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Power Of The Court Of Session And High Court In Granting Bail | Overview
- Scope and Applicability
- Guidelines for Bail by Superior Courts
- Procedure to be followed for Bail by Superior Courts
The article discusses the Power Of The Court Of Session And High Court In Granting Bail. It is the general rule that every criminal proceeding has to first commence before the court of Judicial Magistrates prior to reaching any higher court.
Even an offence which is exclusively triable by the Court of Session must be first heard and committed for trial by a court of Judicial Magistrate under Section 209 of the Criminal Procedure Code, 1973. Similarly, the power to grant bail is vested upon the Judicial Magistrates. However, by virtue of Section 439, the Code bestows special powers upon the Courts of Session and High Courts to grant bail to any person accused of a non-bailable offence.
Scope and Applicability
Special powers have been vested upon the Courts of Session and High Courts to grant bail to an accused arrested by the officer in charge of a police station for the commission of a cognizable offence. The powers with these superior courts are very wide and completely at the discretion of the courts. In Kali Das v. SHO, Police Station, Reasi, the Jammu and Kashmir High Court observed that any person who surrenders himself before the court can apply for the grant of bail under Section 439 of the Cr.P.C.
The powers of the Sessions Court and High Court are in concurrence with the power of the Magistrate to grant bail. It means that the accused can apply for the grant of bail in both the lower court and superior court at the same time. It is not required that the person first applies to the Magistrate and if rejected, then appeal to the superior court. The two levels of court exercise jurisdiction concurrently in the bail matters.
Moreover, even if the accused is arrested for a bailable offence, the accused can apply for bail before the Sessions Court or High Courts if the amount of bail decided by the Magistrate is unreasonable and extravagant.
Guidelines for Bail by Superior Courts
Section 439 of the Code states that when a person is arrested by a police officer without a warrant for the commission of an offence which is non-bailable in nature under the Cr.P.C, the accused may be released at the discretion of the court if he is willing to furnish the amount of bail. This right to be released on bail can be exercised according to procedure and guidelines laid down under the provision. The essential guidelines for grant of bail under Section 439 can be enumerated as follows:
- The person arrested must be accused of a non-bailable offence.
- If the offence is not one punishable under the Indian Penal Code, 1860, it must be made non-bailable by the statute that creates the offence. If the statute is silent on the nature of the offence, the seriousness of the offence is taken into consideration. If the offence is punishable with an incarceration period of three years or more, it is considered to be a grave offence and hence, non-bailable.
- The accused must be arrested without a warrant and he must be under the custody of the police to allow the Court to grant bail.
- The accused must be ready and willing to furnish the amount of bail as decided by the Court.
- If the court has reason to believe that the accused might be guilty of an offence punishable with death or imprisonment for life, it may impose conditions necessary to ensure his attendance during the trial.
- The court must give notice of the application for bail to the public prosecutor to ensure him an opportunity to reply or give his opinion on such bail. If the court deems it unnecessary or unreasonable to give notice to the Public Prosecutor, the court must give reasons in writing for doing so.
The Court may impose any condition which the Court considers necessary-
- in order to ensure that such person shall attend the trial in accordance with the conditions of the bond or
- 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
- otherwise in the interests of justice”.
There is no ban on the superior courts against granting bail to a person accused of an offence punishable with death or life imprisonment. However, the court must take into consideration certain factors laid by the apex court in Gurcharan Singh v. Delhi Administration. The grounds laid down by the court are in the form of questions which need to answer before determining the grant of bail. These factors are:
- Whether there is sufficient evidence to show that accused might have committed the offence alleged against him?
- What is the nature and seriousness of the charge?
- What is the severity of a punishment that the accused might be subjected to in case of a conviction?
- Whether there is a likelihood of the accused absconding from the police.
- What is the character, status and standing of the accused person in the society or locality?
- Whether there is a likelihood of the accused hindering or tampering the evidence to be used against him.
Procedure to be followed for Bail by Superior Courts
The court has been empowered to release the accused on bail if the above guidelines are duly followed and the questions incline towards bail. The court may reject the bail application of the accused but cannot prevent him from exercising his right to bail. It means that if the offence is bailable and the accused applies before the Sessions Court or High Courts being aggrieved by the amount of bail imposed by the Magistrate, he can still be released on bail even if his application is rejected.
The Section also empowers the courts to dispense the accused from paying the bail amount and release him on the execution of a personal bond with or without sureties.
In Gyan Swaroop Gupta v. the State of U.P., the court observed that “where an accused released on a short term or personal bond is in judicial custody he need not be sent to jail, before his application under Section 439 Cr. P. C., is entertained and considered by the Court” . In Issak Ibrahim Sandil Sovda v. the State of Gujarat, the court held that when there is the probability of recidivism and “the possibility of repetition of the offence cannot be ruled out in the larger interest of the society, bail should not be allowed” .
Further, the power of the High Court under Section 439 is independent of the powers of the Sessions Court. It means that even if the bail application of the accused is rejected by the Sessions Judge, he can apply before the High Court. In Vijay Narain v. State, the court observed that the High Court does not exercise its revisionary power under Section 439, but the application under this provision is taken in its ordinary original jurisdiction and hence, is independent of the decision of the Court of Session.
“After the High Court rejected a bail application, the Court of Session can entertain a bail application of the same accused, if any substantial grounds for bail arose after such rejection. On the other hand, if the fresh application was meant to overcome the earlier order of rejection of bail by the High Court, judicial decorum requires that the Court of Session should direct that accused to approach the High Court”.
After elaborating the dimensions of judicial discretion in bail matters, the article may be concluded with the following submission:
That in non-bailable cases, the bail is not to be withheld as punishment and the accused person should be admitted to bail wherever practicable unless there are strong grounds for supposing that such person would not appear to take his trial and serve sentence in the event the court punishes him.
If the accused is too poor to afford solvent sureties for his bail or furnish monetary obligation, as required in the bail bond, he must be released on his personal recognizance. The power under Section 436 and 437 are of extra-ordinary character and is to be exercised sparingly.’
- N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure (6th ed. 2018).
- Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th 2006).
- D. Gaur, Textbook on the Code of Criminal Procedure (1st ed. 2016).
 Kali Das v. SHO, Police Station, Reasi, 1979 Cri. L.J 345 (J&K).
 §436 (3), Criminal Procedure Code, 1973.
 Gurcharan Singh v. Delhi Administration, AIR 1978 SC 179.
 Gyan Swaroop Gupta v. State of U.P. 1993 Cri. L.J 3895 (All).
 Issak Ibrahim Sandil Sovda v. the State of Gujarat, 2000 (3) Crimes 466 (Guj).
 Vijay Narain v. State, 1976 CLR 68 (H.P.).