Disclaimer

Information in this document is being provided as-is without any warranty/guarantee of any kind. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice.

This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should – where appropriate – contact us directly with your specific query or seek advice from qualified professional people.

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 -

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 -

1. In case of dowry death or wife harassment.
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.