CrPC Section 437- When Bail May Be Taken In Case Of Non-Bailable Offence

Bail is a fundamental aspect of Indian Criminal Law and is recognized in legal systems worldwide. In legal terms, bail refers to the process of securing the release of an individual from custody while they await trial or appeal. This is done by depositing a sum of money or a security to ensure the individual's appearance before the authorities as required.

The court with jurisdiction over the individual determines the amount of the security, commonly known as bail or bail bond. Courts have significant discretion in granting or denying bail for those arrested on criminal charges. The provisions regarding bail are outlined in Section 437 of the Code of Criminal Procedure (CrPC). For more details on the different types of bail available in India, check out this link.

Legal Provision Of CrPC Section 437 - When bail may be taken in case of a non-bailable offence

1. 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.

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 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

Factors In Granting Bail in Non-Bailable Offences

The following are the factors considered in granting bail in non-bailable offences:

• The seriousness of the crime, for instance, if the offence is severe and is punishable by death or life in prison, the likelihood of obtaining bail is lower;
• The nature of the accusation or if it is serious, credible, or light;
• The severity of the penalty, the length of the sentence, and the possibility of the death penalty.
• The credibility of evidence, whether it is trustworthy or not;
• Risk of accused escaping or running away if released;
• Prolonged trials, that go beyond what is necessary;
• Giving the petitioner the chance to prepare his defence;
• Health, age, and sex of the accused; for example, a person who is under the age of 16, a woman, ill, or infirm may be released;
• The nature and seriousness of the circumstances surrounding the offence;
• Position and social status of the accused about the witnesses, especially if the accused will have the power to control witnesses after release;
• The interest of society and potential for further criminal activity after release.

Cancellation of Bail

1. Authority to Revoke Bail
   • A court that has granted bail under Section 437(1) may order the arrest of the individual and their return to custody if it finds it appropriate, as per Section 437(5).
   • The High Court and Court of Sessions also have the authority to revoke bail under Section 439. If bail is revoked, the accused may be sent to jail, as stated in Section 439(2).
2. Magistrate's Power
   • Other courts, excluding the High Court or Sessions Court, can also revoke bail. This grants magistrate courts the power to order the arrest and recommitment of a person previously granted bail, if necessary.
3. Judicial Interpretation
   • Courts interpret this section to mean that once a defendant has been released on bail, any court that granted that bail may, if warranted by circumstances, order their arrest and return to imprisonment.
4. Consideration Before Cancellation
   • It is important to note that bail should not be revoked automatically. Courts must consider whether new evidence or circumstances have arisen that would justify the revocation and whether the accused can still remain accessible for a fair tria

Guidelines for Filing a Bail Application Under Section 437 of the CrPC

You may examine the application for a Section 437 bail award here. The following guidelines should be kept in mind when requesting bail under Section 437 CrPC:

1. Initial Submission
   • The bail application is first received by the court of the relevant Magistrate, commonly known as the "Ilaka Magistrate."
2. Custody of the Accused
   • The accused is brought into custody by the police, and then the bail application is submitted.
3. Representation by Others
   • If the accused is not present in court, a close relative or "Parokar" can file the bail application on their behalf.
4. Signature Requirement
   • The bail application must be signed by the lawyer submitting it. This can be done in person or through a power of attorney or attendance notice.
5. No Court Fees
   • There are no court costs associated with filing the bail application while the accused is in jail.
6. Essential Details
   • The bail application should include:
     • The name of the accused
     • The name of the accused's father
     • Details of the FIR (First Information Report)
   • This information helps jail personnel identify the correct individual when the court issues a release order.

Conclusion

In serious criminal cases, it is crucial to balance the rights of the accused with the need for justice, which is precisely the role of Section 437 of the CrPC. This provision protects societal interests by denying bail in cases involving severe offenses or repeat offenders while allowing for bail in other situations to prevent the unjust deprivation of liberty. The judiciary has emphasized the importance of applying this section thoughtfully and judiciously. Ultimately, Section 437 embodies the intricate relationship between individual rights and the broader objective of maintaining law and orde