Introduction

In case the offence is bailable,  bail can be taken as matter of right, however, in cases of non-bailable offences grant of bail is at the discretion of Court. Section 437 of the Code talks about cases where bail can be granted in case of a non-bailable offence. Bail may be granted in non-bailable offences if the investigating  officers think that there prevails no more need of detention of accused then bail can be  granted. But there must prevail such sufficient reasons for so.

Section 437 of the Code

Section 437 of the Code of Criminal Procedure gives provisions for when bail can be taken in cases of non-bailable offences.

The section reads as follows:

• 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—
  • 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;
  • 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 cognizable offence punishable with imprisonment for three years or more but not less than seven years;

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 the shall comply with such directions as may be given by the Court.

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this Sub-Section without giving an opportunity of hearing to the Public Prosecutor.

• 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, 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.
• 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 shall impose the conditions—

that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

that such 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 or tamper with the evidence.

and may also impose, in the interests of justice, such other conditions as it considers necessary.

• 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 reasons or special reasons for so doing.
• 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.
• 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.
• 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.

Understanding the provision

This section gives that court or a police officer power to release an accused on bail in non-bailable cases , unless there appear reasonable grounds that the accused has been guilty of an offence punishable  with death or with imprisonment for life. But if the accused falls under the following categories  he/she can be released on bail even if the offence charged is punishable with death or imprisonment for life.

1. If he is under the age of 16 years, or
2. If the accused is a women, or
3. If the accused is sick or infirm.

Further, if the person is charged with a non-bailable offence, but during the course of trail it appears that  he is not guilty of such offence, he can be released on bail. The same may be done after the conclusion of trial and before the judgement is pronounced, if the person is believed not to be guilty of a non-bailable offence.

For the matter of grant of bail in such offences, the Court must take into consideration various matter such as; the seriousness of offence and the nature of offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of accused feeling from justice, reasonable apprehension of witnesses being tampered with, the interest of public and the State, and any other such necessary considerations.

The power of Court to grant bail in cases of such offences is discretionary and has to be exercised with great caution by balancing individual right of liberty with the interest of society in general. While granting or rejecting the bail application in such cases, the Court has to state reasons for its order.

One of the main question which needs to be considered is ‘are there reasonable grounds for believing that the petitioner is guilty of the offence of which he has been accused’? There is no hard and fast rule regarding the grant or refusal of bail , and each case is to be considered on its merit. The matter  always calls for judicious exercise of discretion of the Court and mere allegations from the prosecution that the accused is guilty of the offence he has been charged with is not decisive of the matter. Hence, mere allegations that the accused, if released, will tutor witness, should not be taken into account. But the Court may refuse to enlarge on bail where the prisoner is of such a character that his presence at large will intimidate witness, or there are reasonable grounds for believing that he will use his liberty to suborn evidence.

Sub-section (3) empowers the Court to impose conditions in cases mentioned in sub-clause (a), (b) and (c). Thus, the Court may under this sub-section, while granting bail to a person cam ask him to surrender his passport, or to produce any such securities so as to ensure that his appearance during the pendency of trial and to reduce his chances of fleeing from justice.

The Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598] has laid down guidelines regarding the mode of exercising discretion in grant or refusal of bail. The Court said: Grant of bail, though is a discretionary order, it, however, calls for exercise of such a discretion in a judicious manner and not as a manner of course. Order for bail bereft of any cogent reasons cannot be sustained. While placement of the accused in the society,  though may be considered, but that by itself cannot be a guiding factor in the matter of grant of bail. The nature of the offence is one of the basic considerations for grant of bail – i.e., more heinous is the crime, the greater the chance of rejection of bail, though, however, dependent on the factual matrix of the matter.