BAILABLE AND NON-BAILABLE OFFFENCE

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Bailable– The person has a right to bail. The main reason is that there is no place in jail for the parties.

Non-bailable– The bail is at the discretion of the court.

Section 436- In what case bail to be taken: Here the person has to be in custody, and then the question of bail comes in if the offence is bailable. There have to be two sureties for the bail, or if the officer considers the person to be an indigent person the accused may be released on a personal guaranty.

Indigent person- is a person who cannot furnish the amount within a week. Explanation of Section 436

Section 446A- Cancellation of bond and bailbond: Bond is a matter of good faith and trust. Thus, if it is violated, then the privilege will not be extended again. The court may refuse bail. However, the terms which are put bail should not be unreasonable and the amount of bail should not be excessive in nature.

Section 436A-Maximum period for which an under trial prisoner can be detained: The person can be kept only for half the punishment time during the investigation. Moreover, the person can be detained for more than the maximum time period of the offence. However, the delay shall not be by the accused.

Bail:  This necessarily involves

Bond: Bond is when there are two people who assure that that you will appear in court. There may or may not be money involved.

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

  • This is in reference to an accused or a suspect
  • This is when a police makes an arrest without a warrant under Section 41. If the arrest is made with a warrant by the Magistrate, Court of Session, and High Court then the conditions of the warrant will be there in the warrant itself.
  • Bail cannot be granted without the consultation of the Public Prosecutor and/or the Counsel for the Complainant
  • Just and proper would refer to things like medical grounds (this is not very easy though). There may also be who you are? grounds for this. There would also be the bail status of the co-accused, i.e. if there are 3 other co-accused and they have been set free, the court will consider as to why you should or shouldn’t be set free in comparison to them.
  • Bail can’t be refused on the mere fact that you may be required as a witness.
  • Breach of the policies would lead to cancellation of the bail.

Public Prosecutor v. George Williams A.I.R. 1951 Mad. 1042

  • Cancellation of bail
  • Acts of violence
  • Tampering evidence
  • Not cooperating with the evidence
  • Breaches terms of bail

Section 167- Procedure when investigation cannot be completed in twenty-four hours

The difference between Section 167 and Section 437 –

Section 437A – Bail to require accused to appear before next appellate Court : This is applicable either to the appellate court or to the trial court. The accused has be given in a bond that he will appear before the appellate court.

Bail applications cannot be filed continuously, unless there is a MATERIAL CHANGE IN CIRCUMSTANCES

Section 438- Direction for grant of bail to person apprehending arrest– This is anticipatory bail. Anticipatory bail exhausts itself after arrest, i.e. when you are arrested when you are waiting for the decision on Anticipatory Bail.

Section 439- Special powers of High Court or Court of Session regarding bail

Section 389- Suspension of sentence pending the appeal; release of appellant on bail

Kalyan Chandra Sarkar v. Rajesh Ranjan

The respondent has been denied bail 9 times before this application. The present court in the two appeals has set aside the order by the HC of granting bail to the respondent. When the earlier appeals were filed, they were all demised on refusal to grant bail.

After the rejection of four bail applications earlier, the respondent filed a 5th application Crl. Miscellaneous 24068 of 2002 which came to be allowed by the High Court on the sole ground that since the respondent accused was under detention for more than one year, he should be released on bail without going into any other aspect of the case.

Later, an application was filed against the grant of bail on the ground that High Court while granting the bail did not keep in mind the requirement of Section 437(1) (i) of Cr. P.C.

The 6th and 7th application were also rejected.

8th Application was allowed. The ground for this was – that the accused-respondent had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future.

An application against this bail was allowed. On the ground that the court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of the prima facie case, gravity of offence, and the allegation of tampering with the witness by threat and inducement when on bail.

The court recognised that an accused had a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications.

The 9th bail application was filed and then allowed.

The present appeal, the appellant contends that entertainment of the 9th bail application by the High Court on the very same grounds as those urged in the earlier petitions without there being any new facts or grounds amounts to an abuse of the process of the court and is in derogation of the earlier orders passed by this Court.

He also contends that the points raised by the accused in the 9th bail application has already been negatived by the HC and to allow this appeal now is to interferes with the previous order. Secondly,the existence of a prima facie case has already been established and that couldn’t have been overlooked.

Also, accused during his incarceration as well as during the short periods when he was out on bail which showed that he was interfering with the course of investigation and was threatening witnesses and that this accused had no respect for law.

The court accepted the contentions made by the Petitioner’s.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.


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