Q. What is an offence?

General Concept of Offence

A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law
is an offence. In general, such act which causes a violation of rights of others or cause harm to
others and is so dangerous that is also affects the society at large is designated as offence by the
legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows
-
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time
being in force and includes any act in respect of which a complaint may be made under section
20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would
be an offence if committed in India.

It is important to note that an act is not offence unless it is clearly defined as an offence by any
piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence.
Several Acts and Legislations defines such acts which constitute offences. The main among them
is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal
breach of trust and makes them offences. Examples of other acts which defines offences are
Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic
Substances Act, Environmental Protection Act. These Acts defines certain activities related to
the focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic
Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they
define, while some specify that trial for their offences will be held as per the provisions of Cr PC.

Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears
before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he
must be made available to serve his sentence. However, if it is reasonably evident that the person
charged with an offence can be made available for the above mentioned purposes without
keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a
violation of a person's fundamental right to restrict the person's liberty without any just cause.

Bail is one such mechanism which is used to ensure the presence of an accused whenever
required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in
which a person makes a written undertaking to the court. A person who is in custody, because he
or she has been charged with an offence or is involved in pending criminal proceedings, may
apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he
will be present every time the matter is in court until the proceedings are finished, will comply
with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a
specified sum of money if the person fails, without proper excuse, to comply with any term or
condition of the agreement. Two authorities that may grant bail are the police and the courts. A
person may be required to provide a security as well. But it is not necessary. A person may also
be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a
Bail covers both release on one's own bond with or without surety.

Q. What is a Bailable and Non-Bailable offence?

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable

offence is an offence of relatively less severity and for which the accused has a right to be
released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot
demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence
as well as Non-Bailable Offence as follows -

Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force: and "non-
bailable offence" means any other offence.

Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply
makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These
offences include offences such as obstructing a public servant from discharging his duties,
bribing an election official, and providing false evidence. Non-bailable offences include offences
such as murder, threatening a person to give false evidence, and failure by a person released on
bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable
offences shows that bailable offences are of relatively less severity.

Q. When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the
court whenever required. However, granting bail is not advisable in all cases. For example, a
murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This
is very bad for the society in general and reflects bad on the justice system. Thus, various rules
and procedures have been formulated to make sure that only the deserving are released on bail.
They try to achieve a balance between the rights of the accused and the protection of the society
and effectiveness of the justice system.

The working of the bail system in India was highlighted in the case of Hussainara Khaton vs
Home Secretory, 1980. It came to the courts attention for the first time that thousands of people
were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6
months to an year. This was because they were unable to pay bond money for bail and the courts
were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must
abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties.

Thus, in general, the intention of the justice system is to give bail and not jail before the accused
is convicted. It is said that since the accused is presumed innocence, he must be released so that
he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an
exception.

Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or
non-bailable offence -

Bail for Bailable offences -

A person accused of a bailable offence can demand to be released on bail as a matter of
right. This is provided for by Section 436.
Section 436 - 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.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his
right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any
bail amount, must be released. If a person is unable to provide bail amount for a week, then he
can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Bail for Non-Bailable offences -

When a person is detained for a non-bailable offence, he cannot demand to be released on bail as
a matter of right. He can, however, request the court to grant bail. The provisions in this case are
governed by Section 437/

Section 437 - 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. 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 no reasonable grounds for believing that the accused has
committed a non-bailable offence, but there are sufficient grounds for further inquiry into his
guilt, the accused shall 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. A police officer or the court may
also release a person from custody if he feels that there are any special reasons. But he must
record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that
must be given while giving bail in case of non-bailable offences. These are -

1. the nature of the crime

2. the nature of the charge, the evidence, and possible punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail might be granted.

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.
If the investigation is not done within 24 hours, the arrested person must be bought before the
court and if required, the police must make a case to extend the detention. The court may extend
the detention by 15 days. However, the detention cannot extend more than 60 days (or 90 days, if
the offence is punishable by death or imprisonment for life), after which the accused must be
released on bail. This provision applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of
imprisonment is released on bail, the court may impose any condition on the bail to ensure that
the person will attend the court in accordance with the bond executed by him, or to ensure that
the person will not commit a similar offence or otherwise in interest of justice.

Special Powers of Hight Court and Court of Session regarding Bail

Section 439 gives special powers to High Court and Court of Session regarding bails. These are
as follows -
1. A High Court or Court of Sessions may direct that any person accused of an offence and in
custody be released on bail. It may also impose any condition which it considers necessary. It
may set aside or modify any condition imposed by a Magistrate when releasing any person on
bail.
2. The High Court or the Court of Sessions shall, before granting bail to a person who is accused
of an offence which is triable exclusively by the Court of Sessions 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.
3. A High Court or Court of Sessions may direct that any person who has been released on bail
under this chapter be arrested and commit him to custody.
When can bail be denied -
1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the
court may refuse to release him on bail, on a subsequent occasion in the same case. He can also
be asked to pay penalty for not appearing before the court as per the conditions of the previous
bail.
2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary
power to the police and and court. However, this power is not totally without any
restraint. Section 437 disallows bail to be given in the following conditions.

1. if there appears reasonable grounds for believing that the person has been guilty of an
offence punishable with death or imprisonment for life;
2. if such offence is a cognizable offence and the person has 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 non-bailable
and cognizable offence. The person may, however, be released on bail if such person is
under the age of sixteen years or is a woman or is sick or infirm.

3. Persons accused of Dowry Death -

Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's
case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of
High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has
released a person on bail under section 437(1) or 437(2), may direct that such person be arrested
and commit him to custody. This basically cancels the bail. However, it must be noted that only
the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be
canceled by a court under this section. To do so the special power of High Court or Court of
Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to
High Court and Court of Session to direct that any person who has been released on bail be
arrested and to commit him to custody.
The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is
not necessary that some new events should take place subsequent to the offender's release on bail
for the Sessions Judge to cancel his bail, however, the court usually bases its decision of
cancellation on subsequent events. For example, in the case of Surendra Singh vs State of
Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or
during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of
bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in
the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

Appeal Provision for Bail

It has been held that an order granting bail is an interlocutory order and so it cannot be
challenged under the revisional jurisdiction of the Session Court or High Court. In general, there
is no right of appeal against the decision of refusing the bail. However, a person can alway file
for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to
special courts.

Q. What do you understand by Anticipatory bail? When is it granted and when it may be
refused? What is the difference between the general provisions of anticipatory bail and
regular bail?

It has been observed that many cases are instigated against a person just because of political
motivation or personal vendetta. They lack enough evidence and are meant to harass a person by
getting him arrested. When a person apprehends such situation he may apply to Court of Session
or the High Court under Section 438 for a direction that he be released on bail upon his arrest.
This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest.
Anticipatory bail is technically an incorrect term because a bail can be given only if a person has
already been arrested. In this case, the court directs that the person be released on bail as soon as
he is arrested. Thus, it is a direction to provide bail and not the bail itself.

Section 438 - When any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or the Court of
Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail.

While applying under this section, the person has to explain the circumstances because which he
believes he might be arrested. Mere hunch or fear is not enough. He must also provide such
evidence that shows there is a reasonable probability that he will be arrested on accusation of a
non-bailable offence. Further, the direction under this section can be given only upon a specific
offence. A generic direction or a blanket order to be released whenever the applicant is arrested
and on whatever offence is not allowed.

In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been
imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant
by having him arrested.

The order may also include conditions such as the person shall make himself available for
interrogation by a police officer whenever required, the person shall not leave India, the person
shall not make any inducement, threat, or promise to any person acquainted with the facts of the
case, or any other condition that the court may think fit.

It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to
Court of Session and High Court. Thus, a person can approach either of the courts to get this
relief.

As per Section 438 A, the court may also grant an interim order and in that case an opportunity is
given to the public prosecutor present his arguments on why the applicant should not be given
bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to
be present personally at the time of final determination of the interim order.

A bail under the direction of this section is equivalent to the bail given under Section 437(1) and
so it is applicable until the conclusion of the trial.

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are certain
situations where such bail is normally not granted. These are -
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes

Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must
seek remedy under Section 437.

Some high courts have held that the grounds mentioned in Section 437 for denying regular bail
are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a
punishment of death or life imprisonment will not be given anticipatory bail.

In general, the court has a wide discretion in granting anticipatory bail. So the court may deny
this relief if it feels that it is not in the interest of justice.
 Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel the order of anticipatory bail.
However, in several cases it has been held that when Section 438 permits granting anticipatory
bail, it is implicit that the court making such order is entitled upon appropriate considerations to
cancel or recall the order.

What is bail? State the provisions of Bail under Cr.P.C. Can a person get
order to be released on Bail without judicial or Police custody? Refer case
law.
INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little
Indians’ are forced into long cellular servitude for little offences because the bail
procedure is beyond their meagre means and trails don’t commence and even if
they do, they never conclude. Our bail system suffers from a property oriented
approach which means to proceed on the erroneous assumption that risk of
monetary loss is the only deterrent against fleeing from justice.
What is bail?-When any person who is accused of any offence other than non-
bailable offence, he shall be released on bail under sec.436 of the code provided he
has been arrested or detained without warrant by an Officer I/C of Police station or
he appears or is brought before a court and he must be prepared any time whine in
the custody or at any stage of the proceeding before a court.
However the following are the provisions of getting Bail under Cr.P.C. Offences
can be classified into two classes on the basis of bail:-
i) Bailable offences: - Bailable offences are of general nature and in these offences it
is right of accused to be released on bail.Sec.436 of Cr.P.C. pertains to Bailable
offences.
ii) ii) Non-Bailable offences: - These offences are of severe nature and bail cannot be
claimed as right in them. In such cases bail depends upon the discretion of the
court. Sec. 437 relates to Non-bailable offences.
1. Grant of Bail in Non-bailable offences: - Sec. 437 provides that when any person
accused of or suspected of commission of any non bailable offence is arrested or
detained without warrant by an Officer I/C 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. Thussection 437 empowered a Magistrate to take bail in non
bailable offences. The provision of this makes it clear that bail in non bailable
offences depends upon the discretion of the court.
i) When bail shall be granted: - sec.437 (1) lays down two situation in which bail
shall not be granted by magistrate:1) reasonable grounds for believing that he has
 been guilty of offence punishable with death or imprisonment for life. 2. When
offence is cognizable and he had been convicted with death, imprisonment for life
or imprisonment for 7 years or more or he has been convicted on two or more
occasion.
ii) There are exceptions to receive bail:- this section also provided with few
exceptions where magistrate can receive bail in following cases:-
a) Where the accused is under the age of 16 years.
b) If she is a woman.
c) Sick or infirm
Thus in the above cases the bail application can be accepted even though the
accused in guilty of offence punishable with death or imprisonment for life or has
been convicted earlier. Case Venkataramanappa v/s State of Karnatka-1992.
Conditions for Bail:- Under sec. 437(3) that where a person accused or suspected
of the commission of an offence punishable with imprisonment which may extend
to 7 years or more or for an offence, abetment of or conspiracy or attempt to
commit any such offence is released on bail, the court may impose any condition
which the court considers necessary, as in the case of Gurbaksh Singh v/s State of
Punjab-1980:-
 In order to ensure that such person shall attend in accordance with the conditions
of the bond executed under this chapter.
 That such person shall not commit an offence similar to an offence of which he is
accused or suspected.
 That otherwise in the interest of Justice.
Can a person get order to be released on Bail without judicial or Police
custody:-
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 sec. 438 that in the event of such arrest he
shall be released on bail.
*It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is
exercised in case of an anticipated accusation of non-bailable offence. The object
of this section is that the moment a person is arrested if he has already obtained an
order from High court of Court of Session he shall be released immediately on bail
without being sent to jail.
*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009,
direction u/s 438 that the applicant shall be released on bail whenever arrested for
whichever offence whatsoever such a blanket order should not be passed.
It was further observed that direction under sec.438 is to be issued at pre-arrest
stage, with some conditions:-
 i) That the person shall make himself available for interrogation by a Police officer
as and when required. ii) The person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case.
iii) That the person shall not leave India without the previous permission of the
court. iv) If such person is thereafter arrested without warrant by Police on such
accusation and is prepared either at the time of arrest or at any time while in the
custody of police station to give bail, he shall be released on bail.

20: Analyse the provisions of grant of Anticipatory bail. Can anticipatory bail
be allowed in Murder case? If so when?
INTRODUCTION: - Anticipatory bail has an important place in the series of
Bail. Its main object is to protect the innocent persons from arrest undersec. 438 of
the criminal procedure code-1973 lays down the provisions regarding grant of
anticipatory bail.
 What is Anticipatory Bail: - In-spite of the fact that the Cr.P.C., has not defined
Anticipatory Bail but it means that when a person has a reason to believe that he
may be arrested on accusation of having committed a non-bailable offence, he may
apply to High Court or to the court of Session that in the event of such arrest he
shall be released on bail at that time it is anticipatory bail. It is also called
Apprehension Bail on the basis of provisions laid down in sec. 438 of cr.P.C.
 Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a
person from arrest. A person against whom a warrant of arrest has been issued
shall first be arrested kept in custody for few days and then released on bail, it
means where there is no purpose for the arrest he shall not be arrested.
 When anticipatory Bail would be Accepted:- Section 438(1) says that, “when
any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or court
of Session for a direction under this sec.438(1) and court if thinks it fit, can direct
that in event of such arrest he shall be released on bail.” Case of Gurbaksh Singh
v/s State of Punjab-1980, he was not granted anticipatory bail merely on fear of
arrest. In a similar case of Ashok kumar v/s State of Rajasthan-1980, that
anticipatory bail should not accepted until there is a definite fear of arrest and such
fact has come before the court.
It is pertinent to mention here that reason to believe does not mean mere fear,
i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based must be
capable of being examined.
 Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following
authorities may accept the anticipator bail application:
i. High Court ii. Court of Session
That any accused of an offence and in custody be released on bail on acceptance of
bail application in the above said courts u/s 439 of Cr.P.C.
 Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions
for grant of anticipatory bail. Those conditions have been mentioned in section
438(2). When the High Court or Court of Session make a direction with some
conditions in the light of the facts of the particular case as it may think fit for bail:-
a. That the person shall not leave India without previous permission of the court.
b. That person directly or indirectly make an 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.
c. That the person shall make himself available for interrogation by a police officer
as and when required.
d. That any such other condition as may be imposed under sec.437 if the bail is
granted under this section.
ANTICIPATORY BAIL IN MURDER CASE: - There is no set principle fixed for
grant of anticipatory bail. It is basically depends upon the facts and circumstances
of every case and the nature of the case. Generally the anticipatory bail is not to be
granted in the matters like murder, unnatural death, dourly death.
A case if SamunderSingh v/s State of Rajasthan -1987, the court held that the
anticipatory bail cannot be accepted in dowry death cases especially where father-
in-law and mother-in-law caused unnatural death of the daughter-in-law.
Similarly refusing to grant of anticipatory bail in the matters of atrocities to
schedule tribe and schedule caste was held to be constitutional in a case of State
v/s Ram kishore Batolia-1995.
Anticipatory bail has also been refused in the matters of FERA, a case
ofDukhishyam Venupanni v/s Arun Kumar Bajoria-1998.
Even the facts mentioned above the anticipatory bail can be granted in
Murder cases on the basis of following circumstances:-
i)When there is no apprehension about the absconding of the accused.
ii) When there is no apprehension of inducing or enticing witnesses by the
accused.
iii) When there is no apprehension of the accused for moving abroad.
iv)Where the offence is not the severe or deadly nature.
HEARING OF PROSECUTION
The prosecution must be provided an opportunity of hearing while considering the
anticipatory bail as held in the case of State of Assam v/s R.K.Krishankumar-
1998