Intro-
In this article, we will discuss the Special Powers of High Court and Court of Session Regarding Bail. First, let us understand in short what is a bailable and non- bailable offence.
Bailable offence
According to section 2(a) of CrPC 1973 “bailable offence” which is shown as bailable in the First Schedule, or which is made bailable by any other law for time being in force.
The bailable offence is not very serious. Bail can be granted either in the police station and if not then in court. The accused may be released on bail, on executing a “bail bond”, with or without furnishing sureties. The bail bond has certain terms and conditions, which the court think is important and has to be followed by the accused. The court may refuse the bail if the terms and condition are not full- filled by the accused. These offences are not very serious.
NON- BAILABLE OFFENCE
According to section 2(a) of CrPC 1973 “non- bailable offence” means any offence other than bailable offence.
Non- Bailable offence is serious and can only the court grant bail in these cases. In case of non- bailable offence bail is not a right. There are several things taken into consideration before granting bail in case of non- bailable offence.
Special Powers of High Court and Court of Session Regarding Bail.
The High court and Session court possess a special power regarding the bail of a person who has been accused of an offence and is in custody. This special power is mentioned under Section – 439 of Criminal Code of Procedure, 1973. This section gives right only to the High court and Session court.
Let us see what is in this section 439 of CrPC 1973:-
Special powers of High court and Session court regarding bail.
- A High court or Session court may direct-
- that any person accused of an offence and in custody may 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 purpose mentioned in that subsection;
- that any condition imposed by a Magistrate when releasing any person on bail is set aside or modified: Provided that the High Court or Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the court of the session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
- 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.
So, this is section 439 of CrPC, 1973. Now let us try to understand what is it about.
This Section gives Special Powers of High Court and Court of Session Regarding Bail. It does not matter whether the offence is bailable or non-bailable. But if the offence is of the nature specified in subsection (3) of section 437 then the court can impose any condition which it considers necessary. This says about if the gravity of the offence is too much when the person is accused or is suspected of a commission of an offence with imprisonment which may lead to 7 years or more or with an offence which is specified in Chapter VI, XVI or XVII of IPC or a person who has been suspected to attempt to commit the crime. The court may if any of these cases may apply certain conditions and may take into considerations many terms and conditions while giving out the bail. Whether the person accused or suspected can commit the crime after being released, the gravity of the offence, a person is suspected and is released is he a respected person, can the person commit the crime again and many more things are been taken into consideration. It is not possible to specify each point in this section which has to be taken into consideration so the Court at time of granting bail needs to take required points into considerations as the case demands.
This section also helps to modify any condition set by the magistrate at the time of granting of bail. There are cases in which Magistrate has given out condition which is over the limit for the accused, like imposing a fine which is way too much when taken in consideration financial status of accused, if imprisonment is much more than expected, fine imposed by the magistrate for bail is too much etc. There are many more conditions which can be modified by Court. The person has to apply to Court for modification and can get if necessary.
The High court or Session court, before granting bail to a person who is accused of an offence which is triable exclusive by the court or which, is not so triable, is punishable with imprisonment of life, give notice of the application for bail to Public Prosecutor, if he cannot then he should record in writing the reasons for not giving notice. The reason should be appropriate and cannot submit an unconvincing reason.
The High Court or Session Court also can direct to arrest any person who has been released on bail. If the High Court grants bail then the person cannot go to Session court for cancellation, but if Session court grants it we can go to either in High Court or Session Court. As we all know when it comes to power High Court have more power than Session Court.
- Written by- Vaibhav Prakash.
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