. deals with a situation where convicted person can get a Bail from
appellate court after filing the criminal appeal. Section 389 (3) deals with a
situation where the trial court itself can grant a bail to convicted accused
enabling him to prefer an appeal. Since we are concerned with the power of the
trial Court to suspend the sentence, section 389(3) must be taken into account.
Trial Court's Powers u/s 389(3) of Cr.P.C:
- The Court must be the convicting Court
- The accused must be convicted by the Court
- The convict must be sentenced to imprisonment for a term not exceeding
- The convict must express his intent to present appeal before the
- The convict must be on bail on the day of the judgment.
Features of section 389(3)
- Trial Court has power to release such convict on bail,
- Trial Court has power to refuse the bail if there are special
- Trial Court has power to release such convict for such period as will
afford sufficient time to present the appeal and obtain the orders of the
Difference in operations of Sub-section (1) and (3) of Sec.389 Cr.P.C:
- The convict shall not be released on bail as of right but he will have
to satisfy that he is eligible to be released on bail;
- If the trial Court is satisfied that there are special reasons for not
releasing the convict on bail, then the Trial Court can very well do;
- The sole purpose of this provision is to enable the convict to present
appeal to the appellate Court;
- No maximum period is prescribed for releasing the convict on bail;
- Under this section 389(3) suspension of sentence is deemed suspension;
- Suspension of sentence is by product of the accused being released on
- The Trial Court has no power to suspend the sentence and then order the
release of the convict on bail.
- Sub- section (1) comes into play when appeal is pending. But Sub-section
(3) comes into play when the convict expresses his intention to present
- Sub-section (1) tells suspension first and then talks of release on
bail or own bond But Sub-section (3) tells release on bail first and
then suspension is then the automatic effect.
- Sub-section (1) does not prescribe that the accused must be on bail but
Subsection (3) can be used only if the accused is on bail on the Day of
- Sub-section (1) gives option to release the convict on bail or his
own bond but Trial Court vide Sub-section (3) does not have power to
release the convict on his own bond. However trial Court can also release
accused on his own bond if the accused is poor etc.
- In nutshell, vide subsection (1) suspension is cause and bail is effect
and vide Sub-section (3) bail is cause and suspension is effect.
The Patna High Court in Suddu kumar Vs. State of Bihar
 has observed that if
a prayer for suspension of sentence and release of an appellant on bail,
convicted of a capital crime and sentenced to undergo imprisonment for life, it
is to be considered favourably and he is ordinarily allowed bail if he has
completed seven years of incarceration in connection with such case before
conviction and after conviction, taken together when his appeal is not likely to
be heard on merits in near future, on the ground of possible delay in the
disposal of the appeal. A Two Judge Bench of the Supreme Court, in Atul Tripathi
Vs. State of UP discussed the scope and ambit of Section 389 ofCr.P.C and
issued the following Guidelines regarding the suspension of Sentence during the
pendency of Criminal Appeal.
- The appellate court, if inclined to consider the release of a convict
sentenced to punishment for death or imprisonment for life or for a period
of ten years or more, shall first give an opportunity to the public
prosecutor to show cause in writing against such release.
- On such opportunity being given, the State is required to file its
objections, if any, in writing.
- In case the public prosecutor does not file the objections in writing,
the appellate court shall, in its order, specify that no objection had been
filed despite the opportunity granted by the court.
- The court shall judiciously consider all the relevant factors whether
specified in the objections or not, like gravity of offence, nature of the
crime, age, criminal antecedents of the convict, impact on public confidence
in court, etc. before passing an order for release.
The Personal liberty is of utmost importance in our constitutional
system recognized under Article 21. Deprivation of personal liberty must be
founded on the most serious considerations relevant to welfare objectives of the
society as specified in the Constitution. Even though the law of the land and Hon�ble Higher courts in various cases have tried to intervene and also have
laid down certain guidelines to be followed but unfortunately nothing has been
done about it.
There is also a strong need felt for a complete review of the
bail system keeping in mind the socio-economic condition of the majority of our
population. While granting bail the court must also look at the socio-economic
plight of the accused and must also have a compassionate attitude towards them.
A proper scrutiny may be done to determine whether the accused has his roots in
the community which would deter him from fleeing from the court.
- Law lexicon by Ramanth Iyer, (3rd ed
- Black's Law Dictionary 177 (4th ed.)
- 3 (2012) 1 SCC 40
- Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341)
- 5 cr.p.c 2005 Amendment
- Sundeep kumar bafna vs. State of maharashtra & anr Criminal appeal no. 689
of 2014 dt.27.03.2014.
- Brijesh Singh v. State of Karnataka 2002 Cr LJ 1362
- Brij Nandan Jaiswal v. Munna Jaiswal AIR 2009 SC 1021
- (2011) 1 SCC 694
- AIR 1980 SC 1632
- State of U.P. v. Laxmi Brahman, AIR 1983 SC 439
- Natabar Parinda v. State ofOrissa, AIR 1975 SC 1465
- AIR 2014 SC 3036
- 2017(1) ALD (Cri.) 449
- Special Leave To Appeal (CRL.) NO. 2009 OF 2017 dt.16.08.2017
- Criminal Appeal (DB) 583 of 2015 dt. 09-03-2017.
- Crl. Appeal No.NO.1516/2014 Dated.22-07-2014.