Bare Acts Page 17

CrPC 439: Section 439 of the Criminal Procedure Code

December 16, 2014

Special powers of High Court or Court of Session regarding bail

A High Court or Court of Session may direct-
1. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-Section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-Section;
2. that any condition imposed by a Magistrate when releasing any 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.
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.

CrPC 438: Section 438 of the Criminal Procedure Code

December 16, 2014

Direction for grant of bail to person apprehending arrest

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely-
1. the nature and gravity of the accusation;
2. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. the possibility of the applicant to flee from justice; and.
4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,either reject the application forthwith or issue an interim order for the grant of anticipatory bail:Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
  1A. Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,
  
  1B. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
2. a condition that the 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;
3. a condition that the person shall not leave India without the previous permission of the Court;
4. such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section.

CrPC 437: Section 437 of the Criminal Procedure Code

December 16, 2014

When bail may be taken in case of non-bailable offence

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-
1. 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;
2. 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,-
1. that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
2. 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
3. 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.

CrPC 436A: Section 436A of the Criminal Procedure Code

December 16, 2014

Maximum period for which an under trial prisoner can be detained

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation – In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

CrPC 436: Section 436 of the Criminal Procedure Code

December 16, 2014

In what cases bail to be taken

When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of Sub-Section (3) of section 116 or section 446A.

Explanation – Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.
Notwithstanding anything contained in Sub-Section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

CrPC 435: Section 435 of the Criminal Procedure Code

December 16, 2014

State Government to act after consultation with Central Government in certain cases

The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence
1. which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
2. which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
3. which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty.
  shall not be exercised by the State Government except after consultation with the Central Government.
No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.

CrPC 434: Section 434 of the Criminal Procedure Code

December 16, 2014

Concurrent power of Central Government in case of death sentences

The powers conferred by sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government.

CrPC 433A: Section 433A of the Criminal Procedure Code

December 16, 2014

Restriction on powers of remission or commutation in certain cases

Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

CrPC 433: Section 433 of the Criminal Procedure Code

December 16, 2014

Power to commute sentence

The appropriate Government may, without the consent of the person sentenced commute

a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or for fine;
a sentence of simple imprisonment, for fine.

CrPC 432: Section 432 of the Criminal Procedure Code

December 16, 2014

Power to suspend or remit sentences

When any person has been sentenced to punishment for an offence, the appropriate Government may, at any lime, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and,
1. where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
2. where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
The provisions of the above Sub-Sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his properly.
In this section and in section 433, the expression “appropriate Government” means,
1. in cases where the sentence is for an offence against, or the order referred to in Sub-Section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
2. in other cases the Government of the State within which the offender is sentenced or the said order is passed.

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