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Report No. 41

Chapter XXXIX


39.1. Broad principles regarding bail.-

The broad principles adopted in the Code in regard to bail are

(i) bail is a matter of right, if the offence is bailable;

(ii) bail is a matter of discretion, if the offence is no.-bailable;

(iii) bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life; but if the accused is a woman, or a minor under the age of 16 years, or a sick or infirm person, the court has a discretion to grant bail;

(iv) the Court of Session and the High Court have a wider discretion in granting bail, even in respect of offences punishable with death or imprisonment for life.

39.2. Section 49.-person breaking bail bond not to be released on bail.-

Under section 496, the right to bail is absolute in case of bailable offences. It has been suggested1 that where a person released on bail has absconded or has failed to appear before the Court on the date fixed, he shall not be entitled to bail, when brought to court on any subsequent date. We recommend the acceptance of this suggestion, and further recommend that refusal of bail under such circumstances shall be without prejudice to any action that may be taken under section 514 for forfeiture of the bail bond.

Accordingly, section 496 may be r.-numbered as su.-section (1), and the following su.-section may be added as su.-section (2):

"(2) Notwithstanding anything contained in su.-section (1), where a person who having been released on bail, has failed to comply with the condition of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail when, on a subsequent occasion in that case, he appears before the Court or is brought in custody. Any such refusal shall be without prejudice to the power of the Court to call upon any person bound by such bond to pay the penalty thereof under section 514."

1. F. 3(2)/5.-L.C., Pt. II, S. No. 36, p. 178 (Suggestion of Shri A.K. Roy, Additional Sessions Judge, Asansol).

39.3. Section 497(1).-

With reference to section 497(1), a State Government1 has suggested that the words "there appears sufficient ground for inquiry into his guilt" be substituted for the words "if there appear reasonable grounds for believing" (that he has been guilty of an offence punishable with death or imprisonment for life). The reason given was, that persons accused of serious offences again committed serious offences during release on bail. We cannot accept the suggestion. It would be unduly restrictive of the power to grant bail. If the test of "sufficient ground for inquiry" is substituted, it would amount to denial of bail in almost every case. If in a particular case, a person released on bail was reported to have committed a fresh offence, or otherwise misused his liberty, the court may be moved to cancel his bail bond.

A Bar Association2 has suggested that section 497(1) should be made more liberal by providing that if the offence is not punishable with death, bail ought to be granted. We are afraid that this would be a radical and undesirable change in the law. Offences punishable with imprisonment for life are serious enough to justify the present provision.

Another suggestion3 is to the effect that in section 497(1), for the words "he may be released on the bail", the following words may be substitute.-"he shall be released on bail unless the Court for reasons recorded in writing otherwise directs". We are unable to accept this suggestion either. Its acceptance would practically amount to an abolition of the distinction between bailable and no.-bailable offences.

1. F. 3(2)/5.-L.C., Pt. II, S. No. 28 (Amendment Bill proposed by the Government of U.P.).

2. F. 3(2)/5.-L.C., Pt II, S. No. 34(a) (Delhi Bar Association).

3. Home Ministry File No. 27(5)/5.-Judl., App. IV, Item (8).

39.4. Section 497(3A).-

It has been stated in certain suggestions1 sent to us that su.-section (3A) of section 497 has created difficulties and should be deleted. This su.-section was inserted in order to avoid hardship to accused persons in no.-bailable cases where the proceedings are prolonged beyond a certain period (sixty days). In such cases, the su.-section provides, that the accused shall be released on bail (unless the Magistrate otherwise directs). Having regard to the fact that this provision was inserted only in 1955, we think that much more experience of its working is required before its deletion on the ground of practical difficulties can be recommended.

1. F. 3(2)/5.-L.C., Pt. I, S. No. 17 (Views of certain Inspector Generals of Police as summarised in the consolidated note sent by the Intelligence Bureau, Ministry of Home Affairs).

39.5. Grant of bail with condition.-new su.-section (1A) in section 497.-

Cases often arise under section 497, where, though the court regards the case as fit for the grant of bail, it regards the imposition of certain conditions as necessary in the circumstances. In an earlier Report2 the Commission examined the position as to whether such a power exists now and recommended an amendment of section 497 for the purpose. We agree with the recommendation and propose that the following su.-section may be added in the section after su.-section (1):

"(1A) When a person accused or suspected of the commission of an offence punishable with "imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, or of the abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under su.-section (1), the Court may impose any condition which it considers necessar.-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice."

1. 36th Report on sections 497 and 498 of the Code and grant of bail with conditions.

39.6. Delay in investigation.-

It has been suggested1 that a su.-section should be inserted in section 497 to the effect that where the investigation is delayed beyond 60 days, the accused (in no.-bailable cases) should be released on bail. We may, in this connection, point out that where the investigation is delayed2, the question of the detention of the accused will come up for review automatically before the Court; the Court will be free to pass such orders as it thinks fit, and is not precluded from ordering release on bail if that is an appropriate course in the circumstances of the case. We do not think that a rigid provision is necessary on this subject.

1. F. 3(2)/5.-L.C., Pt. III, S. No. 21 (Suggestion of Himachal Pradesh Administration).

2. See discussion relating to section 344.

Code of Criminal Procedure, 1898 Back

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