Section 437 deals with the powers of Magistrate regarding bails in case of non-bailable
offence after the accused has been arrested by the police whereas Section 439 deals with special powers of High Court or Court of Session regarding bail in India in non-bailable offences.
Bail is the rule; Jail is the exception. This is what Sections 437/439 of the Cr.PC in terms postulate, viz. that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained he may be released on bail.However, an exception has simultaneously been prescribed, namely, that such a person shall not be so released unless it appears to the Court, on reasonable grounds, that he has been guilty of an offence punishable with death or imprisonment for life.
Grant of bail in India is a discretionary relief, however there is no straitjacket 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. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
Factors for grant of bail in India:
The nature of the offence is one of the basic consideration for the grant of bail – more
heinous is a crime, the greater is the chance of rejection of the bail, though, however,
dependent on the factual matrix of the matter.
It is also necessary for the court granting bail in India to consider among other circumstances, the following factors also before granting bail; they are:
- The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
- Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
- Prima facie satisfaction of the court in support of the charge.
- Nature and seriousness of the offence.
- The character of the evidence.
- A reasonable possibility of the presence of the accused not being secured at the trial.
- A reasonable apprehension of witnesses being tampered with.
- The larger interest of the public or the State
Can A Magistrate Consider An Application For Bail For An Offence Exclusively Triable By A Court Of Sessions?
Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail.
This issue has been decided by the Supreme Court of India in the case of “Prahlad Singh Bhati vs NCT Delhi & Ors.” AIR 2001 SC 1444 as follows:
“Powers of the Magistrate, while dealing with the applications for grant of bail,are regulated by the punishment prescribed for the offence in which the bail is sought.Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail in India unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.”
Can Court impose Conditions while granting Bail in India:
Courts while granting bail also has discretion to impose the following conditions:-
- that the person shall make himself available for interrogation by a police officer as and when required;
- 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.
- that a person wants to leave India shall not do so with the previous permission of the court.
Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail then no condition other than those enumerated in CrPC can be imposed. Imposition of such a condition which is beyond the ones enumerated in CrPC is beyond the powers of the court.
How to seek regular bail after arrest?
If you’re trying to get out of jail or have questions about bail,you should always seek advice and representation from a lawyer when facing criminal charges. An experienced criminal lawyer may be able to help arrange your release.
The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an Accused or convict is fundamental.
For further information on Regular Bail, write to us at email@example.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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