SECTION 436

In what cases bail to be taken

(1) 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:

Provided that 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 as hereinafter provided:

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 1[or section 446A].

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under section 446.

SECTION 437
When bail may be taken in case of non-bailable offence

(1) 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, but-

(i) Such person 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) Such person shall not be so released 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 non-bailable and cognizable offence:

Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that 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 the shall comply with such directions as may be given by the court.]

(2) 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 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, 2[the accused shall,

subject to the provisions of section 446A 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 as hereinafter provided. (3) When a 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 under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary(a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) Otherwise in the interests of justice.

(4) 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 3[reasons or special reasons] for so doing.

(5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody.

(6) If, 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. (7) 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.

INTRODUCTION

BAIL
The money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect's first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine to post money or bond to secure an accused defendant's release. This is generally called "bailing out" a prisoner. The courts have several methods available for releasing defendants on bail. The judge determines which of these methods is used. One alternative is for the defendant to post a bail bond or pledge of money. The bond can be signed by a professional surety holder, the accused, or the family and friends of the accused. Signing the bail bond is a promise that the defendant will appear in the specified criminal proceeding. The defendant's failure to appear will cause the signers of the bond to pay to the court the amount designated. The amount of bail is generally an amount determined in light of the seriousness of the alleged offense.

Under sec 2(a) of the Code of Criminal Procedure 1973,

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.

Non-bailable Offence" means any offence other than a bailable offence.

Bailable offences are less serious than non-bailable offences. In bailable offence bail is granted as a matter of course by the police officer or by the court. Non-bailable offence does not mean that bail can in no case be granted. It only means that bail can be granted in the discretion of the court. In the case of bailable offences, it is binding upon the investigating officer to grant bail. However, in case of a non-bailable offence, the police can not grant bail and bail can be granted by a Judicial Magistrate/Judge only. In case of bailable offences, if the accused produces proper surety, and fulfills other conditions, it is binding upon the Investigating officer to grant bail. In the case of a non-bailable offence, the Investigating Officer must produce the accused before the Judicial Magistrate / Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail.

Anticipatory Bail

Anticipatory bail -a term not found in any Indian legislation- refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail. The anticipatory labelling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted only after arrest (and becomes operative subsequently) but the latter is granted before arrest and hence is operative from the moment of arrest. In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code). A non-bailable offence is one for which the police if not empowered to release the arrested person on bail (except under certain special circumstance not dealt with here).

It can be given when a person apprehends arrest for a non-bailable offence (refer to the First Schedule of CrPC for the list of offences labelled thus). It is given in those circumstances when the court believes that there is a possibility that the accused has been falsely implicated and that his freedom will not hamper the investigation of the crime. Having said that, bail granted under s. 438 may be cancelled at any time if the investigation is hampered or if a condition under the order is violated by the arrested person. It is important to note that the attendance of the person apprehending arrest is compulsory at the final hearing.

Case studies Sec 436

Tabarak Ali And Ors. vs Mantaj Ali on 23 February, 1961

Equivalent citations: 1961 CriLJ 460 Author: G Mehrotra Bench: G Mehrotra, S Dutta JUDGMENT G. Mehrotra, J. 1. This is an application in revision against an order of the Additional Sessions Judge, Lower Assam Division at Now gone by which he directed the Magistrate to make further enquiry, 2. In order to appreciate the points raised, it will be necessary to give briefly the facts out of which this case has arisen. An application was filed before the Sessions Judge under Section 436 Criminal Procedure Code on behalf of the complainant. The complainant on 6th of July 1958 Iodged a first information report before the Police alleging that the opposite parties (before the Magistrate) trespassed into the land belonging to him and that they also assaulted him. According to his allegation, about 20 or 25 persons took part in the occurrence, out of whom he could identify ten persons. The investigation was taken up by the Police and after completion of the investigation chargesheet was submitted against twelve persons including the Opposite Parties Nos. 1 to 7 as absconders before the Sessions Judge. Haji Samjid Ali was not sent up for trial for want of sufficient evidence against him. As the absconders could not be produced, a proclamation was issued by the Magistrate against them and the Magistrate proceeded with recording the evidence under Section 512 Criminal Procedure Code against those absconders. The matter, however, came up for consideration before the Magistrate under Section 251-A Criminal Procedure Code. The Magistrate after perusal of the papers submitted before him framed charge under Section 324 Indian Penal Code against accused Faijul Bari and the rest of the accused were discharged by him as in his opinion on the perusal of the record there was no prima facie case against them made out, and, he further observed that the investigation according to him was not Proper. Against this order of the Magistrate a revision was filed before the Sessions Judge under Section 436 Criminal Procedure Code. The point taken by the persons, who were discharged and against whom charge was not framed, was

that the Sessions Judge has no power under Section 436 Criminal Procedure Code to order further enquiry as the trial had already commenced. The Sessions Judge after examination of the authorities cited by the Counsel for the accused came to the conclusion that the trial in cases under Section 251-A Criminal Procedure Code does not commence when the accused is produced but it only commences after the accused has claimed a trial, and after the charge has been framed, and, therefore, in the Present case, there was no pending trial and the Sessions Judge has powers under Section 436 Criminal Procedure Code to direct further enquiry. After having held that, the Sessions Judge looked into the Police papers and was of the opinion that there were sufficient materials before the Police from which a prima facie case had been made out against the Other accused. He therefore, directed a further enquiry by the Magistiate. 3. Mr. Lahiri who appears for the accused-petitioners has contended that the trial commences from the time when the accused is produced under Section 251-A Criminal Procedure Code and the Sessions Judge was not right in holding that there was no trial and that the trial would only commence after the accused claimed a right to the trial. Reliance is placed in this connection on the case of R. Govindaswamy v. The State reported in AID 1960 Andh Pra 391. Before referring to the facts of that case it will be necessary to examine the provisions of the Code. Section 436 Criminal Procedure Code provides as follows: On examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. This section is, in our opinion, very widely worded. It says that on examination of the record under Section 436 Criminal Procedure Code the Sessions Judge can direct further inquiry in cases where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204, pr into the case of any Person accused of an offence who has been discharged. It does not debar the jurisdiction of the Sessions Judge to interfere with the order of discharge and to direct further inquiry after the trial has commenced. In cases where the trial is going on and the trial has commence a further inquiry has no meaning, and, therefore, in cases where the trial is going on, there is no question of directing any further inquiry. If the Sessions Judge thinks that the order refusing to frame charge is illegal or not justified on the materials on the record, then lie proper order to be passed is to act under Section 435 Criminal Procedure Code and refer the case to the High Court for decision. But, the Sessions Judge in that view of the matter cannot act under Section 438 Criminal Procedure Code.

If the Sessions Judge acts under Section 436 he can only direct the inquiry if there are circumstances which justify a direction to hold further inquiry. In cases where the trial is going on, the question of directing further inquiry may not arise and in that view of the matter it may be legitimately argued that in cases where the trial has commenced and is pending, the Sessions Judge cannot exercise his jurisdiction under Section 436 Criminal Procedure Code. In the case referred to above the facts were that the accused was charged by a Magistrate under one section, and the Public Prosecutor made an application that certain other charges should be added. The Magistrate refused to add those charges. The Public Prosecutor contended that it amounted to an order of discharge and he made an application in revision against that order to the Sessions Judge. The trial in that case in respect of the charge which had already been framed was going on, and, under those circumstances it was held by their Lordships of the Andhra Pradesh High Court that there was no question of directing any further inquiry and thus the Sessions Judge was not entitled to exercise his powers under Section 436 of the Code of Criminal Procedure, and the proper order which the Sessions Judge should have passed was to refer the matter to the High Court under Section 439 of the Code of Criminal Procedure. The facts of that case are no doubt distinguishable but the principle underlying that case can be applied to the facts of the present case. What this case lays down is that the Sessions Judge will not exercise his powers under Section 436 Criminal Procedure Code in cases where there is no question of directing any further inquiry. Examining the facts of the present Case we think that any direction as to further inquiry is nothing but directing the Magistrate to frame charge as the Sessions Judge himself has come to the conclusion after examination of the Police records that a prima facie case has been made out. In view of the order passed by the Sessions Judge, the further inquiry has no meaning. The Magistrate will only carry out the orders of the Sessions Judge and will frame charge against the other accused as the Sessions Judge has come to a definite conclusion that a prima facie case has been made out against them. If this is the import of the order passed by the Sessions Judge, he should have exercised his Powers under Section 435 Criminal Procedure Code and refer the matter to this Court and in that case this Court might have been in a position to examine or decide whether the powers were properly exercised by the Sessions Judge under Section 435 Criminal Procedure Code. In this connection it should also be pointed out that the power exercised by the Sessions Judge under Section 436 is wider than the one exercised under Section 435 Criminal Procedure Code and in any event of the matter if the Sessions Judge intends or intended to exercise his powers under Section 435, he should have referred the matter to this Court and this Court could have examined the matter from a different standpoint, namely, whether the Sessions Judge could take a different view from the Magistrate on the materials before him. But, the Sessions Judge in the present case, in our opinion, was not right in holding that in the circumstances of the present case he should direct a further inquiry. As we have already pointed out, it amounts to giving a direction to the Magistrate to frame a charge. 4. It is then contended by Mr. Sharma, who appears for the complainant, that it was obligatory on the part of the Magistrate to give reasons and that in the present case there are no reasons given by the Magistrate and, therefore, the order is examinable by this Court in exercise of its re-visional powers. There are two answers to this contention. Firstly, if the contention of Mr. Sharma is accepted then it will be examining the order passed by the Sessions Judge in the light that he has exercised his powers under Section 435, which in the present case he has not done.

In that case if the Sessions Judge thought that the order of the Magistrate was defective or illegal because it did not contain any reason, he should have referred the matter to this Court under Section 439 Criminal Procedure Code, The second answer to his contention is that though it may be desirable that the Magistrate should give his reasons because the matter is examinable in revision by the superior courts and the superior courts will be in a better position to examine the validity or propriety of the order Passed by the Magistrate, if the reasons are given it cannot be said that failure to give reasons makes the order a nullity or without jurisdiction so that it can be set aside by this Court. 5. In the result, therefore, the revision is allowed and the order of the learned Sessions Judge is set aside. The rule is made absolute. S.K. Dutta, J.

Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1639,

The entire Hussainara Khatoon matter consisted of not one but several judgments, rendered on 12th February, 9th March and 4th May of 1979, by the Supreme Court of India. Considered landmark in the field of prisoner rights, these judgments lambasted the State Government for the inordinate period of trial, lack of legal aid and the consequent lengthy periods of detention that undertrials faced, often longer than the maximum sentence for the offence that they were charged with. The Court ordered the release on bail of all prisoners who had served more than half of the maximum sentence attached to the offence they had been charged with, along with the provision of legal aid pursuant to Article 39A. The provision as to the compulsory release of prisoners on bail once they have served half the maximum sentence the offence with which they were charged was punishable with today finds place on the statute book, with Section 436A being added to the Code of Criminal Procedure, 1973 vide the Criminal Procedure Code (Amendment) Act, 2005. This particular provision assumes huge significance in light of the statistics revealed by the National Crime Records Bureau (NCRB) in 2006. That our prisons are overflowing is well known (1336 prisons across India house a total population of 3,73,271 prisoners as against a stipulated capacity of 2,63,911 prisoners). But what is not so well known is the nature of the inhabitants of these prisons. Some 67% of Indias prisoners are undertrials, individuals as yet not held to be guilty by any Court of law. With our

legal system having a presumption of innocence, we effectively spend 70% of our prison-space and resources for prison maintenance and development on innocents.

The NCRB data reveals that 2,45,244 of Indian prisoners are undertrials. These undertrials languish in jail due to inadequate legal aid, unsympathetic judges, a bail-system linked inextricably to property & financial wellbeing and a general lack of awareness about rights of arrestees. The single largest tragedy is the continued detention of individuals accused of bailable offences, where bail is a matter of right, and where an order of detention is supposed to be the aberration. Dostoevsky once famously proclaimed that the degree of civilisation of a society can be best judged by entering its prisons. Indian prisons, overcrowded with innocents, clearly paint a sorry picture of Indian civilisation.

In Hussainara Khatoon, the Court laid down an eight point alternative formula to the conventional grounds for grant of bail, usually offence related or finance-related:

(1) The length of his residence in the community, (2) his employment status, history and his financial condition, (3) his family ties and relationships, (4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release on recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance and (8) any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

Sec 437

Arvind Kumar vs State Of U.P. on 8 January, 2010

Court No. - 25 CRIMINAL MISC. BAIL APPLICATION No. - 31262 of 2009 Arvind Kumar Vs. State of U.P. Hon'ble Shri Kant Tripathi,J. 1. Heard Mr. V. P. Srivastava the senior learned counsel for the applicant assisted by Mr. Shri Ram Rawat and the learned AGA for the State and perused the record. 2. The learned senior counsel Mr. V. P. Srivastava submitted that the second bail application has been moved mainly a the ground that the applicant is entitled to bail under section 437 (6) Cr.P.C. due to the reason that the trial could not conclude within 60 days from the first date fixed for taking prosecution evidence. Mr. Srivastava further submitted that the provisions of section 437 (6) Cr.P.C. are mandatory in nature and only in exceptional circumstances for the reasons to be recorded a bail prayer may be refused under section 437 (6) Cr.P.C. It was also submitted that the applicant is in jail from 12.8.2008. The first date fixed for prosecution evidence was 19.9.2008 and since then the trial is pending with no logical progress and only one witness could be examined during that period. 3. The learned AGA could not point out any fact to rebut the contention of the learned Senior Counsel for the applicant and to show that the provisions of section 437 (6) Cr.P.C. are not attracted in this case. 4. Section 437 (6) Cr.P.C. reads as follows: (6) 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." 5. Section 437 (6) Cr.P.C. has, therefore, conferred a right on accused of any non bailable offence triable by a Magistrate to claim bail if the trial is not concluded within 60 days from the first date fixed for taking evidence in the case and the accused remains in custody during the whole period of 60 days. Only in exceptional cases the bail may be refused for the reasons to be recorded in writing which must be based on just, fair and reasonable grounds. If there is no just, fair or reasonable ground to refuse the

bail under section 437 (6) Cr.P.C., the accused should be enlarged on bail if the conditions specified in section 437 (6) Cr.P.C., are fulfilled. Ordinarily the bail prayer under section 437 (6) Cr.P.C. should be made before the Trial Magistrate but in a case where earlier bail application has been rejected by the higher court, the bail prayer under section 437 (6) Cr.P.C. may be made even in the higher court. 6. In the instant case, the petitioner is in jail from 12.8.2008 in connection with non-bailable offences triable by the Magistrate. A certified copy of the order sheet of the concerned trial has been filed along with the bail application, according to which the first date fixed for the prosecution evidence was 19.9.2009 and since then the trial is pending and the applicant is in jail. The trial has yet not concluded even after more than one year from the first date fixed for the prosecution evidence. In my opinion the applicant has made out a case to invoke the provisions of section 437 (6) Cr.P.C. and I do not find any reason not to extend the benefit of section 437 (6) Cr.P.C. to the applicant. 7. In view of the facts and circumstances of the case, the submissions of the learned counsel for the applicant and the learned AGA I consider just and expedient to enlarge the applicant on bail under section 437 (6) Cr.P.C. 8. Let the applicant ( Arvind Kumar) involved in the case crime no. 320 of 2007, under sections 409 and 120B IPC, police station Chhata, district Mathura, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the concerned Magistrate. Order Date :8.1.2010

Circumstances where bail is mandatory

SUBMISSION OF PROJECT FOR BACHELOR OF LAW (6TH SEMESTER) AMITY LAW SCHOOL, AMITY UNIVERSITY, UTTAR PRADESH

SAURABH NANGIA ENROLLMENT NO.:A3208309175

CONTENTS

1. INTRODUCTION 2. ANTICIPATORY BAIL 3. SECTION 436 4. SECTION 437 5. CASE STUDIES 6. CONCLUSION

BIBLIOGRAPHY

1. 2. 3. 4. 5.

Google Search Engine- www.google.com Wikipedia Online Encyclopedia- en.wikipedia.org www.indianlaw.com www.manupatra.com www.encyclopedia.co.in

ACKNOWLEDGEMENT

In the completion of my project work I was assisted by a number of people and books alike. Firstly I would like to thank my teacher Mrs Meenu Gupta without whom my project work would never see the light of the day. Then I would to thank my colleagues without whom making the project would never be so full of fun and joy. I would also like to thank my brother Karan Tyagi whose immeasurable inputs were a great help in the making of my project work. In the end I would like to thank the almighty God without whose blessings the project would have never been a success

MRS MEENU GUPTA LECTURER DEPARTMENT OF LAW

AMITY LAW, SCHOOL, AMITY UNIVERSITY NOIDA.

CERTIFICATE
This is to Certify that SAURABH NANGIA, a bonafide student of bachelor of laws 5th semester Amity Law School, Amity University, Uttar Pradesh has satisfactory prepared this project titled as Circumstances where bail is Necessary under my supervision and guidance the present project work incorporate the result of his independent study and research. The present work is up to the mark and worthy of consideration for the award bachelor of law degree. This being is submitted to the Amity University Uttar Pradesh for the degree of bachelor of laws in the partial fulfillment of requirement for the degree.

SUPERVISOR MEENU GUPTA AMITY LAW SCHOOL AMITY UNIVERSITY UTTAR PRADESH

CONCLUSION

The purpose of bail is to ensure that one is not arbitrarily denied her liberty prior to a fair determination of guilt. Obviously, circumstances exist in which one should be detained prior to trial, e.g. if the defendant is a danger to the community, or is a risk of flight. But in most circumstances, people should be released pending trial. If, in the end, the defendant is found not guilty, or is found responsible for some minor or trivial offense, that will be little consolation when he has already effectively been punished by his pre-trial detention. Keeping a suspect in custody before his trial punishes him before he has actually been found guilty. The International Covenant on Civil and Political Rights, ratified by 166 countries and signed by eight more, stipulates that people charged with crimes have a right to reasonable bail. Determining the reasonable amount is decided on a case-by-case basis. It will ultimately depend on the quality and amount of information that a lawyer submits to the court; it is a balancing test of a number of factors, including the seriousness of the crime, its circumstances, whether the defendant poses a serious threat to the community or a risk of flight, and the defendant's personal circumstances and needs. For juvenile defendants, it is generally not reasonable to impose monetary bail, since they will be unable to pay. Instead, lawyers should locate an appropriate adult; generally, a parent or guardian can serve as a guarantor. A lawyer's role is critical to ensure that every citizen is guaranteed their most basic rights under the law. Lawyers should provide early and repeated advocacy for release from detention or jail on bail. Therefore Bail is an important Right of the Arrestee.