In what case a bail to be taken:
Section 436, Cr.P.C. lays down that where an arrested person is accused of a bailable offence, he shall be released on bail at any time while in custody, if he is prepared to give bail, provided that the officer-in-charge of a police station detaining him without a warrant, or the court may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance.
In every bailable offence bail is granted to the accused as a matter of right and not as a matter of favour. In such cases there is no question of discretion in granting bail, as the words of Section 436 are imperative. All that the court can do is to demand a reasonable security:
Provided that such officer or court, if he or it thinks fit may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.
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When bail may be taken in ease of non-bailable offence:
ADVERTISEMENTS:
With regard to a non-bailable offence, Section 437, Cr.P.C. lays down that, where a person accused of or suspected of the commission 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 other than the High Court or court of session, he may be released on bail, but : (i) he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, (ii) or if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.
The court may, however, release a person on bail under the age of 16 years, a woman, a sick or infirm person even though accused of an offence punishable with death or imprisonment for life, and the court may also direct that a person referred to in cl. (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
The mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court. [Section 437 (I)]:
ADVERTISEMENTS:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the court under this sub-section without giving an opportunity of hearing to the public prosecutor.
If it appears to the officer in charge of police station detaining the accused or the court at any stage of the investigation, inquiry or trial there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A (dealing with cancellation of bail and bail bond) and pending such inquiry, be released on bail or at the discretion of such officer or court, on the execution by him of a bond without sureties for his appearance. [Section 437 (2)]
The court may when the person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more, or of an offence against the State, against the human body or against property is released on bail, impose any condition to ensure that such person shall attend in accordance with the condition of the bond or shall not commit a similar offence. An officer or a court releasing any person on bail under sub section (1) or sub-section (2) shall record in writing his or its reasons or special reasons for so doing. [Section 437 2-4)]
Any court which has released a person on bail may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
ADVERTISEMENTS:
In the case of non-bailable offence, the court has, therefore, to consider whether there are reasonable grounds for believing that the accused is guilty. The court has to decide this question judicially on the tangible evidence available at the time when a bail application is moved.
The considerations that should govern the exercise of discretion by a court in granting bail in non-bailable offences arc the nature and the gravity of the charge, the likelihood of the accused person absconding the nature of evidence, the severity of the punishment prescribed for the offence, the character, means and standing of the applicant, the danger of the alleged offence being continued or repeated, the danger of tampering with, tutoring or intimidating witnesses the long period of detention of the accused and the probability of delay in the decision of the case or appeal, opportunity of the applicant to prepare his defense, etc.
Sub-section (6) of Section 437 further lays down, that 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 60 clays 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 the 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. [Section 437 (7)]
Power to direct admission to bail or reduction of bail:
The amount of the bond that has to be executed to enable the accused to be released on bail must be fixed with due regard to the circumstances of the case and must not be excessive. A High Court or the Court of Session may direct that any person accused of an offence and in custody be released on bail or that any condition imposed by a Magistrate when releasing any person on bail is set aside or modified. (Sections 439 and 440)
A High Court or a Court of Session may cause any person who has been admitted to bail to be arrested and may commit him to custody.