Introduction
The object
of Criminal Procedure Code is to provide machinery for the punishment of
offenders against the substantive Criminal law.
In layman's
language, the Criminal Procedure Code lays (CrPC) the rules for conduct of
proceedings against any person who has committed an offence under any Criminal
law, whether it is I.P.C or other Criminal law.
TYPES OF OFFENCES COVERED
All such
offences are covered by Criminal Procedure Code (CrPC), which are mentioned in
Indian Penal Code. For example Murder, Theft, Kidnapping, Rape, Forgery, etc.
The legal
meaning and whether an act will constitute a criminal offence or not is
provided in the I.P.C. The Procedure of initiating proceeding/Prosecution for a
criminal offence is provided in Criminal Procedure Code(CrPC). CrPC provides
the manner and place, where investigation inquiry and trial of an offence shall
take place.
CLASSIFICATION OF OFFENCES
Depending on
the nature and gravity of an offence's if they can be classified under any of
the following heads:
1.
Bailable and non-bailable offence
2.
Cognizable and non-cognizable offence.
3.
Compoundable and non compundable offence
Bailable and Non-Bailable Offence
BAILABLE OFFENCE AND NON-BAILABLE
OFFENCE
A bailable
offence is one, in which, bail is a matter of right, and non bailable offence
is one, in which granting of bail is discretion of the court.
BAILABLE OFFENCE
1.
In case of bailable offence, the grant of bail
is a mater of right. It may be either given by a police officer who is having
the custody of Accused or by the court.
2.
The accused may be released on bail, on
executing a bond, know as "bail bond", with or without furnishing
sureties.
3.
The "bail Bond" may contain certain
terms and conditions, such as:
a.
The accused will not leave the territorial
jurisdiction of the state without permission of court or police officer.
b.
The Accused shall give his presence before
police officer every time, he is required to do so.
c.
The Accused will not tamper with any evidence
whatsoever, considered by police in the investigation.
4.
The court is empowered to refuse bail to an
accused person even if the offence is bailable, where the person granted bail
fails to comply with the conditions of the bail bond.
EXAMPLES OF BAILABLE OFFENCE
Although
even in case of bailable offence, the bail may be refused, if credit of the
accused is doubtful. However following are some offences which are classified
as "Bailable offence" by the code itself:
1.
Being a member of an unlawful Assembly
2.
Rioting, armed with deadly weapon
3.
Public servant disobeying a direction of the law
with intent to cause injury to any person.
4.
Wearing Garb or carrying token used by public
servant with fraudulent intents.
5.
Bribery in relation to elections.
6.
False statement in connection with elections.
7.
Refusing oath when duly required to take oath by
a public servant.
8.
Obstructing public Servant in discharge of his
public functions.
9.
Giving or fabricating false evidence in a
judicial proceeding.
10.
Selling any food or drink as food and drink,
knowing the same to be noxious.
11.
Causing a disturbance to an assembly engaged in
religious worship.
NON BAILABLE OFFENCE
1.
A non-bailable offence is one in which the grant
of Bail is not a matter of right. Here the Accused will have to apply to the
court, and it will be the discretion of the court to grant Bail or not.
2.
Again, the court may require the accused to
execute a "Bail-Bond with some stringent conditions.
3.
The court may generally refuse the Bail, if:
a.
"Bail Bond" has not been duly executed
, or
b.
if the offence committed is one, which imposes
punishment of death or Life imprisonment, such as "Murder " or
"Rape" or
c.
The accused has attempted to abscond, and his
credentials are doubtful.
4.
The application for bail shall be filed before
the Magistrate, who is conducting the trial.
The application after being filed is usually listed on the
next day. On such day, the application will be heard, and the police shall also
present the accused in court. The magistrate may pass such orders, as he thinks
fit.
5.
If the bail is granted, the accused will have to
execute a "Bail Bond".
6.
On execution of bail-bond the accused is out of
prison only on such terms and conditions, as contained in the
"Bail-Bond".
7.
The amount of every bond, i.e. the security
shall be reasonable, and no excessive ( sec 440)
8.
If, at any point of time, the terms and
conditions of bail are not fulfilled, the "Bond" shall be forfeited.
9.
The application for Bail shall be made in the
form, prescribed and the designation of judge / Magistrate, should be clearly
mentioned.
10.
The application shall also contain an
undertaking, that the accused, shall fulfill all the conditions as contained in
the Bail- Bond.
PROCEDURE ONCE BAIL IS GRANTED
1.
When the bail has been granted the accused
shall, execute a "Bail-Bond", and furnish sureties, and security for
amount as required.
2.
When the bond has been duly executed, the
accused shall be released, and if he is in prison, then an order of Release
shall be issued to the officer in charge.
3.
If the accused is charged for two separate
offences, then, he shall have to execute and satisfy Bail Bond for both of
them.
WHEN BAIL MAY BE REVOKED OR BAIL
BOND BE FORFEITED
Following
are the instances, when a bail may be revoked, or Bail Bond is forfeited:
1.
Where, the accused fails to fulfill or commits,
breach of any terms and conditions of the bond.
2.
Where the accused, fails to furnish the required
number of sureties or fails to deposit the security amount
3.
Where, the sureties accepted at the time of
bail, or turn out afterwards to be insufficient, fraud or has been accepted under
mistake.
4.
Where any of he sureties to the bail bond,
applies to the magistrate for his own discharge
5.
Where one of the original surety dies or becomes
insolvent, and if accused fails to bring another surety.
In all these
cases, the magistrate or court has power to remand the accused to prison, until
fresh bond and fresh terms are executed.
APPEAL FROM FORFEITURE OF BOND
1.
Where, a bond has been forfeited, or bail has
been cancelled, an appeal can be made against such an order.
2.
Where an order has been made by a magistrate an
appeal shall lie to a sessions judge or
3.
Where an order has been made by a court of
sessions then appeal shall lie to the same court, where ordinarily-- appeal
would lie against sessions judge.
Cognizable and Non-Cognizable
Offence.
COGNIZABLE AND NON COGNIZABLE
OFFENCE
Offences can
also be classified on the basis of "Cognizable offence", and
"Non-cognizable" offence. In brief the difference between these two
is
Cognizable offences: An
offence, where a police offer can arrest without a warrant.
Non-cognizable offences: An
offence, where a police officer can arrest only with a warrant.
COGNIZABLE OFFENCE
1.
Cognizable offences are those where a police
officer can arrest without warrant.
2.
And such cases, after arrest has been made, the
accused will be produced before a magistrate, and he may require the police
officer to investigate the matter.
3.
After investigation, if the case is made out,
i.e. charge sheet filed goes against accused, the magistrate can order for
arrest.
4.
During the pendency of trial, bail application
can be moved before the concerned magistrate.
5.
Cognizable offences are both bailable, and
non-bailable.
EXAMPLES OF COGNIZABLE OFFENCES
ARE
1.
Offences of waging or attempting to wage war, or
abetting the waging of war against the government of India.
2.
Wearing the dress or carrying any token used by
a soldier, sailor or airman with intent that it may be believed that he is such
a soldier, sailor or airman.
3.
Rioting armed with deadly weapon.
4.
Hiring, engaging or employing person to take
part in an unlawful assembly or taking part in self.
5.
Being or expecting to be a public servant, and
taking, and taking a gratification other than legal remuneration in respect of
an official act.
6.
Public servant obtaining any valuable thinks,
without consideration, from a person concerned in any proceeding or business
transacted by such public servant.
7.
Counterfeiting, or performing any pat of the
process of counterfeiting Indian coin.
8.
Having possession of a counterfeit government
stamp.
9.
Making or selling false weights or measures for
fraudulent use.
10.
Negligently doing any act known to be likely to
spread infection of any disease dangerous to life.
11.
Causing a disturbance to an assembly engaged in
religious worships.
NON- COGNIZABLE OFFENCE
1.
Non cognizable offences are those, where a
police officer cannot arrest without a warrant.
2.
In such offences for arrest, all the steps have
to be followed like
a.
Filing of complaint/F.I.R.
b.
Investigation
c.
Charge sheet,
d.
Charge sheet to be filed in court
e.
Trial
f.
Final order of arrest if case has been made out.
EXAMPLES OF NON-COGNIZABLE
OFFENCES ARE
Following
are some examples of non-cognizable offences.
1.
Owner or occupier of land not giving information
of riot etc.
2.
A public servant disobeying a direction of the
law with intent to cause injury to any person.
3.
A public servant unlawfully engaging in trade.
4.
Bribery during elections.
5.
Making any false statement in connection with an
election.
6.
Absconding to avoid service of summons or other
proceeding from a public servant, like where summons or notice require
attendance in person etc, in a court of justice.
7.
Refusing to take oath when duly required taking
oath by a pubic servant.
8.
Obstructing public servant in discharge of his
public functions.
9.
Giving or fabricating false evidence in a
judicial proceeding.
10.
False claim in a court of justice.
11.
Fraudulent use of false instrument for
weighting.
12.
Selling any food or drink as food and drink
knowing the same to be noxious.
13.
Offering for sale or issuing from a dispensary
any drug or medical preparation known to have been adulterated.
14.
Voluntarily causing hurt on grave and sudden
provocation, not intending to hurt any other than the person, who gave the
provocation.
15.
Buying or disposing of any person as a slave.
16.
Dishonest misappropriation of movable property,
or converting it to one's own use.
Compoundable and Non Compoundable
Offence
COMPOUNDABLE AND NON COMPOUNDABLE
OFFENCES
Criminal
offences can also be classified as compoundable and non-compounable offences.
COMOUNDABLE OFFENCES
Compoundable
offences are those offences where, the complainant (one who has filed the case,
i.e. the victim), enter into a compromise, and agrees to have the charges
dropped against the accused. However such a compromise, should be a
"Bonafide," and not for any consideration to which the complainant is
not entitled to.
Application
for compounding the offence shall be made before the same court before which
the trial is proceeding. Once an offence has been compounded it shall have the
same effect, as if, the accused has been acquitted of the charges.
The code of
criminal procedure lays down, i.e. bifurcated, the offences, which are
compoundble, and which are non-compoundable.
EXAMPLES OF COMPOUNABLE OFFENCES:
1.
Uttering words etc, with deliberate intent to
wound the religious feelings of any person causing hurt.
2.
Criminal or house trespass
3.
Criminal breach of contract of service.
4.
Printing or engraving matters, knowing it to be
defamatory.
5.
There are some offences, which although are
compoundable, but, they can be compounded only with the permission of the
court.
6.
These offences should be compounded before trial
begins.
7.
Also where accused has already been convicted,
and an appeal is pending, permission of the court is required for compounding
of such offences.
8.
The reason for seeking permission of the court,
is that these offences are grievous in nature, and are bad example in society
EXAMPLE OF COMPOUNDABLE OFFENCES
(WHERE PERMISSION OF COURT IS REQUIRED)
1.
Voluntarily causing hurt by dangerous weapons or
means.
2.
Causing grievous hurt by doing on act so rashly
and negligently as to endanger human life or the personal safety of others.
3.
Wrongfully confining a person for three days or
more.
4.
Assault or criminal force to woman with intent
to outrage per modesty.
5.
Dishonest misappropriation of property.
6.
Criminal breach of trust by a cannier---
wharfinger-- etc, where the value of the property does not exceed two hundred
and fifty rupees.
7.
Cheating and dishonestly inducing delivery of
property or the making, alteration or destruction of a valuable security.
8.
Fraudulent execution of deed of transfer
containing false statement of consideration.
9.
Mischief by killing or maiming cattle etc of any
value of fifty rupees or upwards.
10.
Counterfeiting a trade or property mark used by
another.
11.
Uttering words or sounds or making gestures or
exhibiting any object intending to insult the modesty of a woman or intruding
upon the privacy of a woman.
NON COMPOUNDABLE OFFENCES
There are
some offences, which cannot be compounded. They can only be quashed. The reason
for this is, because the nature of offence is so grave and criminal, that the
Accused cannot be allowed to go scot-free. Here, in these types of cases
generally, it is the "state", i.e. police, who has filed the case,
and hence the question of complainant entering into compromise does not arise.
All those
offences, which are not mentioned in the list under section (320) of CrPC, are
non-compoundable offences.
How is A Criminal Proceeding
Initiated
HOW IS A CRIMINAL PROCEEDING
INITIATED
For every
different type of Criminal proceeding a separate procedure is involved. However
in general, a brief procedure, as to how a criminal case commences, is as
follows:
COMPLAINT (154)
1.
The fist step for initiation of any Criminal
case is the complaint.
2.
The victim is called a complainant, and
complainant should lodge his complaint to the police station of that area,
where the offence has been committed, or where he resides. A complaint can be
on behalf of the victim also.
3.
Generally, the complaint should be lodged within
24 hour of the commission of offence. However, the limitation time is different
for some offences.
THIS COMPLAINT CAN BE TREATED AS
F.I.R BY THE POLICE OFFICER I.E. FIRST INFORMATION REPORT ON RECEIPT OF
INFORMATION (155).
1. On
receipt of such information, the concerned police officer shall record the
information in writing and the person giving information shall sign it.
IN CASE OF NON COGNIZABLE OFFENCE
1.
In case of receipt of information pertaining to
Non-Cognizable offence the police officer will have to take permission of the
Magistrate.
2.
The Magistrate may either quash the information
or grant power to investigate.
3.
On receipt of orders to investigate from the
Magistrate, the police officer shall start the investigation.
IN CASE OF COGNIZABLE OFFENCE
In case of
information received, in any cognizable offence, the Police officer shall/can
start the investigation without any permission/order from the Magistrate.
INVESTIGATION
1.
The investigation in respect of Cognizable
offence, and order to investigate in non-cognizable offence shall commence on
the same line.
The only difference is that, in case of cognizable offence,
the police officer can arrest without warrant, during investigation. In case of
non-Cognizable offence, the police officer will have to apply for warrant from
Magistrate, for making any arrest.
2.
Even in respect of cognizable offence, the
police officer shall send a report to the Magistrate.
3.
During the course of investigation the Police
Officer may acquire any other person, to appear, and be examined as witness.
4.
Any such statements made by the witness,
including the complainant, shall be recorded in writing.
5.
Such statements, which are recorded, should not
be signed by the person making a statement, and such statements, shall only be
used for the purpose of further investigation.
6.
Also, these statements can be used as evidence,
in trial, only with the permission of the magistrate.
7.
While the statement is being recorded, the
police officer shall not cause any threat inducement or any promise, to the
witness.
8.
A metropolitan Magistrate or a judicial
magistrate can also record any confession or statement of any witness, during
the course of trial.
SEARCH AND PRODUCTION OF DOCUMENTS
1.
If, the police officer believes that, some
search has to be made, during investigation, he is authorised to do so.
2.
He can also issue, an order to the person, to
produce any relevant documents.
3.
If, during search, the police officer is of the
opinion that, any one might cause or refuse to search a place or property, then
the police officer can obtain a search warrant from the magistrate of that
area.
4.
On conducting the search if police officer finds
some things useful for the trial or
5.
Further investigation, then police officer can
take such Articles in his possession
ARREST DURING INVESTIGATION
1.
Where, the Accused is arrested by the police
officer, during investigation; he shall have to be produced before a Magistrate
within 24 hours.
2.
Where, the period of investigation extends
beyond, 24 hours, and the investigation has revealed sufficient grounds against
the accused, then if he is still in the custody, the concerned police officer
shall produce the accused before the Magistrate alongwith copy of the entries
made in diary during investigation.
3.
The Magistrate may either order for release of
the Accused till investigation or order for further detention.
4.
In case of further detention, the Accused shall
have to be brought before the Magistrate every fifteen days.
DURING SUCH DETENTION PERIOD, THE
ACCUSED CAN APPLY FOR BAIL.
1.
If during or after investigation, the police
officer comes to a finding, that there is not sufficient evidence to produce
the accused before Magistrate, then such accused shall be released on executing
a bond.
2.
However, if required by Magistrate he will have
to appear on such date and time as directed.
3.
On the other hand, if police officer comes to a
finding that the case is fit for trial, he shall forward the accused under
custody to the Magistrate, to take cognizance.
ON COMPLETION OF INVESTIGATION
TRIAL
1. On
receipt of the police report, the Magistrate shall take cognizance of the case,
and proceedings shall be initiated.
SUMMONS
1.
If, the Accused is already under custody, then
he shall be produced before the Magistrate on the date of hearing.
2.
If, he is not in custody, then summons shall be
issued to him, to appear before the Magistrate.
3.
If required, summons shall also be issued to any
witness to appear on the date fixed for hearing.
DATE OF HEARING
1. On
the date of hearing, the police officer/report shall be represented by "
Public Prosecutor". He shall present his case on the basis of
investigation and police report. On that day the accused may be heard or given
some time to set up his defence.
EVIDENCE
1.
All the material collected by Police officer
during investigation shall also be produced.
2.
On the dates fixed for evidence, the witnesses
will be examined and cross-examined.
3.
Both, the public prosecutor and the accused
shall have right to produce their own witnesses, and material things.
FINAL ORDER
1.
On the date fixed for final hearing, the
Magistrate shall pass the order after considering, the evidence produced, and
having heard the parties.
2.
The order passed may either acquit or convict
the accused.
3.
With this final order, the criminal trial comes
to an end.
Criminal Procedure Code 1973
CRIMINAL PROCEDURE CODE 1973
CRIMINAL PROCEEDINGS IN CASES OF
PERSON INVOLVED IN OFFENCES RELATING TO NARCOTIC DRUGS
Narcotic
drugs or Psychotropic substances mean the following;
1.
Ganja
2.
Opium
3.
Co Ca Leaf
4.
Cocaine and etc.
Any person
who is not authorised by central Government or who uses any of such drugs for
any purpose other than medical or scientific purpose, will be committing a
criminal offence, under " Narcotic Drugs & Psycho tropic substances
Act, 1985".
Any offence committed
in relation to Narcotic Drugs, is "Cognizable", i.e. Police officer
can arrest without warrant, and is also "Non-bailable", in cases,
where the term of punishment exceeds 5 years of more.
HOW ARE PROCEEDINGS CONDUCTED
Following
persons can issue a search or arrest warrant, where there is a suspicion or
complaint or information that narcotic drugs are being dealt in:
1.
A metropolitan or Ist or IInd Class Magistrate
2.
Police officer
3.
Officer of Revenue, drugs control excise
department.
4.
On the search being conducted, if any person is
found in illegal possession of narcotic drugs, he can be arrested there and
then.
5.
Every such person arrested shall be forwarded to
a Magistrate or police officer, who issued a warrant.
DEVIATION FROM CRIMINAL PROCEDURE
CODE: (36 A of Narcotic Drugs & Phsy sub. Act, 85)
Generally, a
Magistrate, can order a detention of accused for more than 15 days, if
investigation is not completed within 24 hours. However in relation to Narcotic
Drugs, the procedure is bit different. It is as follows:
1.
If the Magistrate is a judicial Magistrate he
can only remand for a period of 15 days, and
2.
If the Magistrate is an executive Magistrate, he
can remand only for a period of 7 days.
3.
However if the Magistrate wants to remand on
accused for a period of more days than above, then he will have to forward such
person ( accused) before the "special court"
4.
Also where the Magistrate, considers the
detention unnecessary he will still have to forward such accused before the
" Special court".
5.
A "Special court", will have all the
powers to conduct the criminal trial, which the Magistrate has, under the CrPC.
6.
A "Special court", can also take
direct cognizance of an offence, without being committed to if for trial, on
perusal of a police report, or complaint made by concerned officer.
BAIL AND BONDS
1.
For all such offences relating to Narcotic
Drugs, the Bail Application can be applied only before the special court trying
the offence.
2.
Provisions and Rules of Bail as contained in
CrPC will apply similarly before special court also.
POWER OF SPECIAL COURT
1.
A "Special Court" is established by
the Government for different areas, for conduction trial, relating to Narcotic
Drugs.
2.
The special court shall consist of a single
judge, who is either a "session Judge" or "Additional Sessions
Judge".
3.
The Special court, will have all the power of
Magistrate as granted by Code of Criminal Code, and will be treated as
"Court of Sessions".
APPEAL AND REVISION
Any appeal
or revision, arising from an order of "special court" will lie before
"HIGH COURT".
BAIL APPLICATION DIRECTORY FILED
IN HIGH COURT
However an
bail application, can still be filed directly for the first time in High court
for any proceedings conducted by “Special Courts", in case of urgency
Q. What is an offence?
General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an offence. In general, such act which causes a violation of rights of others or cause harm to others and is so dangerous that is also affects the society at large is designated as offence by the legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows -
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would be an offence if committed in India.
It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and Legislations defines such acts which constitute offences. The main among them is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal breach of trust and makes them offences. Examples of other acts which defines offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, Environmental Protection Act. These Acts defines certain activities related to the focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they define, while some specify that trial for their offences will be held as per the provisions of Cr PC.
Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made available to serve his sentence. However, if it is reasonably evident that the person charged with an offence can be made available for the above mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a violation of a person's fundamental right to restrict the person's liberty without any just cause.
Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is in court until the proceedings are finished, will comply with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement. Two authorities that may grant bail are the police and the courts. A person may be required to provide a security as well. But it is not necessary. A person may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a Bail covers both release on one's own bond with or without surety.
Q. What is a Bailable and Non-Bailable offence?
An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows -
Section 2 (a) - 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 in force: and "non-bailable offence" means any other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence. Non-bailable offences include offences such as murder, threatening a person to give false evidence, and failure by a person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively less severity.
Q. When and When not can Bail be granted?
As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court whenever required. However, granting bail is not advisable in all cases. For example, a murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This is very bad for the society in general and reflects bad on the justice system. Thus, various rules and procedures have been formulated to make sure that only the deserving are released on bail. They try to achieve a balance between the rights of the accused and the protection of the society and effectiveness of the justice system.
The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretory, 1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused is convicted. It is said that since the accused is presumed innocence, he must be released so that he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-bailable offence -
Bail for Bailable offences -
A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for by Section 436.
Section 436 - When any person other than a person accused of a 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, and is prepared at, any, time while-in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail amount, must be released. If a person is unable to provide bail amount for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Bail for Non-Bailable offences -
When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right. He can, however, request the court to grant bail. The provisions in this case are governed by Section 437/
Section 437 - 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. 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 no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall 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. A police officer or the court may also release a person from custody if he feels that there are any special reasons. But he must record his reasons in writing.
Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while giving bail in case of non-bailable offences. These are -
General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an offence. In general, such act which causes a violation of rights of others or cause harm to others and is so dangerous that is also affects the society at large is designated as offence by the legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows -
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would be an offence if committed in India.
It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and Legislations defines such acts which constitute offences. The main among them is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal breach of trust and makes them offences. Examples of other acts which defines offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, Environmental Protection Act. These Acts defines certain activities related to the focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they define, while some specify that trial for their offences will be held as per the provisions of Cr PC.
Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made available to serve his sentence. However, if it is reasonably evident that the person charged with an offence can be made available for the above mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a violation of a person's fundamental right to restrict the person's liberty without any just cause.
Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court. A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is in court until the proceedings are finished, will comply with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement. Two authorities that may grant bail are the police and the courts. A person may be required to provide a security as well. But it is not necessary. A person may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a Bail covers both release on one's own bond with or without surety.
Q. What is a Bailable and Non-Bailable offence?
An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows -
Section 2 (a) - 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 in force: and "non-bailable offence" means any other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence. Non-bailable offences include offences such as murder, threatening a person to give false evidence, and failure by a person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively less severity.
Q. When and When not can Bail be granted?
As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court whenever required. However, granting bail is not advisable in all cases. For example, a murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This is very bad for the society in general and reflects bad on the justice system. Thus, various rules and procedures have been formulated to make sure that only the deserving are released on bail. They try to achieve a balance between the rights of the accused and the protection of the society and effectiveness of the justice system.
The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretory, 1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused is convicted. It is said that since the accused is presumed innocence, he must be released so that he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-bailable offence -
Bail for Bailable offences -
A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for by Section 436.
Section 436 - When any person other than a person accused of a 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, and is prepared at, any, time while-in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail amount, must be released. If a person is unable to provide bail amount for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Bail for Non-Bailable offences -
When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right. He can, however, request the court to grant bail. The provisions in this case are governed by Section 437/
Section 437 - 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. 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 no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall 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. A police officer or the court may also release a person from custody if he feels that there are any special reasons. But he must record his reasons in writing.
Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while giving bail in case of non-bailable offences. These are -
- the nature of the crime
- the nature of the charge, the evidence, and possible punishment
- the possibility of interference with justice
- the antecedents of the applicant
- furtherance of the interest of justice
- the intermediate acquittal of the accused
- socio-geographical circumstances
- prospective misconduct of the accused
- the period already spent in prison
- protective and curative conditions on which bail might be granted.
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
If the investigation is not done within 24 hours, the arrested person must be bought before the court and if required, the police must make a case to extend the detention. The court may extend the detention by 15 days. However, the detention cannot extend more than 60 days (or 90 days, if the offence is punishable by death or imprisonment for life), after which the accused must be released on bail. This provision applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of imprisonment is released on bail, the court may impose any condition on the bail to ensure that the person will attend the court in accordance with the bond executed by him, or to ensure that the person will not commit a similar offence or otherwise in interest of justice.
Special Powers of Hight Court and Court of Session regarding Bail
Section 439 gives special powers to High Court and Court of Session regarding bails. These are as follows -
1. A High Court or Court of Sessions 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. It may set aside or modify any condition imposed by a Magistrate when releasing any person on bail.
2. 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.
3. A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.
When can bail be denied -
1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court as per the conditions of the previous bail.
2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the police and and court. However, this power is not totally without any restraint. Section 437 disallows bail to be given in the following conditions.
- if there appears reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life;
- if such offence is a cognizable offence and the person has 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. The person may, however, be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
3. Persons accused of Dowry Death -
Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so the special power of High Court or Court of Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who has been released on bail be arrested and to commit him to custody.
The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that some new events should take place subsequent to the offender's release on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case of Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger
Appeal Provision for Bail
It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under the revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against the decision of refusing the bail. However, a person can alway file for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.
Q. What do you understand by Anticipatory bail? When is it granted and when it may be refused? What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.
Section 438 - 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 Sessions 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.
While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.
In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.
It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and High Court. Thus, a person can approach either of the courts to get this relief.
As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order.
A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.
Refusal of Anticipatory Bail
Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are -
Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so the special power of High Court or Court of Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who has been released on bail be arrested and to commit him to custody.
The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that some new events should take place subsequent to the offender's release on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case of Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger
Appeal Provision for Bail
It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under the revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against the decision of refusing the bail. However, a person can alway file for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.
Q. What do you understand by Anticipatory bail? When is it granted and when it may be refused? What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation or personal vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.
Section 438 - 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 Sessions 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.
While applying under this section, the person has to explain the circumstances because which he believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.
In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
The order may also include conditions such as the person shall make himself available for interrogation by a police officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.
It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and High Court. Thus, a person can approach either of the courts to get this relief.
As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the time of final determination of the interim order.
A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable until the conclusion of the trial.
Refusal of Anticipatory Bail
Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such bail is normally not granted. These are -
1. In case of dowry death or wife
harassment.
2. In case of economic offences
3. In case of atrocious crimes
2. In case of economic offences
3. In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437.
Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail.
In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that it is not in the interest of justice.
Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases it has been held that when Section 438 permits granting anticipatory bail, it is implicit that the court making such order is entitled upon appropriate considerations to cancel or recall the order.
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