The term ‘Bail’ has not been defined under the Code of Criminal Procedure, 1973. However section 2(a) of the Code deals with “bailable offence” and “non bailable offence” and it is defined as an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;
In the Black’s Law dictionary, what is contemplated in bail is to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the Court.[i] Bail, in general words, and is defined as the temporary release of an accused person who is awaiting trial, sometimes on the condition that a specified amount of money is lodged as security in order to secure their appearance before the Court at a later point in time.
In the instance of a bailable offence, bail is the right of the accused and in the instance of a non-bailable offence, it is up to the discretion of the Court.
Chapter-XXXIII of the Code of Criminal Procedure deals with various provisions as to bail and bonds. Sections 436-450 lays down as to when bail is the right of the accused, when bail is the discretion of the Court, in what circumstances said discretion can be exercised, how sureties may be discharged, what are the terms and conditions which would be required to be observed by the accused, what is the procedure when bond has been forfeited, who has been released on bail and what powers are vested in the Court in the event of accused committing default of bail order, cancellation of bond and bail-bond.
Section 439 specifically deals with special powers of High Court and Court of Sessions regarding bail.
Section 439 of the CrPC:
Section 439- (1) 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:
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:
[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]
[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).]
(2) A 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.[ii]
In general words, this section gives the High Court and the Court of Sessions special powers with respect to bail and these powers are wide. It may direct that any person accused of an offence and in custody be released on bail, it may also impose any condition which it considers necessary. Another special power given to the Courts under this section is the power to impose or set aside any condition imposed by a Magistrate when releasing the person on bail.
If the offence is exclusively triable by the Court of Sessions, then the High Court or the Court of Sessions shall give a notice of application for bail to the Public prosecutor unless they are of the opinion that giving such notice is not practicable and these reasons are recorded in writing by the Court.
The High Court or the Court of Sessions may also direct that any person who has already been released on bail to be arrested and then committed to custody.
Concurrent jurisdiction of the High Court and Sessions Court:
The High Court and the Court of Sessions have concurrent jurisdiction with regard to granting of bail under section 439 of the Code of Criminal Procedure, 1973. However, it is considered desirable by the High Court that the lower Courts should first be moved in this matter.[iii] This is considered of great importance because if the High Court expresses its opinion in a matter especially where the Court’s discretion is used, such an opinion of the superior Court may influence the decision of the lower Courts.
In the case of Hajialisher vs. State of Rajasthan[iv], the Court held that only in exceptional or special circumstances, the High Court may be moved first or directly for an application for bail. Generally, these applications are entertained in lower courts first.
In the case of Ram Pratap Yadav vs. Mitra Sen Yadav[v], the Supreme Court was of the opinion that, the discretion given to the High Court under section 439 of the Code should be exercised keeping in mind the reasons adduced by lower Courts for either rejecting or accepting the prayer for bail. Various parameters need to be taken into consideration before the High Court entertains such an application.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i] Black’s Law Dictionary (4thEdn.) 177.
[ii] § 439 of the Code of Criminal Procedure, 1973.
[iii] R. V. Kelkar’s Lectures on Criminal Procedure, 6thEdn. 159.
[iv]1976 Cri LJ 1658 (Raj).
[v] (2003) 1 SCC 15.