Tuesday, November 27, 2012

Bail:Special power of High Court/Court of Session

What is bail?
Bails means the security taken from a person to appear on a fixed date before a Court. According to Concise Oxford Dictionary, bail is define as security for the appearance of prisoner on giving which the accused is released pending trail.

Bail has not been defined under the Code of Criminal Procedure, 1973.
Section 439(1) Cr.P.C. empowers High Court or Court of Session special powers regarding bail, which is read as
'A High Court or Court of Session may direct-
(a) 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;
(b) 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.'

The powers of the High Court or Court of Session are considerably wider than the powers of the Magistrate in section 437 of the Cr.P.C.
Under section 439, no distinction has been made between the various kinds of offences for the purpose of granting of bail, and bail can be given even if the offence is most serious in character. The discretion to grant bail given to the High Court and the Court of Session under section 439 is not fettered in terms by the restrictions mentioned in section 437, but, on principle, these restriction should equally govern the exercise of the discretion by them under section 439.

Though there is no specific provision for appeal against the orders refusing to grant bail under section 436(1), the High Court or Court of Session can be moved under section 439(1) for bail. It may be noted that the lower court should be moved first in the matter of bail, because any expression of opinion by the superior court is likely to prejudice the trail in the lower court. Therefore, only in exceptional or special circumstances an application for bail may be directly made to the High Court. It is well established that no person accused of an offence can move the court for bail under section 439, Cr.P.C. unless he is in custody.




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