CHAPTER-III LEGAL PROVISIONS RELATING TO BAIL BY POLICE AND BY MAGISTRATE

Transcription

1 CHAPTER-III LEGAL PROVISIONS RELATING TO BAIL BY POLICE AND BY MAGISTRATE The word "Police" is defined in the Indian Police Act 1861 and in various Police Acts. Under Code of Criminal Procedure, a village Chowkidar is not a Police Officer and he is not invested with all the powers which are conferred upon a Police Officer by the Criminal Procedure Code. 1 Since the Indian Police Act has not been extended to the Jammu & Kashmir, a Police Officer of that State can not be deemed to be a Police Officer under the Criminal Procedure Code and therefore, an arrest made by him in any State in India is not warranted by law. Powers Police officer to accept bail is regulated by the provisions of Code of Criminal Procedure. An improper refusal to grant bail or putting unnecessary obstacles in the way of release amounts to a dereliction of duty. 2 The Code of Criminal Procedure 1973 confers wide powers upon Police of making arrest. In addition to the power of arrest, the Code bestows upon police powers parallel to the magistrate to release an arrested person on bail. In Morit Malhotra V. State of Rajasthan 3, the accused was granted bail under section 436 by the police. But when he appeared before the court he was advised to take bail from the court. He challenged the orders in the Rajasthan High Court which ruled that it is not necessary for an accused to get bail granted by the court if he has already been granted bail by the police. The court drew support from the reasoning in the Supreme Court decision in Free Legal Aid Committee, Jamshedpur Vs. State of Bihar, 4 wherein it was ruled that in a sessions case if the magistrate has granted bail, the accused need not seek bail from the court of sessions Jagni Singh Vs. Emperor, 45, Cr. L. J. 643 Mahesh Chand Vs. State, 1952 Cr.LJ 943, AIR 1952 Tra. Co Cr. L. J. 806 (Raj.) AIR 1982 S.C

2 61 Having regard in the nature of the relationship of the person on bond with the court and the powers conferred on the court under section 436, it appears that the above ruling may not be generally followed by the courts. An interesting question arose in Haji Mohamed Wasim v. State of U.P. 5 before the Allahabad High Court as to the validity of bail granted by police officers. In this case the accused who was on bail granted by police preferred not to appear before the court. The trial court issued a non-bailable warrant which came to be challenged by the accused under section 482. The court ruled that he has to take fresh bail from trial court. It reasoned: The power of a police officer in-charge of a police station to grant bail and the bail granted by him comes to an end with the conclusion of the investigation except in cases where the sufficient evidence is only that of a bailable offence, in which eventually he can take security for appearance of the accused before the magistrate on a day fixed or from day to day until otherwise directed. No parity can be claimed with an order passed by magistrate in view of enabling provision contained in clause (b) of section 209 under which the committal Magistrate has been empowered to grant bail until conclusion of trail, which power was otherwise restricted to grant of bail by him during pendency of committal proceedings under clause (a) of section The real situation, as it obtains today in the society, is amply clear that police discretion is not always being properly exercised in the matter of arrest. The citizens are being deprived of their liberty and the police has become a kind of terror for the citizens because of their undue harshness with the public in general and the suspects in particular. The newspapers are replete with examples of police high-handedness. It is matter of common knowledge that in order to extract information from a suspect, the police beat a person in the course of Cr. L. J Ld. at 1302, see also Morit Malhotra Vs. State of Rajasthan 1991 Cr. L.J. 806.

3 62 investigation, in custody to the extent that sometime an accused person even succumbs to injuries. On many occasions departmental inquiries have been conducted, but these have been used mainly to cover up the taint. Furthermore, instances are known where in order to secure conviction of an accused, the police has concocted the whole prosecution story and have tutored the witnesses to implicate innocent persons. Such police activities once led a high court judge to form an opinion that police is itself an organization of goondas, 7 although the remarks were expunged later by the Supreme Court. Even then an echo of these remarks continues to be heard till today. 3.1 Bail by Police The power of a Police Officer, to release on bail a person accused of an offence and taken into custody by him, may be divided under two heads: (a) when the arrest was made without any warrant; and (b) when the arrest was made in pursuance of warrant of arrest. Power of police to grant bail under head (a) may be gathered from sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the Code. The powers of police to grant bail under head (b) are contr olled by directions endorsed under Section 71 of the Code. Section 81 of the Code however, allows a police officer to take bail when the person arrested or produced before him has been accused of the commission of a bailable offence even though warrant of arrest does not contain any direction to that effect. In case of nonbailable offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant however should be by name Bail when arrest made without warrant (i) Bail under section 42 Cr. P.C.: Sections 41 and 42 Cr. P.C. are the only sections under which a police officer may arrest a person for non-cognizable offence. But this power can be exercised under the conditions specified in the section. Section 41 enumerated nine categories of cases in which a police officer 7 8 Amin Vs. State, AIR Kochu Kunjio Vs. State of Kerala (1962), Cr. L. J. 436, 1961 Ker. L. T. 577.

4 63 may arrest a person without an order from magistrate and without a warrant. The powers of the police to arrest a person without a warrant are only confined to such persons who are accused or concerned with offences or are suspects thereof. A person who is alleged to have been in possession of an illicit arm once upon a time, can neither be called presently an accused nor a suspect thereof. Section 42 Cr. P.C can be invoked when the offender refuses to give name and address or gives a name and address which the police officer considers to be false. If those particulars are within the knowledge of the police officer, neither the question of arrest nor the question of bail will arise. As soon as name and address has been ascertained the police officer can not detain him, if he is willing to execute the necessary bonds. 9 If for any reason, the true name and address of the arrested person can not be ascertained with 24 hours, the provisions of Sections 56 and 59 will come into operation. A special feature of this section is that the bond of an offender who is not a resident of India shall be secured by the surety or sureties whose residence is in India. No similar restriction as to the residence of a surety is to be found in the other provisions of the Code. The power to arrest and to release on bail can be exercised by any Police Officer not necessarily by an officer-in-charge of the Police station because this section has been enacted to provide for a particular non cognizable offence does not put any restrictions on the power of a Police Officer to enlarge a person on bail after the correct name and residence have been ascertained. (ii) Bail under section 43 Cr. P.C.: The Code of Criminal Procedure provides for the arrest of person by a private person also though his powers of arrest are very limited. A private individual may arrest a person only when: 1. he is proclaimed offender, or 2. he in his presence, commits a non-bailable and cognizable offence Cr. L. J 381, AIR 1999, All 160 (161).

5 64 After the arrest has been made the arrested person should be, without unnecessary delay handed over to a police officer, or in his absence, be brought to the nearest police station. The question of bail will depend upon what opinion the police officer forms about the person brought before him. 1. If there is no sufficient ground to believe that the arrested person has committed any offence, he shall at once be released. 2. If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him and then the normal procedure of investigation, determination of the question whether a non-bailable case is made out or not and the desirability of release on bail etc. will arise. 3. If there is reason to believe that he has committed a non-cognizable offence he shall be released as soon as his name and residence have been ascertained as provided under section 42 Criminal Procedure Code. A chowkidar, not being a police officer is not entitled to receive a person arrested under this section. 10 But where a chowkidar is a police officer as under the Chota Nagpur Rural Police Act, (Act I of 1914) he can received a person arrested under section 59, Criminal Procedure Code (old) and detain him in custody. 11 (iii) Bail under sections 56, 57 and 59 Cr. P.C.: Section 56 mandates that a police officer effecting an arrest without warrant must take or send the offender arrested, before a magistrate having jurisdiction in the case of before the officer in charge of a police station. But in section 56, there is an inbuilt provision authorizing police officer to admit the arrested offender to bail, but power of the police officer is subject to the provisions herein contained as to bail. Section 56 of the new Code corresponds to section 60 of the old Code. Explaining section 60 M.P. High Court observed: "The provision in section 60 that the arrested person shall be taken before Magistrate having jurisdiction subject to the provisions as to CWM 162, ILR 3 All Cr. L. J. 572, AIR 1932 Pat. 214.

6 65 bail only refers to the powers of the police to grant bail. If the police in its discretion do not think it fit to allow bail to arrested person, then they have to take him or send the person arrested before a magistrate having jurisdiction in the case, Section 61 (i.e. new section 57) is concerned solely with the question of the period of detention by the police of a person arrested without warrant". 12 Section 57 provides that person arrested not to be detained more than twenty four hours. The intention of the legislature is that an accused person should be brought before a Magistrate competent to try or commit with as little delay as possible. Section 57 is pointer to the intendment to uphold liberty and to restrict to the minimum curtailment of liberty. 13 Section 59 provides that no person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under special order of a magistrate. Under section 56 and 59, the Legislature has used words Police Officer. (iv) Bail under section 169 Cr. P.C. The section refers to the grant of bail not at the start but only on the making of an investigation under Chapter XII of the Code. Till then bail is not authorized under the provisions of this section. The power to release on bail a person in custody vests in officer in charge of the police station or the police officer making the investigation. Under section 36, Criminal Procedure Code, a police officer superior in rank to an officer in charge of a police station can exercise the same powers of investigation as can be exercised by an officer in charge of the police station. Section 169 provides that if upon an investigation it appears to the officer-in-charge of police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall release him on his executing a bond with or without sureties as such officer may direct, to appear, if and when so Gulam Mohammad Azimmuddin Vs. State, 1959, Cr. L. J Mohd. Ahmed Yasin Mansuri Vs State of Maharashtra 1994 Crl.1854 (Bom.DB).

7 66 required before a magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. An Officer-in-charge of Police station includes, when the officer-incharge of Police Station is absent from the station house or unable from illness or other cause to perform his duties the Police Officer present at the station house who is next to such officer and is above the rank of constable or when the State Government so desires, any other police officer so present. An officer-in-charge of the Police Station or an investigating officer can not release a person on bail if he has appeared as an accused before the magistrate on the basis of a complaint in respect of the incident which the police also is investigating. 14 If the accused is in custody, he must be released if after completion of the investigation there is no sufficient evidence or reasonable ground of suspicion against him. The magistrate, however, can direct the police to make further investigation. There is no provision, which empowers the magistrate to release/discharge an accused pending investigation before submission of the final form and taking cognizance of the offence. 15 If the officer in charge of the police station on the investigating officer takes a bond from the accused for his appearance before the police it is void abinitio. 16 The admission to bail, therefore, is only a provisional arrangements and the magistrate may either discharge the bond on order the re-arrest of the accused. 17 The powers of an officer incharge of the police station on the investigating officer to admit a person to bail are not hampered by the nature of offence of which he is accused. (v) Bail under section 170 Cr. P.C. Under this section the authority to grant bail accrues to an officer in charge of the police station, "if the offence is bailable". Do these words also mean that a station officer shall release a person on bail if the offence made out during investigation was only a bailable office though the initial accusation was in Rohal Husain Vs. Emperor, 35 Cr. L. J. 208 AIR 1933 All 582. Heera Lal Pandit Vs. State of Bihar (2004) Pat. LJR Cr. L. J. 712 AIR 1925 Lah Cr. L. J. 761: AIR 1933 All 399.

8 67 respect of a non-bailable offence of which the police took up the investigation, or that a station officer shall release a person on bail if the offence is bailable and the investigation was made under section 155 (3) of the Code, that is to say, the original accusation should be of a non-cognizable offence in order to empower a station officer to admit a person on bail? It is submitted that a station officer is empowered to grant bail if investigation has disclosed the offence to be bailable and it is immaterial what the initial accusation against him was. Under the imperative provisions of section 170, therefore, an officer in charge of the police station has either to forward the accused in custody or if the offence is bailable or on investigation found to be bailable, to accept bail for his appearance before a magistrate, he cannot entertain an application for the withdrawal of a complaint and, therefore, he cannot be discharged an accused. 18 (vi) Bail under section 436 Cr. P.C. The provisions of this section cast a statutory duty upon the officer in charge of the police station to release on bail a person who was involved in a bailable offence. The power to release either on bail or on a personal recognizance i.e. bonds without sureties extends to the time the accused is in the custody of such officer. The right of the accused to be released arises only when the person under arrest or detention is prepared and able to give bail. He cannot be taken into custody unless he is unable or unwilling to offer bail or to execute a personal bond. 19 (vii) Bail under section 437 Cr. P.C. The power to release on bail a person accused of a non-bailable offence is conferred upon only one class of police officers, namely an officer-in-charge of the Police Station under section 437 sub Section (I). Since the power to grant bail is permissive and not obligatory, it has to be exercised with great caution because of the risk and stakes involved. Before exercising his power, a station officer ought to satisfy himself that the release on bail would not prejudice the prosecution in bringing home the guilt of the accused. In case the officer in charge Rat (91). The Crown Vs. Makhan Lal 48 Cr. L. J. 656.

9 68 admits an accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary and preserve the bail bonds until they are discharged either by the appearance of the accused in court or by the order of a competent court. For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable. In case of an offence punishable with death or imprisonment for life a station officer cannot enlarge a person on bail, if there appears reasonable grounds for believing that he has been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officerin-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment. 3.3 Bail by Police when arrest made in pursuance of warrant The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code. (i) Bail under section 71 Cr. P.C. A Police officer executing a warrant under this section cannot exercise any power beyond those contained in the endorsement, so that if the arrested person is to be released on his personal bond, a police officer cannot demand sureties from the prisoner. 20 It is a matter entirely in the discretion of the court issuing a warrant under this section to give a direction for the release of the arrested person on bail or not. Even in bailable offence, a court may not give such direction. 21 When a person to arrested is not arrested until the date on which he has to attend the court, the direction regarding the taking of bail lapses. But since the warrant itself Cr. L. J Lachhmi Narain Vs. Emperor 40 Cr. LJ 283, AIR 1939 All. 156.

10 69 remains in force under section 70 (2) Criminal Procedure Code, the person against whom the warrant had been issued can be arrested even after the date on which he was to be in attendance in court. 22 This section makes it clear that a magistrate is competent to issue a warrant of arrest for the production of a particular person before his own court and not before a police officer. 23 A warrant directed to any Police Officer may also be executed by any other Police Officer whose name is endorsed upon the warrant by the Officer to whom it is directed or endorsed (Section 73 Cr. P.C.). (ii) Bail under section 80 & 81 Cr. P.C. When a warrant of arrest is executed out side the district in which it was issued any police officer who is not a District Superintendent of police or the Commissioner of Police may release an arrested person according to the directions contained in the endorsement. But a District Superintendent of Police, the Commissioner of Police in presidency town with in the local limits of whose jurisdiction the arrest was made shall release on bail the arrested person, if the offence is bailable and such person is ready and willing to give bail to their satisfaction. In short, when a warrant of arrest is to be executed within the district in which it was issued or it is to be executed out side the district in which it was issued a police officer has not to engage himself in the determination of the question whether the arrested person is accused of a bailable or a non-bailable offence. He has to comply strictly with the contents of the endorsement if any. He cannot release a person on bail simply because the arrested person is accused of a bailable offence. In case of a warrant which is executed out side the district in which it was issued, the proviso to Sub Section (1) of Section 81 empowers a District Superintendent of Police or the Commissioner of Police within the local limits of whose jurisdiction the person was arrested to release him bail, if the offence is bailable, provided such person is ready and willing to give a Cr. L. J. 479, 41nd case CWN 154: ILR 24 Cal. 320.

11 70 satisfactory security even though there was no direction by the court issuing the warrant. 3.4 Bail by Magistrate Bail remains an undefined term in the Code of Criminal Procedure Nowhere else the term has been statutorily defined conceptually, it continues to be understood as a right for assertion of freedom against state imposed restraints. Since the U.N. Declaration of Human rights of 1947, to which India is a signatory, the concept of bail has found a place within scope of human rights. A right to get admitted to bail can lawfully be circumspected if the police needs the arrested person any time for purpose of investigation of the case. The Code of Criminal Procedure provides that a person suspected of having committed a cognizable offence can be remanded to police custody. In case of arrest without warrant, the request for remand in case of a suspect begins with a formal arrest. Any person who is arrested by a police officer should be produced before the Judicial Magistrate within 24 hours from the time of his arrest. If a person commits a bailable offence, then the magistrate grant him bail but if he commits any non-bailable offence, then it is on the discretion of the Magistrate that whether bail should be granted to him or not. Section 59, 44 (1), 88, 167, 436, 437 etc. deals with powers of Judicial Magistrate to grant bail. 3.5 Bar of Discharge except on Bail under Section 59 Cr. P.C. The first provision in the code which deals or appears to deal with the power of a Magistrate to discharge an arrested person is contained in section 59, Criminal Procedure Code. What the section lays down is that a person arrested by the police cannot be discharged except: - (i) on personal recognizance, or (ii) on bail, or (iii) under a special order of a Magistrate. This section corresponds to section 63 of the old Cr. P.C. An interesting question arises whether this section as it is worded confers any power on a Magistrate to release a person on bail or, the section itself does not confer any

12 71 power on a Magistrate but it only enumerates in a general manner the ways in which an arrested person can be enlarged. This High Court of Madhya Pradesh held that section 63 (old), Criminal Procedure Code as it is worded, does not itself confer any power to a Magistrate to release a person on bail. It only provides for the release of a person arrested without warrant, on his bond or on bail or on his discharge under special order of a Magistrate. The release is to be only when under other provisions of the code a person has been ordered to be released on his bond, or on bail or on his discharge under the special order of a Magistrate. The special order of a Magistrate contemplated is a special order of a Magistrate under section 167of Cr. P.C. 24 His Lordship has not set forth any reasons for arriving at the aforesaid conclusion. On the other hand, one finds that no importance has been attached to the words herein contained in present section 56 (old section 60), instead the words used by his Lordship are when under other provisions of the Code a person has been ordered to be released. Again one finds that the words A special order of a Magistrate have been held to mean a special order of a Magistrate under section 167. Before pursuing the matter further it is necessary to point out at this stage that the word discharged used in section 59, Criminal Procedure Code, should not create any confusion in determining the correct scope of that section because the same expression has been used in the first proviso to section 436, Criminal Procedure Code, which is obviously a provision for bail. Therefore, the word discharged and release on bail have not two different meanings. This M. P. case criticizes the word discharge in old section 63 as not happy. 3.6 Bail when Warrant Executed Outside Territory under Section 81 Cr. P.C. Section 81 corresponds to old section 86 with some distinction: Section 80, Cr. P.C provides that an arrested person outside the jurisdiction of a court issuing the warrant of arrest is to be produced before the issuing court where it is within 30 km of the place of arrest or nearer than Executive 24 Gulam Mohammad Azimuddin v. State, 1959, Cr.LJ 600: AIR 1959 MP 147.

13 72 Magistrate, or District Supt. Or Commissioner of police. 25 The police authorities above or the Executive Magistrate then shall direct the removal of the arrested person to the custody of the court issuing the warrant. But, if the offence is bailable, before such removal the person arrested may be enlarged on bail. If the offence is non-bailable one, it is only the C.J.M. subject to the limitation provided in section 437, Cr. P.C., or it is the Sessions Judge who are empowered to release such person on bail. But, these provisions would not curtail the power of the police officer to take security under section 71 Cr. P.C Section 187, Cr. P.C. does not override the provisions of sections 70 to 81, of Cr. P.C., To have the benefit of compulsive bail the arrested person must be a person accused of a bailable offence. If the warrant is for the arrest of a witness, because those provisions apply for the arrest not only of an accused person but others also e.g. a witness, a Magistrate cannot accept bail from such arrested person. 27 If the arrested person is accused of a non-bailable offence, such Executive Magistrate as has been referred to in sections 80 and 81 has no power to act beyond the terms of the endorsement contained in the warrant of arrest. He can be released only if he is ready and willing to give the security required by the endorsement. Where there is no endorsement for taking bail and the offence is non-bailable, the Magistrate, within whose jurisdiction the man was arrested, must direct his removal in custody to the court which issued the warrant, no matter whether he is wanted as a witness or as an accused, a Magistrate must satisfy himself that the person arrested appears to be the person intended by the court which issued the warrant. And when he is so satisfied, he can direct the removal of the arrested person in custody to the court which issued the warrant Requiring one to execute bond under section 88, Cr. P.C. The scope of this section is limited that it only empowers a court to require a person present in court to execute a bond, with or without sureties for appearance before the court taking the bond or before the court to which the case Cr. L. J. 149 (Cal.). Velappan Vs. State, AIR 1965 Ker. 72. Chhotey Lal Vs. Emperor, 49, Cr.L.J. AIR 1948 All 72 (74): 2 Weir 39. In re Sagarmal Khemraj & another. 42. Cr. L.J. 205: AIR 1940 Bom 397.

14 73 may be transferred for trial (note the change in present section 88 from old section 91). And the section is only applicable to persons who are present in court and does not authorize a Magistrate to go to the house of a person and compel him to execute a bond for appearance in court. 29 The requirements of this section are: i.the person is present in court; and ii.for his appearance the court can issue a summons; or iii.for his appearance the court can issue a warrant. It is in the discretion of the court to require a person to give a bond for appearance with or without sureties. While the charge is pending, an accused whether guilty or not must obey such bond Security for peace and bail under section 106 Cr. P.C. The section authorizes the taking of security for keeping the peace. The offences in which the section apply are: i. Offences under Chapter VIII, Indian Penal Code, namely offences against public tranquility e.g., section 141 to 160 except offences under sections 153-A, 153-B and 154 I.P.C.; ii. Assault or using Criminal force or committing mischief; iii. Any offence involving breach of peace; iv. Criminal intimidation. Security for keeping the peace can be required under this section when a person is convicted of certain offences. In order to attract the provisions of this section it is necessary: i. that there must be conviction; ii. that the conviction must be for one of the offences mentioned in the section; iii. that the conviction must be by a court mentioned in the section; iv. that such court must be of the opinion that it is necessary to bind over the accused to prevent the breach of peace Cr. L. J. 837: 163 Ind C Cr. L. J. 384: AIR 1919 All 158.

15 74 The order, calling for the security must also be passed at the time of passing of sentence on the accused and a convicted person is not entitled to a show cause notice or a preliminary enquiry for the demand of security under this section 31. The one restriction on the powers of a court of a judicial Magistrate or/and court of Sessions is that the term for which the security can be taken cannot exceed three years and a complainant cannot be asked to give a similar security for keeping the peace. 32 The power to demand security under section 106, Criminal Procedure Code, is not confined to regular trials. Even if the accused has been convicted in a summary trial, a call for security can be made. 33 An order under this section must specify the amount of security required, otherwise the order is bad. In fixing the amount of security, a Magistrate ought to consider the status in life of the person concerned, so that he may have a fair chance to be able to find security. When an order is for bond with sureties, the Magistrate cannot direct that a particular person must be one of the sureties. 34 Sub-section (2) of this section lays down that on the conviction being set aside, the order for security also fails to the ground Magistrates who can demand security under Chapter VIII of the Code (Sections 107, 108, 109, 110, 116, 117): Only an Executive Magistrate can demand security under these sections. It is only section 106 which can be invoked by a Sessions Court or a Judicial Magistrate 1 st Class who tried the case and convicted the accused. Two important conditions are necessary for initiation of proceeding under section 107 namely formation of opinion and existence of sufficient grounds for proceedings. Order should not be passed mechanically. Drawing proceedings merely on police report is bad. Imposition of an excessive amount of Rs.20,000 as Cr.L.J. 639: AIR 1943 Mad 406: 25 Cr. L.J. 965: AIR 1924 All 230 (Contra):27 Cr.L.J. 1112: AIR 1927 Pat. 37. Crown V. Kallen and others, 1902 Pun LR No.82 Cr. 7 Oudh Cas 338: 1 Cr. L.J Cr. L.J. 439: AIR 1918 All 95. Gita Prasad Singh v. Emperor, 25 Cr.L.J. 919: 1925 Pat 17: Dalganjan v. Emperor, 25 Cr.L.J. 481: AIR 1924 ALL 696.

16 75 amount of bond is also improper. 36 Formation of opinion on definite information is a sine qua non for the ignition of the proceeding. 37 The fact that the Magistrate formed his opinion should appear on the face of the reocrd. 38 Chapter VIII of the Code of Criminal Procedure contemplates to kinds of securities being taken: i. for keeping the peace, and ii. for good behaviour. Section 107, Criminal Procedure Code, deal with the security for keeping the peace and sections 108, 109 and 110, Criminal Procedure Code, the security for good behaviour. Under section 106, security for keeping the peace is demanded from a convicted person, whereas under section 107, security is called for, although he is not convicted of any offence, because there is reason to apprehend that he is likely to commit or provoke a breach of the peace. Proceedings under both the sections are judicial and not administrative Stages of Bail Under the Preventive Sections: In the preventive sections under Chapter VIII of the Code of Criminal Procedure, the question of bail may arise at five different stages: (a) When proceedings have not commenced but are only in view. (b) When proceedings have commenced and notice under section 112, Criminal Procedure Code, has been issued. (c) When pending the completion of the enquiry under sub section (1) of section 116 the Magistrate is of opinion that immediate measures are necessary for the prevention of the breach of the peace or disturbance of public tranquility or the commission of any offence or for the public safety. But, Magistrate cannot demand such interim bond without enquiry being commenced Kailash Singh v. State of Bihar, AIR 1983 Pat PLH (HC) 314: 1983 Cr.L.J. NOC 228 (Pat). M.S.C. Rao v. State of Mysore, 1971 Mad LJ (Cr) 602: (1971) 2 Mys LJ:302. Cninnaya Chottiar v. State of Mysore, 1970 Cr.L.J. 111: 1969 Mad LJ (Cr) Cr. L. J. 813: AIR 1953 All 475. Madhu Limaye v. S. D.M., (1970), 3 SCC 746: (1971).

17 76 (d) Pending the reference under section 122 (4), Criminal Procedure Code. (e) Pending appeal or revision. The various stages at which the question of bail may arise have been enumerated above. But, strictly speaking, at some of those stages the question of bail ought not to arise at all and if the Magistrate orders the detention in custody of a person because the latter is not able to give security to the satisfaction of the Magistrate concerned, the detention is illegal. It cannot be gainsaid that the question of release on security can arise only when a person can be arrested on the basis of information furnished against him. If he cannot be arrested, any order demanding security from him is illegal. It has been held that a Magistrate is not competent to send any person to jail who is produced before him after arrest unless he has been given express powers for the same under the provisions of the code Bail under Section 124 Cr. P.C. When a person for whose appearance a summons or a warrant has been issued either on account of the unfitness of his surety or his sureties or on account of the unwillingness of such surety or sureties to act as such, and that person appears or is brought before the Magistrate, the Magistrate may allow him to give for the unexpired portion of the term of such bond, fresh security of the same description as the original security. Sections 121 to 124 deals with the proceedings to be taken subsequent to orders passed under section 106 or section 117. An order passed under section 124, for the purposes of section 118 to 123 is deemed to be order made under section 106 or section 117 as the case may be. Therefore, where an order for furnishing security is for six month and a surety has been discharged on account of his unfitness or unwillingness, the Magistrate has no choice but to take the person in custody and refer the case to the Sessions Judge or the High Court as the case may be. The question of his release on bail 41 Criminal Miscellaneous Application No.1038of 1957 Prabhu Narain Singh and Others v. State and Others decided on 23 rd August, 1957 (Allahabad High Court).

18 77 during reference will be governed by other provisions of the code. At that stage the Magistrate making the reference is powerless to grant bail Bail under Section 309, Cr. P.C. The scope of section 309 Cr. P.C. is different from the old and corresponding section 344 Cr. P.C. As held in Natabar Parida Vs. State of Orissa, 43 section 309 is attracted only after Magistrate takes cognizance of offence. During this period Magistrate may admit the accused to bail doubtlessly. Even during the interregnum between the period of submission of charge-sheet and commitment to Courts of Session, Magistrate can grant bail to accused or remand him to custody Bail to Lunatics : Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been vested with great powers and wide discretion in the matter of grant or refusal of bail. Section 330, Cr.P.C. does not speak of bailable or nonbailable offences. The nature of offence and the severity of punishment awardable for the commission of a particular offence are not matters to be considered when the question of release on security of a lunatic arises. A Magistrate may release a person of unsound mind on bail even though he is charged of an offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed. An accused of unsound mind may be released on security, irrespective of the offence with which he is charged not only on the finding by the court that the accused is of unsound mind, but also prior to such finding, during the pendency of the inquiry into his state of mind [section 328 (2)]. The nature of security for release of a lunatic accused is different from the security for the release of other persons, in that, in the former it is binding not only for appearance but also for preventing the accused from causing injury either Cr. L. J 410: 5 Sind. LR 87. (1975) 2 SCC SCC (Cr) 484: AIR 1975 SC:1465:1975 Cr.L.J.1212:1975 Cur.L.J. 420 State of U.P. v. Lakshmi Brahman (1983) 2 SCC SCC (Cr) 489: 1983 Cr.L.J.839:AIR 1983 SC 439 overruling 1976 Cr.L.J. 118 (All).

19 78 to himself or to any other person. But any condition which is not specified in section 330, Cr.P.C. cannot be imposed and if the Magistrate imposes any new condition, it is illegal and unforceable. 45 There are no words in section 330 Cr. P.C., that security for appearance is confined to the duration of the inquiry or trial. Security under this section is for appearance of the accused when required before the Magistrate or court or such officer as the magistrate or court appoints in this behalf since the security under section 330 does not contemplate only appearance at the proceedings of the inquiry or trial for the offence for which the accused is charged, it does not terminate with the termination of the inquiry or trial. A person standing security may be called upon to produce the person released on his security even after the trial has terminated. He will not be heard to say that his undertaking came to an end with the termination of the trial. There is yet another distinction between the execution of security under section 330 and section 436 to 439 Cr. P.C. A bond executed under chapter XXXIII of the code (sections 436 to 439) is binding only with every date of hearing of such offence and for the purpose of answering such charge. A surety does not undertake to be responsible for the attendance of the accused to answer charges in respect of offences that might be committed at some future date. 46 When security is given under section 330 Cr.P.C., a surety not only undertakes to be responsible for the attendance of the accused to answer charges in respect of offence or offences already committed but also guarantees that he would prevent the accused from doing injury to himself or to any other person. Thus the purpose of bail under section 330 Cr.P.C is different from the purpose of bail under sections 436 to 439 Cr. P.C. There is a distinction between ordinary remand under section 167 or 309 Cr. P.C. on the one hand and under section 330 on the other. When the Magistrate opines that bail should not be taken or if sufficient security is not given, Magistrate may order him to be remanded to any safe custody in any place not necessarily judicial custody. That apart, on making order of detention under Narain Shankar v. Emperor, 35 Cr. L. J. 200: AIR 1933 Sind 267. Mana V. Emperor, 25 Cr. L.J. 131: AIR 1924 Lah 622: 76 IC 227.

20 79 section 330 (2), it is mandatory that Magistrate must report his ordering detention to State Government Bail for offence against Administration Of Justice : under section 340, Cr. P.C. When any Magistrate is of opinion, whether on application made to him in this behalf or otherwise, that it is expedient in the interest of justice that an inquiry should be made with regard to an offence punishable under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, 228 of the Indian Penal Code or any offence described in section 463 or punishable under section 471, section 475 or section 476 of IPC which appears to have been committed in relation to a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof, in writing, signed by himself, and shall forward the same to a Magistrate of the First Class having jurisdiction. After the court has recorded its finding and decided to make a complaint, the power to detain in custody or release on bail accrues to the complainant court under this section. If the offence complained of is bailable the court may take sufficient security for the appearance of the accused before the transferee Magistrate or if the alleged offence is nonbailable, it may, if it thinks necessary so to do, send the accused to such Magistrate in custody. But unless the court has finally made up its mind that a complaint should be made it has no power to consider either that the offence alleged is bailable or non-bailable or that the person should be taken in custody or not. 47 If a court has taken a person into custody illegally, that is to say, without making a final order about filing a complaint the remedy of a prisoner is by way of the writ of habeas corpus and not under section 439, Cr.P.C Bail for Contempt in presence of Court : under section 346, Cr. P.C. When an offence, as is described in section 175, Section 178, 179, 180 or 228 of I.P.C. is committed in the view or presence of a Criminal Court and that court, instead of proceeding under section 345, Cr.P.C., considers that the person 47 Mohammad Khan V. Emperor, 45 Cr.L.J. 768: AIR 1944 Lah 328.

21 80 accused of any of the offences referred to above should be imprisoned otherwise than in default of fine, or that a fine exceeding two hundred rupees should be imposed upon him, such court after recording the facts constituting the offence and the statement of the accused may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such accused person before such Magistrate or if sufficient security is not given, shall forward such person in custody to such Magistrate. Under this section as under the provisions of section 340, the person complained against has not to apply for bail to the court. It is the discretion of the court forwarding the complaint either to ensure the attendance of the accused by demanding a security for his appearance before the transferee Magistrate or it may just inform the accused of the date on which he has to appear before that court. He cannot be taken in custody merely because he has not applied for bail. He can be taken in custody if security is demanded from him and he does not give sufficient security Bail to Witness under Section 349, Cr. P.C. : If any witness or person called to produce a document or thing before a Criminal Court, refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the court requires him to produce, and does not offer any reasonable excuse for such refusal and persists in his refusal he may be dealt with according to the provisions of section 345 to 346 Cr. P.C. Under this section a complainant is not a witness and a witness is not bound to answer a question which is irrelevant to the issue. 49 A witness is also not bound to answer any question asked by the court which tends to incriminate him in criminal proceedings because of the protection afforded to him under section 165, Evidence Act, 50 nor is he bound to produce a document in respect of which he claims privilege under section 123 or 124, Indian Evidence Act Suth WR (Cr) 18. ILR 13 Bom 600. ILR 10 Bom 185.

22 Bail to First offender etc. under section 360, Cr. P.C. Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Magistrate may direct, and in the mean time to keep the peace and be of good behaviour. The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct. The proviso to sub-section (1) of this section lays down the procedure to be adopted by a Magistrate of the second class not specially empowered by State Government in this behalf, when such Magistrate is of opinion that the powers conferred by section 360 Cr. P.C. should be exercised in favour of the convicted person. An interesting question arises as to what should a Magistrate, who is not competent to release a convict forthwith, do, when there are more than one accused before him and he is of the opinion that one or more of them, but not all, deserve the benefit under this section. It was held by the Madras High Court in re Pitamanayaga Pandaram that such Magistrate should dispose of the case of the other accused himself first and then submit the case of the accused who in his opinion deserves the benefit of this section. 51 The same view was taken by the Bombay High Court. 52 In a later ruling by the same High Court it was held that there is nothing in the language of either old section 562 or old section 380 which prohibits a Magistrate of the second or third class sending up all the accused, the whole case, and the entire proceedings to the Sub Divisional Magistrate in a case where he suggests that action should be taken under section 562 against only one or few of the accused persons. 53 The limitation imposed upon a Magistrate of the second class by the proviso to sub-section (1) are not appli cable in a case in which a person is Cr. L.J. 568: AIR 1943 Mad Emperor Vs. Yessu, 2. Bom LR 449. Palli Munisami, 48, Cr.L.J. 361: AIR 1948 Mad 86.

23 82 convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years imprisonment and the court is of the opinion, looking into all the extenuating circumstances, that it is a fit case when the offender should be released after due admonition. There is no legal compulsion on a Magistrate of the second class to submit the proceedings before a Sub Divisional Magistrate for his orders Bail for misuse of liberty of section 360: Under section 360 (9), Cr. P.C. The question of release on bail may arise when a convicted offender to whom the benefit of section 360 Cr. P.C. was given fails to observe any of the conditions of his recognizance and is apprehended on a warrant issued by a Magistrate who convicted him, or by a Magistrate who could have dealt with the offender in respect of his original offence. An offender when he is apprehended on such warrant may either be remanded to custody until the case is heard or he may be admitted to bail with a sufficient surety conditioned on his appearing for sentence Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C. The section contemplates post-conviction and pre-appeal period. Pending an appeal against conviction appellate Court may release the convict on bail and High Court can exercise this power when appeal lies to Sessions Court. So far as the court convicting the accused is concerned, the court is bond to admit the accused to bail pending order passed by appellate court or High Court when (a) the accused was already on bail and has been sentenced to imprisonment for a term not exceeding three years; or (b) when the offence was a bailable one. Even on fulfillment of the condition court on convicting the accused may refuse bail if there exists a special reason. Under this section an intention to present an appeal on the part of the convicted person is sufficient reason to justify the release of a convicted person on bail. It may further be noted that an order of 54 Murli Dhar V. Mahboob Khan. 26 Cr. L.J. 624, 1925, All 644: The King Vs. Maung Thein Aung (Contra) 42 Cr. L.J.22, AIR 1940 Rang 280: 191 IC 712.

24 83 bail under this section is for a limited period only and is applicable only to convicted persons and not to those who are bound over Bail while making reference under section 395 Cr. P.C. When a Magistrate makes a reference under section 395, Criminal Procedure Code, to the High Court for its opinion on the validity or otherwise of any act, Ordinance or Regulation or, of any provision contained in an Act, Ordinance or Regulation, he may, pending the decision of the High Court, either commit the accused to jail or release him on bail to appear when called upon. The Magistrate will exercise his discretion in favour of the accused or against him according to the seriousness of the charge and severity of punishment provided in that act, Ordinance or Regulation Bail During Revision Under Section 397 Cr. P.C. The Sessions Court and the High Court in exercise of revisional power can call for records of inferior courts for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. When such revisional Court calls for the record of an inferior Court, he may direct that the execution of the sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. The grant of bail pending revision is within the discretion of the court concerned which must be guided by general considerations on the merits of the case, the likelihood of the applicant absconding, the trivial nature of the offence, the nature of punishment, etc. The revisional power by the High can be exercised not necessarily on the application of the aggrieved parties but also on own motion 56. Despite right of appeal being available, High Court suo Charan Mehto v. Emperor, 37 Crl. J. 155: AIR 1936 ALL 107: 13 Cr.L.J. 958: AIR 1930 Pat 274. Ramesh Vs. A. P. Jhaveri (1973) 3 SCC 884: 1973 SCC (Cri) 565: AIR 1973 SC 84: Mohammad Vs. State of Kerala, 1982 Cr. L.J. 1120: 1982 Ker. L.T. 105, Range Forest Officer Vs. A V. Hegde, 1978 Cr. L.J