POST ARREST BAIL a. bail in bail able cases b. bail in non-bail able cases i. punishable with imprisonment of less than 10 years ii. punishable with imprisonment of 10 or more years or with life or death (i.e. falling within the prohibitory clause) BAIL IN BAIL ABLE CASES It is a matter of right Accused has indefeasible right to grant of bail under S. 496. A person accused of a bail able offence is entitled to bail as a matter of right without any application for bail. Accused involved in a bail able offence is entitled to grant of bail as of right with no conditions attached to it. Admission of accused on bail in a bail able offence is a right and not a favor. Whereas in non-bail able offences grant of bail is not a right but a concession or a grace. In non-bail able offences grant of bail is a rule and refusal an exception where the offence is punishable with imprisonment for less than 10 years. Where accused appears in response to a process Once an accused person appears before the Court in response to a process issued under section 204 of Cr.P.C., the Court has to examine whether the offence is bail able or non-bail able. If the Court finds that offence is bail able, then the Court is required to release accused under section 496, Cr.P.C. If, however, the offence is non-bail able then the Court is required to either take the accused person in custody or grant him bail under section 497 of Cr.P.C. Power of the High Court to grant Bail Although powers of High Court under sections 496, 497 & 498 of Cr.P.C. have expressly been taken away by the statute, however, supervisory Constitutional jurisdiction of the High Court has remained intact. The High Court can interfere if it is found that the Court below had acted illegally and capriciously in exercise of the powers vested in it. Cash Security Cash security can never be demanded from the accused or the surety as a condition for grant of bail. Court, however, under section 513 of Cr.P.C. may permit a person required to execute a bond to deposit cash security in lieu thereof. Attendance of person granted bail in a bail able offence Court has power to seek attendance of a person accused of a bail able offence which can only be exercised under sections 499 & 514 of Cr.P.C. because the provisions of S.497(5) Cr.P.C. are applicable only to those persons who are granted bail under that section and not under section 496 Cr.P.C. Preventive Action by Police Bail to person in respect of whom police takes preventive action under sections 107 and 151. Provisions of section 496 not available in such a case. Second Proviso of section 496-Exception Person arrested under sections 107 and 151 on apprehension of breach of peace. Police Officer is not competent to release such person on bail on offer of sureties. Cancellation of Bail Bail cannot be cancelled in bail able offences on ground of tampering with prosecution evidence alone. Bail to Approver Approver having ceased to be an accused person sections 496, 497 and 498 of Cr.P.C. have no application in his case. Approver bound to remain in detention till termination of trial. Approver is not an accused person hence provisions of sections 496, 497 & 498 of Cr.P.C. are not relevant to case of an approver. Jurisdiction of High Court under section 498, Cr.P.C., is not merely ancillary or subsidiary to Ss.496 and 497, Cr.P.C. but is also supplementary thereto in many respects, in so far as that provision confers not only concurrent but even revisional powers on High Court in respect of grant or refusal of bail by subordinate Courts and police authorities. Power of High Court under section 498 is not unfettered and not controlled by sections 496 & 497. Grant of Bail by the High Court under section 561-A CRPC Section 561-A does not empower High Court to release an accused person on bail. BAIL IN NON-BAILABLE CASES i. punishable with imprisonment of less than 10 years General Principles Under S.497, Cr.P.C. an accused could not be granted bail when there existed reasonable grounds to believe that he was guilty of the offence charged with---Since reasonable grounds existed for believing that the accused in the present case was guilty of the offence, he was not entitled to grant of bail ---bail granted to accused by High Court was consequently cancelled by converting the petition for leave to appeal into appeal and allowing the same. Bail cannot be withheld as punishment. Even for the purposes of bail the law is not to be stretched in favor of the prosecution and any benefit of doubt arising in the case must go to the accused. While deciding a bail application the court should avoid making observations which can embarrass or prejudice the accused in his defence. Court does not mean a trial court. Bail application can be moved at any stage of investigation, inquiry or trial. No stage is premature for moving bail application. Accused charged under different statute providing different punishments, court while considering bail application would generally take into account the statute carrying less punishment. All the courts established under CRPC have concurrent power under section 497 CRPC. Session judge can entertain and decide a bail application after the same is dismissed by the assistant sessions judge as a court of inferior jurisdiction. Provisions of S.497, Cr.P.C., had provided sufficient guidelines and had vested the Magistrate, the Sessions Court and the High Court with concurrent power s in the matter of grant of bail ---Once bail was granted by a competent Court for valid reasons on consideration of materials available before it, then the court higher in rank would exercise considerable restraint in interfering with such order because liberty of a man was equally precious and guaranteed which could not be disturbed except in accordance with law and according to salutary principles laid down in that regard. Not a universal practice that once Sessions Court exercises its jurisdiction under S.497 (2), Cr.P.C., High Court should accept the findings without probing into the matter---Both the Courts having concurrent jurisdiction while considering grant of bail to an accused under S.497 (2), Cr.P.C., merits of the case have to be considered though such observations may be tentative in nature. Grant of bail in case not falling within prohibitory clause of S.497 Cr.P.C. is rule and refusal an exception. Under first proviso to S.497' Cr.P.C. accused of non-bail able offence under the age of 16 years or sick or infirm should be released on bail---Under provisos 2 and 3 to S.497 Cr.P.C. all offences against woman accused should be taken as bail able notwithstanding anything contained in Schedule II of Cr.P.C., excepting offences of terrorism, financial corruption, murder and such offences punishable with death or imprisonment for life or imprisonment for 10 years. If case for bail of any accused does not come within the ambit of, any of the provisos to S.497 Cr.P.C., even then he should be released on bail if allegation regarding his role is open to further inquiry and doubt because of established legal principle that benefit of doubt is a right of accused, even at bail stage. Bail can be granted as of right if the officer in charge of police or Court comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non-bail able offence. Bail cannot be withheld as punishment on the ground that the offence with which accused is charged is non-bail able. To consider bail matter of co-accused involved in a non-bail able offence, if reasonable grounds appeared for believing that he was guilty of an offence punishable with death or imprisonment for life, he would not be released on bail, unless case was covered by any of provisions of subsection (1) of S. 497, Cr.P.C.---If it appeared to the Court at any stage of investigation, inquiry or trial that no reasonable grounds existed to believe that there were sufficient grounds for further inquiry into his guilt, accused would be released on bail under subsection (2) of S. 497, Cr.P.C. Court before releasing accused on bail, was required to apply its mind keeping in view provisions contained in subsections (1) & (2) of S.497, Cr.P.C. in its totality---Sine qua non for releasing an accused on bail was that the Court should come to the conclusion that no reasonable grounds were available to believe that accused had committed a non-bail able offence as provided in subsections (1) & (2) of S.497, Cr.P.C. or to prevent the abuse of process of Court or to do justice, keeping in view particular facts of each case---Bail in the case of commission of a non-bail able offence and particularly failing in prohibitory clause in subsection (1) of S.497, Cr.P.C. was not to be granted as a matter of course for the simple reason that it was a case of further inquiry and without keeping in view entire provisions of S.497, Cr.P.C.---At bail granting stage, material available on record was to be sifted through in order to establish whether prima facie accused before the Court could be connected with crime in question and hence, no detailed inquiry was to be made by Court.
