Om Prakash

                                                                     Principal Judge, family court


Introduction- Article 21 of Indian Constitution guarantees that life and liberty of a person can not be taken except in accordance with procedure established by law. Since arrest is one of the procedure of law to restrict the liberty of a person, bail is balancing procedure of law to protect the interest of person so arrested or apprehending arrest. The term 'bail' has not been statutorily defined either in Cr.P.C or in any other statute. Conceptually it is understood as a right for assertion of freedom against state imposing restraints since the UN Declaration of human rights of 1948, to which India is signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression 'bail' denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb 'bailer' which means 'to give' or 'to deliver', although another view is that its derivation is from the Latin term 'bailulare', meaning 'to bear a burden'..Bail may thus be regarded as a mechanism whereby the state devolves upon the community,the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice.i

Wharton's Law Lexicon explains 'bail' as “to set at liberty a person arrested or imprisoned on security being taken for his appearance.”

Bails are broadly divided in three categories-

·         Bail during investigation and trials

·         Anticipatory bail

·         Bail after conviction

Bailable Offences- Section 2(a) of Cr.P.C defines bailable offence as “an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time been in force.” Any offence which is not mentioned as bailable or non-bailable in any other law and is punishable with imprisonment for less than 3 years or with fine only is also bailable( Part II of schedule I of Cr.P.C)

A person arrested in connection with bailable offence has right to be released on bail. The right to claim bail u/s Section 436 of the Cr.P.C. in a bailable offence is an absolute and indefeasible right. There is no question of discretion in granting bail as the words of Section 436 are imperative. The proviso to section 436 provide that if the accused is indigent and is unable to furnish surity, he shall be released on his executing personal bond. The explanation to the said section provide that a person unable to give bail within a week of his arrest shall be presumed to be indigent person. In other words, a person arrested in connection with bailable offence should not be kept behind prison for more than a week and should be released on execution of personal bond. However if such person fails to comply with the conditions of bail bond as regards the time and place of attendance, his bail may be cancelled and the court may refuse to release him on bail on subsequent occasion.

A question arises that if an accused produced or appeared before a court for the first time in connection with bailable offence threatens the informant or witness or does some thing showing that fair trial of such case is not possible if he will remain on bail, whether the court may refuse to release him on bail. Similarly if an accused of bailable offence, being on bail, punctually comply the conditions of bail bond as regards time and place of attendance but does some thing prejudicial to fair trial of the case, whether the court can cancel his bail. In a recent ruling reported in AIR 2009 SC 1341,Hon,ble Supreme Court, by referring decisions reported in 1958 SCR 1226ii and 1967 (3) SCR 926iii has observed as follows:

“There is no express provision in the Code prohibiting the Court from re-arresting an accused released on bail under Section 436 of the Code. However, the settled judicial trend is that the High Court can cancel the bail bond while exercising inherent powers under Section 482 of the Code. According to this Court, a person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail if his conduct subsequent to his release is found to be prejudicial to a fair trial. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code”iv

Hon'ble Supreme Court, in the said ruling further observed:

“It may be noticed that sub-section (2) of Section 436 of the 1973 Code empowers any Court to refuse bail without prejudice to action under Section 446 where a person fails to comply with the conditions of bail bond giving effect to the view expressed by this Court in the above mentioned case. However, it is well settled that bail granted to an accused with reference to bailable offence can be cancelled only if the accused (1) misuses his liberty by indulging in similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence of witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5) attempts to flee to another country, (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. However, a bail granted to a person accused of bailable offence cannot be cancelled on the ground that the complainant was not heard.”

Bail in Non Bailable offences- Offences which are not specifically described as bailable and are punishable with imprisonment for 3 years or more are non-bailable. Bail in such cases can not be claimed as of right and the court has discretion to allow or refuse bail to accused. However exercise of such discretion should be objective and judicious. In a recent ruling Hon'ble Supreme Court has observed:

“While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of the charge,

Any order dehors such reasons suffers from non-application of mind.”v

There is no straight jacket formula for grant or refusal of bail and order in each case should be passed on its own merits. However there are some observation of Hon'ble Courts which should be kept in mind while dealing with the matters of bail. They are-

·         Elaborate discussion of evidences by reference of its relevancy and weight should not be made in bail order. The court should also refrain from giving findings or opinion about any witness or piece of evidence. However the order should not be cryptic or subjective.

·         The supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. At the same time the accused cannot make any reference to them for any purpose. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned

·         when a case is instituted on a complaint, the Court issues summons to the accused to appear in the Court and on such appearance, instead of being arrested, he would apply for bail. Unless there are compelling reasons, the Court would allow the accused to remain on bail, at least till the charge is framed. Even after charge is framed the situation would be reconsidered, if necessary, whether bail should be cancelled or not. vii

Anticipatory Bail - Section 438 Cr.P.C. gives power for grant of anticipatory bail. The term anticipatory bail is not defined either in Cr.P.C or in any statute. However anticipatory bail is commonly understood as an order directing release of any person on bail after execution of bond in the event of his arrest in connection with a particular case. The provision for anticipatory bail was not in Cr.P.C before 1974. The Law Commission, in its 41nd report, for the first time recommended insertion of provision for anticipatory bail and reasons recorded by commission are as follows-

"The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to' implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.”viii

The recommendation was accepted by central Govt. However the code of criminal procedure bill 1970 was referred to Law Commission with certain questions and the law commission headed by Hon'ble Justice PB Gajendragadker, former judge of Supreme Court in its 48th report approved insertion of provision for anticipatory bail but suggested as follows-

1.      Such power should be exercised in very exceptional circumstance.

2.      Final order should be made only after notice to public prosecutor. The initial order should only be an interim one.

3.      Direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interest of justice.

4.      Notice of interim order as well as the final orders will be given to Superintendent of police forthwith.ix

The matter has again been considered by 'Malimath Committee on Reforms of Criminal Justice System'. on the point of exercise of power by Courts under Section 438 and grant of anticipatory bail in favour of applicants. The Committee observed that the provision as to anticipatory bail has often been 'misused by rich and influential people.' The Committee, however, opined to retain the provision subject to two conditions :

(i) Public Prosecutor should be heard by the Court before granting an application for anticipatory bail; and

(ii) Petition for anticipatory bail should be heard only by the Court of competent jurisdiction.

Exercise of Power u/s 438 Cr.P.C – There is no straight jacket formula for grant of anticipatory bail. The law commission, in its 41st report, considered this aspect also and observed as follows-

“We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, laying down such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself.”

Although the statutory provision itself does not provide guide lines for grant or refusal of anticipatory bail, yet the the reasons for which such provision has been recommended by law commission to be introduced in Cr.P.C. provides at-least basic idea about exercise of such power. Thus anticipatory bail may be granted where the court is satisfied that such a direction is necessary to be issued in the interest of justice as there exist sufficient reasons to show that:

1.      The accused has been implicated in a false cause for the purposes of disgracing him, or

2.      There are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or misuse his liberty while on bail.

In Gurubux Singh casex, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail :

i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.

iii) The observations made in Balchand Jain's case [1976(4)SCC572], regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and, therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.

Apart from above-said broad guide lines, the exercise of such power has been subjected to judicial scrutiny since last more than 35 years and there are a number of judicial verdicts to suitably guide as to when, how, and in what manner direction may or may not be issued in exercise of such power. Some of such verdicts may be illustrated as under:

·         An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the Investigation, which cannot, at any rate, be done under Section 438 of the Code."xi

·         Imposing a condition of giving ten days prior notice, before arrest, is a condition not warranted by law(Union of India v Padma Narayan Agrawal)xii

·         If the applicants were only summoned under Section 108 of the Custom Act for recording of their statements, the application for anticipatory bail, in the circumstances, were premature.(Padma Narayan Agrawal Case Supra)

·         The section requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible, on the basis of which, it can be said that the applicant's apprehension that he may be arrested is genuine.xiii

·         Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submittedxiv

·         The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence.... Mere "fear" is not "belief for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined.xv

·         Very unreasonable and onerous condition as a condition precedent for grant of anticipatory bail can not be imposed. he imposition of condition to deposit a sum of Rs. 15 lacks in the form of FDR in the Trial Court is an unreasonable condition.xvi condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty is onerous condition.xvii Condition that in the event of arrest, the appellants shall be enlarged on bail on their depositing the title deeds of property worth Rs. 20,00,000/- standing either in their name or in the name of third parties and also on their executing a personal bond of Rs. 25.000/- with two sureties for the like sum to his satisfaction is unreasonable condition.xviii

·         The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under Section 438 of the Code. While imposing conditions on an accused who approaches the Court under Section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all.....Where the wife of the appellant has already approached appropriate Court for grant of maintenance, the condition imposed by the Court directing the appellant to pay maintenance to his wife and child is onerous, unwarranted.xix

·         For the purpose of grant of bail in cases of defalcation, the amount involved may be of some relevance but not the only consideration.xx

·         The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail.xxi

Anticipatory bail & Regular bail, the distinction- The distinction between anticipatory bail and regular bail is academically clear and well defined. It has been repeatedly observed by Hon'ble High Court and Supreme Court that anticipatory bail granted u/s 438 Cr.P.C. should be for limited period and it should not bypass the regular courts in exercising powers u/s 437 Cr.P.C. In the case of Salauddin Seikh (AIR 1996 SC 1042) it has been observed:

“Under Section 438 Anticipatory bail is granted in anticipation of arrest in non-bailable case, but that does not mean that the regular court, which is to try the offender is sought to be by passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed that petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore it is not informed about the nature of evidence against the alleged offender. It is therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the chargesheet is submitted. ”

The other distinction is that power u/s 438Cr.P.C. about anticipatory bail is exercised while the accused is not in custody but is apprehending arrest whereas powers u/s 437 Cr.P.C. about regular bail is exercised after arrest of accused.

While considering the scope of 'limited duration' till when anticipatory bail may be granted, Hon'ble Supreme Court in ruling reported in 1996 SCALE 20 K.L.Verma v State and anr, observed-

“an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire."

The observations made in the said judgment invited debate amongst jurists & and judges as to whether an accused allowed to remain on anticipatory bail till regular bail is disposed of by higher court can be said to be in 'custody' for exercising jurisdiction u/s 437/439 Cr.P.C. The gray part of the observation “or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire” was held per-in curium in subsequent judgments of Hon'ble Supreme Court[2005(1)PLJR 270SC; 2007(7) SCC 558; AIR2009 SC 502]. It has been observed-

“For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant.

If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner”.xxii

Reasons given in K.L.Verma case require Legislative attention – Provision for anticipatory bail has been introduced in Cr.P.C to protect personal liberty from being violated by cases of false implication based on fabricated evidences in order to disgrace the accused by sending him to jail. The power has been given to higher courts for its careful exercise. The settled principle is that it should be for limited duration and it should not by-pass the powers of regular courts u/s 437/439 Cr.P.C. Thus, in a sessions triable case, the accused, even if, having got anticipatory bail from higher court for limited duration, after satisfying his false implication has to surrender before court of magistrate after cognizance and such magistrate, having no jurisdiction to grant bail in such cases, will have to send him to jail by rejecting his bail application. Then the accused is required to file bail application before sessions court who has jurisdiction to release him on bail.

If anticipatory bail is to be granted for limited duration only and it should not by-pass the powers of regular courts u/s 437/439 Cr.P.C, then there will be no way out for an innocent accused to protect his liberty between the period he surrenders before magistrate till disposal of his bail application from sessions court. In order to protect the valuable fundamental right of an innocent person under such circumstance, the Hon'ble judge in K.L.Verma case observed that anticipatory bail may granted for such extended period in order to enable the accused to move his regular bail application before a court having jurisdiction to grant bail. In Suneeta Devi case, Nirmaljit Kaur case (supra) and in other subsequent rulings, the reasonings of K.L.Verma case was not rejected and rather the observation was held per-in curium due to legal bar that a magistrate can not exercise powers u/s 437 Cr.P.C unless the accused is in custody. The question remains as to what may be done to protect liberty of an innocent person during the period he surrenders before magistrate till his bail application is disposed of by sessions court. The courts, under such circumstance, have evolved device that anticipatory bail are mostly granted without mentioning duration and thus an accused, who has been granted anticipatory bail continues to remain on such bail till end of trial. However it may not be correct application of law. To my mind it requires legislative interference and there must be provision enabling magistrate to grant provisional bail for reasonable period to an accused, who was granted anticipatory bail in a case punishable with death, life imprisonment or imprisonment exceeding ten years, in order to enable him to move for bail before sessions court.

Some Practical Questions -

·         Whether a lower court can grant regular bail to an accused whose anticipatory bail has been rejected by himself or higher court ?

Criteria for grant of anticipatory bail and regular bail are not academically different. However normally in cases of heinous offences, the courts show reluctance in granting anticipatory bails and used to direct the accused to surrender in court and apply for regular bail. Rejection of anticipatory bail in such cases should not affect consideration of regular bail on merit. If the anticipatory bail has been rejected on merit but during hearing of regular bail, fresh and additional material prima facie showing false implication of accused comes on record, regular bail may be granted by subordinate courts subject to his jurisdiction to grant bail in such cases.

·         Whether a lower court can reject regular bail of an accused who has been granted anticipatory bail by higher court till the period and he surrenders in court?

Normally, anticipatory bail applications are filed during early stage of investigation and regular bail applications are filed at advance stages of investigating or after completion of investigation. Regular bail application of accused availing anticipatory bail can only be refused on the ground of jurisdiction or where some fresh, additional and substantial evidence has surfaced.

·         Whether bail application of an accused, who was enlarged on bail during investigation, can be rejected after cognizance on ground that nature of offence has been changed and heinous offence has been found committed after completion of investigation.

Normally bail granted during investigation should continue after cognizance also unless there is application and grounds for cancellation of bail. Bail is granted considering facts and circumstances and not the sections in which FIR has been lodged. Addition of some sections does not affect the accrued rights of accused in this respect. But if after grant of bail during investigation, some new facts are discovered or serious consequences occur showing commission of more henious offence, the bail application may be rejected without there being application for cancellation of bail granted earlier. In the case of Prahlad Singh Bhati V NCT Delhixxiii, Hon'ble Apex Court has observed:

“The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither S. 437(5) nor S. 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Ss. 498-A, 306 and 406, I.P.C. The Magistrate committed an irregularity by holding that "I do not agree with the submission made by the learned Prosecutor inasmuch as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law." With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring tothe grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.”

Bail after conviction- Bail granted to an accused in chapter XXXIII Cr.P.C. comes to end after his conviction and he is taken in custody. However the trial court may grant provisional bail to accused u/s 389(3) Cr.P.C. to enable him to prefer appeal subject to following conditions:

1.      The accused was on bail during trial and

2.      He is convicted in bailable section or he is sentenced for a term not exceeding three years.

However, for reasons to be recorded, the trial court may refuse to grant bail to accused even in the circumstances mentioned above. The appellate court grants bail to accused during pendency of appeal u/s 389(1) Cr.P.C. A question arises as to what are the principles for grant of bail u/s 389 Cr.P.C. Hon'ble Supreme Court, in a recent ruling has observed:

“Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail, or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail.”xxiv

Bail to persons other than accused- Apart from accused persons, warrants may also be issued against witnesses during trial. When such person appears or is brought before court, he may be released on bail u/s 88 of Cr.P.C. The trial court court may also require any witness present in court to execute bond for his appearance in such court or any other court to which the case may be transferred for trial. Normally the courts allow release of such witnesses on execution of personel bond.


i2009(2)PLJR 35 SC

ii1958 SCR 1226 Talab Haji Hussain v. Madhukar Purushottam Mondkar and another

iii1967(3) SCR 926 Ratilal Bhanji Mithani v. Asstt. Collector of Customs and Anr.

ivAIR 2009 SC 1341 Rasiklal v Kishor Khamchand Wadhwani

v AIR 2009 SC 94 Lokesh Singh V State of UP

vi AIR 2005 SC 498 Sunita Devi v State of Bihar

vii 2001AIR SCW 5129 Maninder Kaur V Teja Singh

viiiPara 39.9 of 41st report of law commission

ixPara 31 of 48th report of law commission

x1980 Cri.L.J1125 Gurubux Singh v State of Punjab

xi2005(4)SCC 303 Adri Dharan Das v State of WB

xiiAIR 2009 SC 254 Union of India v Padma Narayan Agrawal

xiiiAIR 2009 SC 502 Parvinderjit Singh v State

xivAIR 1996 SC 1042 Salauddin Abdul samd sheikh v State of Maharastra

xv AIR 2009 SC 1362 Vaman Narayan Ghiya v State of Rajasthan

xviJT 2002(1) SC 291 Amarjit Singh v State of NCT of Delhi

xvii2002(2) SCC 66 Sandeep Jain v NCT of Delhi

xviiiAIR 2009 SC 1629 Galaskasden Grace v Inspector of Police

xixAIR 2009 SC 2072 Mahesh Bhasin v State (NCT of Delhi)

xx AIR 2009 SC 2080 Fida Hussain Bohra v State of Maharastra

xxi AIR 2003SC 4662 Bharat Chaudhary v State of Bihar

xxii2007(7)SCC558 Nirmaljeet Kaur v State of MP

AIR2005SC498 Sunita Devi v State of Bihar

xxiiiAIR 2001 SC 1444 Prahlad Singh Bhati V NCT Delhi

xxiv 2009AIR SCW 945 Masood Ali Khan V State of UP