CrPC Section 439 - Special Powers Of High Court Or Court Of Session Regarding Bail

Section 439 of the Code of Criminal Procedure, 1973 (henceforth referred to as “the Code”), postulates special powers vested in the High Courts and Courts of Session regarding bail. According to this Section, these Courts can grant bail to an accused person if he happens to be in custody. These Courts can also set aside or vary any order relating to bail passed by a Magistrate. However, Section 439 contains specific conditions, such as that the Public Prosecutor should be notified before grant of bail in certain offences including offences punishable with life imprisonment or sexual offences under certain Sections of the Indian Penal Code, 1860. 

Legal Provision: Section 439-Special Powers Of High Court Or Court Of Session Regarding Bail

“Section 439- Special powers of High Court or Court of Session regarding bail-

1. 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.

[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.] [Inserted by Criminal Law (Amendment) Act, 2018 (22 of 2018), dated 11.8.2018.]

[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code.] [Inserted by Criminal Law (Amendment) Act, 2018 (22 of 2018), dated 11.8.2018.]

(2) 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.”

Simplified Explanation Of CrPC Section 439

Section 439 of the Code provides for the following:

This Section vests empowers the High Court or the Court of Session with special powers with respect to grant of bail:

Section 439(1): This Section allows the High Court or the Court of Session to release an accused, who is in custody, upon bail. If the offence is covered under Section 437(3), the Court may order the release of the accused on bail subject to any such conditions as it thinks necessary. It further empowers the High Court and the Court of Session to set aside or modify the conditions imposed by the Magistrate when releasing any person on bail. 

Provisos: This Section carries two vital provisos which was inserted in the Section vide the Criminal Law (Amendment) Act, 2018:

• First Proviso: This proviso mandates that if the accused is facing charges triable exclusively by the Court of Session, or faces a potential life sentence, the High Court or Court of Session must notify the Public Prosecutor about the bail application. It further provides that the High Court or any Court of Session may dispense with such notice to the Public Prosecutor if they think it impracticable to do so and their reasons for so doing shall be recorded in writing.

• Second Proviso: This proviso requires that the High Court or Court of Session communicate the bail application to the Public Prosecutor, within fifteen days from the date of its receipt, when the accused is charged with offences under certain Sections of Indian Penal Code [376 (3), 376 AB, 376 DA, 376 DB], which pertains to serious sexual offences.

Section 439 (1A): Under this Section, the informant (the complainant) or his authorised representative must be present in Court at the time of bail, if the offences for which the bail application is filed falls under Sections 376 (3), 376 AB, 376 DA, 376 DB of the Indian Penal Code.

Section 439(2): This Section authorises the High Court or Court of Session to issue an arrest warrant for any person previously released on bail under this chapter (Chapter XXXIII) and arrest him.

Difference Between Section 439 And Other Bail Provisions

Whereas Section 439 of the Code lays down the “Special powers of High Court or Court of Session regarding bail,” other provisions dealing with bail relate generally to the bail procedures existing in the lower Courts. The difference lies between them distinctly in the following points:

• Jurisdiction of the Court: Section 439 confers, specifically upon the High Courts and Courts of Session, the power to grant bail. It is in a difference with other provisions on bail that apply to Courts of Magistrates.

• Special powers: Section 439 provides wider powers to High Courts and Courts of Session than the subordinate Courts. Their powers are as follows:

  • Granting bail for offence which is triable by the Court of Session or punishable with imprisonment for life.

  • To cancel or modify a bail order by a Magistrate.

  • To issue arrest warrants for persons released on bail under Chapter 33 of the Code.

• Mandatory notice to Public Prosecutor: Section 439 is also characterised by the mandatory notice to be sent to the Public Prosecutor for some offences:

  • All such offences exclusively triable by the Court of Session or punishable with an imprisonment for life. 

  • Serious sexual offences under certain Sections of the Indian Penal Code (376, 376 AB, 376 DA, 376 DB). 

  • Notice is given so that the prosecution may also represent their case before the bail hearing.

• Presence of informant: Section 439 adds an additional layer of scrutiny by demanding the presence of the informant or his representative during bail proceedings of certain serious sexual offences.

Practical Examples Illustrating CrPC Section 439

Section 439 of the Code grants special powers to the High Court and the Court of Session for bail matters. Let me try to explain it through examples:

General bail powers:

Granting Bail: Where any person accused of an offence after being detained in custody is denied bail, the High Court or the Court of Session may direct such person to be released on bail.

• Example: Consider a person who has been arrested for theft and files an application for bail. Even if the lower magistrate does not grant bail, the Court of Session can grant it to that person if they feel it is proper.

Imposition of conditions: There may be special conditions in cases dealing with serious offences for which the Court can release them on bail.

• Example: If the accused is suspected of some grave offence like robbery that may result in life imprisonment, then they can be allowed to be released on bail but on certain conditions, like reporting to the police station on a daily basis.

Amending Or Setting Aside Bail Conditions:

Revision of Bail Terms: The High Court or Court of Session has the powers to amend or revoke any terms fixed by a Magistrate while granting bail.

• Example: A Magistrate might allow an accused person on bail with a condition that he cannot leave his city. If the accused has an urgent reason to leave his city, he may appeal to the High Court to have the said condition modified.

Notice To The Public Prosecutor:

Notice to Public Prosecutor is mandatory: Where it is a case of murder or rape; for case of granting bail, the Court shall give notice to the Public Prosecutor, and allow the Public Prosecutor to raise objections.

• Example: Suppose an individual was detained on charges of murder. The High Court has to send a notice to the Public Prosecutor before dismissing or granting the bail petition. This would give him a chance to voice against or in favour of granting bail.

Exceptions of sending Notice: The Court can waive this requirement of giving notice when it would be impossible. For instance, where the bail has to be admitted for an urgent reason and would cause damage if delayed.

• Example: Where an accused is seriously ill, the Court may release on bail without awaiting the notice served to the prosecutor

Serious Offences and Presence of the Informant:

Cases of Rape and Sexual Offence: In cases of grave crimes (under certain Section of the Indian Penal Code), the informant should be present before the Court at the time when the Courts hears the application for bail.

• Example: If someone is accused of rape, the person who reported the crime must be present during the bail hearing to ensure their concerns are heard.

Re-Arresting After Release On Bail:

Cancellation of Bail and Re-arrest the accused: If a person who has been granted bail, commits an offence while on bail or new evidence comes to light later, the Courts can direct his rearrest.

• Example: If someone who was on bail for drug trafficking is found to be tampering with the evidence. The Court may cancel the bail of that person and get him taken into custody.

These are certain simple examples of how Section 439 grants special powers to the High Court and the Court of Session regarding bail cases, especially in serious or complex cases.

Penalties And Punishments Under CrPC Section 439

Section 439 of the Code empowers the High Court and Court of Session with special powers regarding bail applications. Therefore, the Section does not provide for any penalties or punishments for non-conformance with the provision.

Notable Case Laws Related To CrPC Section 439

Gurcharan Singh & Ors vs. State (Delhi Administration) (1977)

In this case, the Supreme Court compared Section 439 of the Code with Sections 437 and 438 of the Code. The Court held that Section 439 deals with the “special powers” conferred upon the High Court as well as the Court of Session to grant bail. The Court noted that if the offence for which bail is sought falls within the nature of Section 437(3), Section 439(1)(a) adopts the conditions referred to in Section 437(3).

Gurbaksh Singh Sibbia Etc vs. State of Punjab (1980)

In this case, the Supreme Court observed that the language of Section 439 of the Code used for “special powers” of the High Court and the Court of Session relating to bail differs from the closely related Sections 437 and 438. Thus, it suggests a specific legislative intent:

• Section 439(1)(a) adopts Section 437(3) conditions when the offence in question falls within the categories specified under that Section.

• The Court observes that while framing Section 438 of the Code dealing with anticipatory bail, the legislature was guided by Sections 437 and 439 existing at that time. The fact that they chose to deviate from this existing structure suggests a deliberate intention to differentiate Section 438 and grant a broader discretion to the Courts.

• Unlike Sections 437 and 439, the word used in Section 438(1) is “may, if it thinks fit,” and the Court construes it to mean that the High Court and Court of Session have a wide discretion in granting anticipatory bail.

• This deliberate departure from the language used in Sections 437 and 439 reinforces the Court's view that the legislature aimed to provide a more flexible and context- dependent approach to anticipatory bail applications.

Ram Govind Upadhyay vs. Sudarshan Singh & Ors (2002)

In this case, the Supreme Court established the principle that the power to grant bail is discretionary in nature and should not be exercised as a matter of routine. An order for bail without any justification cannot be sustained. The Court noted that while personal liberty is paramount and Courts should strive to protect it, this protection is not absolute and must be balanced against the interests of justice and societal security, especially in cases of heinous crimes.

Some of the considerations that the Court provided while granting of bail are as follows;

• Nature and gravity of the accusation: More serious crimes reduce the likelihood of bail being granted.

• Strength of the evidence: Whilst the Court is not required to prove guilt beyond a reasonable doubt at bail, there ought to be a prima facie sense that the accusations have some evidentiary basis.

• Risk of tampering with or intimidating a witness: The Court must consider whether the release of the accused on bail prejudices the ability of the Court to maintain its fairness, including fear of intimidation of witnesses, threats to the complainant, or interference with the judicial process.

• Probable vexatious or vexing prosecution: The Court should be extra careful and sensitive to the probability of frivolous or malicious prosecution. If there are doubts about the motives of the prosecution or the legitimacy of the charges, it can weigh in favour of granting bail.

• Disruption to public tranquillity: In cases where the alleged offence has caused public alarm or commotion, the Court can take into consideration the possible impact of granting bail on public order and safety.

Recent Changes

Section 439 of the Code empowers the High Court and Court of Session with special powers regarding bail applications. Second proviso to Section 439(1) and Section 439(1A) was incorporated in Section 439 vide the Criminal Law (Amendment) Act, 2018. Section 439 of the Code has been retained without any changes under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Summary

A special power has been conferred upon the High Court or Court of Session in relation to the grant of bail by Section 439 of the Code. It allows them to:

• Grant bail to a person in custody, and if the offence is serious (as mentioned in Section 437(3)), he may impose such conditions as he thinks fit.

• Change or remove conditions imposed by a Magistrate when granting bail.

Where the offence is a grave one (such as an offence punishable with life imprisonment or under certain Sections of the Indian Penal Code like 376 related to sexual offences), the Court shall forward a notice to the Public Prosecutor before ordering the grant of bail, except in certain circumstances. The Court also requires the presence of the informant or their representative during bail hearings for some of these serious offences. The High Court or Court of Session may also direct the arrest of a man who has already been granted bail.

Key Insights & Quick Facts

Here are some fast facts related to Section 439 of the Code:

• Power to grant bail: The High Courts and Sessions Courts can release somebody in custody on bail.

• Levy of conditions if the offence is grave: They can impose conditions at the time of granting bail if the offence falls within the scope of Section 437(3).

• Modify or remove conditions: These Courts can also alter or set aside conditions imposed by a Magistrate while granting bail.

• Notice to Public Prosecutor: In the cases of serious offences (life imprisonment), it is necessary for the Court to give notice to the Public Prosecutor before bail. Unless it is not practicable, the notice can be dispensed with. However, the reason must be noted in writing. 

• Offences under Section 376 of IPC: In cases relating to some of the sexual offences, like Section 376 and its other constituent Sections, the Public Prosecutor must be given 15 days' notice before granting bail.

• Presence of Informant: In cases relating to specific sexual offences, the informant or his representative shall appear before the Court during the hearing of the bail application in such matters.

• Power to cancel bail: Such Courts can order re-arrest of a person who has been released on bail when it is required.

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