INTRODUCTION

There is no definition of bail in the Code although offences are classified as bailable and non-
bailable. The actual Sections which deal with bail…. are of blurred semantics. We
have to interdict judicial arbitrariness, deprecatory of liberty and ensure ‘fair procedure’
which has a creative connotation.1

n K.N. Joglekar v. Emperor,2 it was held that there is no hard and fast rule regarding the
discretion of the magistrate in granting bail. He only principle that is established is that there
should be a judicial exercise of that discretion. It is not any one single circumstance which
necessarily concludes the decision, but it is the cumulative effect of all the combined
circumstances that must weigh with the court. Bail cannot be refused on the ground that the
offence alleged to have committed is highly anti-social in character. A refusal of bail on this
ground would amount to prejudging the guilt of the applicants and withholding bail as a
measure of punishment. It is an elementary principle of our criminal law that bail cannot be
refused as a punishment.

 In the ‘Law of Bails’ has to dovetail two conflicting demands, namely, the requirements
of the society for being shielded from the hazards of being exposed to the mis-adventures of a
person alleged to have committed a crime on the one hand and the fundamental canon of
criminal jurisprudence viz, the presumption of innocence of an accused till he is found guilty,
on the other. 

THE CODE OF CRIMINAL PROCEDURE, 1973

We find that under the present code, there are two different sections (besides a separate
section 438 dealing with anticipatory bail) section 436, which deals with bail in ‘bailable
cases and section 437 which is devoted to bail in ‘non-bailable cases. It may be emphasized
that these two sections, barring few changes and additions, are the verbatim reproduction of
sections 496 and 497 of the Code of Criminal Procedure, 1898.

Justice Goswami, speaking for the Supreme Court has observed:

We may repeat the two paramount considerations viz. likelihood of the accused

fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair

1
Moti Ram vs State of MP, AIR. 1978 S.C. 1594.
2
A.I.R. 1931 All. 504.
 trial of the case in a Court of Justice. It is essential that due and proper weight should be
bestowed on these two factors apart from others. There cannot be an inexorable formula
in the matter of granting bail. The facts and circumstances of each case will govern the
exercise of judicial discretion in granting or cancelling bail.3

PROVISIONS REGARDING BAIL IN BAILABLE OFFENSES

The sections pertaining to bailable offences has to be read harmoniously with other
provisions of the Code especially ss. 50, 56, and 57 of Cr.PC. When read conjointly, they
undoubtedly give effect to the constitutional mandate in Article 22 of the Constitution,
wherein the arrested person has right to be informed of the nature of the offence and the
ground of his arrest.4

Section 50: Persons arrested to be informed of grounds of arrest and of right to bail.

This provision provides that

(1) the person arrested without any warrant should Immediately be intimated the full
particulars of the offence and the grounds for his arrest, and

(2) where the offence is a bailable one, of his right to be released on bail The police officer
cannot keep the reasons to himself, a citizen is entitled to know them.

Where ball was sought on the ground that the accused was not informed of the grounds of his
arrest, but the police controverted the fact through affidavit and an entry in the General Diary.

Sec 436 of Crpc.

Section 436 reads as follows:

3
Gurcharan Singh v. State, (1978) 1 SCC 118 at 129
4
Pravin Kumar Chandrakant Vyas v. State, 2001 (3) GLR 2755.
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, and shall, if such person
is indigent and is unable to furnish surety, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance as
hereinafter provided:

Where a person is unable to give bail within a week of the date of his arrest, it shall be
a sufficient ground for the officer or the Court to presume that he is an indigent person
for the purposes of this proviso. Provided further that nothing in this Section shall be
deemed to affect he provisions of sub-section (3) of Section 1165 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

5
After the commencement, and before the completion, of the inquiry under sub- section (1), the Magistrate, if
he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of
the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded
in writing, direct the person in respect of whom the order under section 111 has been made

to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the
conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution,
until the inquiry is concluded: Provided that-

(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall
be directed to execute a bond for maintaining good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number
thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order
under section 111.
 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,"

Pre-requisites of Section 436(1) to be released on bail.

Section 436(1) deals with the grant of bail in respect of bailable offences in general where a
person is arrested or detained without a warrant. For the grant of bail under this Section, the
following conditions must be satisfied:

(1) the person has been accused of a bailable offence:

(2) he has been arrested or detained without warrant by an officer-in charge of a police station
or appears or is brought before a court; and

(3) he must be prepared at any time while in the custody of such officer or at any stage of the
proceeding before court to give bail.

If all the three conditions mentioned above are satisfied, then bail can he claimed as a matter
of right. The word used is "shall", and not "may", and therefore, there is no discretion either
with the police officer or with the Court.

Amount of Bail with Surety: Where the Court decides to grant bail with sureties, the
amount of bail should be a reasonable sum within the reach of the accused. The bail
conditions of a person accused of a bailable offence should not be harsh, oppressive and
virtually resulting in denial of bail. The Court cannot reject a surety merely because he or his
estate was situating in a different district or State.

The right to be released on bail under Section 436(1) cannot be nullified indirectly by fixing
too high the amount of bond or bail-bond to be furnished by the person sacking release. The
case of Moti Ram v. State of MP (AIR 1978 SC 1394) shows how the bail can be made
impossible by requiring the petitioner to execute sureties in the sum much beyond what he
can manage. The ordinary labourer was asked to pay a sum of Rs. 10,000. Also, the
magistrate refused to accept suretyship of the petitioner’s brother because he and his assets
were in another district. The SC held it to be a wrong decision. by reasoning that 'What a
person of one State would do if arrested in other State?' Section 440(1) specially provides that
the amount of every such bond shall be fixed with due regard to the circumstances of the case
and shall not be excessive

RIGHT TO BAIL IS NOT ABSOLUTE:

Section 436(2): Section 436(1) is an imperative or mandatory provision. The court cannot
impose any condition in a bail-order. The only exception to this rule is stated in Section
436(2) which makes a provision to the effect that a person who absconds or has broken the
condition of his bail-bond when he was released on bail in a bailable case on a previous
occasion, shall not, as of right, be entitled to bail when brought to court on any subsequent
date even though the offence may be bailable. Moreover, according to Section 446A, the
bond executed by such person as well as the bond (if any) executed by his surety shall stand
cancelled; and thereafter such a per on in that case shall not be released only on his own bond
if it is found that there was no sufficient cause for the failure of the person bound by the bond
to comply with its conditions.

Apart from this provision, s. 439 (2) of Cr.P.C empowers the High Court and the Court of
Sessions to cancel any bail granted under Chapter XXXIII, irrespective of the type of offence
if the person accused of an offence by his conduct has forfeited the concessions granted
through bail.6

Contrary opinion: In Rasiklal v. Kishore s/o Khanchand Wadhwani7 the Supreme Court
held that the right to bail for bailable offences is an absolute and in-defeasible right and no
discretion can be exercised as the words of s. 436 Cr.P.C are imperative and the person
accused of an offence is bound to be released as soon as the bail is furnished. It further
observed that there is no need for the complainant or the public prosecutor to be heard in
cases where a person is charged with a bailable offence.

Common Cause Vs. UOI

6
Dayanidhi Sherangi v. State of Orissa, 1978 Cr.LJ (NOC) 104.
7
AIR 2009 SC 1341
In  Common Cause v. Union of India, the court held that if the court finds it is not proper to
release the under-trial prisoner at this stage of the criminal proceeding, then the court should
pass at least necessary orders for concluding trial as expeditiously as possible.
Section 436A deals with the ‘Maximum period for which an undertrial prisoner can be
detained’. In this case, when the accused, during the investigation, inquiry or trial have
already undergone detention for more than half of the term of conviction. He must be granted
bail unless the offence doesn’t amount to the punishment of death. The said accused could be
released by issuing a personal bond or sureties.
Clause (c) states when the question of bail arises after conviction and the decision of the trial
court that is the conviction order has been challenged in appeal or revision as the case may
be. The question of bail depends upon the quantum of the sentence. The quantum of sentence
can be divided into three categories- short-term sentences (a person sentenced to
imprisonment up to 3 years), mid-term sentences (more than 3 years and less than 7 years)
and long-term sentences (more than 7 years).

BAIL IN NON BAILABLE OFFENSES

Bail is not a matter of right for a person accused of a nonbailable offence. Section 437 of the
Cr.PC enlists the powers of the magistrate to grant bail in non-bailable matters subject to
restrictions. It provides that Magistrates have the discretion to release such persons on bail,
subject to certain restrictions. However, in certain cases, where the nature and the gravity of
the crime is significant, pre-trial detention does not offend principles of natural justice which
are so rooted in the traditions and the conscience of the people as to be ranked as fundamental
to the jurisprudence of law.8

Pre-requisites of Section 437(1) to be released on Bail

Section 437(1) deals with the grant of bail in respect of non-bailable offences in general.
Section 437 is concerned only with the Court of Magistrate. It expressly excludes the High
Court and the Court of Session from its purview. Under Section 437(1), the power of the

8
Magistrate to grant bail to an accused arrested in connection with non-bailable offence is
restricted. Section 437(1) divides the accused in to three categories for the purposes of
granting bail. They are:

(1) Guilty of an offence punishable with death or imprisonment for life: [Section 437(1)
(1)]: With regard to this category, there is a bar to grant of bail by the Court or the
Officer-in charge of a police station if there appear reasonable grounds for believing
that he was guilty of the commission of such offence. Moreover, if the police officer
or court grants bail under this category, the officer or court must record his reason for
so doing,
(2) 2) Habitual offenders: [Section 437(1)(1)]: An accused shall not be released on bail
by the Magistrate if such offence is cognizable and he 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. Moreover, if the police officer or court grants bail
under this category, the officer or court must record his reasons for so doing [Sub-
section (4)).

(3) Other Non-bailable Cases: In all other non-bailable cases, judicial discretion will
always be exercised by the Court in favour of granting bail subject to Section 437(3),
with regard to imposition of conditions. if necessary.

Provisos to the above Restrictions.

(1) Proviso to Section 437(1)(1): Even where the offence in question is punishable
with death or imprisonment of life, the court has the discretion to grant bail where: (1)
such person is a person below 16 years; or (ii) a woman; or (iii) a sick or infirm
person.

(2) Proviso to Section 437(1)(1): Even with regard to this category of cases, there are
exceptions: (1) Person under 16; woman; sick or infirm person; or (1) The court being
satisfied that, for any other special reason, it would be just and proper to grant bail.
 (3) Proviso: Identification of Accused: Where the presence of an accused may be
required for the identification parade, bail should not be refused on that sole ground if
he gives an undertaking that he would comply with the directions of the court in that
behalf.

COMPULSORY RELEASE

(Mandatory Bail Provisions in the Code)

(1) Non-completion of Investigation:

Section 167(2), Proviso (a): When an under-trial prisoner is detained in custody for
a period of 60 or 90 days, as the case may be, and formal charge-sheet has not been
submitted the Magistrate is under constitutional and procedural mandate to inform the
accused prisoner that he is entitled to bail if he furnishes the bail and if he furnishes
bail-bond he must be released on bail. If the Magistrate orders his further detention
without intimating the accused of his right, his further detention will be illegal.
 However, when challan is filed by the police within time, no right accrues to the
accused to claim under Section 167(2)(a).
(2) Absence of reasonable grounds:
Section 437(2): If at any stage of the investigation, inquiry or trial relating to a non-
bailable offence, it appears to the Court that though there are no reasonable grounds
for believing that such person has committed a non-bailable offence, but that there are
sufficient grounds for directing further inquiry, he shall, pending such further inquiry.
release the accused on bail or on the execution of a bond for appearance.
(3) Non-completion of Trial within 60 days:
Section 437(6): Where, in a case triable by a Magistrate the trial is not concluded
within 60 days from the first date fixed for taking evidence and such person has been
custody during such period, the Magistrate shall release him on bail, unless the
Magistrate has reasons (to be recorded in writing) for directing otherwise.
Default Bail Under Section 167 Cr.P.C Computation of Period: The period of 90
days or 60 days has to be computed from the date of detention as per orders of the
magistrate and not from the date of arrest by the police. 9 Consequently, the first
period of 15 days mentioned in section 167(2) has to be computed from the date of
such detention and after the expiry of first 15 days it should be only judicial custody.
(4) Non-delivery of Judgment: Section 437(7): If the judgment is not delivered
immediately after conclusion of the trial, the trying court must release the accused if
he is of opinion that there are reasonable grounds for believing that the accused is not
guilty of a non-bailable offence, subject to his execution of a bond for attendance on
the date for delivery of judgment.
(5) Release of Appellant on Bail: Section 389: Where an appeal has been filed before
an appellate court, that court has the power, while the appeal is pending, to grant bail,
if the accused is under confinement. The court may impose conditions while granting
bail.

ANTICIPATORY BAIL

Section 438 of Cr.P.C. deals with anticipatory bail. The anticipatory bail is nothing but a bail
in the event of arrest, when any person has an apprehension or reason to believe that he may
9
Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni (1992) 3 SCC
141
be arrested of an accusation of having committed a nonbailable offence then he may apply to
High Court or Court of Sessions for direction that in the event of arrest he shall be released
on bail. Therefore, the said powers are exclusively vested with the Court of Sessions and
High Courts.

For considering the application for anticipatory bail the prerequisite condition is that the
offence must be non- bailable. There must be a sufficient reason to believe that the applicant
may be arrested in said accusation. The Sessions Court or the Hon'ble High Court considering
the nature and gravity of accusation, the antecedent of applicant, the possibility to flee from
justice and whether the accusation has been made with object of injury or humiliating the
applicant by having him arrested may either reject the application or issue an interim order
for the grant of anticipatory bail.

Presence of accused: If the public prosecutor applied to the court that direction be given to
the applicant to remain present in the court at the time of final hearing of the application then
if court considers such presence necessary in the interest of justice and give such direction to
the applicant. But such direction be issued when the interim anticipatory bail is granted to the
applicant otherwise not.10

Section 438(2) of Cr.P.C. provides that, the High Court or the Sessions Court may also
impose some conditions while granting the application.

The conditions may be as follows:

a) That the persons shall make himself available for the interrogation by police officer as and
when required;

b) That the person shall not directly or indirectly make any inducement, threats or promise to
any witness;

c) That a person shall not leave India without previous permission of the Court. Practice of
appearing on every 14 days Accused who has been granted bail need not to appear before the
court till the charge sheet is filed and process is issued. 11

Bar to grant of anticipatory bail: Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act bars anticipatory bail for the offences committed under the said
10
Shivraj Krishnappa Gandge ..vs.. State of Maharashtra, 2010 ALL M R (Cri) 3073.
11
Free Legal Aid Committee v. State of Bihar, 1982 Cr.L.J. 1943 : 1982 AIR (SC) 1463
Act. However, if the prima facie case is not made out under the provision of the Atrocities
Act, then there is no bar to grant of anticipatory bail.12.

 After having thorough excursions into the text of section 438, it is clear that there is no such
word used as ‘anticipatory bail’. However, it is clearly discernible from the provisions of this
section. The word ‘anticipatory bail’ is misnomer. This fact was highlighted by Bhagwati, J.,
in Balchand v. State of M.P. in the following words:

We do not find in this section the words ‘anticipatory bail’, but that is clearly the
subject with which the section deals. In fact, ‘anticipatory bail’ is misnomer…. When the
Court grants ‘anticipatory bail’, what it does is to make an order that in the event of arrest
a person shall be released on bail. Manifestly there is no question of release on bail unless
a person is arrested and, therefore, it is only on an arrest that the order granting
(anticipatory bail) becomes operative…It is a power exercisable in case of anticipated
accusation of non-bailable offence.

CASE LAWS

In OnkarNathAgrawal v.   State it was held that the power

under section 438 is not to be exercised in vacuum but only on the satisfaction of the
conditions spelled out in the section itself. The court further held in following terms:

It is obvious that the provision comprises of two parts. The first part envisages of the
conditions under which a person is entitled to make an application for anticipatory bail in
the Court of Session or in the High Court. There are only two conditions which must exist
before he can move such an application. In the first place there must exist a
ground to believe that he may be arrested and secondly there must be an accusation of his
having committed a non-bailable offence.34

While dwelling on the meaning of ‘reasonable apprehension’, Barooah, J., of the Calcutta
High Court in Shyam Sunder Beriwala v. State made the following observations:

12
Vilas Pandurang Pawar vs State of Maharashtra 2012 CRI .L.J. 4520 (SC)
 A person applying for anticipatory bail must have a reasonable apprehension of his
being arrested on an accusation of having committed a non-bailable offence although no
cases may actually have been started against him. For instance, if an order for
investigation is passed by a Magistrate under Sec. 156(3) of the Code, the person
concerned must necessarily have a reasonable apprehension that he may be arrested
though no formal F.I.R. has been filed. In the instant case, even if the police had
threatened the petitioners…. that they may start fresh case against the petitioners, it
cannot be said that their apprehension or anticipation of their being arrested is reasonable.
 BAIL VIS-À-VIS PERSONAL LIBERTY

If there is no substantial risk of the accused fleeing the course of justice, there is no reason
why he should be imprisoned during the period of his trial. 13 The basic rule is to release him
on bail unless there are circumstances suggesting the possibility of his fleeing from justice or
thwarting the course of justice. When bail is refused, it is a restriction on personal liberty of
the individual guaranteed by Article 21 of the Constitution and therefore such refusal must be
rare.

Where delays in the disposal of criminal proceedings take place, the accused ought not to be
kept in custody for an inordinately long time and must be released on bail except when under
extremely rare circumstances it is not possible to do so.14

It was observed by Krishna Iyer J., in G. Narasimhulu v. Public Prosecutor,15 that "the
issue of bail is one of the liberties. justice, public safety and burden on the public treasury, all
of which insist that a developed jurisprudence of bail is integral to a socially sensitized
judicia process. After all, personal liberty of an accused or convict is fundamental suffering
lawful eclipse only in terms of procedure established by law. The last four words of Article
21 are the life of that human right."

The SC in Kalyanchandra Sarkar v. Rajesh Ranjan16. examined the idea of Bail in the light
of Article 21. The Court observed: "Personal liberty is a constitutional guarantee. However,
Article 21 which guarantees the above right also contemplates deprivation of personal liberty
by procedure established by law. Under the criminal laws of this country, a person accused of
offences which are non-bailable is liable to be detained in custody during the pendency of
trial unless he is released on bail in accordance with law. Such detention cannot be
questioned as being violative of Article 21 since the same is authorised by law. But even
persons accused of non bailable offences are entitled for bail if the Court concerned comes to
the conclusion that the prosecution has failed to establish a prima facie case against them
and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of
prima facie case there is a need to release such persons on bail where facts and circumstances
require it to do so."

13

14

15
(1978) I SCC 240
16
AIR 2005 SC 921
 NON BAILABLE WARRANT

Non-bailable warrants deprive a person of his liberty which is protected by Article 21 of the
Constitution. The Supreme Court therefore observed that such warrants must be issued with
due care. The Court enumerated the circumstances in which non-bailable warrant should be
issued as follows:

Non-bailable warrants should be issued to bring a person to the court when summons of
bailable warrants would be unlikely to have the desired result. In the legislative history for
the purposes of bail, the term bailable and non-bailable are mostly used to formally
distinguish one of the two classes of cases, viz. bailable offences in which bail may be
claimed as a right in every case whereas the question of grant of bail in non-
bailable offences to such a person is left by the legislature in the courts discretion to be
exercised on a consideration of the totality of the facts and circumstances of a given case.
The discretion has, of course, to be a judicial one informed by tradition methodized by
analogy, disciplined by system and sub-ordinated to the primordial necessity of order in
social life. Another such instance of judicial discretion is the issue of non-bailable warrant in
a complaint case under an application of Section 319 of the Cr.P.C. The power under Section
319 of the Cr.P.C being discretionary must be exercised judiciously with extreme care and
caution.
The court should properly balance both personal liberty and societal interest before issuing
warrants. There cannot be any straight-jacket formula for issuance of warrants but as a
general rule, unless an accused is likely to tamper or destroy the evidence or is likely to evade
the process of law, issuance of non-bailable warrants should be avoided. The conditions for
the issuance of non-bailable warrant are reiterated in Inder Mohan Goswami - (2007) 12 SCC
1 [LNIND 2007 SC 1179] and in State of U.P. vs. Poosu and Another - (1976) 3 SCC
1 [LNIND 1976 SC 151], wherein it is mentioned that:
“Non-bailable warrant should be issued to bring a person to court when summons or bailable
warrants would be unlikely to have the desired result.”
This could be when firstly it is reasonable to believe that the person will not voluntarily
appear in court; or secondly that the police authorities are unable to find the person to serve
him with a summon and thirdly if it is considered that the person could harm someone if not
placed into custody immediately. In the absence of the aforesaid reasons, the issue of non-
bailable warrant a fortiori to the application under Section 319 of the Cr.P.C. would
extinguish the very purpose of existence of procedural laws which preserve and protect the
right of an accused in a trial of a case.

IMPORTANT CASES
1)  State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411
the Supreme Court observed that the power to take back in custody one who has been
enlarged on bail has to be exercised with care and circumspection. But at the same
time, it held that in an appropriate case such a power can be exercised.

2) Gurcharan Singh  v.  State (Delhi Administration), while confirming the order of the
High Court cancelling the bail of the accused, this Court observed that the only
question which the court had to consider at that stage was whether ‘there was prima
facie case made out, as alleged, on the statements of the witnesses and on other
materials’, that ‘there was a likelihood of the appellants tampering with the
prosecution witnesses. It is by the application of this test that we have come to the
conclusion that the respondent's bail ought to be cancelled.

3) Shahzad Hasan Khan  v.  Ishtiaq Hasan Khan,  (1987) 2 SCC 684: (heinous crimes)

The Supreme Court cancelled the bail of the accused, which was granted by the High
Court, having regard to the gravity of the offence, the nature of the evidence available
and the likelihood of the accused tampering with evidence. The Supreme Court in this
regard observed as follows: —

“Having regard to the facts and circumstances of this case we are of the opinion that
the learned Judge committed serious error in recalling his order dated June 3, 1986
and enlarging the respondent on bail. The occurrence took
place, in the broad day light, in a busy market place and there are a number of eye
 witnesses to support the case against the respondent who was named as an
assailant in the First Information Report. Immediately after the occurrence he could
not be traced (it was alleged that he had absconded) for more than a month, attempts
were made on his behalf to tamper with evidence. In view of these facts and
circumstances the respondent No. 1 was not entitled to bail if the seriousness of the
matter was realised and a judicious approach was made.”

  There is no doubt that the liberty of the accused has to be

safeguarded in accordance with law but while keeping  in  mind the interests of the
accused, the collective interest of the community cannot be lost sight of so that the
parties do not lose faith in the administration of justice and take law into their own
hands to wreak vengeance by private retribution.

4) Ram Govind Upadhyay v. Sudarshan Singh and Others AIR 2002 SC 1475:
(heinous crimes)
The court held that the order for bail bereft of any cogent reason cannot be sustained.
Needless to record, however, that the grant of bail is dependent upon the contextual
facts of the matter being dealt with by the court and facts, however, do always vary
from case to case. While placement of the accused in the society, though may be
considered but that by itself cannot be a guiding factor in the matter of grant of bail
and the same should and ought always to be coupled with other circumstances
warranting the grant of bail. The nature of the offence is one of the basic
considerations for the grant of bail — more heinous is the crime, the greater is the
chance of rejection of the bail, though, however, dependent on the factual matrix of
the matter.

5) State of Kerala Versus Mahesh [2021] 2 MLJ (CRL) 205

This recent case reiterated the essentials to be kept in mind while granting bail
(a) While granting bail the court has to keep in mind not only the nature of the
accusations, but the severity of the
punishment, if the accusation entails a conviction and the nature of evidence in
support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the
 complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the
accused beyond reasonable doubt but
there ought always to be a prima facie satisfaction of the court in support of the
charge.
(d) Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be
considered in the matter of grant of bail, and in the event of there being some doubt as
to the genuineness of the prosecution, in the normal course of events, the accused is
entitled to an order of bail.

6) In Mahipal v. Rajesh Kumar and Another (2020) 2 SCC 118 , (balnve between
personal liberty and public intrest)

The Court held: -

The provision for an accused to be released on bail touches upon the liberty of an
individual. It is for this reason that this Court does not ordinarily interfere with an
order of the High Court granting bail. However, where the discretion of the High
Court to grant bail has been exercised without the due application of mind or in
contravention of the directions of this Court, such an order granting bail is liable to be
set aside. The Court is required to factor, amongst other things, a prima facie view
that the accused had committed the offence, the nature and gravity of the offence and
the likelihood of the accused obstructing the proceedings of the trial in any manner or
evading the course of justice. The provision for being released on bail draws an
appropriate balance between public interest in the administration of justice and the
protection of individual liberty pending adjudication of the case.

However, the grant of bail is to be secured within the bounds of the law and in
compliance with the conditions laid down by this Court. It is for this reason that a
court must balance numerous factors that guide the exercise of the discretionary
power to grant bail on a case-by-case basis. Inherent in this determination is whether,
 on an analysis of the record, it appears that there is a prima facie or reasonable cause
to believe
that the accused had committed the crime. It is not relevant at this stage for the court
to examine in detail the evidence on record to come to a conclusive finding.”

7) Xxxx vs State of Karnataka (case on repeat offenders)

In this case the court held that merely because there are number of cases pending
against the accused, the same cannot be a ground to come to the conclusion that he is
a habitual offender. The definition of a habitual offender is clear that if he has been
convicted in more than three cases then he may be considered as a habitual offender.
The cases listed out in page No.8 of the petition are pending cases and among them
one is Civil in nature and other cases are pertaining to different offences. It is not the
case of the petitioner that the respondent No.2 has violated the order of this Court or
coming in the way of trial which he is facing.

Merely registering of several cases against respondent No.2 is not a ground to

invoke Section 439(2) of Cr.P.C. While exercising the power under Section 439 (2)
of Cr.P.C., the Court has to look into the material available on record.

To invoke Section 439 (2) of Cr.P.C., there must be material before the Court to show
that there is violation of conditions of the bail order granted or the accused is coming
in the way of trial. Mere filing of cases is not a ground to come to the conclusion that
he is a habitual offender and he has to be tried and found material that he is having
criminal antecedents and having considered the nature of cases registered against him
and the offences invoked against him, it requires full-fledged trial to ascertain the
truth.

8) Sanjay Chandra v. Central Bureau of Investigation (seriousness of crime not the

sole consideration)
The accused were charged with economic offences of huge magnitude which could
jeopardize the economy of the country. This Court held: -
 In bail applications, generally, it has been laid down from the earliest times that the
object of bail is to secure the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it is required to ensure
that an accused person will stand his trial when called upon. The courts owe more
than verbal respect to the principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and duly found guilty

In our view, seriousness of the charge is, no doubt, one of the relevant considerations
while considering bail applications but that is not the only test or the factor: the other
factor that also requires to be taken note of is the punishment that could be imposed
after trial and conviction, both under the Penal Code and the Prevention of Corruption
Act. Otherwise, if the former is the only test, we would not be balancing the
constitutional rights but rather “recalibrating the scales of justice”

9) Ramesh Kumar Singh vs. Jabbar Singh & Ors (crime when on bail)

The apex court has held that if the accused misuses their liberty by committing other
offences during the suspension of sentence under Section 389 (1) of the CrPC, they
are not entitled to the privilege of being released on bail. In that case, the accused was
convicted under Section 302 of the IPC for killing the father of the complainant and
during the suspension of his sentence, when he was out on bail, he had committed the
murder of the brothers of the complainant. This Court set aside the bail that was
granted to the accused by the High Court.

10) Gurcharan Singh v. State (Delhi Administration)

The Supreme Courtheld that the overriding considerations in granting bail which are
common both in the case of sections 437(1) and 439(1) Cr.P.C. are the nature and
gravity of the circumstances in which the offence is committed; the position and the
status of the accused person with reference to the victim and the witnesses; the
 likelihood of the person accused of an offence fleeing from justice; the likelihood of
repetition of the offence; the likelihood of jeopardizing one’s own life; the likelihood
of tampering with witnesses; the history of the case as well as of its investigation etc.
which cannot be exhaustively set out.

11) Bail granted by Magistrate in offences triable by Sessions Court . In offences

involving punishment for life imprisonment or death penalty, the Magistrate has no
jurisdiction to grant bail. In such cases Magistrate cannot usurp the function of the
Sessions Judge at the stage of investigation itself. In the case of Rafiquttain Vs. Basir
Rahemant 1985 (1) Crimes 1076, 1080 Allahabad, it was held by Hon'ble Allahabad
High Court that if the Magistrate grants bail in the cases covered by the second and
third part of the section 307 IPC the Magistrate goes behind his jurisdiction and acts
illegally. His order of granting bail in such cases will be beyond his power.

12) Accused of a Non Bailable offense summed by a Bailable warrant

The court has taken the view that once the accused of non-bailable offence has been
summoned by bailable warrant, he until otherwise directed by the court, continues to
remain on bail, which approach is in conformity with judgments of the Supreme Court
in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others - AIR
2008 SC 251 [LNIND 2007 SC 1179] (1), Raghuvansh Dewanchand Bhasin Vs. State
of Maharashtra and Another - AIR 2011 SC 3393 [LNIND 2011 SC 892] and Vikas v.
State of Rajasthan, (2014) 3 SCC 321 [LNIND 2013 SC 786] .

Failure by person released on bail or bond to appear in Court.

[Whoever, having been charged with an offence and released on bail or on bond
without sureties, fails without sufficient cause (the burden of proving which shall lie
upon him), to appear in Court in accordance with the terms of the bail or bond, shall
be punished with imprisonment of either description for a term which may extend to
one year, or with fine, or with both.