The
Code of Criminal Procedure, 1973
CHAPTER XXXIII
: PROVISIONS AS TO BAIL AND BONDS
436. In what cases bail to be taken
(1) When any person other than a person accused of a non-bailable offence
is arrested or detained without warrant by an officer in charge of a
police station, or appears or is brought before a Court, and is prepared
at any time while in the custody of such officer or at any stage of the
proceeding before such Court to give bail, such person shall be released
on bail:
Provided that such officer or Court, if he or it thinks fit, may, instead
of taking bail from such person, discharge him on his executing a bond
without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect
the provisions of sub-section (3) of section 116 3[or section 446A].
(2) Notwithstanding anything contained in sub-section (1), where a
person has failed to comply with the conditions 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 the same case he appears before
the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by
such bond to pay the penalty thereof under section 446.
STATE AMENDMENT
In Uttar Pradesh, w.e.f. 1st May, 1984
In the first proviso to
section (1), for the word "discharge" the
word "release" shall be substituted.
437. When bail may be taken in case of non-bailable offence
4[(1) When any person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without warrant by an
officer in charge of a police station or appears or is brought before
a Court other than the High Court or Court of Session, he may be released
on bail, but-
(i) such person shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence punishable
with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable
with death, imprisonment for life or imprisonment for seven years or
more, or he had been previously convicted on two or more occasions of
a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in clause
(i) or clause (ii) be released on bail if such person is under the age
of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred
to in clause (ii) be released on bail if it is satisfied that it is just
and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required
for being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released
on bail and gives an undertaking that he shall comply with such directions
as may be given by the Court.]
(2) If it appears to such officer or Court at any stage of the investigation,
inquiry or trial, as the case may be, that there are not reasonable grounds
for believing that the accused has committed a non-bailable offence,
but that there are sufficient grounds for further inquiry into his guilt,
5[the accused shall, subject to the provisions of section 446A and pending
such inquiry, be released on bail] or, at the discretion of such officer
or Court, on the execution by him of a bond without sureties for his
appearance as hereinafter provided.
(3) 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 (45 of 1860) or abetment of, or conspiracy or attempt
to commit, any such offence, is released on bail under sub-section (1),
the Court may impose any condition which the Court considers necessary-
(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.
(4) An officer or a Court releasing any person on bail under sub-section
(1) or sub-section (2), shall record in writing his or its 6[reasons
or special reasons] for so doing.
(5) Any Court which has released a person on bail under sub-section
(1) or sub-section (2), may, if it considers it necessary so to do, direct
that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a period
of sixty days from the first date fixed for taking evidence in the case,
such person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If , at any time after the conclusion of the trial of a person
accused of a non-bailable offence and before judgment is delivered, the
Court is of opinion that there are reasonable grounds for believing that
the accused is not guilty of any such offence, it shall release the accused,
if he is in custody, on the execution by him of a bond without sureties
for his appearance to hear judgment delivered.
438. Direction for grant of bail to person apprehending arrest
(1) When any person has reason to believe that he may be arrested on
an accusation of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction under this
section; and that Court may, if it thinks fit, direct that in the event
of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under
sub-section (1), it may include such conditions in such directions in
the light of the facts of the particular case, as it may thinks fit,
including-
(i) a condition that the person shall make himself available for interrogation
by a police officer as and when required:
(ii) a condition 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;
(iii) a condition that the person shall not leave India without the
previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of
section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer
in charge of a police station on such accusation, and is prepared either
at the time of arrest or at any time while in the custody of such officer
to give bail, he shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should issue in the
first instance against that person, he shall issue a bailable warrant
in conformity with the direction of the Court under sub-section (1).
STATE AMENDMENTS
In Maharashtra, w.e.f. 28th July, 1993
For section 438, the following section shall be substituted: -
"438.
Direction for grant of bail to person apprehending arrest
(1) When any person has reason to believe that he may be arrested on
an accusation of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction under this
section that in the event of such arrest, he shall be released on bail;
and that Court may, after taking into consideration, inter alia, the
following factors:-
(i) the nature and gravity or seriousness of the accusation as apprehended
by the applicant;
(ii) the antecedents of the applicant including the fact as to whether
he has, on conviction by a Court previously undergone imprisonment for
a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the
reputation of the applicant by having him so arrested, and
(iv) the possibility of the applicant, if granted anticipatory bail,
fleeing from justice,
either reject the application forth with or issue an interim order for
the grant of anticipatory bail:
Provided that where the High Court or, as the case may be, the Court
of Session, has not passed any interim order under this sub-section or
has rejected the application for grant of anticipatory bail, it shall
be open to an officer in charge of a police station to arrest, without
warrant the applicant on the basis of the accusation apprehended in such
application.
(2) Where the High Court or, as the case may be, the Court of Session,
considers it expedient to issue an interim order to grant anticipatory
bail under sub-section (1), the Court shall indicate therein the date,
on which the application for grant of, anticipatory bail shall be finally
heard for passing an order thereon, as the Court may deem fit; and if
the Court passes any order granting anticipatory bail, such order shall
include inter alia the following conditions: -
(i) that the applicant shall make himself available for interrogation
by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts
of the accusation against him so as to dissuade him from disclosing such
facts to the Court or to any police officer;
(iii) that the applicant shall not leave India without the previous
permission of the Court; and
(iv) such other conditions as may be imposed under sub-section (3)
of section 437 as if the bail was granted under that section.
(3) Where the Court grants an interim order under sub-section (1),
it shall forthwith cause a notice, being not less than seven days notice,
together with a copy of such order to be served on the Public Prosecutor
and the Commissioner of Police, or as the case may be, the concerned
Superintendent of Police, with a view to give the Public Prosecutor a
reasonable opportunity of being heard when the application shall be finally
heard by the Court.
(4) The presence of the applicant seeking anticipatory bail shall be
obligatory at the time of final hearing of the application and passing
of final order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest
of justice.
(5) On the date indicated in the interim order under sub-section (2),
the Court shall hear the Public Prosecutor and the applicant and after
due consideration of their contentions, it may either confirm, modify
or cancel the interim order made under sub-section (1).
In Orissa, w.e.f. 28th June, 1988
In sub-section (1), the following proviso shall be inserted: -
"Provided that where the apprehended accusation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term
of not less than seven years, no final order shall be made on such application
without giving the State notice to present its case".
In Uttar Pradesh, w.e.f. 28th November, 1975
Section 438 shall be omitted.
In West Bengal
For sub-section (1), the following sub-sections shall be substituted:-
"(1) (a) When any
person has reason to believe that he may be arrested on an accusation
of having committed a non-bailable offence, he may apply to the High
Court or the Court of Session for a direction under this section that
in the event of such arrest, he shall be released on bail:
Provided that the mere fact that a person has applied to the High Court
or the Court of Session for a direction under this section shall not,
in the absence of any order by that Court, be a bar to the apprehension
of such person, or the detention of such person in custody, by an officer-in-charge
of a police station.
(b) The High Court or the Court of Session, as the case may be, shall
dispose of an application for a direction under this sub-section within
thirty days of the date of such application:
Provided that where the apprehended accusation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term
of not less than seven years, no final order shall be made on such application
without giving the State not less than seven days' notice to present
its case.
(c) If any person is arrested and detained in custody by an officer-in-charge
of a police station before the disposal of the application of such person
for a direction under this sub-section, the release of such person on
bail by a Court having jurisdiction, pending such disposal shall be subject
to the provisions of section 437.
(1A) The provisions of
sub-section (1) shall have effect notwithstanding anything to the contrary
contained elsewhere in this Act or in any judgement, decree or order
of any Court, tribunal or other authority".
439. Special powers of High Court or Court of Session regarding bail
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released
on bail, and if the offence is of the nature specified in sub-section
(3) of section 437, may impose any condition which it considers necessary
for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person
on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, though not so triable,
is punishable with imprisonment for life, give notice of the application
for bail to the Public Prosecutor unless it is, for reasons to be recorded
in writing, of opinion that it is not practicable to give such notice.
. (2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arrested and commit him
to custody.
STATE AMENDMENTS
In Punjab and Union Territory of Chandigarh, w.e.f. 27th June, 1983
After section 439 the following section shall be inserted:-
"439A. Notwithstanding
anything contained in this Code, no person-
(a) who, being accused or suspected of committing an offence under
any of the following sections, namely-Sections 120B, 121, 121A, 122,
123, 124A., 153A, 302, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392,
394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code,
1860, sections 3, 4, 5, and 6 of the Explosive Substances Act, 1908,
and sections 25, 26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is
arrested or appears or is brought before a Court; or
(b) who, having any reason to believe that he may be arrested on accusation
of committing an offence as specified in clause (a), has applied to the
High Court or the Court of Session for a direction for his release on
bail in the event of his arrest,
shall be released on bail or, as the case may be, directed to be released
on bail, except on one or more of the following grounds, namely:-
(i) that the Court including the High Court or the Court of Session
for reasons to be recorded in writing is satisfied that there are reasonable
grounds for believing that such person is not guilty of any offence specified
in clause (a);
(ii) that such person is under the age of sixteen years or a woman
or a sick or an infirm person;
(iii) that the Court
including the High Court or the Court of Session for reasons to be
recorded in writing is satisfied that there are exceptional and sufficient
grounds to release or direct that release of the accused on bail".
In Tripura, w.e.f. 29th July, 1992
After section 439, the following section shall be inserted: -
"439A. Power to grant
bail
Notwithstanding anteing contained in this Code, no person,-
(a) who being accused of or suspected of committing an offence under
sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326,
333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 387, 392, 394, 395,
396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code (45 of
1860) and sections 25, 26, 27 and 28 of the Arms Act, 1959 (54 of 1959)
and sections 3, 4, 5 and 6 of the Explosives Substances Act, 1908, (Act
VI of 1908), is arrested or appears or is brought before a Court; or
(b) who, having any reason to believe that he may be arrested on an
accusation of committing an offence as specified in clause (a) has applied
to the High Court or the Court of Session for a direction for his release
on bail in the event of his arrest, shall be released on bail or, as
the case may be, directed to be released on bail except on one or more
of the following grounds, namely:-
(i) that the Court including the High Court or the Court of Session
for reasons to be recorded in writing, is satisfied that there are reasonable
grounds for believing that such person is not guilty of any offence specified
in clause (a);
(ii) that such person is under the age of sixteen years or a woman
or a sick or infirm person;
(iii) that the Court
including the High Court or the Court of Session, for reasons to be
recorded in writing, is satisfied that there are exceptional and sufficient
grounds to release or direct the release of the accused on bail."
440. Amount of bond and reduction thereof
(1) The amount of every bond executed under this Chapter shall be fixed
with due regard to the circumstances of the case and shall not be excessive.
(2) The High Court or Court of Session may direct that the bail required
by a police officer or Magistrate be reduced.
441. Bond of accused and sureties
(1) Before any person is released on bail or released on his own bond,
a bond for such sum of money as the police officer or Court, as the case
may be, thinks sufficient shall be executed by such person, and, when
he is released on bail, by one or more sufficient sureties conditioned
that such person shall attend at the time and place mentioned in the
bond, and shall continue so to attend until otherwise directed by the
police officer or Court. as the case may be.
(2) Where any condition is imposed for the release of any person on
bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released
on bail to appear when called upon at the High Court, Court of Session
or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or
sufficient, the Court may accept affidavits in proof of the fact contained
therein relating to the sufficiency or fitness of the sureties, or, if
it considers necessary, may either hold an inquiry itself or cause an
inquiry to be made by a Magistrate subordinate to the Court, as to such
sufficiency or fitness.
442. Discharge from custody
(1) As soon as the bond has been executed, the person for whose appearance
it has been executed shall be released; and, when he is in jail, the
Court admitting him to bail shall issue an order of release to the officer
in charge of the jail, and such officer on receipt of the orders shall
release him.
(2) Nothing in this section, section 436 or section 437 shall be deemed
to require the release of any person liable to be detained for some matter
other than that in respect of which the bond was executed.
443. Power to order sufficient bail when that first taken is insufficient
If, through mistake, fraud, or otherwise, insufficient sureties have
been accepted, or if they afterwards become insufficient, the Court may
issue a warrant of arrest directing that the person released on bail
be brought before it and may order him to find sufficient sureties, and,
on his failing so to do, may commit him to jail.
444. Discharge of sureties
(1) All or any sureties for the attendance and appearance of a person
released on bail may at any time apply to a Magistrate to discharge the
bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his
warrant of arrest directing that the person so released be brought before
him.
(3) On the appearance of such person pursuant to the warrant, or on
his voluntary surrender, the Magistrate shall direct the bond to be discharged
either wholly or so far as relates to the applicants, and shall call
upon such person to find other sufficient sureties, and, if he fails
to do so, may commit him to jail.
445. Deposit instead of recognizance
When any person is required by any Court or officer to execute a bond
with or without sureties, such Court or officer may, except in the case
of a bond for good behaviour, permit him to deposit a sum of money or
Government promissory notes to such amount as the Court or officer may
fix in lieu of executing such bond.
446. Procedure when bond has been forfeited
(1) Where a bond under this Code is for appearance, or for production
of property, before a Court and it is proved to the satisfaction of that
Court, or of any Court to which the case has subsequently been transferred,
that the bond has been forfeited,
or where, in respect of any other bond under this Code, it is proved
to the satisfaction of the Court by which the bond was taken, or of any
Court to which the case has subsequently been transferred, or of the
Court of any Magistrate of the first class, that the bond has been forfeited,
the Court shall record the grounds of such proof, and may call upon
any person bound by such bond to pay the penalty thereof or to show cause
why it should not be paid.
Explanation- A condition in a bond for appearance, or for production
of property, before a Court shall be construed as including a condition
for appearance, or as the case may be, for production of property, before
any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the
Court may proceed to recover the same as if such penalty were a fine
imposed by it under this Code:
7[Provided that where such penalty is not paid and cannot be recovered
in the manner aforesaid, the person so bound as surety shall be liable,
by order of the Court ordering the recovery of the penalty, to imprisonment
in civil jail for a term which may extend to six months.]
(3) The Court may, at its discretion, remit any portion of the penalty
mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his
estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or
section 117 or section 360 is convicted of an offence the commission
of which constitutes a breach of the conditions of his bond, or of a
bond executed in lieu of his bond under section 448, a certified copy
of the judgment of the Court by which he was convicted of such offence
may be used as evidence in proceedings under this section against his
surety or sureties, and, if such certified copy is so used, the Court
shall presume that such offence was committed by him unless the contrary
is proved.
8[446A. Cancellation of bond and bailbond
Without prejudice to the provisions of section 446, where a bond under
this Code is for appearance of a person in a case and it is forfeited
for breach of a condition-
(a) the bond executed by such person as well as the bond, if any, executed
by one or more of his sureties in that case shall stand cancelled; and
(b) thereafter no such person shall be released only on his own bond
in that case, if the Police Officer or the Court, as the case may be,
for appearance before whom the bond was executed, is satisfied that there
was no sufficient cause for the failure of the person bound by the bond
to comply with its condition :
Provided that subject to any other provision of this Code he may be
released in that case upon the execution of a fresh personal bond for
such sum of money and bond by one or more of such sureties as the Police
Officer or the Court, as the case may be, thinks sufficient.]
447. Procedure in case of insolvency or death of surety or when a bond
is forfeited
When any surety to a bond under this Code becomes insolvent or dies,
or when any bond is forfeited under the provisions of section 446, the
Court by whose order such bond was taken, or a Magistrate of the first
class may order the person from whom such security was demanded to furnish
fresh security in accordance with the directions of the original order,
and if such security is not furnished, such Court or Magistrate may proceed
as if there had been a default in complying with such original order.
448. Bond required from minor
When the person required by any Court, or officer to execute a bond
is a minor, such Court or officer may accept, in lieu thereof, a bond
executed by a surety or sureties only.
449. Appeal from orders under section 446
All orders passed under section 446 shall be appealable,-
(i) in the case of an order made by a Magistrate, to the Sessions Judge;
(ii) in the case of an order made by a Court of Session, to the Court
to which an appeal lies from an order made by such Court.
450. Power to direct levy of amount due on certain recognizances
The High Court or Court of Session may direct any Magistrate to levy
the amount due on a bond for appearance or attendance at such High Court
or Court of Session.
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