Ketan, Komal and Sachika Compiled
Case Laws: BAIL
BAIL
Introduction
State of Rajasthan vs Balachandra
If there is no substantial risk of the accused fleeing the course of justice, there is no reason why he
should be imprisoned during the period of his trial. The basic rule is to release him on bail unless there
are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice.
Section 436
Case Law: Moti Ram vs State of UP MP
The right to be released on bail u/s 436(1) cannot be nullified by fixing too high the amount of bail to
be furnished the person seeking accused.
The ordinary labourer was asked to pay a sum of Rs.10,000. Also, in that case, the magistrate refused
to accept suretyship of the petitioner’s brother as he and his assets were in another district. The Supreme
Court held the decision to be wrong on the reasoning that ‘what a person of one state would do if
arrested in other state’? Further, it held that Section 440(1) specifically provides that the amount of
every such bond shall be fixed with due regard to the circumstances of the case and shall not be
excessive. Thus, as per general rule, the judges should be more inclined to bail than to jail.
Section 438 – Anticipatory Bail
Case Law: Adri Dharam Das v State of WB
An interim order restraining arrest if passed while dealing with an application under section 438, it
would amount to interference in investigation. The use of the expression "reason to believe" shows that
the apprehension of arrest must be founded on reasonable grounds. Such grounds must be capable of
being examined. The power to grant Anticipatory bail is extraordinary. It is to be exercised only in
exceptional cases.
Case Law: Siddharam Satlingappa Mhetre v State of Maharashtra
The provision is based upon the principle of criminal jurisprudence that there is a presumption of
innocence till the accused is found to be guilty.
Jai Singh vs UOI
In the cases relating to atrocities on the members of Scheduled Castes and Scheduled Tribes, section
438 CrPC will not apply as it is specifically excluded by section 18 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), which is constitutionally valid.
Vilas Pandurang Pawar v State of Maharashtra
The SC has observed that while considering the application for bail, scope for appreciation of evidence
and other material on record is limited. The Court is not expected to indulge in the critical analysis of
the evidence on record.
Balchandra Jain vs State of MP
Sushila Aggarwal v. State of NCT of Delhi (2020) case PDF
Section 439 – Powers of High Court and Court of Session
Prakash Kadam v Ramprasad Gupta
If there are very serious allegations, the bail may be cancelled even if he has not misused the bail
granted to the accused. There is no absolute rule that once bail is granted, then it can only be cancelled
if there is livelihood of misuse of bail. There are several other factors also which may be seen while
deciding to cancel the bail.
Harjeet Singh v State of Punjab
Where a bail was granted by a single judge, the cancellation of it by another single judge on a
subsequent application of the state was held to be not appropriate.
Sanjay Chandra vs CBI – Very imp case
The SC observed that the object of bail is to secure the appearance of the accused person at his trial
by reasonable amount of bail.” Further, when there is a delay in the trial, bail should be granted to
the accused.
Observations as to Sec. 437(1) & 439(1)
1. Sec. 439(1) CrPC confers special powers on the High Court or the Court of Session in respect of
bail.
2. There is no ban imposed under Sec. 439(1) against granting of bail by HC or the Court of Session
to persons accused of an offence punishable with death or imprisonment for life while same band
has been given in sec. 437(1).
3. The considerations/factors in granting bail which are common both in the case of Section 437(1) and
sec 439, CrPC are:
• The nature and gravity of the circumstances in which the offence is committed
• The position and status of the accused
• The likelihood of the accused
• Of fleeing from justice
• Of repeating the offence
• Of jeopardizing his own life being faced with grim prospect of possible convicton in the case
• Of tampering with witness
• The history of the case as well as of its investigation
