Bail & Anticipatory Bail


The Code of Criminal Procedure has classified offences in two categories:-

(i) Bailable offences
(ii) Non-bailable offences

The classification has been made for the obvious reason that seriousness and gravity of the charge and the severity of the punishment awardable are very probable factors which are likely to tempt an accused person either to tamper with the prosecution evidence or to abscond in order to escape the punishment. If a person is arrested for an offence which is non bailable, in that case court on its discretion can grant bail. The definition of a non-bailable offence appears in Section 2 (a) of our Code of Criminal Procedure 1974. Section 2(a) provides that “Bailable offence” means an offence which is shown as bailable in the first schedule or which is made by any other law for the time being in force and “non-bailable offence” means any other offence. By and large, offences punishable with imprisonment for not less than three years are taken as serious offences and are made non-bailable.

It is pertinent to point out that individual offences under IPC have been specifically declared as bailable or non-bailable in the first part of the first Schedule to Cr. P.C. to find out whether that offence is bailable or non-bailable; however, in the absence of any such declaration under such parent Act, the general rules mentioned in the second part of the first Schedule to Cr. P.C. have to be referred to, for deciding whether that offence is bailable or non-bailable. The main provision relating to bail in bailable cases is contained in Section 436, Criminal Procedure Code (of 1973) and that relating to non-bailable cases is given in Section 437, Criminal Procedure Code (of 1973). The classification of offences into the two categories of bailable and non bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less grave and serious than non-bailable offences. On this basis it may not be easy to explain why, for instance offences under Ss. 477, 477-A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas offences under S. 379 should be non-bailable. However, it cannot be disputed that S. 436 of Cr. P.C. (of 1973) recognizes that a person accused of a bailable offence has a right to be enlarged on bail. Bailable offences have been defined under clause (a) of Section 2, Cr. P.C., which means offence which is shown as bailable in the first Schedule, or which is made bailable by any other law for the bail being in force and “non bailable offence” means any other offence. The first Schedule of Cr. P.C. consists of two parts, the first part is regarding the offences under the I.P.C. and second part is regarding offences against other law. The second part provides that if the offence is punishable with imprisonment for less than three years of fine only it shall be bailable and can be tried by any Magistrate. Section 4(1)(b) of Cr. P.C. (of 1898) defines bailable offence : bailable offence means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.

Direction for Grant of Bail to Person Apprehending Arrest under Section 438 Cr. P.C.

(1) 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 Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of
such arrest, he be released on bail and that court may taking into consideration inter alia following factors namely: –

i) the nature and gravity of the accusation;

ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii) the possibility of the applicant to free from justice, and

iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(1-A) Where the Court grants an interim order under sub-section (I) it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub section (1) it may include such conditions in such directions in the light of the facts of the particular case as it may think fit, including :

i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

ii) a condition that the person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii) a condition that the person shall not leave India without the previous permission of the Court;

iv) such other condition as may be imposed under sub section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time in the custody of such officer to give bail, he shall be released on bail; and if a magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub section (1).

Cr. P. C. (Amendment) Act 2005 (25 of 2005) – Sub-section (1) of the S. 438 has been substituted by the new sub-sections (1) (1A) and (1B). This amendment in the section will come into force from the date of its notification.

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