Section 439 in The Code Of Criminal Procedure, 1973: 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 subsection (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 an 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.
The Chandigarh High Court and the Court of Session are empowered by this section to grant bail. The bail provisions as elucidated in chapter XXXIII of the code apply also to an individual added as an accused during trial. Under the Criminal Procedure Code, Chandigarh High Court has no powers to take away jurisdiction of Sessions court in way of entertaining an application for bail and disposing it in accordance with law. Chandigarh High Court’s power to grant bail is not affected if Special Tribunal is constituted to try offences under Defence and Internal Security of India Act (1971) and Rules. In case the detention of the petitioners is found to be illegal, an application for writ won’t lie under S. 439 of the Code but in the nature of habeas corpus. The principle to be followed while granting bail is that the Court cannot delve into details of whether evidence suffices to prove the guilt of the accused resulting in the conviction.
The word ‘or’ in S.438 or 439 can be safely interpreted with reference to the use of the term ‘or’ in S.397. Under the section the jurisdiction of the Chandigarh High Court is concurrent with and not merely revisional with that of the subordinate Magistrate trying the case. It is Court’s discretion whether to grant bail or not, therefore no Court is bound by another Court’s decision and it is possible that different Courts reach different conclusions on the same facts in the same circumstances , since the principle analogous to ‘res judicata’ does not apply to bail applications. Once court of co-ordinate jurisdiction, had granted bail to the accused, rightly or wrongly, successor Judge had no business to comment on said order and conduct and refuse to pass requisite orders on the bail bonds furnished before him in turn forcing the petitioners to approach Chandigarh High Court in the present petition and, meanwhile to remain in custody for specific period. Since grant of bail is covered under procedural law, irrespective of when the occurrence took place the law prevalent at the time of the application for bail is to be considered. In case a person is in illegal detention, his only respite lies in invoking the power of Chandigarh High Court under Art. 226 of the Constitution for issuance of a writ in the nature of habeas corpus. When such an application filed by the applicant has already been dismissed by the Chandigarh High Court on merits he cannot be released on an application under S. 439 of Cr.P.C.
In a case under the purview of Narcotic Drugs and Psychotropic Substances Act, due to non-compliance of provisions of Ss. 50, 52 and 57 of the Act, the arrest and detention of accused was found to be illegal, the application by accused under S. 439 of Cr.P.C, was treated as application under S. 482, Cr.P.C, and as a result the arrest and detention of the accused was set aside. The general policy of law provides for bail to be allowed rather than being refused and the bail should not be withheld with the intention of putting obstacles in the way of defence or as a measure of punishment. An accused’s bail application cannot be considered until he surrenders and is in custody within the meaning of S.439, Cr.P.C, and unless he follows R. 18 of Allahabad Chandigarh High Court Rules which refers to his moving the Sessions Court and obtaining an order of rejection. The accused must be under restraint as a basic condition to get grant of bail. Bail can be granted to such accused alone who are under restraint by arrest. The word ‘custody’ used in s. 439, Cr.P.C, should be interpreted restrictively so that only the custody which is legal under a valid warrant of remand issued legally by competent authority is included. The accused should be set at liberty if the custody is not according to law.
Since grant of bail is covered under procedural law, irrespective of when the occurrence took place, the law prevalent at the time of the application for bail is to be considered. – Though occurrence took place earlier, S. 439 A as inserted by Punjab Ordinance 3 of 1983 which came into force before filing of bail application, would apply. Accused can be released on bail where an offence is exclusively triable by Sessions Court, provided the case is committed to the Sessions Court by the Magistrate. Court is vested with the power to grant bail under S.439 to the accused who was absconding earlier but surrendered before the Court when trial began. Under this Section the Chandigarh High Court can revise the order of the trial Magistrate and conclude that the latter ought to have exercised the discretion in favour of granting bail. The Chandigarh High Court directed release on bail where the offence was said to have been committed more than a year and a half before the complaint, and the facts stated by prosecution were assumed to be true, it was doubtful whether any offence had been committed by the accused at all and no reasons whatever were given by the Magistrate for refusing bail. Bail is liable to be cancelled in instances where magistrate exceeded his jurisdiction by reconsidering prayer for bail which was already rejected by him earlier.
The Chandigarh High Court while exercising the discretion under the Section, ought not to confine its attention only to the question whether other circumstances may also affect the question of granting bail to the persons accused of having committed crimes of grave and serious nature. It is the duty of the Court to avoid elaborate documentation of merits and detailed examination of evidence while considering the application for bail. Application for bail by police accused – Court is bound by duty to view pros and cons of case impartially, undeterred by presence of psychological pressure exerted by police presence as indictees.
In case the Sessions Judge exercised his discretion and granted bail to an accused in a cognizable case, the Chandigarh High Court will interfere with that order in revision at the instance of a private party only if the discretion was arbitrarily or capriciously exercised and when the State did not file any revision against the order. Chandigarh High Court should exercise its jurisdiction under S. 439 only in exceptional cases, when there was a manifest error on a point of law which had consequently led to flagrant miscarriage of justice. Bail –A Person enlarged on short term bail or personal bond continues to be in judicial custody and doesn’t need to first go to jail before entertaining his bail application as required by S.439. Under S. 498 of the Code of 1898 (corresponding to this Section) the power to grant bail was held to be completely unfettered by any limitations and conditions and the considerations guiding the Court in granting bail under S. 497 or S. 496 didn’t apply. Jurisdiction of Court is discretionary while granting bail. It should be exercised with great care and caution by balancing both the individual’s right of liberty and interest of society in general. Reasons ought to be indicated in the order by Court.
Where the bail is granted by the Chandigarh High Court after rejection by Sessions Court, the order of Chandigarh High Court should make it appear that Chandigarh High Court was conscious of reasons stated by Sessions Court while rejecting bail. If the Chandigarh High Court grants bail by simply stating that ‘it is a fit case for bail’, such an order is liable to be set aside. While issuing directions and command to Magistrate or Court of Session to consider bail application, Chandigarh High Court cannot fix the time schedule for concluding bail proceedings. Cr.P.C. Sessions Judge in his discretion can hear and decide the bail application on the same day it’s sitting, under Section 439, provided notice is given to the Public Prosecutor or he may choose not to do so. While exercising the power to grant bail the Court can reasonably strike a balance between the controversy by upholding the rights of a citizen when his liberty is in jeopardy and at the same time not causing any handicap to the police investigating the matter.
Though the provisions of S. 497(1) of the old Code did not qualify or control the provisions of S.498, the same nevertheless constituted one of the several appropriate considerations by the Chandigarh High Court or the Court of Session in the exercise of the powers of granting bail under S. 498 of the old Code. Detention pending investigation – The view that the accused had a right to be released on bail at even the hands of the Court of Session the moment the police failed to complete the investigation, no matter that the case was a murder case, is purely misconceived and ignores the well established practice in Indian Courts that in murder cases, the accused is not to be granted bail. This practice can only be departed from in exceptional circumstances and not otherwise. An accused is entitled to be released on bail in a case where the charge-sheet was not filed within sixty days of an arrest and the bail can be cancelled when the charge-sheet is filed.
The Court is not vested with any blanket power to grant bail. Though discretion under that section is unfettered yet it has to be judicially exercised. Ss. 437 and 439 have common overriding considerations in granting bail, which include the nature and gravity of circumstances in which offence has been committed, position and status of accused with reference to victim and witnesses and likelihood of accused fleeing from justice and tampering with witnesses etc. There is no exhaustive list.
It differs from case to case. While considering a bail application under Section 439 of Cr.P.C., a Court of Law is to be guided by the interpretation of law and allegation and not by personality of person detained, or whether he is very famous or notorious. Under S. 439(1) the discretion of the Chandigarh High Court is much wider, untrammeled and unfettered by the consideration in S.437(1); so much so that the provisions contained in the second part of S.439(1)(a) do not relate to considerations for bail and only to conditions of bail. Unlike Section 437(1) of Cr.P.C, Section 439(1) of Cr.P.C. does not impose any restrictions. But Chandigarh High Court or Court of Session while exercising power under Section 439 of Cr.P.C. cannot ignore circumstances subject to which the conditions are contained in all the sub-sections of Section 437 of Cr.P.C.
Under S.439 the power of the Court of Session is not affected in any way even after transfer of cases by the Sessions Judge to the Additional Sessions Judge. A person detained in one case produced before another court in pursuance of production warrant that court dispensing with his further attendance – It is mandatory to convey the person back to the prison from where he has been brought for such attendance and no jurisdiction rests with such transferee court to grant bail to such person. There is no dispute about power to grant or refuse bail under S. 439 being a special or independent power of the Chandigarh High Court. The marginal heading of Section 439 itself says “special powers of the Chandigarh High Court or Court of Session regarding bail”. This special power of the Chandigarh High Court is uncontrolled or untrammeled by s. 397. If the Court of Session has exercised that power nonetheless, the Chandigarh High Court can also exercise the said special power. An order granting or refusing bail does not come within the purview of revisional jurisdiction under Section 397 of the Code.
The change brought about in S. 437(1) of the new Code, has only set right the ambiguity of the word ‘Court’ used in Section 497(1) of the old Code and it has no bearing as to the powers of the Chandigarh High Court and the Court of Session in granting bail under either the provisions of the old Code or under the provisions of the new Code. Section 439 empowers the Chandigarh High Court or the Court of Session to examine or scrutinize the exercise of the power vested in the inferior Courts in matters relating to bail. The Court subordinate to the Chandigarh High Court is duty bound to consider the said application on merits of the matter once application under Section 438 is allowed and protective order granted for a limited period and such accused is required to move for regular bail. The Chandigarh High Court can exercise its power to cancel bail also in respect of orders passed by Court of Sessions. The fact that it was interlocutory order would not affect inherent jurisdiction of Chandigarh High Court under S.482. There would be no occasion for the Chandigarh High Court to exercise its powers under S.439, Cr.P.C. when an order is already made by the Sessions Court under the same provision and such order holds good. The accused after being refused bail by the Sessions Court cannot therefore approach the Chandigarh High Court for bail without challenging that order. The proper course for him includes challenging that order and simultaneously praying for bail invoking the power of the Chandigarh High Court under S.439 (1) of the Code. Once an accused has filed an application for bail in the Chandigarh High Court it is not open to him to file a similar application in the Court of Sessions till the matter is disposed of by the Chandigarh High Court, therefore Chandigarh High Court sets aside the bail granted to the accused by the Sessions Court during pendency of application under S.439 before Chandigarh High Court. Under Section 439 of the Code there is no restriction for an applicant to approach the Chandigarh High Court despite the fact that he approached the Sessions Court under the same provision and that application was rejected.
Where the Sessions Judge ordered anticipatory bail despite the fact that the Magistrate had issued bailable warrants against the accused, only considering the fact that otherwise the Magistrate would be bound to remand the accused to custody at the time of committing them to the Court of Session under S. 209 of the code, held that this could not be an appropriate consideration as the accused is allowed to approach the Sessions Court or the Chandigarh High Court for grant of bail, at the time of passing commitment order. In matter of grant of bail to a person charged under Essential Commodities Act (10 of 1955) it is mandatory to notify Public Prosecutor and the Court is vested with the power to recall order of granting bail passed without notice to Public Prosecutor, without cancellation of application being moved.
Bail has to be granted under S.436 where the offence is bailable, but in case of non bailable offence, further considerations arise and the Court has to decide the question of bail in the light of those considerations. Section 439(1), confers special powers on the Chandigarh High Court or the Court of Session with respect to bail, unlike under Section 437(1), there is no ban imposed under S.439(1), Cr.P.C, against granting bail by the Chandigarh High Court or the Court of Sessions to persons accused for offence punishable with death or imprisonment for life – Chandigarh High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. In such cases Chandigarh High Court or the Court of Session will have to invoke its judicial discretion in considering the question of granting bail. In case applicant is charged with rape in the Special Sessions Court and application for bail pending trial is refused.
Holding that application to Chandigarh High Court, against the said decision, under S.389 of the Criminal procedure Code was proper. It was further held however that the President was correct in refusing bail since a subordinate Court had no power to grant bail in cases where there were reasonable grounds for believing that an accused person had been guilty of an offence punishable with death or life imprisonment. The basic between grant of bail in bailable and non-bailable offences is that whereas a person accused of a bailable offence has the right to be released on bail under S.496, Cr.P.C, the grant of bail to a person accused of a non-bailable offence is within the discretion of the Court under S. 497 of Cr.P.C Code. After the trial Court has taken cognizance of the offence in the complaint, the accused-person appears in a trial Court having been served the summons; he can be enlarged on bail whether the cognizance is with respect to bailable or non-bailable offences, It is the cumulative effect of all combined circumstances that must weigh with the Court and not only one single circumstance which necessarily concludes the discretion.
The main anxiety of Courts of law in criminal cases is that the accused should not escape from justice and should be present when the trial is held and the judgment is pronounced. It is more likely in serious cases for the accused to run from justice than in petty cases. Where it is obvious that the previous conduct of the petitioner is not bad and he has been attending the Court regularly, therefore his absence due to unavoidable reasons on a particular date does not debar him from grant of bail. In cases when object of detention can be achieved by requiring the accused to furnish adequate surety for their appearance, bail should be granted and all the more when there isn’t any reason to apprehend that the accused will abscond or tamper with prosecution evidence. In case there is a reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life the Court should invoke its powers in favour of granting bail not as a general rule, but only in exceptional cases. If an accused convicted of murder and sentenced to life imprisonment files an appeal before Chandigarh High Court, he will not be released on bail on sympathetic grounds. The Chandigarh High Court should exercise its power in favour of granting bail not as a general rule, but only in exceptional cases, especially in a case where the Sessions Judge has refused to grant bail. Where after an exhaustive enquiry a competent magistrate commits the accused on grave and serious charges relating to non-bailable offences, it was held that the Chandigarh High Court should not lightly enlarge him on bail.
In case of non-compliance with S. 309 entitlement to bail cannot be taken into consideration. The discretion vested in the Chandigarh High Court as a matter of law is not narrowed down or affected simply because the Sessions Judge has refused to exercise his discretion in favour of the accused. The power of the Chandigarh High Court in the matter of granting bail is not circumscribed by any limitation; however it is improper to grant bail on collateral considerations. The Chandigarh High Court is bound by duty to review the whole material before it and to come to its own conclusion while exercising the discretion under this section. In case there were several eye-witnesses to the crime, the presence of the accused at the scene of offence was not disputed seriously and investigation materials disclosed that the accused was armed with deadly weapons like iron rods and knife and medical evidence was also against the accused ex facie, it was held that the learned judge had rightly concluded that this was not a case for granting bail, and that the Chandigarh High Court had no reason to interfere. In case the Sessions Judge had refused to grant bail on the ground that prima facie a case of conspiracy to commit murder had been made out against the accused, the Chandigarh High Court,, released the accused on bail on perusal of evidence and on his undertaking that he would not move out of the municipal limits of the place where the trial was to be held. The high Court on consideration of facts set aside the order of Sessions Judge cancelling bail in cases where the Sessions Judge cancelled the bail without giving an opportunity to explain why it should not be cancelled. The Court is duty bound to see that neither the prosecution nor the defence is hampered and that the State does not get a free hand and the petitioner is hampered in his defence or locked up merely on the ground that the petitioner, if enlarged on bail, will very likely tamper with the evidence. In case the application for bail is opposed, it is the duty of Investigating Agency to disclose materials on which it wants to rely. The paramount consideration for bail cancellation is whether there has been prima facie a case. The evidence is not to be weighed which is the duty of the trial Court. The gravity of the offence and on preponderance of probabilities, whether the accused has misused the liberty, after he is enlarged on bail, resulting in reasonable apprehension of tampering with the witnesses are to be established by the prosecution. It is essential to consider supervening circumstances.
Where in support of the prosecution application for cancellation of bail, the affidavit sworn by the P.S.I. inter alia stated that it was reliably learnt that the accused were threatening the eye-witnesses, who were to be examined in the case and owing to the accused’s influence in the village, there was a possibility that they would try to tamper with the prosecution evidence, held that it was a well established practice in bail matters to receive such affidavits and consider the contents. The lower Court was not justified in stating that the affidavit was a hearsay evidence and hence no evidence. The section mentions cases in which considerations other than the gravity of offence make it expedient that the accused should have freedom during the trial. The mere apprehension of the police officer that the prosecution witnesses would be won over will not suffice to refuse bail. There must be evidence of such interference or an attempt to interfere to justify the refusal. Refusal of bail due to the place being in disturbed condition is also not justified. The apprehension of repetition of offence is also not a relevant reason for refusal of bail. Granting bail due to inordinate delay in investigation will be a good reason. Conditions can be imposed while granting bail for securing the right of the investigating Agency to proceed with the investigation in a fair and proper manner. Conditions can also be imposed to secure a fair trial by the witnesses who may be examined during the trial being free and interfered with by the accused. Thus any condition which has no reference to fairness or propriety of the investigation or trial cannot be considered as permissible under the law. The Courts must be extremely chary in imposing conditions, and see that they maintain a balance between the personal liberty of the accused and the investigational rights of the police. The granting of a bail in a non-cognizable case amounts to a concession allowed to the accused and it presupposes that the privilege is not to be abused.