PROVISIONS OF GRANTING BAIL BY HIGH COURT
- We study your case and decide which bail you should apply for
- We guide you through collection of requisite documents and evidences
- File the application in court for grant of bail
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Overview
Sections 436-450 of the Code of Criminal Procedure (the Code) 1973 encompass the provisions related to bail. Bail provides conditional liberty to an accused individual who has not yet been tried, either from police custody or judicial custody. The power to grant bail is held by not only the police and Magistrates but also the Sessions Court and High Court. However, this article will focus on the High Court’s authority to grant bail.
In cases where bail is initially rejected, the accused can approach the High Court to seek bail. The primary objective behind granting bail is to ensure that the accused appears before the court whenever required. This article aims to provide an understanding of bailable and non-bailable offenses, shedding light on the circumstances in which bail can be granted.
What Is Bail
Bail refers to the temporary release of an accused individual from custody while awaiting their trial. It is a provision that allows the accused to be set free, either with or without the requirement of providing sureties as a guarantee.
Types Of Offences And Bail
As stated in the Indian Constitution, Article 21 guarantees the right to life and personal liberty for every individual. This means that no person can be unlawfully detained or deprived of their personal freedom, except as permitted by the law.
The principle of the rule of law emphasizes that bail should be the norm, while imprisonment should be the exception. Offenses committed by an accused person are generally classified as either bailable or non-bailable. Bail can be granted to the accused, with or without the requirement of sureties.
Bailable offenses are of a less serious nature, and bail is available as a matter of right without the discretion of the court. On the other hand, in non-bailable offenses, bail is not available as a matter of right and is at the discretion of the court. The court considers certain factors before granting bail in non-bailable offenses.
In non-bailable offenses, the accused cannot automatically demand bail as a right. Failure to provide surety or comply with the conditions of release on bail can lead to the cancellation of bail by the court.
In India, there are generally three types of bail available to the accused: regular bail, interim bail, and anticipatory bail.
Regular Bail: This type of bail is granted when the individual has already been arrested and is in police custody. Sections 437 and 439 of the law deal with the provisions related to regular bail.
Interim Bail: Interim bail is granted for a specific period by the court while the bail application is being considered. It allows the accused to be released before the hearing for regular bail or anticipatory bail.
Anticipatory Bail: Anticipatory bail is granted when an individual anticipates being arrested for a non-bailable offense. It can be obtained through an application filed under section 438 of the Code. Anticipatory bail provides protection to a person against arrest.
Power Of High Court To Grant Bail
Bail is typically granted by the District Court or Sessions Court in cases involving serious offenses like murder. Only if the bail is rejected by the Magistrate or subsequently canceled, the accused can approach the High Court for bail.
The High Court or Court of Session has the authority to grant bail under specific conditions, as provided in sections 49 and 439A of the Code of Criminal Procedure.
Section 439 of the Code of Criminal Procedure confers special powers upon the High Court or Court of Session regarding bail. The High Court or Court of Session may direct the release of an individual accused of an offense on bail. However, if the offense is punishable with imprisonment of seven years or more, or if it pertains to abetment or conspiracy, the High Court may impose necessary conditions for granting bail, overriding any conditions imposed by the Magistrate.
The High Court also possesses the power to order the arrest and custody of any individual previously released on bail.
In the event of an application for bail after arrest, the High Court may grant bail unless one or more of the following grounds exist:
- Reasonable grounds to believe that the accused is not guilty of the alleged offense.
- The accused is under the age of sixteen, or is a woman, or is sick or infirm.
When granting bail, the High Court must exercise its jurisdiction judiciously. Even if the High Court is not acting in its appellate or revisional capacity, it has the authority to set aside orders issued by the Sessions Court. However, while setting aside such orders and providing reasons, the High Court should ensure that it has reasonably applied its jurisdiction, demonstrating that it has considered the grounds for refusing bail.
Please note that I am an AI language model and not a legal professional. For specific legal advice, it is recommended to consult with a qualified legal practitioner.
Power Of High Court Regarding Bail Under NDPS Act And TADA Act
The Narcotic Drugs and Psychotropic Substances Act (NDPS) is a special law that was enacted to establish stringent provisions for the control and regulation of activities related to narcotic drugs and psychotropic substances. Section 37 of the NDPS Act restricts the scope and application of the bail provisions under the Code of Criminal Procedure. Thus, the power of the High Court to grant bail under section 439 of the Code is subject to the limitations imposed by section 37 of the NDPS Act. In case of any inconsistency between the two provisions, the provisions of the NDPS Act take precedence.
The limitations on granting bail, as specified in section 37 of the NDPS Act, come into consideration only when questions regarding the grant of bail arise on merit in NDPS cases.
Similarly, the power of the High Court to grant bail is curtailed in cases involving offenses committed under the Terrorist and Disruptive Activities Prevention Act (TADA) since the latter is a special law. In the case of Usmanbhai v. State (1988), the court held that section 439 and section 482 of the Code cannot be utilized for granting bail under the TADA Act. Therefore, the authority to grant bail to a person prosecuted under the TADA Act lies with the designated authority. If bail is denied by the designated authority, the High Court does not have jurisdiction to entertain an application under sections 439 and 482 of the Code.
Please note that I am an AI language model and not a legal professional. For specific legal advice, it is recommended to consult with a qualified legal practitioner.