A person who has been arrested or detained by the police, or who is in judicial custody, can apply for the regular bail in order to be released from police or judicial custody. Within the Code of Criminal Procedure, Section 437 and 439 enumerate the provisions for grant of regular bail. These provisions allow a person to seek a regular bail in the event that he or she has been arrested on suspicion of committing a non-bailable offence.

Why is the Relief of Regular Bail Granted?

The relief of regular bail stems from the legislature’s identification of the principle of a fair trial to the accused and respecting the individual liberties till the pendency of the trial. Section 437 & 439, CrPC contain express provisions for granting of Regular bail and these provisions are explained below for a better understanding:

Section 437 When bail may be obtained in case of non-bailable offence:

(1) Any person accused or suspected of the commission of any non-bailable offence who 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 may be released on bail, but

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence.

(ii) Such person shall not be released if the offence is a cognizable offence and he has previously been convicted of an offence punishable by death, life imprisonment, or imprisonment for seven years or more, or he has previously been convicted of a non-bailable and cognizable offence on two or more occasions.

(2) 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 investigation 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 warrant.

(3) When a person accused or suspected of committing an offence punishable by imprisonment for seven years or more, or an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, or abetment of, conspiracy, or attempt to commit any such offence, is released on bail under sub-section (1).

(4) An officer or a court that releases a person on bail under subsection (1) or (2) must record his or her reasons or special seasons for doing so in writing.

(5) Any court that has released a person on bail under subsection (1) or (2) may, if it believes it is essential, order that the person be arrested and committed to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not completed within sixty days of the first date set for taking evidence in the case, such person shall, if he is in custody for the entire period, be released on bail to the satisfaction of the Magistrate, unless the Magistrate otherwise directs for reasons to be recorded in writing.

(7) If the Court is of the opinion that there are reasonable grounds for believing that a person accused of a non-bailable offence is not guilty of any such offence at any time after the conclusion of the trial and before judgement is delivered, 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 judgement delivered.

Section 439: Special bail powers of the High Court or Court of Session:

(1) A High Court or Court of Session has the authority to order-

(a) that any person in detention accused of a crime be released on bail, and that if the offence is of the sort described in paragraph (3) of section 437, the court may impose any condition it deems necessary for the purposes specified in that subsection;

(b) that any condition imposed by a Magistrate when releasing a person on bail be set aside or modified: Provided, however, that the High Court or the Court of Session shall, before granting bail to a person accused of an offence which is exclusively triable by the Court of Session or which, though not so triable, is punishable with life imprisonment, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in.

(2) A High Court or Court of Session may order the arrest and detention of anyone who has been released on bail under this Chapter.

Which points shall be incorporated in the application for Regular bail?

The best criminal lawyers practicing in the different parts of India must consider, reflect, draft, and argue the following points while presenting a petition for regular bail keeping in mind the facts of the case:

  • The nature and seriousness of the accusations;
  • The purpose of judicial custody where it is not serving any purpose;
  • The chances of any recovery from the accused;
  • Absence of a prima facie case;
  • The criminal antecedents of the accused;
  • The reputation of the accused if he got arrested to tarnish his image;
  • The likeliness of the accused to flee from the country;
  • The chances of the accused to obstruct the investigation;
  • The chances of the evidence being tampered with by the accused;
  • While applying the concession of Regular bail, the applicant’s willingness to comply with all the conditions imposed by the Court under section 437 or 439, CrPC.

Who can seek Regular Bail?

Any person who is under police/judicial custody and qualifies the mandate of Section 437 or 439, CrPC has been arrested on being an accused of a non-bailable offence can seek a regular bail under Section 437 or 439, CrPC before the competent court of Jurisdiction.

Where to apply for Regular Bail?

The individual under the police or judicial custody can file a regular bail application before the JMIC, Sessions Court, or the High Court (in whose jurisdiction the alleged act was committed or the FIR was lodged), requesting that he be released on bail if after his arrest.

Which Court has a Jurisdiction?

All the remedies related to regular bail shall be initiated at the lowest court of competent jurisdiction. The court of competent jurisdiction that can be the Judicial Magistrate First Class or the Sessions Court & the High Court (in whose jurisdiction the alleged act was committed or the FIR was lodged) can grant the regular bail in cases triable by the respective courts. There are well-defined jurisdictions of the courts mentioned in the provisions of Section 437 and Section 439, CrPC.

The regular bail can be sought from the JMIC where the offenses alleged in the case are triable by JMIC and it can be sought from the Sessions Court where the offenses alleged in the case are triable by the Sessions Court. Section 439, CrPC expresses special powers of High Court or Court of Session regarding the grant of regular bail or the power to modify it.

Interim Relief: The courts are empowered to grant interim relief (temporary relief till pendency of the case) to the accused after considering merits of the case, if the final arguments are likely to be heard after considerable time period. While granting such relief, the courts consider both the sides i.e. the side of prosecution as well as the accused.

While Granting Regular Bail, the Courts Consider:

Regular bail is a discretionary power guided by the provisions under Section 437, Section 439, CrPC and the judicial precedents. While granting this relief, the courts consider a few factors to balance equities between the rights of the accused and larger interest of the administration of Justice. Few factors are enumerated below that are considered by the courts:

  • The need of the police/judicial custody of the accused;
  • The chances of investigation to be influenced by the accused;
  • The nature and gravity of the offence;
  • History of accused having committed the offences;
  • Chances of accused to commit offences in the future;
  • Chances of the accused to flee from the country while on bail;
  • Chances of the accused to tamper with the evidence while on bail.

Meaning of dismissed as withdrawn and dismissed on merits in Regular Bail:

The procedure for withdrawal and dismissal is applicable on the JMIC, Sessions Court and the High Court in a similar fashion.

Dismissed as withdrawn: The accused usually approach the JMIC for the relief of Regular bail and the application can be withdrawn at any stage before concluding the final arguments. If the regular bail application is withdrawn, it can be refiled before the same court after explaining the change of circumstances, and that application can be argued on merits. But, if an application is withdrawn, it cannot be filed before appellate forum.

Dismissed on merits: If the application is dismissed on merits, it can only be filed before the appellate forum or the court which is empowered to give relief.

Conditions that can be imposed by the Court while Granting Regular Bail:

  • The applicant shall remain available for questioning by a police officer whenever necessary;
  • The applicant shall not, directly or indirectly, make any temptation, threat, or promise to any person with knowledge of the facts of the charge against him in order to persuade him not to tell the Court or any police officer about them;
  • The applicant will not leave India without the Court’s prior approval; and
  • As well as any other terms set under section 437, subsection (3).

When the court can reject Regular Bail?

  • If there are reasonable reasons to believe that the petitioner has committed a crime punishable by death or life imprisonment;
  • If the crime is a cognizable offence and the petitioner has previously been convicted of a crime punishable by death, life imprisonment, or a sentence of seven years or more;
  • The applicant having previously been convicted of a cognizable offence punishable by imprisonment for three years or more but not less than seven years on two or more occasions;
  • There are adequate grounds to investigate his guilt further;
  • There is a reasonable probability that the applicant may flee the country;
  • The applicant has the ability to destroy, persuade, or influence witnesses in his case.

What if a Regular Bail Application is Rejected or Dismissed?

In case, the regular bail is dismissed by the JMIC, the application against the order can be filed before the Sessions Court. When, the regular bail gets dismissed by the Sessions Court, the application against the order can be filed before the High Court. Whereas, the regular bail application dismissed by the High Court, the applicant can file Special Leave Petition before the Hon’ble Supreme Court.

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