Law Of Bail, Bonds, Arrest And Custody

This book deals with the law of bail, bonds, arrest and custody. Arrest and custody, as noted above, relate to deprivation of personal liberty of an individual. On the other hand, bail and bonds, relate to restoration of personal liberty to such individual, even if such restoration be only as a temporary measure. This book essentially deals only with the aforesaid limited aspect of personal liberty, viz, bail, bonds, arrest and custody, as the title of the book makes it amply clear.

The book covers the relevant provisions existing in the Code of Criminal Procedure, as also in various other enactments dealing with criminal laws, such as NDPS Act, TADA Act, POTA, MCOCA, SC and ST (Prevention of Atrocities) Act, Juvenile laws, other Central and State Acts of criminal nature, etc. Provisions of some important dead laws, such as TADA Act, not withstanding their repeal, have also been incorporated in the book as many cases under such laws continue to survive; moreover, such laws dealt with some very important bail provisions; there is no gainsaying the fact that such bail provisions keep getting repeated in different laws in one form or another. The book covers the detailed case law on the subject from the Supreme Court and various High Courts.

LAW OF BAIL, BONDS, ARREST AND CUSTODY
Contents

CHAPTER 1
CONCEPT OF BAIL
Arrangement of Subject
PAGE
1. Right to Speedy Trial is a Fundamental Right 5
2. Definition of bail 11
3. Concept of bail 12
4. Object of bail 13
5. Criteria for judicial discretion to grant or refuse bail 14
6. History of “Concept of bail” 15
7. Meaning of anticipatory bail 16
8. Law of bail is not a static one 16
9. Bail provisions under new Cr.P.C. are wide enough 17
10. Grant of bail under Chapter XXXIII of Cr.P.C. 17
11. General policy is to grant bail rather than to refuse 17
12. Bail not to be refused as a punitive measure 18
13. Effect of bail 19
14. Interpretation of bail provisions 19
15. Every citizen entitled to liberty till he commits an offence 19
16. Balancing personal liberty and investigational powers of police 20
17. Freedom of individual vis-à-vis security of state 20
18. Balance between individual liberty and interest of society 21
19. Deprivation of personal liberty only in accordance with procedure established by law 21
20. Supreme Court’s observations for improvements in bail law 21
21. Right to obtain bail is substantive right 22
22. Duty of Magistrate to ensure non-violation of liberty of citizens 22
23. Order of bail can be effective only from time of arrest 22
24. Cr.P.C. permits curtailment of liberty of anti-social and anti-national elements 22
25. Detention in non-bailable offence not violative of Article 21 23
26. Bail-generally 23
CHAPTER 2
IN WHAT CASES BAIL TO BE TAKEN
1. Corresponding old law 26
2. Legislative changes 26
3. Scope of section. 27
4. Classification of offences into bailable and non-bailable 28
5. Difference in bail provisions in bailable and non-bailable offences 29
6. Application of section 30
7. Grant of bail mandatory under S. 436 30
8. Invariable rule for bail in bailable offences 31
9. Right to get released on bail 31
10. Detention only if not prepared to furnish bail 32
11. Indigent person 33
12. Indigent person–test of 33
13. Power of bail cannot be abridged by executive instructions 33
14. Police officer has no discretion to refuse release on bail 34
15. Meaning of ‘Bail’ 34
16. Meaning of ‘Bail’ includes with or without sureties 34
17. Meaning of ‘Court’ 34
18. Meaning of ‘custody’–includes person who surrenders before court and submits to its direction. 35
19. Meaning of words ‘appear’ and appearance 35
20. Bail when a person voluntarily ‘appears’ before Court 35
21. Surrender of accused and grant of bail or custody 36
22. Police to conduct investigation without taking remand 37
23. Release forthwith or can be detained up to 24 hours? 37
24. Grant of bail for bailable offences under S. 498(1) of old Code 37
25. Bail and its cancellation in bailable offences under S. 498 of old Code 38
26. Complaint or police report of a bailable offence 38
27. No anticipatory bail in bailable cases 38
28. Can conditions be imposed in bailable offence? 39
29. Surrender of passport while granting bail 39
30. Bail and own bond without sureties 40
31. Conditions as to sureties in bailable offence not to be excessive 40
32. Bail amount to be fixed as per social status and not be excessive 41
33. Personal bond and surety-discretion in bailable offence 41
34. Reduction of unreasonably high bail amount 41
35. Refusal of bail for failure to comply with conditions of bail bond 42
36. Cancellation of bail under inherent powers under old Code 43

37. Cancellation of bail under S. 439(2) 46
38. Only High Court and Sessions Court can cancel bail 46
39. Power to cancel bail in bailable offences must be used sparingly 47
40. Cancellation of bail where accused absented himself 47
41. After cancellation, can accused demand bail again as of right? 48
42. Release on bail on later date in challenge to cancellation of bail 49
43. Conversion of case from bailable to non-bailable offence 49
44. Under-trial prisoners languishing in jail in bailable offences 51
45. Issuance of non-bailable warrant in a bailable offence 52
46. Bailable offences —Illustrative cases 52
47. Disposal of bail application on same day 53
48. Person on bail is in constructive custody 53
CHAPTER 3
MAXIMUM PERIOD FOR WHICH AN UNDERTRIAL
PRISONER CAN BE DETAINED
1. Corresponding old law. 54
2. Scope of section. 54
3. Directions for under-trials in jail for more than half of maximum possible term. 55
CHAPTER 4
WHEN BAIL MAY BE TAKEN IN CASE OF
NON-BAILABLE OFFENCE
1. Corresponding old law 65
2. Legislative changes 65
3. Scope of section 66
4. Comparison with old section 70
5. Object of amendment of 1980 71
6. “Notes on Clauses” for amendment of S. 437 by Act 25 of 2005 72
7. Meaning of ‘Bail’ 72
8. Meaning of ‘Bail’ includes with or without sureties 72
9. Meaning of ‘Court’ 75
10. Meaning of ‘custody’—surrender and submission to court 76
11. Meaning of words ‘appear’ and appearance 77
12. Bail when a person voluntarily ‘appears’ before Court 78
13. A person on interim bail is in ‘custody’ 84
14. Surrender and furnishing bail bonds under anticipatory bail order is ‘custody’ 84
15. Words “reasonable grounds for believing”—meaning and effect 84
16. “Reasonable grounds for believing”—depends upon stage 87
17. Provisions of S. 437 applicable to complaint cases 87
18. Three stages of a case contemplated under this section 87
19. Classification of offences into bailable and non-bailable 87
20. Difference in provisions in bailable and non-bailable offences 88
21. Power under S. 439 is wider than that under S. 437 89
22. Difference between bail under S. 167(2) and under Ss. 437/439 91
23. Distinction between ordinary bail and anticipatory bail 91
24. S. 437 and S. 438—independent and operate in different fields 92
25. Different considerations for regular bail and anticipatory bail 92
26. Comparison of limitations on bail in S. 437 Cr.P.C. and S. 37 of NDPS Act 93
27. Concept of liberty vis-à-vis provisions of arrest and bail 93
28. Personal liberty and investigational powers of police 96
29. Bail petition can be rejected to avoid hurdles in investigation 96
30. Balancing interests of accused and of society 96
31. Police custody an inevitable concomitant of arrest 97
32. Consequences of pre-trial detention 97
33. Bail can be granted in non-bailable offences also 97
34. Power of police officer to grant bail under this section. 97
35. S. 437 is concerned only with court of Magistrate and not with High Court and Sessions Court 98
36. Magistrate’s power to grant bail in non-bailable offences 98

37. Power of Magistrate to grant bail governed by punishment prescribed for offence 99
38. Power to grant of bail in non-bailable is discretionary 99
39. Discretion to be exercised in judicious manner, and not in a casual or cavalier or arbitrary manner 101
40. Criteria for judicial discretion to grant or refuse bail 104
41. Tests for the exercise of discretion to grant bail 105
42. Limitations on powers of Magistrate to grant bail 105
43. Magistrate to decide bail matter on material placed before him 106
44. Grant of bail by Magistrate at initial stage 106
45. General policy is to grant bail rather than to refuse 107
46. Principles for grant of bail under S. 437 108
47. Matters to be considered for grant of bail 109
48. Considerations for grant of bail in non-bailable offences 110
49. Factors to be considered for grant of bail 116
50. Tests applied for grant of bail in non-bailable offences 117
51. Circumstances to be considered for grant of bail 117
52. Will accused stand trial or abscond—main question for bail 118
53. Tampering with evidence—relevance for bail application 119
54. Is accused is likely to misuse his liberty if released on bail? 120
55. Relevance of criminal antecedents in bail matters 120
56. No hard and fast rules in bail matters 120
57. Courts should take a balanced view in bail matters 121
58. No detention for a period more than absolutely necessary 121
59. Court may consider existence of prima facie case 122
60. Test for determining prima facie case while considering bail 122
61. Relevance of character and status in grant of bail 122
62. Submission of charge sheet no ground to release on bail 122
63. Person being wealthy and mighty no ground for bail 123
64. No law to release accused when no overt act attributed to him 123
65. Non—misuse of temporary bail is no guarantee in a serious case with extreme penalty 123
66. Severity of sentence likely to be imposed to be also kept in mind for bail 123
67. Case in complaint not conclusive with regard to bail 124
68. Consideration of defence version at bail stage 124
69. Loss of reputation and esteem of person to be kept in mind 125
70. Refusal of bail should be with great care and circumspection 125
71. Presumption of innocence in favour of accused 125
72. Relevance of sections under which case registered 126
73. Bail not to be refused as a punitive measure 126
74. Requirement for identification by witnesses—relevance for bail 128
75. Refusal due to being from different state or specific community 128
76. Repetition of crime may be sole reason to refuse bail 128
77. Sub-section (1)—grant of bail 129
78. Clause (i) of Sub-section (1)—requirements under 130
79. First proviso—person under age of 16 years or woman or sick or in-firm person 131
80. First proviso to Sub-section (1)—nature of sickness therein 133
81. First proviso to Sub-section (1)—meaning of ‘infirm’ 134
82. First proviso to Sub-section (1)—age factor redundant? 134
83. Second proviso to S. 437(1)—bail for special reasons 134
84. Sub-section (2)—no reasonable grounds for believing 135
85. Sub-section (4)—recording of reasons while deciding bail 135
86. Sub-section (6)—object of 135
87. Sub-section (6)—confined only to trials before Magistrates 137
88. Sub-section (6)—duty of Magistrate 137
89. Sub-section (6)—whether mandatory? 138
90. Difference between bail under S. 167(2) and S. 437(6) 140
91. Sub-section (6)—discretion to be exercised judicially and not arbitrarily 140
92. Sub-section (6)—recording of reasons for refusal of bail 140
93. Sub-section (6)—time on pre—charge evidence not to be counted 141
94. Sub-section (6)—bail granted—cancellation thereof 141
95. Sub-section (7)—release on bail pending judgment 142
96. Contrast between Sub-sections (1) and (7) 142
97. Power of Magistrate in serious offence exclusively triable by Sessions Court 142
98. Magistrate’s power in offence punishable with death or imprisonment for life 144
99. Expression “offence punishable with death or imprisonment for life” 146
100. Refusal in non-bailable case which is not punishable with death or imprisonment for life 147
101. Grant of bail in offences of serious nature 147
102. Necessity of application of mind while deciding bail matter 148
103. Necessity of a reasoned order in bail matters 149
104. Giving reasons different from discussing merits or demerits 151
105. Advantages of a reasoned bail order 151
106. However, detailed examination of evidence at bail stage should be avoided 152
107. Bail court not to function as trial court 155
108. Court not to express opinion on merits or demerits of case 155
109. Hearing both parties in bail matter is essential 156
110. Successive bail applications—maintainability of 156
111. Successive bail application without fresh ground 160
112. Point in subsequent application which was earlier not considered spe-cifically 161
113. Successive bail application—to be placed before same Bench 161
114. Findings of higher court in earlier bail matter 162
115. Accused not to be debarred for bail for specified period 162
116. Successive bail applications—Illustrative cases 162
117. Right to speedy trial is a fundamental right 164
118. Speedy trial and pre-trial detention 164
119. Duty to see that trial proceeds with reasonable promptitude 164
120. Bail on ground of delay in trial 165
121. Bail due to delayed trial and long detention in a serious case 167
122. Bail granted in case with large number of witnesses 172
123. Long pre-trial detention is not unconstitutional 173
124. No invariable rule for bail after a specified period of detention 173
125. Detention without trial beyond maximum possible term 173
126. Directions for under-trials in jail for more than half of maximum possible term 174
127. No right to oppose bail application for delayed investigation 174
128. Directions issued by a High Court in delayed investigations 175

129. Delay in supply of charge sheet or case papers 175
130. Power to cancel bail 175
131. Magistrate can cancel bail where it was granted by him 176
132. Bail continues to be in force till it is cancelled 176
133. Object underlying cancellation of bail 177
134. Power to cancel bail to be used very sparingly 178
135. Cancellation of bail to be with care and circumspection 178
136. Cancellation of bail may be done in appropriate cases 179
137. Rigour of power to cancel bail and concept of welfare State 179
138. Reasons for cancellation of bail are not enumerated under law 180
139. Considerations for cancellation of bail 181
140. Criterion for cancellation of bail 184
141. Situations in which bail may be cancelled 185
142. Cancellation of bail before actual release 186
143. Grant of bail in non-bailable offence is a concession which should not be abused
187.
144. Bail may be cancelled for good reasons
187.
145. Mere plea that bail should not have been granted as offence was se-rious not sufficient to cancel bail
188.
146. Cancellation of bail for interfering with course of justice
188.
147. Cancellation of bail on ground of suppression of facts
188.
148. Ground of tampering of evidence to cancel bail
188.
149. No cancellation of bail on past criminal record
189.
150. Nature of proof required for cancellation of bail
189.
151. Misuse of liberty of bail by preponderance of probability 192
152. Cancellation of bail on application of private person 193
153. Violation of terms of compromise not basis for cancelling bail 195
154. Bail under S. 167(2) can be cancelled under S. 437(5) or S. 439(2) 197
155. Opportunity of hearing before cancellation of bail 197
156. Opportunity of hearing while recalling mistaken order of bail 198
157. Cancellation of bail by Supreme Court under Article 136 198
158. No cancellation of bail due to acquittal in main matter 199
159. Non-Challenge of earlier orders does not preclude application for can-cellation 199
160. Right to challenge cancellation not affected by right to pray for bail again 199
161. Sessions Judge empowering Magistrate to cancel bail 199
162. Order cancelling bail in a pending trial is interlocutory order 200
163. Subsequent application to cancel bail when no change noticed 200
164. Setting aside unjustified, illegal or perverse bail order different from cancellation 200
165. Difference between cancellation and revision against bail 202
166. Forfeiture of bail bond does not amount to cancellation of bail 203
167. Different considerations apply for grant of bail and cancellation of bail 203
168. Different considerations for rejection of bail initially and cancellation of bail 205
169. Accused on bail need not appear before court before charge sheet 207
170. Bail application in a cross-case 207
171. Bail when minor offence converted into aggravated offence 207
172. Long bail period and/or non-abuse of bail considered relevant for less-er punishment 208
173. Long bail period considered for imposing less than prescribed mini-mum sentence 215
174. Long bail period held not relevant for reducing sentence 215
175. Grant of bail on ground of parity 216
176. Bail order not supported by reasons no ground for parity 218
177. Cancellation of bail on ground of parity 219
178. No parity in rejection of bail 219
179. Not necessary to state that bail application of co-accused had been rejected 219
180. Bail on ground of parity—Illustrative cases 220
181. Imposition of conditions while granting bail 220
182. Nature of conditions which can be imposed 222
183. Imposing conditions while granting bail to make payments 224
184. Condition to furnish bank security not permissible 227
185. Condition of not leaving country imposed while granting bail 227
186. Condition of producing solvency certificate from surety permissible 227
187. Surrender of passport can be insisted upon while granting bail 227
188. Condition of not tempering with evidence automatic 228
189. Conditions imposed for earlier anticipatory bail do not ipso facto con-tinue when regular bail granted later 228
190. Trial Magistrate has power to alter or amend or delete conditions of earlier bail order 228
191. Conditions for bail can be modified and such order can also be set aside under S. 439 229
192. Modification of onerous conditions 229
193. Imposing condition while granting bail is interlocutory order, hence no revision lies 230
194. Failure to challenge conditions earlier no bar for approaching Supreme Court for release on bail 230
195. Magistrate can release on bail for appearance not only before him but also before Sessions Court when required 230
196. Courts have power to release on personal bond 231
197. Requirement of cash security or surety 231
198. Demanding cash security from accused—whether permissible? 231
199. Grant of bail is interlocutory order, hence no revision lies 231
200. Bail orders do not possess irreversible finality 233
201. In certain situations, order in bail matter may not be interlocutory order 233
202. No provision of appeal in Cr.P.C. against grant or refusal of bail 234
203. Bail cannot be reviewed or revised or set aside by same court 234
204. Situations in which bail can be ordered under S. 397 234
205. Bail application to be decided expeditiously 234
206. Not possible to lay down that every bail application should be decided on same day or subsequent day 236
207. Power to direct court to decide bail application expeditiously or within specific period 236
208. Person on bail is in constructive custody of Court 237
209. Person on bail is subject to restraints and can therefore file writ of habeas corpus 238
210. Person released on bail continues to be an arrested person 239

211. Power to grant interim bail or bail for a short period 239
212. Bail granted in lesser offences when offence found to be a serious of-fence 240
213. Accused released on bail in a case which is subsequently found to be a more serious case 240
214. Grant of bail when offence committed outside jurisdiction 241
215. Bail where cause of action had allegedly accrued out of India 242
216. Question of bail to a foreign national 243
217. Magistrate has same power in bail matter under Extradition Act as the Sessions Court 243
218. Magistrate can grant bail to fugitive criminal under Extradition Act if he had issued order of his arrest 243
219. Grant of bail in extradition matter—Illustrative cases 244
220. Bail application is covered within “urgent application” in S. 10(3) of Cr.P.C. 245
221. Precedent value of bail orders 245
222. Bail under Defence and Internal Security of India Rules, 1971 245
223. Bail under Foreigner’s Act, 1946 246
224. Applicability of Ss. 437 and 439 to Navy Act 246
225. Bail under Unlawful Activities (Prevention) Act, 1967 247
226. Offences under Railway Property (Unlawful Possession) Act—whether bailable or non-bailable 247
227. Grant of bail under Karnataka Forest Act 249
228. Repeal of S. 438 in U.P. has no impact on Ss. 437 and 439 249
229. Bail under U.P. Dacoity Affected Areas Act 249
230. Bail under J&K Cr.P.C. 250
231. J&K provision curtailing power to grant bail in certain cases 250
232. Bail under Essential Commodities Act 251
233. Question of detention or bail to an approver 252
234. Grant of bail to lunatic 252
235. Grant of bail to a juvenile 252
236. Grant of bail under Juvenile Justice Act, 1986 253
237. Bail under Juvenile Justice (Care and Protection of Children) Act, 2000 255
238. Bail can be granted in certain offences under S.C. and S.T. (Prevention of Atrocities) Act 260
239. Magistrate’s power to consider bail application under S.C. and S.T. (Prevention of Atrocities) Act 261
240. Bail under S.C. and S.T. (Prevention of Atrocities) Act, 1989—Illustrative cases 262
241. Denial of bail to person charged of high corruption 262
242. Special Judge has exclusive power to grant bail for offence under Pre-vention of Corruption Act 263
243. Bail in corruption matter—Illustrative cases 263
244. Bail in economic offences—principles 264
245. Bail in economic offences—Illustrative cases 264
246. Bail in tax—evasion matters—Illustrative cases 267
247. Whether offence under S. 135 of Customs Act is non-bailable? 268
248. Offence under S. 135(1)(ii) of Customs Act—whether bailable or non-bailable? 268
249. S. 437 applies for person arrested under S. 135 of Customs Act 269
250. Grant of bail under Customs Act—Illustrative cases 272
251. Bail in cheating/misappropriation/forgery—Illustrative cases 275
252. Bail in Bihar fodder scam cases—Illustrative cases 278
253. Bail on medical grounds—Illustrative cases 279
254. Disbelieving medical certificate for exemption from appearance should be based on material 280
255. Bail in matrimonial matter—Illustrative cases 280
256. Grant of bail—miscellaneous Illustrative cases 280
257. Where a person had been released on bail, writ of habeas corpus be-came infructuous 285
258. Writ of habeas corpus—Illustrative cases 285
259. Cancellation of bail in economic offences—Illustrative cases 285
260. Cancellation of bail in cheating/misappropriation/forgery Illustrative cases 286
261. Cancellation of bail in matrimonial cases—Illustrative cases 287
262. Cancellation of bail—miscellaneous Illustrative cases 288
263. Asking for a tip after grant of bail held not offence 294
264. Effect of non—disclosure of name of bail applicant as a conspirator in remand application 294
265. No provision for complainant or witness making submission during hearing of bail matter 295
266. Recall of a non-bailable warrant wherein stay had been issued by High Court 295
267. After order of bail, accused should not be detained longer than re-quired 295
268. Question of bail when appeal is remitted back to High Court for fresh hearing 295
269. Necessity of sanction for prosecution for illegal refusal of bail 296
270. Forgery in respect of bail order 296
271. Release on bail of accused facing large number of cheating cases at different places 297
272. Accused sending notice to Magistrate who had refused bail 297
273. Bail proceedings based on false FIR 297
274. Declaration of a bailable offence as a non-bailable offence under statutory power. 298
275. Magistrate not carrying out order of surrender of accused held guilty of contempt 299
276. Contempt petition against Magistrate for not obeying stay against arrest warrant dismissed 299
277. Desirability of passing adverse remarks against Magistrate while can-celling bail 300
278. Threatening Magistrate in bail matter held to be contempt of court 300
279. Police over-acting to arrest accused in court premises before surrender in court 301
280. Granting bail one week before expiry of earlier remand without fresh material 301
281. Re-arrest for another offence committed prior to order of bail 301
282. Direct application to High Court for bail 302
283. Public can be excluded from hearing of bail application in offence under Official Secrets Act 302
284. Opposition to grant of bail must be examined with more than ordinary care 302
285. Bail where custody transferred to another place or case 302
286. Order restraining police from arresting accused 303
287. Grant of bail by a lower court when superior courts had already re-jected it 303
288. Bail where investigating agency states further judicial custody not re-quired 304
289. Directing custody after grant of bail for making recovery from accused 304
290. Use of statement made by counsel of accused at bail stage 304
291. Duty of Public Prosecutor in a bail matter 304
292. Grant of bail in committal proceedings 305
293. Person released on bail also has a right to be defended by counsel of his choice 305
294. Handcuffing not pre-condition for considering bail application 305
295. Duty of police to disclose pending cases in which accused not yet ar-rested 306
296. Accused on bail asked to surrender on additional charges 306
297. Release of large number of under-trial prisoners languishing in jail despite bail orders 306
298. Application not in conformity with specific permission granted by Supreme Court 307
299. Mere issuance of production warrant not sufficient for grant of bail unless accused is actually produced 307
300. Seeking bail on ground of being handicapped in defending due to cus-tody 307
301. Fresh bail where accused did not make wilful default in remaining present on given date 308
302. Detention after release on bail under pretext of production before another court illegal. 308
303. Grant of bail to accused does not mean court will not do justice to complainant 308
304. Accused added in a case by court to be treated like accused arrested by police 308 305. Not necessary to incorporate all submissions in bail order 309 306. No need to issue process under S. 204 while passing order for accused on bail or in custody who is present 309 307. Jail authorities to comply with bail orders without raising hypertech-nical objections 309 308. Exclusion of persons who were on bail from remission of sentence 309 309. Disclosure of fate of bail or anticipatory bail application in proceed-ings for quashing of case 310 310. Asking for bail or bail bond while acquitting accused 310 311. Applicability of Ss. 267 and 268 for presence in bail matter and for investigation purposes 311 312. Referring to case diary during hearing of bail application 312 313. Duty of lower court in bail matter when bail application pending or disposed of in higher court 312 314. Fact of anticipatory bail granted by superior Court may be considered by Magistrate while granting bail 312 315. Rejection of anticipatory bail application by superior court is no bar to grant bail 312 316. Rejection of bail inspite of name of accused not mentioned in charge sheet 312 317. Detention not necessary for making search and recovery 313 318. Police constable standing surety for accused who jumped bail 313 319. Grant of bail without hearing prosecution on a day earlier than that fixed for hearing 313
CHAPTER 5 DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST
1. Corresponding old law 320
2. Legislative changes 320
3. Scope of section 321
4. Recommendations of Law Commission for introduction of anticipatory bail provision 323
5. Section does not use expression “anticipatory bail” 324
6. Meaning and character of anticipatory bail 325
7. Distinctive features of S. 438 326
8. Anticipatory bail available only in non-bailable offences 326
9. Grant of anticipatory bail in bailable offence where non-bailable warrant is issued. 327
10. Object of anticipatory bail 327
11. Nature of power under S. 438 330
12. An insurance against police custody 331
13. Anticipatory bail cannot be granted as a matter of right 332
14. Conditional immunity from touch under S. 46(1) or confinement 332
15. Two conditions which must exist before an application for anticipatory bail could be moved 333
16. Apprehension of Arrest necessary for Anticipatory Bail 333
17. Apprehension of arrest by police or other authorised person 334
18. Grounds of apprehension of arrest must be capable of being examined by court objectively 335
19. Sufficient grounds must exist to believe that he may be arrested 335
20. No anticipatory bail on mere general allegation 336
21. Meaning of “reason to believe” 336
22. Specific events and facts must be disclosed to show reasonableness of belief 339
23. Meaning of expression “on an accusation” 340
24. Balancing of personal liberty and investigation powers of police 340
25. Position of S. 438 with regard to Article 21 of Constitution 342
26. Anticipatory bail not be invoked to thwart investigation 343
27. Anticipatory bail provision is of wide amplitude 344
28. Wide and explicit words used in S. 438 must be given full effect 345
29. Jurisdictional aspect of Anticipatory Bail 346
30. Bail in anticipation of arrest before introduction of S. 438 346
31. Section contains no guidelines for passing order 351
32. Restrictions on grant of bail in S. 437(1) not applicable to power to grant anticipatory bail 352
33. Distinction between ordinary bail and anticipatory bail 352
34. Distinction between S. 437 and S. 438 354
35. Difference between S. 438 and S. 439 355
36. Considerations for anticipatory bail and regular bail—whether similar? 355

37. Departure in S. 438 from Ss. 437 and 439 be given full effect 356
38. Anticipatory bail becomes effective from very moment of arrest 356
39. Power under S. 438 bail not to be confined within straitjacket 357
40. Discretion to be exercised objectively and open to correction by higher courts 358
41. S. 438 does not contain something volatile or incendiary needing to be handled with greatest care 359
42. High Court and Sessions Court can be trusted in exercise of discretio-nary powers of anticipatory bail 359
43. Discretion to grant anticipatory bail need not be confined to exceptio-nal cases only 360
44. Not correct to say that anticipatory bail be granted only when accusa-tions are mala fide 364
45. Considerations for Grant of Anticipatory Bail 364
46. Principles for grant of anticipatory bail 370
47. Situations where anticipatory bail may be desirable 371
48. Categories of persons who may be admitted to anticipatory bail 371
49. Detailed guidelines issued for grant of anticipatory bail 372
50. Conditions for entertaining application under S. 438 373
51. Status and affluence not relevant for anticipatory bail 373
52. Genuineness of need for police custody to be examined 374
53. Mere mention of Name in complaint not to Justify Rejection 374
54. Applicant entitled to presumption of innocence 374
55. Evaluation of whether applicant is likely to abscond 374
56. Filing of FIR not condition precedent for anticipatory bail 375
57. Grant of anticipatory bail after filing of FIR 376
58. Provision of anticipatory bail cannot be invoked after arrest 376
59. Facts on which anticipatory bail is sought must be clear and specific 376
60. Person apprehending arrest has to himself apply 376
61. Notice to public prosecutor before granting anticipatory bail 377
62. Necessity to hear objections to grant of anticipatory bail 378
63. Only High Court and Sessions Court can grant anticipatory bail 378
64. Power of Addl. and Asstt. Sessions Judges under S. 438 379
65. Anticipatory bail at committal stage 379
66. Concurrent jurisdiction of High Court and Sessions Court 379
67. Anticipatory bail application maintainable before High Court after rejection by Sessions Court 389
68. High Court can decide application on merits where it was not pressed on merits before Sessions Court 391
69. Conditions can be imposed while granting anticipatory bail 391
70. Condition to deposit amount while granting anticipatory bail 395
71. Directions for recovery of dowry articles cannot be given 397
72. Direction for seizing passport cannot be given under S. 438 398
73. Custodial interrogation in consultations with cardiologists 398
74. Measures to protect health during interrogation 398
75. Limiting anticipatory bail order in point of time 399
76. Extension of period of anticipatory bail where it was granted for limi—ted period 406
77. When to allow regular bail where anticipatory bail granted for limited duration? 407
78. Person granted anticipatory bail applying for regular bail 407
79. Person already on bail or anticipatory bail, cannot apply for anticipa-tory bail again in same case 408
80. Passing of interim order restraining arrest under S. 438 408
81. Interim order shall not survive after final order under S. 438 411
82. Genuineness of documents cannot be considered at stage of anticipa-tory bail 412
83. Opinion on merits of case not desirable 412
84. Status of anticipatory bail granted in minor offence on its conversion into aggravated offence 413
85. Blanket order of anticipatory bail not to be passed 413
86. Petition under Article 32 maintainable when large number of cases registered at different places 417
87. Stages at which apprehension of arrest can arise and question of grant of anticipatory bail 417
88. Grant of anticipatory bail after filing of charge sheet or taking of cognizance by Court 419
89. No anticipatory bail where accused absconding and non-bailable warrant issued 432
90. Acquittal of co-accused does not entitle absconding accused to anticipatory bail 432
91. No anticipatory bail for apprehension of arrest subsequent to release on bail 432
92. Application for anticipatory bail held not maintainable where accused appeared and submitted to court 433
93. Anticipatory bail on medical grounds 433
94. Grant of anticipatory bail by a Court outside jurisdiction where offence was committed 433
95. Intervention by private person in anticipatory bail matter 433
96. Second or successive application for anticipatory bail 444
97. Suppression of rejection of earlier application 447
98. Successive anticipatory bail application to be placed before same Bench 447
99. Application for anticipatory bail after rejection of regular bail 447
100. Grant of anticipatory bail in serious offences 447
101. Removal of S. 438 Cr.P.C. for cases under TADA Act not violative of Article 21 451
102. Removal of S. 438 Cr.P.C. by U.P. Act is constitutionally valid 451
103. Judiciary recommending restoration of provision of anticipatory bail in U.P. 452
104. Anticipatory bail under Defence and Internal Security of India Rules, 1971 454
105. Anticipatory bail under Essential Commodities Act 457
106. Applicability of S. 438 to offence under M.P. Excise Act 461
107. Applicability of S. 438 to Railway Property (Unlawful Possession) Act, 1966 461
108. No anticipatory bail under S. 63 of Copyright Act, being bailable 462
109. No anticipatory bail for forest offences 462
110. Anticipatory bail under Karnataka Forest Act 462
111. Anticipatory bail under Kerala Abkari Act 463
112. Power to grant anticipatory bail under J&K Cr.P.C. 464
113. Provision of S. 438 Cr.P.C. applies to Arunachal Pradesh 465
114. Power of Special Court of Economic Offences in A.P. to grant anticipatory bail 465
115. S. 438 as amended in Maharashtra 466
116. No anticipatory bail for bailable offence under S. 10 of Unlawful Activities (Prevention) Act 467
117. Constitutionality of denial of anticipatory bail under the S.C. and S.T. (Prevention of Atrocities) Act 467
118. Availability of anticipatory bail under S.C. and S.T. (Prevention of Atrocities) Act 469
119. Anticipatory bail under S.C. and S.T. (Prevention of Atrocities) Act, 1989—Illustrative cases 475
120. Anticipatory bail under Juvenile Justice (Care and Protection of Children) Act, 2000 478
121. Power to grant anticipatory bail for offences under Prevention of Corruption Act 479
122. Anticipatory Bail in Corruption Cases —Illustrative Cases 479
123. Anticipatory bail in cheating/misappropriation/ forgery/CBT case— Illustrative cases 481
124. Anticipatory bail in economic offences—Illustrative cases 488
125. Anticipatory bail under Customs Act—Illustrative cases 488
126. Officer under FERA bound by order for anticipatory bail 489
127. Anticipatory bail in FERA case—Illustrative cases 489
128. Anticipatory bail in dacoity/robbery case—Illustrative cases 491

129. Anticipatory bail in dowry death case—Illustrative cases 492
130. Anticipatory bail in matrimonial cases—Illustrative cases 495
131. Anticipatory Bail in a Case under S. 498–A IPC—Guidelines 497
132. Anticipatory Bail in Murder Case—Illustrative Cases 498
133. Anticipatory Bail in Attempt to Murder Case—Illustrative Cases 503
134. Anticipatory Bail in Kidnapping/Abduction Case—Illustrative Cases 503
135. Anticipatory Bail in Rape Case—Illustrative Cases 504
136. Grant of Anticipatory Bail—Miscellaneous Illustrative Cases 506
137. Grant of anticipatory bail on ground of parity with co-accused 513
138. Release of co-accused on default bail under S. 167(2) Proviso-No ground for anticipatory bail 514
139. Cancellation of anticipatory bail 514
140. Considerations for Cancellation of Anticipatory Bail 516
141. Legal Principles relevant to Cancel Anticipatory Bail 517
142. Cancellation of Anticipatory Bail 518
142. before accused is Arrested 518
143. Committing Case not valid Ground to Cancel Anticipatory Bail 518
144. Cancellation or Setting aside of Anticipatory Bail—Illustrative Cases 518
145. Cancellation of anticipatory bail held not justified—Illustrative cases 522
146. Revision application against grant of anticipatory bail 523
147. Rejection of anticipatory bail no ground to direct immediate arrest 523
148. Appearance or Surrender of Applicant before Court 525
149. Direction to Surrender and Submit Bond and Sureties 525
150. Time allowed to move for regular bail during pendency of anticipatory bail application not proper 525
151. Anticipatory bail order operative only for those offences for which it was granted 526
152. Affidavit in support of application for anticipatory bail 526
153. Grant of further time to move higher court 527
154. No anticipatory bail to person detained or arrested by police 527
155. No unequivocal right to withdraw or not to press application 527
156. Rejection of application due to absence of counsel 527
157. Order becomes operative only when person arrested 528
158. Refusal not to be made as pre-trial punishment 528
159. Grant of Anticipatory Bail under Article 226 528
160. Legality of proposed arrest cannot be gone into 528
161. Question of jurisdiction cannot be decided at such stage 529
162. Registration of every case does not Lead to Anticipatory Bail 529
163. S. 438(3)—implementation part 529
164. No police remand during period of anticipatory bail 529
165. Recording of reasons while deciding anticipatory bail 530
166. A specific Bench of High Court having power 530
167. Rejection of regular bail after limited period anticipatory bail 530
168. Order cannot be left to Magistrate as and when occasion arises 531
169. Order directing release 5 days after arrest not proper 531
170. Expeditious disposal of anticipatory bail application 532
171. Copy of order of anticipatory bail should be given on same day 533
172. No need to insist for separate application for copy of order 533
173. Anticipatory Bail where complaint sent to Police by Magistrate 533
174. Issuing non-bailable warrant where anticipatory bail refused 534
175. Bailable warrant on cognizance where anticipatory bail granted 534
176. Bail application without surrender if anticipatory bail expires mean-while 535
177. Presence of advocate during interrogation by police 535
178. Converting application under S. 482 to one under S. 438 536
179. Not possible to anticipate material to be eventually collected 536
180. Disclosure of fate of bail or anticipatory bail application in procee-dings for quashing of case 536
181. Criminal and departmental action against police officer while granting anticipatory bail to accused 537
182. Police officer arresting in violation of anticipatory bail order 538
183. Judicial officer granting anticipatory bail not to be proceeded against departmentally 538
CHAPTER 6 SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL
1. Corresponding old law 546
2. Legislative changes 546
3. Scope of section 546
4. Meaning of ‘Bail’ 548
5. Meaning of ‘Bail’—includes with or without sureties 548
6. Difference between old and new bail provisions 549
7. Meaning of word ‘custody’ 550
8. A person can move bail application only while in custody 551
9. A person on interim bail is in ‘custody’ 551
10. Person in duress is in custody 551
11. Meaning of words “released on bail” 552
12. Nature of power under S. 439 552
13. Grant of bail in non-bailable is discretionary 552
14. Discretion to grant bail to be exercised in judicious manner 553
15. Discretion to grant bail not to be used de hors law 557
16. Bail powers not to be exercised in a casual and cavalier fashion 557
17. Criteria for judicial discretion to grant or refuse bail 557
18. Tests for the exercise of discretion to grant bail 557
19. Power under S. 439 is wider than that under S. 437 557
20. Whether S. 439 Cr.P.C. is dependent on S. 437 Cr.P.C.? 559
21. Distinction between ordinary bail and anticipatory bail 568
22. Ss. 438 and 439 operate in different fields 569
23. Considerations for anticipatory bail and regular bail—whether similar? 570
24. Difference between bail under S. 167(2) and under Ss. 437/439 570
25. Sub-section (1)—special powers of High Court and Sessions Judge to grant bail 571
26. Considerations for grant of bail in non-bailable offences 571
27. Principles for granting bail 575
28. Consideration of bail in an offence of repeating nature 576
29. Considerations for grant of bail under S. 439 576
30. Factors to be considered for grant of bail 577
31. Likely severity of sentence to be also kept in mind 578
32. Opposition to bail be examined with more than ordinary care 578
33. No hard and fast rules in bail matters 579
34. Each case must rest on its own facts 579
35. Grant of bail depends upon variety of circumstances 580
36. Balance between liberty of accused and investigation 580

37. Bail can be rejected to avoid hurdles in investigation 580
38. Ground of intimidation of witnesses and tampering of evidence 581
39. Accused not likely to abscond not a ground to grant bail 581
40. Evaluation of whether applicant is likely to abscond 581
41. Being young person is no ground for bail 581
42. Opportunity of being heard to be given to Public Prosecutor 581
43. Necessity of application of mind while deciding bail matter 582
44. Necessity of a reasoned order in bail matters 583
45. Giving reasons different from discussing merits or demerits 585
46. Advantages of a reasoned bail order 586
47. However, detailed examination of evidence at bail stage should be avoided 587
48. Bail court not to function as trial court 589
49. Adjudicating rights between parties not possible in bail matter 590
50. Court not to express opinion on merits or demerits of case 590
51. Observations at bail stage that a murder case was made out 591
52. Recording findings after analysis of evidence at bail stage 592
53. Hearing both parties in bail matter is essential 592
54. Successive bail applications 593
55. Bail application after rejection of anticipatory bail is not “successive” application 596
56. Fresh application after rejection of earlier one and SLP 597
57. Bail can be granted again under S. 439 after its cancellation 597
58. Successive bail application with no fresh ground 597
59. Departure from earlier rejection of bail without reasons 598
60. Point which was not considered earlier specifically 598
61. Is charge sheet substantial change for fresh application? 599
62. Previous order allowing new application is no ground for bail 600
63. Successive bail application—before same Bench/Judge 600
64. Different Judge upsetting bail order passed by another Judge 604
65. Judge suo motu cancelling bail granted by another Judge 605
66. Findings of higher court in earlier bail matter 606
67. Accused cannot be debarred from seeking bail 606
68. Successive bail applications—Illustrative cases 606
69. Grant of bail in offences of serious nature 608
70. Not to be influenced by concept of liberty disregarding facts in serious cases 609
71. Bail in a case involving security of state 609
72. Bail in offences punishable with death or imprisonment for life 610
73. Mere gravity of offence and severity of punishment no ground for rejection of bail 610
74. Cancellation of bail 610
75. Cancellation of bail under S. 439(2) instead of S. 437(5) 611
76. Wide powers of cancellation of bail under S. 439(2) 611
77. Sessions Court can cancel bail under S. 439(2) on basis of new circumstances 613
78. Object underlying cancellation of bail 613
79. Bail continues to be in force till cancelled 614
80. Power to cancel bail—how it can be exercised 614
81. Power to cancel bail be used with great care and circumspection 614
82. Power to cancel bail to be used very sparingly 615
83. Bail not to be lightly interfered with 615
84. Not using power to cancel in appropriate cases will reduce it into dead letter 615
85. Duty of the Court in cancellation of bail 616
86. Reasons for cancellation of bail are not enumerated under law 616
87. Considerations for cancellation of bail 616
88. Criterion for cancellation of bail 621
89. Situations in which bail may be cancelled 622
90. Cancellation of bail on same material on which it was granted 623
91. Interim order of cancellation of bail 624
92. Prima facie finding on allegations of threats to witnesses 624
93. Mere assertion of threat to witnesses not sufficient 625
94. Effect of witnesses turning hostile on cancellation of bail 625
95. Cancellation on vague allegations of tampering with evidence 625
96. Test of preponderance of probabilities to see tampering with witnesses 626
97. Suo motu enquiry on free movements after cancelled bail 626
98. No cancellation of bail on past criminal record 626
99. To see whether bail order vitiated by any serious infirmity 626
100. Nature of proof required for cancellation of bail 627
101. Nature of burden on prosecution for cancellation of bail 629
102. No new material in appeal against refusal to cancel bail 630
103. Misuse of liberty of bail by preponderance of probability 630
104. Cancellation of bail on application of private person 632
105. State remaining mute spectator in bail matter 635
106. Advocates challenging grant of bail by a Judge of High Court 635
107. Cancellation of bail on representation made to Chief Minister 636
108. Violation of terms of compromise not basis for cancelling bail 636
109. Cancellation of bail granted under proviso to S. 167(2) 637
110. Opportunity of hearing before cancellation of bail 638
111. Opportunity of hearing while recalling mistaken order of bail 639
112. Forfeiture of bail bond does not amount to cancellation of bail 639
113. Fresh bail application after cancellation of earlier bail 640
114. Cancellation of bail on re-appreciation of evidence 640
115. Setting aside unjustified, illegal or perverse bail order is different from cancellation of bail 640
116. Cancellation of bail granted improperly or arbitrarily 642
117. Bail—difference between cancellation and revision 643
118. Revision against bail treated as application under S. 439(2) 643
119. Different considerations for grant of bail and cancellation of bail 644
120. Different considerations for rejection of bail initially and cancellation of bail 646
121. High Court can cancel bail granted by the Sessions Court 648
122. In appropriate case, High Court can cancel bail under S. 482 650
123. State’s duty to apply for cancellation of erroneous bail orders 650
124. Application of section to bailable offences 650
125. Imposition of conditions while granting bail 651
126. Nature of conditions which can be imposed 653
127. Imposing conditions while granting bail to make payments 654
128. Conditions imposed by Courts below can be modified and such order can also be set aside 655

129. Conditions imposed by High Court cannot be modified by subordinate court 655
130. Magistrate not empowered to modify or cancel conditions imposed by Sessions Judge 655
131. Direction of Sessions Judge for collection of blood and semen samples 656
132. Effective conditions instead of total deprivation of liberty 656
133. Bail with stringent conditions not effective where accused can create panic by his mere presence 656
134. Applicability to offences under POTA 656
135. Bail for offences under POTA 658
136. Bail for offences under TADA Act 658
137. Bail for offences under MCOCA 658
138. Bail for offences under NDPS Act 658
139. No provision of appeal in Cr.P.C. against grant or refusal of bail 658
140. Grant of bail under S. 482 Cr.P.C. not permissible 658
141. Interference by Supreme Court in bail matters 659
142. Appeal to Supreme Court in bail matter 661
143. Normally High Court order in bail matter to be treated as final 661
144. Grant of bail in case under Explosive Substances Act 661
145. Bail under Defence of India Rules 662
146. Bail in offence under Official Secrets Act—Illustrative cases 664
147. Bail under U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986 666
148. Bail under M.P. Excise Act 667
149. Power of bail under Kerala Essential Services Maintenance Act 669
150. Question of detention or bail to an approver 669
151. Bail in murder case—Illustrative cases 671
152. Bail in attempt to murder case—Illustrative cases 693
153. Bail in police encounter death case—Illustrative cases 696
154. Bail in case of death in police custody—Illustrative cases 696
155. Bail in dacoity/robbery case—Illustrative cases 697
156. Bail in bride burning case —Illustrative cases 699
157. Bail in rape case—Illustrative cases 707
158. Bail in bank fraud matters—Illustrative cases 713
159. Bail in stamp scam cases—Illustrative cases 714
160. Grant of bail in corruption cases—Illustrative cases 714
161. Bail in kidnapping/abduction cases—Illustrative cases 714
162. Bail to a juvenile—Illustrative cases 718
163. Bail under Juvenile Justice Act, 1986—Illustrative cases 718
164. Bail under Juvenile Justice (Care and Protection of Children) Act, 2000 719
165. Grant of bail—miscellaneous—Illustrative cases 720
166. Cancellation of bail in murder case—Illustrative cases 723
167. Cancellation of bail in attempt to murder—Illustrative cases 735
168. Cancellation of bail in rape case—Illustrative cases 736
169. Cancellation of bail in dowry death case—Illustrative cases 737
170. Cancellation of bail in dacoity/robbery case—Illustrative cases 739
171. Cancellation of bail in kidnapping/abduction—Illustrative cases 739
172. Cancellation of bail in death in police custody case—Illustrative cases 740
173. Cancellation of bail—miscellaneous—Illustrative cases 740
174. Cancellation of bail granted in a successive application 745
175. Cancellation of bail on suppression of rejection of bail of co-accused 746
176. Order of bail recalled due to suppression of facts 746
177. Empowering Magistrate to cancel bail if conditions violated 747
178. Direct bail application made to Supreme Court 747
179. Non—speaking order in bail matter—Illustrative cases 747
180. Bail granted to accused showing willingness to repay loan 748
181. Bail to facilitate payment to investors 749
182. Bail on medical grounds 750
183. Bail granted when all male members of family in jail 752
184. Bail not to be refused as a punitive measure 752
185. Bail by suppression of material facts 754
186. Debarring accused from seeking bail for specified period 754
187. Justifying earlier bail order when asked to hear afresh 755
188. Emphasising minor discrepancies while granting bail 756
189. Direction that only superior courts can hear bail application 756
190. Review of own order of cancelling bail by Supreme Court 756
191. Short term bail for keeping watch over future conduct 757
192. Practice of granting bail but delaying release not proper 757
193. Delaying release for limited period instead of cancelling bail 757
194. Condition of surrender of passport while granting bail 758
195. Likelihood of accused leaving country 758
196. Heavy bail amount reduced for a poor foreign lady 758
197. Long bail period and/or non-abuse of bail considered relevant for lesser punishment 759
198. Death penalty for total misuse of bail killing 5 family members of witness 759
199. No bail for another murder while on bail in earlier murder case 759
200. Single Judge granting bail when matter listed before Division Bench 760
201. Inspecting High Court Judge giving directions in bail matter 760
202. Quashing order of commitment of case at bail stage 761
203. Distinction between bail and suspension of sentence 761
204. Remission for period spent on bail for convicted prisoner 761
205. Bail when remission application pending before Government 764
206. S. 428 gives benefit of prolonged detention of under-trials 764
207. Bail to life convict due to delay in disposal of mercy petition 765
208. Bail on the ground of parity with co-accused 765
209. Non-arrest of co-accused persons—whether ground for bail 766
210. Detention of co-accused suspected to avoid release on parity basis 766

211. Permission to private person to intervene in bail matter 766
212. Bail before expiry of earlier remand without fresh material 767
213. Grant of bail on fresh application under new Code 768
214. Surrender to High Court for remand to judicial lock—up 768
215. Can Addl. Sessions Judge cancel bail under S. 439(2) 768
216. Sessions Judge granting bail during pendency of SLP 769
217. Power to stay operation of bail order passed by Magistrate 769
218. Opinion of the Committing Magistrate in grant of bail 770
219. Committing case to Sessions Court no ground to cancel bail 770
220. Concurrent jurisdiction of High Court and Sessions Court 771
221. Simultaneously moving High Court and Sessions Court 776
222. No bail application in Sessions Court once filed in High Court 777
223. Power of High Court to cancel bail granted by Sessions Court 777
224. Bar under S. 397(2) not applicable to power to cancel bail 778
225. High Court to keep in mind reasons for rejection of bail by Sessions Court 778
226. High Court interfering with cancellation of bail 778
227. Bail by Sessions Court on same material after rejection by High Court 779
228. High Court rejecting bail application pending which interim order was obtained from trial court 780
229. High Court has no power to release when non-bailable warrant got issued by Supreme Court 780
230. Reversal of orders of Magistrate in bail matters under S. 439. 780
231. High Court cannot routinely grant bail without any additional grounds 781
232. Courts should take a balanced view in bail matters 781
233. Power under S. 439(2) covers cancellation of anticipatory bail 781
234. Grant of bail under S. 439 despite refusal of bail by trial court 782
235. Power of Addl. and Asstt. Sessions Judges under S. 439 782
236. Addl. Sessions Judge acts under S. 439 while deciding bail 783
237. Addl. Sessions Judge hearing bail matters under S.C. and S.T. (Prevention of Atrocities) Act. 784
238. Power of Sessions Judge where bail is refused by Addl. Sessions Judge 784
239. Power of Sessions Judge to grant bail when case made over for trial to Addl. Sessions Judge 785
240. Grant of bail by CJM under power delegated by Sessions Judge 786
241. Grant of bail by CJM acting as in-charge Sessions Judge 786
242. Power of High Court to grant bail in writ of habeas corpus 786
243. Release in case of illegal detention—whether by writ of habeas corpus or bail application 787
244. Bail cannot be granted under inherent powers of High Court 787
245. Converting application under S. 482 to one under S. 439 788
246. Allahabad High Court rule of giving notice to Government Advocate in bail matters 788
247. Two Judges hearing bail matters in same case 789
248. Reference made in a bail application 790
249. Grant of bail at initial stage of investigation 790
250. Person arrested and released pursuant to anticipatory bail can seek bail under S. 439 790
251. Practice of endorsement that no other bail application pending 791
252. Cancellation of bail when bail is still not actually availed of 791
253. Expediting trial when accused in custody 793
254. No provision like S. 437(6) for bail in trial before Sessions Court due to delay 793
255. Person surrendering before court—whether in custody 794
256. Bail on surrender before Sessions Court 794
257. Should person on short term bail go back to jail for his bail application to be heard? 795
258. Bail order passed under threats, coercion and hurling of abuses void per se 795
259. Conversion of case from bailable to non-bailable offence 795
260. Extension of bail granted under lesser offence to a more serious offence 797
261. Applying lesser section in serious offence no ground for bail 798
262. Warrant of arrest where anticipatory bail not granted 798
263. A specific Bench of High Court having jurisdiction to grant bail 799
264. Jurisdiction to hear bail matter after reorganisation of state 799
265. Sessions Court has power to cancel bail in an earlier case 799
266. Practice of Court rejecting bail application in every case where CBI filed charge sheet 800
267. Bail application to be decided expeditiously 800
268. Not possible to lay down that every bail application should be decided on same day or subsequent day 802
269. Power to direct court to decide bail application expeditiously or within specific period 802
270. Copy of order of bail should be given on same day 803
271. No need to insist for separate application for copy of order 804
272. Findings of higher court in earlier bail matter must receive serious consideration 804
273. Power to grant interim bail implicit in power to grant bail 804
274. Rejection of bail different from release under S. 167(2) 805
275. Effect of S. 439—A in state of Punjab 805
276. Cancellation of bail granted under S. 330 Cr.P.C. 805
277. Delay in placing SLP before Court affecting release on bail 806
278. Grant of bail by Sessions Court on same day when Magistrate rejected it 806
279. Right to speedy trial is a fundamental right 807
280. Speedy trial and pre-trial detention 807
281. Consequences of pre-trial detention 807
282. Long pre-trial detention is not unconstitutional 807
283. Liberty of accused vis-à-vis other considerations in a serious case 807
284. Protection of liberty of individual cannot be absolute 808
285. Personal liberty and investigational powers of police 808
286. Personal liberty to be balanced with national security 808
287. Cr.P.C. permits curtailment of liberty of anti-social and anti-national elements 809
288. No invariable rule for bail after a specified period of detention 809
289. Duty to see that trial proceeds with reasonable promptitude 809
290. Bail on ground of delay in trial 810
291. Bail due to delayed trial and long detention in a serious case 812
292. One year spent in jail in murder case not relevant for grant of bail 817
293. Time allowed to move for regular bail during pendency of anticipatory bail application 817
294. Grant of bail to accused police officers 817
295. Police officer arresting accused despite bail order held guilty of contempt 817
296. Observations made against police officer expunged 818
297. No disciplinary action against Judge granting bail in double murder case 818
298. Judicial officer granting bail in different matters irregularly 819
299. Actions of judicial officer in bail matters found not mala fide 819
300. Re-arrest for another offence committed prior to order of bail 820
301. Application not in conformity with specific permission granted by Supreme Court 820
CHAPTER 7
AMOUNT OF BOND AND REDUCTION THEREOF
1. Corresponding old law 821
2. Meaning of ‘Bail’—includes with or without sureties 821
3. Bail demanded should never be excessive 821
4. A person can be released on his own bond without sureties 821
5. Reduction of amount of bond 822
6. Release in NDPS Act case on small quantity of bond not proper 823
7. Reconsideration of quantum of bail 824
8. Requirement of cash security or surety 824
9. Demanding cash security from accused—whether permissible? 824
10. Amount of bond—how fixed 825
CHAPTER 8
BOND OF ACCUSED AND SURETIES
1. Corresponding old law 827
2. Scope of section 828
3. Object of requiring assurance in form of bail and surety 828
4. Nature of power under S. 441 829
5. Meaning of ‘Bail’—includes with or without sureties 830
6. A person can be released on his own bond without sureties 830
7. Requirement of cash security or surety 830
8. Demanding cash security from accused—whether permissible? 835
9. No time limit to execute bond after order of bail 835
10. Surety bond with affidavit can be accepted subject to further orders on verification 835
11. Bond of accused and surety’s bond need not be on same sheet of paper 836
12. Vague surety bond regarding time and place, being not valid, cannot be enforced 836
13. Bond for appearance not only before Magistrate but also before Sessions Court 837
14. Single bond by accused and sureties not contemplated 838
15. Bail and bond with or without sureties 838
16. Execution of bond with or without sureties in case of release under S. 167(2) 838
17. Undertaking of accused and surety being distinct can be separately enforced 839
18. Propriety of rejecting surety if he or his estate was situate in different district 839
19. Condition of sureties being only from a specific state 840
20. Responsibility of surety not contingent upon personal bond of accused 840
21. No question of release on bail without executing personal bond 841
22. Bail bond would not stand discharged automatically with modification of conditions 841
23. Asking to furnish bail under Chapter VIII of Cr.P.C. 842
24. Liability of surety when case transferred to another court 842
25. Showing dead man as a surety 843
26. Magistrate unduly delaying verification of bail bonds 843
27. Basic purpose of bail bonds 843
28. Court before which appearance to be made must be expressly stated in bond 843
29. Exemption for appearance for a particular day does not relieve of obligations for future dates 845
30. Liability of surety under bail bond cannot be unilaterally extended without his consent 845
31. Extending operation of bail bond executed by accused earlier 846
32. Police can require appearance only before Magistrate and not before themselves 846
33. ADM can accept bail bond where DM was asked to do so 846
34. Duty of Magistrate to satisfy that sureties can ensure presence of accused in court 847
35. Magistrate refusing to consider surety bond expeditiously 847
36. Effect of accused being discharged from his bail bond 847

37. Separate bonds required for release of more than one accused 847
38. No bail bond where suspension of sentence of fine is sought 848
39. Question whether surety was aware what was undertaken while executing surety bond 848
40. Surety bonds—Illustrative cases 848
41. Courts may secure embezzled public money while granting bail 850
42. Direction for discharge of both personal bond and surety bond on cancellation of bail 851
43. Fresh bail and bonds not necessary when accused already released on bail by police officer 851
44. Insisting upon local sureties or cash security not proper 851
45. Change from cash security to surety where such option given initially 852
46. Condition of producing solvency certificate from surety permissible 852
47. Benefit of S. 427 cannot be denied merely because convict was on bail, etc 852
48. Courts have power to release on personal bond 852
49. Effect of release on personal bond 853
50. Reconsideration of quantum of bail 853
51. Advocate identifying surety acts as lawyer 853
52. Conditions as to sureties in bailable offence not to be excessive 854
53. Object of requiring accused to give security for appearance 854
54. Duty of court with regard to sureties 855
55. Cash security cannot be demanded 855
56. Asking for bail or bail bond while acquitting accused 856
57. Fresh bail bonds when lesser offence converted into a more serious offence 856
58. Insistence of personal bond and surety a matter of discretion in bailable offence 857
CHAPTER 9
DECLARATION BY SURETIES
1. Corresponding old law. 858
2. Meaning of ‘Bail’—includes with or without sureties 858
CHAPTER 10
DISCHARGE FROM CUSTODY
1. Corresponding old law. 859
2. No time limit to execute bond after order of bail. 859
3. Accused to be released on execution of bonds. 860
4. Issuance of order of release to jail authorities in respect of release under S. 167(2). 860
CHAPTER 11
POWER TO ORDER SUFFICIENT BAIL WHEN
THAT FIRST TAKEN IS INSUFFICIENT
1. Corresponding old law. 861
CHAPTER 12
DISCHARGE OF SURETIES
1. Corresponding old law. 862
2. Scope of section. 863
3. Provisions of section meant for continuity of surety bond. 863
4. Procedure when a surety desires not to continue as such. 863
5. If surety not agreeable to modification in conditions, he must apply to discharge him. 863
6. Direction for discharge of personal bond and surety bond on cancellation of bail. 864
CHAPTER 13
DEPOSIT INSTEAD OF RECOGNIZANCE
1. Corresponding old law 865
2. Scope of section 865
3. Object of section 866
4. S. 445 takes care of purpose of bail 866
5. Discretion to allow accused to deposit cash or Government promissory notes 866
6. Difference between cash deposit and execution of bond 867
7. Requirement of cash security or surety 867
8. Demanding cash security from accused—whether permissible? 867
9. Section available only to accused and not to sureties 867
10. Cash security cannot be demanded 867
11. Condition to furnish bank security not possible while granting bail 868
12. Release on cash bail without executing any bond 868
13. Bail and bond with or without sureties 868
14. Acceptance of deposit of money in lieu of execution of bond for release under S. 167(2) 869
15. Condition of cash bail not to be harsh, oppressive and resulting in denial of bail 869
16. Cash security—Illustrative cases 869
CHAPTER 14
PROCEDURE WHEN BOND HAS BEEN FORFEITED
1. Corresponding old law 872
2. Scope of section 872
3. Meaning of ‘Bail’—includes with or without sureties 872
4. Notice necessary before ordering person to pay penalty in bond 872
5. Notice to surety not to be issued unless order of forfeiture is passed 875
6. No de novo enquiry necessary where show cause notice to surety was not set aside 875
7. On forfeiture of bond of surety, steps under S. 446 can be taken against surety and accused 875
8. Forfeiture of personal bond of accused not a condition precedent to forfeiture of bond of surety 875
9. Forfeiture of bond of surety alone when no bond was executed by accused himself 876
10. Proceeding for realisation of penalty from sureties without passing order for imposing penalty 878
11. Question of warrant of arrest against surety 879
12. Committing Magistrate can forfeit bonds where he granted bail 879
13. Remission of penalty imposed on surety under S. 446(3) 879
14. Forfeiture of bond by CJM is appealable before Sessions Court 880
15. Penalty against each surety is for amount which he undertook in bond 880
16. Imposing penalty on sureties —Illustrative cases 880
17. Discretion to grant remission to be exercised judicially 881
18. Court before which appearance to be made must be expressly stated in bond 881
19. Liability of surety when case transferred to another court 882
20. Penalty reduced where sureties rendered help for securing arrest of accused 882
21. Which court can take steps to forfeit a bond? 882
22. Liability of surety cannot be unilaterally extended without his consent 882
23. Status of bail bond during appellate stage 883
24. Action where bond provided forfeiture of amount to court and not to Government 883
25. Only bond taken under Cr.P.C. could be forfeited under this section 883
26. Bail bond to be strictly construed and its language cannot be departed from 884
27. No forfeiture of surety bond where accused was required to appear before police 884
28. Cancellation of bond where case was transferred 884
29. Distinction between bond for appearance and bond for keeping peace or for good behaviour 884
30. Options available to executant at stage of realisation of forfeited bond amount 885
31. Realisation of bond amount by distress warrant after hearing surety on show cause notice 885
32. Opportunity of hearing while cancelling bail where cash deposit taken 885
33. Amount to be paid by sureties for joint and consolidated bond 885
34. Penalty for non-compliance of bail bond in bailable offence 885
35. Remission of portion of penalty after final order of recovery of penalty amount under bond 886
36. Recording of grounds of forfeiture of bond when notice issued to surety 886

37. Effect of forfeiture of bond of appearance 886
38. Forfeiture of bail bond does not amount to cancellation of bail 886
39. No forfeiture possible where bond not supported by Cr.P.C. 887
40. Question of validity of detention of surety 887
41. Forfeiture of surety bond—Illustrative cases 887
42. Request for reducing amount of surety bond forfeited 889
43. Specific order of forfeiture of bond required before notice for realisa-tion issued 889
44. Procedure for recovery of fine under S. 421 applicable to S. 446 889
45. Whether notice required for cancelling bail and bond of accused 889
46. Hearing affected party before forfeiting bail bond 890
47. Necessity of forfeiting bond before asking to pay penalty 890
48. Liability of heirs of surety 890
49. Committing surety to prison without forfeiting surety bond 891
CHAPTER 15
CANCELLATION OF BOND AND BAIL-BOND
1. Corresponding old law. 892
2. Effect of cancellation of bond. 892
3. Use of word “may” implies discretion. 893
4. S. 446-A not to be affected in any way by S. 436. 893
5. Under S. 446-A, court can exercise control over accused for his regu-lar appearance. 893
6. Release on personal bond again if absent due to sufficient cause. 894
CHAPTER 16
PROCEDURE IN CASE OF INSOLVENCY OR DEATH
OF SURETY OR WHEN A BOND IS FORFEITED
1. Corresponding old law. 895
2. Use of word “may” implies discretion. 895
3. S. 447 is enabling provision to demand fresh security. 895
CHAPTER 17
BOND REQUIRED FROM MINOR
1. Corresponding old law 897
CHAPTER 18
APPEAL FROM ORDERS UNDER SECTION 446
1. Corresponding old law 898
2. No second appeal to be heard by High Court under clause (ii). 898
3. Clause (ii) applicable when original order by Sessions Court appealed against. 899
4. Forfeiture ordered by CJM is appealable before Sessions Court. 899
CHAPTER 19
POWER TO DIRECT LEVY OF AMOUNT DUE
ON CERTAIN RECOGNIZANCES
1. Corresponding old law. 900
CHAPTER 20
SUSPENSION OF SENTENCE PENDING THE APPEAL;
RELEASE OF APPELLANT ON BAIL
1. Corresponding old law 903
2. Notes on Clauses for 2005 Amendment 903
3. Scope of section 903
4. Object of section 904
5. Meaning of “bail”-with or without sureties 904
6. Criteria for bail at appellate stage 904
7. Considerations for grant of bail pending appeal 906
8. Different considerations for bail before and after conviction 907
9. Opportunity to Public Prosecutor to show cause against release 907
10. Recording of reasons for ordering suspension of sentence 907
11. Reasons for granting bail pending appeal must be objective 908
12. Bail pending appeal is discretionary and not automatic 908
13. Bail pending appeal not to be decided on same standard as that for appeal itself 909
14. Suspension of sentence is not obliteration of conviction 909
15. Distinction between bail and suspension of sentence 910
16. Effect of suspension of sentence pending appeal 910
17. Conditions imposed while suspending sentence should be reasonable 910
18. Relevance of defence during grant of bail pending appeal 911
19. Interim bail pending appeal confirmed when not misused 911
20. No suspension of sentence under S. 389 after appeal disposed of 911
21. Considerations for bail on conviction in serious cases 911
22. Suspension of sentence in murder case only as exception 912
23. Bail pending appeal in murder case on principle of parity 914
24. Release on bail due to delay in hearing of appeal 914
25. Bail against life imprisonment where appeal not likely to be heard soon 915
26. Bail with stringent conditions if appeal not heard expeditiously 916
27. Bail where substantial period of sentence undergone 916
28. No right to bail if appeal against conviction is pending for a specific period 917
29. Suspension of sentence can be considered liberally except in exceptio-nal cases 918
30. Bail where conviction is with short term imprisonment 918
31. Seeking stay against conviction under S. 389 919
32. S. 389(3) applies only where there is a right to appeal 919
33. Suspension of sentence under old Code when appeal filed before Supreme Court 919
34. Can bail be granted under S. 389 for appeal to Supreme Court? 921
35. Requirement of Supreme Court Rules to surrender while filing crimi—nal appeal 921
36. Suspension of sentence by Governor gives no exemption from Supreme Court Rules in SLP 923

37. Question of bail to accused acquitted of capital charge while pending appeal 924
38. Eclipsing of presumption of innocence for bail pending appeal 926
39. No presumption because of appeal against conviction leading to refusal of bail 926
40. Exercise of power under S. 389(2) by High Court in appeal to subordinate court 926
41. Convicting court has restricted power of bail under S. 389(3) 927
42. Cancellation of bail granted under S. 389 927
43. Cancellation of order valid when accused found misusing liberty 930
44. Cancellation of bail in matter relating to rejection of request for premature release 930
45. Successive application for suspension of sentence pending appeal 931
46. Suspension of sentence—Illustrative cases 932
47. Should application for suspension of sentence be heard only by Bench hearing appeal? 934
48. No hearing of appeal out of turn instead of hearing application for cancellation of bail 934
49. No inherent power of bail where court has no power to suspend sentence 934
50. Refusal to hear appeal where accused had jumped bail 934
CHAPTER 21
PAROLE
1. Meaning of parole 939
2. Bail and parole have different connotations in law 939
3. Difference between bail, furlough and parole 940
4. No statutory provisions dealing with parole 941
5. Grant of parole is an executive function 942
6. Parole is not a suspension of sentence 942
7. Grant of furlough—Illustrative cases 942
CHAPTER 22
BAIL UNDER NDPS ACT
1. Scope of S. 37 of NDPS Act 947
2. Applicability of S. 37 to certain offences only 948
3. Applicability of S. 37 after 2001 Amendment 949
4. Offences under NDPS Act cognizable and non-bailable 950
5. S. 37 creates two categories of offences on basis of punishment 951
6. Object behind S. 37 as in Statement of Objects and Reasons 951
7. Interest of society to keep accused in NDPS Act behind bars 952
8. Implication of non-obstante clause in S. 37 952
9. Duty of court under S. 37 953
10. Conditions in S. 37 of NDPS Act 953
11. First condition under S. 37 954
12. Second condition under S. 37 954
13. Third condition under S. 37 955
14. Public Prosecutor should not oppose bail for sake of opposing 955
15. Public Prosecutor to place material before court to enable it to record satisfaction under Act 956
16. Meaning of words “reasonable grounds” in S. 37 956
17. Meaning of words “not guilty” in S. 37 956
18. Satisfaction about accused not being guilty should be based on reaso—nable grounds 957
19. Court not required to record finding of not guilty under S. 37 957
20. Is accused not likely to commit any offence while on bail? 957
21. Conditions under S. 37 are cumulative and not alternative 958
22. Conditions under S. 37 are in addition to those under Cr.P.C. 959
23. General bail provisions of Cr.P.C. not applicable under NDPS Act 959
24. Comparing limitations in S. 437 Cr.P.C. and S. 37 of NDPS Act 959
25. Limitations under NDPS Act apply only when bail is on merits 960
26. Liberal interpretation of S. 37 not justified 960
27. S. 37 should be interpreted in pragmatic manner 961
28. Negation of bail is rule and its grant an exception under S. 37 961
29. Judicial discretion under S. 37 to be exercised independently 962
30. Right to bail cannot be denied unless clear case of applying NDPS Act made out 962
31. S. 37 to be invoked with care 962
32. Conditions under S. 37 are mandatory 962
33. Section 37 of NDPS Act is mandatory—Illustrative cases 963
34. Bail order in violation of S. 37 of NDPS Act set aside 965
35. Powers of High Court to grant bail—whether subject to S. 37 968
36. S. 37 of NDPS Act overrides S. 482 Cr.P.C. in bail matters 971

37. S. 36-A(3) speaks of power of High Court regarding bail under S. 439(1)(b) Cr.P.C. 972
38. High Court does not have power to suspend, remit or commute sentence under NDPS Act 972
39. Restrictions in S. 37 applicable for bail for offence under S. 20(b)(i) of NDPS Act 972
40. Question of bail for offence under S. 20(b)(ii) of NDPS Act 975
41. S. 37 applied to offence punishable with imprisonment which may extend to five years 975
42. Meaning of “punishable for a term of imprisonment for five years or more” 976
43. S. 37 does not require offence to be punishable with a minimum term of five years 976
44. S. 36-A(4) of NDPS Act is exception to rule in S. 167(2) Cr.P.C. 977
45. Time of filing report for extension under S. 36-A(4)? 977
46. Applicability of Proviso to S. 167(2) to cases under NDPS Act 978
47. Bail for non-filing of charge sheet within prescribed period 984
48. Cancellation of bail granted under S. 167(2) Cr.P.C. 984
49. No cancellation of bail merely on ground of cognizance taken 985
50. Habeas corpus writ where default bail wrongly declined 985
51. Officer of Narcotics department can seek remand under S. 167 985
52. Suspension of sentence pending appeal under NDPS Act 986
53. Grant of bail pending appeal in NDPS Act—Illustrative cases 993
54. Appellate Court to indicate about quality of evidence at S. 389 Cr.P.C. stage 994
55. Bail pending appeal if substantial period of sentence undergone 995
56. Bail pending appeal to repeat offender on ground of parity 995
57. Bail pending fresh scrutiny of lesser offence made out than for which convicted 995
58. Interim bail granted when appeal referred to larger Bench 995
59. S. 37 not applicable for bail pending appeal against acquittal 996
60. Parole cannot be withheld under S. 32-A of NDPS Act 996
61. No anticipatory bail where S. 37 applicable 996
62. No setting aside of a proper order rejecting bail in revision 996
63. Courts should be circumspect in granting bail to foreigners 997
64. Grant of bail to Ayurvedacharya selling drugs for epilepsy 997
65. Trial be completed expeditiously in view of restrictions on bail 998
66. Custody for a specific period—whether ground to grant bail? 998
67. No provision for completion of trial in fixed period 998
68. One-time directions for release of accused due to delayed trials 998
69. Bail granted in NDPS Act case where false case suspected 1000
70. Refusal of bail when trial incomplete 1001
71. Non-compliance of order for supply of copies no ground for bail 1001
72. Relevance of violation of procedural safeguards in grant of bail 1001
73. Views on contentions to be avoided except in cases under S. 37 1009
74. Maximum police custody of 15 days under NDPS Act 1009
75. In absence of Special Court, Magistrate has power to remand during investigation 1010
76. Magistrate cannot remand accused for more than 15 days 1010
77. No need to look afresh to continue bail while taking cognizance 1011
78. S. 37 of NDPS Act—overriding effect over S. 497 of J&K Cr.P.C. 1011
79. Refusal of bail even on humanitarian grounds 1011
80. Question of bail on medical grounds in NDPS Act case 1012
81. Benefit of being woman, sick, infirm, etc., not available 1012
82. Applicability of S. 37 to a juvenile under Juvenile Justice Act 1013
83. Bail to juvenile under NDPS Act—Illustrative cases 1013
84. Bail in NDPS Act case on small quantity of bond not proper 1014
85. Bail where dispute exists about presence of narcotic substance 1014
86. Bail under NDPS Act—Illustrative cases 1014
87. Cancellation of bail under NDPS Act—Illustrative cases 1027
88. Offending remarks against Judge in bail matter expunged 1028
CHAPTER 23
BAIL UNDER TADA ACT
1. Limitations on bail under S. 20(8) in addition to under Cr.P.C. 1033
2. No bail under TADA unless conditions under S. 20(8) satisfied 1033
3. Conditions under S. 20(8) of TADA do not violate Article 21 1034
4. Removal of S. 438 Cr.P.C. for TADA not violative of Article 21 1034
5. Bail application under Art. 226 not normally to be entertained 1035
6. Power of bail of Designated Court is in S. 437 Cr.P.C. and not S. 20(8) of TADA 1036
7. High Court has no power of bail in TADA cases 1037
8. Heavy burden cast on Public Prosecutor and Court in bail matters under TADA 1040
9. Considerations for bail in TADA cases 1040
10. Interest of community and safety of nation to be kept in mind 1040
11. Word of caution about abuse of TADA to deprive bail 1041
12. Court should carefully see in each case whether provisions of TADA Act apply 1041
13. S. 167 Cr.P.C. applicable under TADA but with different periods 1041
14. S. 167(2) of Code r/w S. 20(4)(b) of TADA—right to default bail 1042
15. Court to inform of right of bail on expiry of maximum period under S. 20(4) 1043
16. Right to file for bail on expiry of period under S. 20(4) 1043
17. Limited nature of objection to default bail 1043
18. Bail under S. 20(4) not influenced by merits or gravity of case 1044
19. Amendment of 1993 in S. 20(4) has retrospective operation 1044
20. Public Prosecutor to seek extension of time for investigation 1044
21. Extension of custody granted under S. 20(4)(bb) on report of I.O. held erroneous 1045
22. Extension of period for investigation only if investigation not complete 1046
23. Notice to accused necessary when extension of period sought under S. 20(4)(bb) 1047
24. No right of default bail after filing of charge sheet, if not already availed of 1047
25. No bail after charge sheet filed after extended prescribed period 1049
26. Computation of period under S. 20(4)(bb) not to begin from date of arrest in earlier case 1049
27. No licence to police to delay charge sheet due to enhanced period under TADA 1049
28. Bail under S. 167 Cr.P.C. for TADA case cannot be cancelled on mere filing of charge sheet 1050
29. Designated Court granting bail wrongly interpreting period for filing charge sheet 1050
30. Bail where trial does not conclude within a reasonable time 1051
31. A person not to be detained in custody for unreasonable time 1055
32. Interim bail by High Court in appeal against rejection of bail by Designated Court 1056
33. Reduction of sentence in TADA case, inter alia, for being on bail for 7 years 1056
34. Order in bail matter under TADA Act is interlocutory and hence no appeal lies 1056
35. Bail granted where provisions of TADA Act found not applicable 1057
36. Bail due to lack of substantive evidence to connect applicant with main accused 1057

37. Bail granted by Designated Court not having jurisdiction set aside 1058
38. Rejection of bail despite favourable review and no objection by CBI, held not proper 1058
39. Designated Court not required to weigh material at bail stage 1058
40. Bail by Sessions court in TADA case without previous sanction 1059
41. Bail granted after withdrawal of TADA charges set aside 1059
42. S. 17(5) of TADA Act of 1985—matters to be considered 1060
43. Power of High Court to give direction to Designated Court 1060
44. Bail under TADA Act—Illustrative cases 1060
45. Bail due to delay in trial in TADA case—Illustrative cases 1063
46. Cancellation of bail in TADA case—Illustrative cases 1064
CHAPTER 24
BAIL UNDER POTA
1. Scope of S. 49 of POTA 1068
2. No bail under POTA without hearing public prosecutor 1069
3. Prima facie view to be formed at bail stage of not guilty 1069
4. Sub-sections (6) and (7) of S. 49 of POTA not unreasonable 1069
5. S. 49(7) does not place restriction on grant of bail under S. 49(6) 1070
6. Additional conditions for bail under POTA are not unreasonable 1070
7. High Court has no power to grant bail under in case under POTA 1070
8. No refusal of bail on confession of co-accused 1071
9. Refusing bail on ground of extensive cross-examination 1071
10. Successive bail application under POTA 1071
11. Appeal provision against bail matter under POTA is broader 1071
12. Bail after being in custody for two years under POTA 1072
13. A person not to be detained in custody for unreasonable time 1073
14. Report for extension of time for investigation must satisfy Court that I.O. acted diligently 1073
15. Notice to accused on report for extension of time for completing investigation 1074
16. No default bail after 90 days when extension of time to complete investigation granted 1074
17. Denial of bail in Godhra incident case of Gujarat 1074
18. Grant of bail under POTA—Illustrative cases 1075
CHAPTER 25
BAIL UNDER MCOCA
1. Limitations under S. 21(4) to be kept in mind while granting bail 1079
2. S. 21(4) of MCOCA imposes additional limitations on grant of bail 1080
3. Provisions of MCOCA to be interpreted strictly being stringent 1080
4. S. 21(4) of MCOCA tested in view of Article 21 1081
5. Compliance of S. 21(4) to be on basis of materials on record 1081
6. Each case be considered on its own facts and objectively 1082
7. Recording satisfaction with conditions mentioned in S. 21(4) 1082
8. Weighing evidence while considering bail application 1083
9. Bail for failure to submit charge sheet within stipulated period 1083
10. New period of 90 days not to start on approval for investigation by competent authority 1084
11. Bail granted in view of long incarceration 1085
12. Bail to accused in custody for two-thirds of maximum term 1085
13. Bail where prima facie evidence under MCOCA doubtful 1085
14. Bail where provisions of MCOCA misapplied 1086
15. Bail under MCOCA—Illustrative cases 1086
16. Cases under A.P. Control of Organized Crime Act 1088
17. Cases under Karnataka Control of Organised Crime Act 1089
CHAPTER 26
WHEN POLICE MAY ARREST WITHOUT WARRANT
1. Corresponding old law 1092
2. Scope of section 1092
3. Meaning of word ‘arrest’ 1092
4. Interpretation of arrest 1093
5. Different provisions of arrest 1094
6. Arrest without warrant and arrest with warrant 1094
7. Nature of law of arrest 1094
8. Need to balance human rights and requirements of police 1094
9. Freedom of individual vis-à-vis security of state 1095
10. Arrest directly affects freedom of movement 1095
11. Arrest as a deprivation of personal liberty 1096
12. Effect of arrest 1096
13. When does arrest commence? 1096
14. Importance and necessity of arrest 1096
15. Arrest without warrant 1097
16. Arrest to be made in accordance with procedure in statute 1097
17. Clause (i) of S. 41(1)—arrest on requisition 1097
18. Arrest by police offences is discretionary and not must 1098
19. “Credible information” or “reasonable suspicion” in S. 41(1) 1100
20. No prior notice or opportunity of hearing for arrest or search 1101
21. No detention in custody by police without making arrest 1101
22. Guidelines for exercise of discretion to make arrest 1101
23. Arrest permissible only when justified 1102
24. No arrest on mere suspicion unless it is well founded 1103
25. National Police Commission recommendations on arrest 1103
26. Investigation is intrinsically connected with arrest 1104
27. Police custody an inevitable concomitant of arrest 1104
28. Arrest is condition precedent for taking into judicial custody 1104
29. Words ‘custody’ and ‘arrest’ are not synonymous terms 1104
30. S. 41(1) does not use word ‘accused’ but uses word ‘person’ 1104
31. Power of arrest to be exercised with caution and circumspection 1105
32. Guidelines for giving information about arrest of a person 1105
33. Guidelines for transparency and accountability in arrest 1106
34. Minimum safeguards for arrest of a judicial officer 1108
35. Intimation of arrest of M.P. or M.L.A. 1109
36. Intimation of arrest of a public servant, etc. 1109

37. Prompt investigation where accused arrested on suspicion 1109
38. Power of police to handcuff accused not unlimited 1109
39. Arrest of a woman between sunset and sunrise 1110
40. Compliance of directions issued in cases of Joginder Kumar and D.K. Basu 1111
41. Delay in arrest of accused persons in gang rape case 1111
42. Showing arrest of person in custody in other cases elsewhere 1111
43. Accused resisting an illegal arrest 1112
44. Arrest in violation of undertaking given to court held improper 1112
45. Power of arrest during enquiry under S. 202 Cr.P.C. 1112
46. Interference in arrest by courts–whether permissible 1112
47. Passing of interim order restraining arrest under S. 438 1114
48. No permission necessary to arrest in FIR under S. 156(3) on Magist—rate’s order 1114
49. Police officer arresting in violation of anticipatory bail order 1114
50. Arrest—Illustrative cases 1114
CHAPTER 27
ARREST HOW MADE
1. Corresponding old law 1116
2. Scope of section 1117
3. Arrest–what it consists of 1117
4. Police officer making arrest shall actually touch or confine 1117
5. No formality contemplated before taking a person into custody 1118
6. Submission to custody by word or action sufficient for arrest 1118
7. Arrest of a woman after sunset and before sunrise 1118
8. Use of “all means necessary” for effecting arrest 1119
9. Police encounter–S. 46(3) has to be read along with S. 46(2) 1119
10. Highvoltage live-wire mechanism in jails to prevent escape 1120
CHAPTER 28
PERSON ARRESTED TO BE INFORMED OF GROUNDS
OF ARREST AND OF RIGHT TO BAIL
1. Corresponding old law 1121
2. Scope of section 1121
3. Confirms to fundamental right under Article 22(1) 1122
4. Mandatory provision 1122
5. Person arrested to be informed of grounds of arrest 1122
6. Object of section 1123
7. Guidelines for information relating to arrest 1123
8. Non-compliance does not entitle accused to be set at liberty 1123
9. Plea of compensation for alleged non-compliance 1124
10. Burden of showing compliance of S. 50(1) 1124
11. Nature of evidence to show that police had informed grounds to accused 1125
12. Accused arrested on spot presumed to know grounds of arrest 1126
CHAPTER 29
OBLIGATION OF PERSON MAKING ARREST TO
INFORM ABOUT THE ARREST, ETC., TO A
NOMINATED PERSON
1. Corresponding old law 1128
2. Scope of S. 50-A 1128
3. Nature of right under S. 50-A. 1129
4. Guidelines for information relating to arrest. 1129
CHAPTER 30
PERSON ARRESTED TO BE TAKEN BEFORE
MAGISTRATE OR OFFICER IN CHARGE
OF POLICE STATION
1. Corresponding old law. 1130
2. Scope of section. 1130
3. Duty of arresting officer to produce arrested person. 1130
4. “Subject to the provisions herein contained as to bail”. 1131
5. Section is in consonance with Article 22(2) of Constitution. 1131
CHAPTER 31
PERSON ARRESTED NOT TO BE DETAINED
MORE THAN TWENTY—FOUR HOURS
1. Corresponding old law 1132
2. Scope of section 1132
3. Maximum period of detention under S. 57 is 24 hours 1133
4. Period of 24 hours is outer limit and not authorisation to detain 1133
5. Detention under S. 57 can be extended under S. 167 1134
6. Section is in consonance with Article 22(2) of Constitution 1134
7. S. 57 and S. 167 have to be read together 1135
8. Object behind S. 57 1136
9. Where the journey to produce accused takes a number of days 1136
10. Duty of police to take adequate steps in advance to produce 1137
11. Production before Magistrate subject to bail provisions 1137
12. Consequence of non-compliance with S. 57 1138
13. No authorisation needed from Magistrate for up to 24 hours 1138
14. Produce forthwith where investigation expected to take longer than 24 hours 1138
CHAPTER 32
OTHER SECTIONS RELATING TO ARREST
1. Arrest of persons-various provisions 1145
2. Power of Magistrate to arrest 1145
3. No inherent power to remand to custody 1146
4. Power to arrest as preventive measure 1146
5. Power to pursue accused anywhere in India for arrest 1146
6. Medical examination of person on bail possible under S. 53 1146
7. Accused on bail can be asked to give blood sample under S. 53 1147
8. Discharge under special order under S. 59 for illegal arrest 1147
9. Power of non-bailable warrant where anticipatory bail refused 1147
10. Who is an absconder? 1148
11. Issue of warrant for person evading arrest 1148
12. Miscellaneous 1148
CHAPTER 33
PROCEDURE WHEN INVESTIGATION CANNOT BE
COMPLETED IN TWENTY-FOUR HOURS
1. Corresponding old law 1161
2. Scope of section 1161
3. History of section 1164
4. Necessity for amendment in S. 167 in 1978 1166
5. Legislature disfavoured prolonged custody during investigation 1167
6. S. 167 applicable during investigation 1167
7. Nature of power under S. 167(2) 1167
8. S. 167 ensure compliance with clauses (1) and (2) of Article 22 1167
9. Object of detention during investigation 1168
10. Object of S. 167 1168
11. Object of sub-section (1)–production of arrestee 1169
12. Object of proviso to S. 167(2) 1169
13. Object of S. 167(5)–to avoid delay in summons cases 1171
14. When does S. 167 come into play? 1171
15. S. 167 is supplementary to S. 57 1171
16. S. 167 sole repository of remand during investigation 1172
17. Two types of custody under S. 167 1172
18. Power to remand accused contained in three sections of Cr.P.C. 1172
19. Provisions relating to detention before conviction 1173
20. Power of detention with courts and not with jail authorities 1173
21. No inherent power to remand accused to custody 1173
22. Duty of police officer to produce accused before Magistrate 1173
23. Accused to be produced in each case if involved in more cases 1174
24. Duty of police to produce copy of entries in case diary 1174
25. Magistrate to see grounds of remand from case diary 1174
26. Expression “entries in the diary…” in S. 167 1175
27. Duty of Magistrate under S. 167 1175
28. Magistrate should be satisfied that remand is really necessary 1176
29. Magistrate to apply mind while extending remand 1177
30. Remand being judicial order, must reflect application of mind 1177
31. Further custody only on satisfaction of adequate grounds 1178
32. Magistrate deciding bail is Court irrespective of state of case 1179
33. Proviso to S. 167(2) intended to speed up investigation 1180
34. S. 167–Object of remand application 1180
35. Object of producing accused before Magistrate 1181
36. S. 167(2) uses the word ‘detention’ and not ‘remand’ 1181

37. S. 167(2) to be strictly construed for remand to judicial custody 1181
38. Arrest is condition precedent for taking into judicial custody 1181
39. Sub-section (1)–if investigation not completed in 24 hours 1182
40. Detention beyond 24 hours has to be authorised by Magistrate 1183
41. S. 167 prescribes maximum period of detention 1183
42. A person not to be detained in custody for unreasonable time 1183
43. Sub-section (2)–determination of period and nature of custody 1184
44. Provisions of S. 167(2) relate to bail 1186
45. Proviso (a) to S. 167(2)–right to default bail beyond prescribed period 1186
46. S. 167(2-A)–remand by Executive Magistrate 1187
47. Proviso (b) to S. 167(2)–producing accused before Magistrate 1188
48. Magistrate acquires power of bail on default to file charge sheet 1188
49. Default bail under S. 167(2) not controlled by S. 437(1) 1188
50. Default bail under S. 167(2) deemed to be under Chapter XXXIII of Cr.P.C 1189
51. Purpose of expression “deemed to be so released under…”. 1189
52. Difference between bail under S. 167(2) and under Ss. 437/439 1190
53. Provisions of bail and bail bonds in Chapter XXXIII applicable 1190
54. Proviso operates when detention beyond 15 days necessary 1190
55. Words ‘custody’ and ‘arrest’ are not synonymous terms 1190
56. Meaning of “judicial custody” 1191
57. Meaning of “police custody” 1191
58. Meaning of the word ‘accused’ in S. 167 1191
59. Meaning of word “punishable” in proviso to S. 167(2) 1191
60. Not necessary for S. 167 that arrest should have been by police 1192
61. Person arrested under S. 41(1) is detained under S. 167 1192
62. Grant of custody under S. 167 1192
63. Detention in such custody as thought fit for maximum 15 days 1193
64. Police remand for more than 15 days not possible 1193
65. Police custody can be granted only during first fifteen days 1194
66. No police custody for more than 15 days under inherent powers of High Court also 1198
67. Maximum period of 15 days for police custody does not include custody under S. 57 1198
68. Police custody declined where the accused was already on bail 1199
69. Limitation of 15 days for change of remand to police or otherwise 1199
70. Police custody during further investigation 1200
71. No further police custody even if another offence in the same case comes to light 1200
72. Further police custody possible if accused involved in entirely different offence 1201
73. Power of High Court to entertain application against order declining police remand 1202
74. Police not to be hampered at threshold stage of investigation 1203
75. Police custody is one of requisites of investigation 1203
76. Order for police custody only when necessary 1203
77. Railway Magistrate can grant police custody 1203
78. Proviso to S. 167(2) is beneficial to cure prolonged investigation 1204
79. Enjoins police to complete investigation with great promptitude 1204
80. Principles governing grant of bail under S. 167 1204
81. Order of bail under proviso to S. 167(2) is order on default 1205
82. Effect of an order of default bail under S. 167(2) 1205
83. Indefeasible right to bail accrues on non-filing of charge sheet 1205
84. Right of default bail comes to an end after filing of charge sheet 1206
85. No bail on ground of non–supply of papers within 90 days 1206
86. Charge sheet filed when bail application being considered 1207
87. I.O. signing charge sheet but not submitting it within prescribed period 1207
88. Position of law with regard to S. 167 summarised 1208
89. Clear 90 days to expire before the right to default bail begins 1209
90. Default bail under S. 167(2) is not undeserved one or inferior 1209
91. Default bail under proviso (a) to S. 167(2) is mandatory 1209
92. Even after refusal of bail on merits, bail to be granted under proviso to S. 167(2) 1212
93. Release on bail under S. 167(2) does not depend upon merits 1212
94. Proviso to S. 167(2) to be given effect in letter and spirit 1213
95. Ingredients of proviso (a) to S. 167(2) 1213
96. Release on default bail on expiry of prescribed period—Illustrative cases 1213
97. Cancellation of bail granted under S. 167(2)—Illustrative cases 1217
98. Police remand—Illustrative cases 1219
99. Judicial remand—Illustrative cases 1220
100. Detention under S. 167 after Expiry of Prescribed Period 1220
101. Detention beyond prescribed period due to absence of presiding officer of court 1222
102. Mere filing of charge sheet not sufficient to cancel bail 1222
103. Cancellation of bail on filing of charge sheet if it discloses graver offence? 1226
104. Bail under proviso to S. 167(2) can be cancelled under S. 437(5) or S. 439(2) 1227
105. Lawful order of bail under S. 167(2) cannot be set aside under S. 439(2) 1230
106. Considerations for cancellation of bail under S. 167(2) Cr.P.C. 1231
107. Cancellation of bail on mere filing of charge sheet—Illustrative cases 1233
108. Bail under S. 167 not to be recalled without giving opportunity of hearing 1234
109. Bail under proviso to S. 167(2) not defeated by lapse of time 1234
110. Provisions of S. 167 applicable to persons arrested under FERA and Customs Act 1235
111. Custody in Customs cases 1239
112. Power of detention of Special Judge under Prevention of Corruption Act 1239
113. Default bail can be claimed only before charge sheet is filed 1240
114. Default bail available from expiry of prescribed period till date charge sheet is filed 1240
115. Default bail only on ground of non-filing of charge sheet in prescri-bed period 1240
116. Default bail does not survive after charge sheet, if not already availed of 1241
117. Meaning of “if not availed of” with regard to default bail 1243
118. No default bail unless application is made by accused 1246
119. Expln. I to S. 167(2)—to show preparedness to furnish bail 1250
120. Oral application for seeking default bail would suffice 1250
121. Detention beyond prescribed period if right to default bail not exercised 1251
122. Without Magistrate’s order, mandate of proviso to S. 167(2) cannot be given effect to 1251
123. Duty to inform about right to bail after prescribed period 1252
124. Right to bail not be defeated by keeping applications pending 1253
125. Accused not availing order of release and meanwhile charge sheet filed 1254
126. Bail application under S. 167(2) filed before charge sheet on same day 1254
127. Default bail where charge sheet filed before filing of bail bonds 1256
128. Default bail to be examined on date when considering question of bail 1256

129. Legality of default bail to be seen as on date prior to filing of charge sheet 1256
130. Right to default bail not over during appeal against rejection 1257
131. Release where no charge sheet filed for three years 1257
132. Person under custody being shown arrested in another case 1258
133. Two FIRs for same offence—calculation of 90 days period 1258
134. Computation of periods mentioned in S. 167(2) of Cr.P.C. 1259
135. Fraction of a day to be counted as a day 1265
136. Counting of day begins from midnight 1265
137. Date of filing charge sheet relevant and not date of cognizance 1266
138. Computation not from issuance of body warrant but from date of remand 1266
139. Exclusion of date of arrest when remand is on same day 1266
140. Computation of period when more than one charge sheets filed 1267
141. Computation of period to be done irrespective of arrest in more than one case 1267
142. Computation when accused in custody in one case notionally surren-ders in other case 1268
143. Computation to include detention under S. 167(2) 1269
144. Computation to exclude detention under S. 57 1269
145. Last day of prescribed period being Sunday when charge sheet filed 1269
146. Applicability of restrictions in S. 437(1) for bail under S. 167 1270
147. Default bail cannot be refused in offence punishable with death or life imprisonment 1270
148. Provision of default bail termed as “paradise for the criminals” 1271
149. Interpretation of “imprisonment for a term of not less than ten years” in S 167(2) 1272
150. Charge sheet without certain documents—whether sufficient compli-ance of S. 167(2)? 1281
151. Default bail when preliminary charge sheet said investigation not completed 1285
152. Charge sheet filed as preliminary but investigation complete 1285
153. Further report–whether earlier charge sheet was incomplete? 1286
154. Filing of incomplete charge sheet where investigation involves several offences 1286
155. Charge sheet returned to comply with defects 1287
156. Charge sheet filed in time but returned due to insufficient number of copies 1287
157. Filing of charge sheet against some accused persons 1287
158. After charge sheet, S. 167 ceases to apply 1288
159. Bail pending when charge sheet filed after expiry of period 1289
160. Magistrate’s power to remand after submission of charge sheet 1289
161. No bail under S. 167(2) after cognizance is taken 1290
162. Custody when charge sheet filed but cognizance not taken 1290
163. Bail when charge sheet filed, cognizance not taken 1290
164. Proviso (a) to S. 167(2) does not restrict power of High Court or Sessions Court 1291
165. After charge sheet, bail only under Chapter XXXIII of Cr.P.C. 1292
166. Court cannot direct charge sheet within a prescribed period 1292
167. No time limit for filing charge sheet under S. 167(2) 1292
168. After taking cognizance, remand under S. 309 and not S. 167 1292
169. If investigation not completed, custody cannot be extended under S. 309 1293
170. Bail where cognizance not taken on day when charge sheet submitted 1293
171. Ss. 167 and 309 together show release if no charge sheet filed 1294
172. Remanding an accused in his absence 1294
173. Enquiry into reasons of non–production while in custody 1300
174. Magistrate has to exercise judicial mind under S. 167 1300
175. Magistrate discharges judicial function while authorising detention 1301
176. Whether proceedings under S. 167 are judicial proceedings? 1301
177. Bail before expiry of earlier remand without fresh material 1303
178. Interrogation of accused during judicial custody 1304
179. Is proviso of S. 167(2) applicable to case under old Cr.P.C.? 1304
180. Date of bail application not to govern application of S. 167 of new Cr.P.C. 1306
181. Further custody beyond 15 days in old Code was under S. 344 1306
182. Comparison of S. 167 and S. 344 of old Code 1306
183. Bail in case of a delayed investigation 1307
184. Power to remand to custody on appearance or surrender 1307
185. Requirement of custody in different types of cases 1308
186. Magistrate ordering notice in bail application under S. 167(2) 1308
187. Detention before judgment not by way of punishment 1308
188. Forwarding accused to police of another state 1309
189. Illegal detention followed by subsequent valid remand 1309
190. Bail no remedy for illegal detention 1312
191. No refusal of custody on ground of previous illegal custody 1313
192. Defect in remand orders 1314
193. Power of High Court when it finds a legal flaw in remand order 1315
194. Examination of legality of detention 1315
195. Order of detention to pass test of Article 21 every moment of its existence 1315
196. Arrest under S. 167(5) includes surrender before Court 1315
197. Starting point of six months in S. 167(5) 1316
198. S. 167(5) does not fix time limit beyond which investigation cannot continue 1316
199. Sub-sections (5) and (6) of S. 167, as amended in W.B. 1317
200. Meaning of “appearance” in S. 167(5), as amended in W.B. 1318
201. Power to remand in absence of formal application by police or pro-secution 1320
202. Bail application should be heard with application for remand 1320
203. No rearrest and re-committal to custody unless actual release 1320
204. Release on bail for few days on conditions not to be counted 1321
205. Being in custody for inquiry different from actual arrest 1321
206. Deliberate delay suspected in filing charge sheet 1322
207. Condition to surrender on filing of charge sheet while granting bail under S. 167(2) 1322
208. Information to accused about filing of charge sheet 1322
209. Production of accused through electronic video linkage 1323
210. Under 167(2) accused should first approach Magistrate 1323

211. Rejection under S. 439 different from release under S. 167(2) 1323
212. Revision lies against order refusing bail under S. 167(2) 1323
213. Advantages and importance of custodial interrogation 1324
214. Prompt disposal of application under S. 167(2) 1324
215. Offences committed in earlier S. 167 proceedings 1324
216. Where order of custody issued by Magistrate not explicit 1325
217. Person detained under S. 151 cannot be detained for more than 24 hours 1325
218. No set off under S. 428 for detention in a subsequent case 1326
219. No obligation for accused to appear before court before charge sheet is filed 1326
220. Bail under S. 167(2) when further investigation continued 1326
221. Power of remand will depend upon the stage 1327
222. Where no bail furnished under S. 167(2), custody can be continued further 1327
223. Magistrate can change sections in remand report of police 1327
224. Detention of person arrested during further investigation 1328
225. Production of person convicted and sentenced futile 1329
226. Detention on conviction and sentence by Legislative Assembly 1329
227. Arrest and detention under Foreigners’ (Internment) Order 1330
228. M.P. Ordinance with provisions similar to S. 167(2) 1332
CHAPTER 34
COMMITMENT OF CASE TO COURT OF SESSION
WHEN OFFENCE IS TRIABLE EXCLUSIVELY BY IT
1. Corresponding old law 1333
2. Scope of section 1333
3. Power to remand accused contained in three sections of Cr.P.C. 1334
4. Remand subject to provisions of bail by committing Magistrate 1334
5. Grant of bail in committal proceedings 1335
6. Release “during and until completion of trial” even in Sessions-triable cases 1336
7. S. 209 is a self-contained Code 1336
8. Power to remand to custody during and until conclusion of trial 1336
9. Custody under this section is not indefinite or arbitrary 1337
10. Cancellation of bail while committing case 1338
11. Mere fact of committing case not valid ground to cancel bail 1340
12. Cancellation of bail while committing to be under S. 437(5) and for proper grounds 1341
13. Remand under S. 209 while deferring order of committing case 1342
14. Remand when cognizance not taken and accused not appearing or not produced before court 1342
15. Order of remand under S. 209 in absence of accused 1343
16. Remand under S. 209 made subject to order to be passed by Sessions Court 1343
17. Non-communication of order of detention to jail authorities 1344
18. Relation between S. 209 and S. 309 1344
19. Bail granted by police not comparable with bail under S. 209(b) 1345
20. Illegality in remand order not a ground for grant of bail 1345
21. Necessity of expeditious disposal of committal proceedings 1346
22. Remand not invalid merely because word “remand” not used 1346
23. Illegal detention under S. 167 cured by subsequent proper remand under S. 209 1346
24. Quashing order of commitment of case at bail stage 1346
25. Anticipatory bail at committal stage 1347
26. S. 209 as amended in U.P. 1349
CHAPTER 35
POWER TO POSTPONE OR ADJOURN PROCEEDINGS
1. Corresponding old law 1351
2. Scope of section 1352
3. Power to remand accused contained in three sections of Cr.P.C. 1352
4. Power to adjourn case and remand accused to custody 1352
5. No maximum period of remand under S. 309 1353
6. Remand under S. 309 cannot be for indefinite duration 1353
7. No police custody under S. 309 1353
8. Custody more than 15 days should only be judicial 1354
9. Reasons for adjourning case and not for remand under S. 309 1354
10. Magistrate taking cognizance can authorise detention 1354
11. Custody during and until conclusion of trial 1354
12. Power of Magistrate to remand during and until conclusion of Sessions trial 1355
13. Sessions Judge remanding under S. 309 until conclusion of trial 1355
14. Magistrate can remand accused till inquiry made is complete 1356
15. Magistrate can commit to custody only where he is empowered ex-pressly 1356
16. No inherent power of remand unless power conferred by law 1356
17. Remand of accused to custody for not cooperating in trial 1357
18. Taking accused into custody on conviction in cases triable by Sessions Court or Special Judge 1357
19. Remanding an accused in his absence 1358
20. Provision not ultra vires being arbitrary or unguided 1359
21. Interpretation of the old provision—S. 344 of Cr.P.C. (of 1898) 1359
22. Remand under S. 344 of old Cr.P.C. during investigation 1360
23. Comparison of S. 309(2) of new Code with its old counterpart 1361
24. Remand under S. 309(2) of new Cr.P.C. before submission of charge sheet 1361
25. Remand under S. 309(2) where only preliminary charge sheet has been filed 1362
26. S. 309 comes into operation after taking of cognizance 1362
27. No custody under S. 309 after expiry of prescribed period under S. 167 if charge sheet not filed 1364
28. Ss. 167 and 309 together show release if no charge sheet filed 1364
29. Custody when charge sheet filed but cognizance not taken 1364
30. Magistrate’s power to remand after submission of charge sheet 1365
31. Custody after filing of charge sheet is under S. 309 1366
32. After taking cognizance, power to remand flows from S. 309 and not from S. 167 1366
33. Rectification of initial illegal remand by subsequent order 1368
34. Delay in cognizance after charge sheet will not give right to bail 1369
35. No power to remand accused to custody under S. 309(2) if he was on bail 1369
36. No further order required where committing Magistrate remanded custody 1369

37. Does “inquiry” in S. 309(2) cover proceedings of Magistrate acting under Section 209? 1370
38. Defect in warrant—effect of 1372
39. Formal warrant under new Code 1372
40. Which forms to be used for warrant? 1372
41. Order in order-sheet is not a warrant for detention of accused 1373
42. Court expected to be vigilant while signing remand papers 1373
43. Accused entitled for release where present detention is illegal 1373
44. Order requiring production of accused on specified date is an order of remand 1373
45. Under S. 309(1), Magistrate can stay his own orders including bail orders 1373
46. Illegality in remand order not a ground for grant of bail 1374
47. Relation between S. 209 and S. 309 1374
48. Custody under S. 309 —Illustrative cases 1375
49. Accused found missing from judicial custody 1377
50. Does S. 309(2) come in way of detention of a subsequently arrested person? 1377
51. Miscellaneous 1378
APPENDIX A
THE FIRST SCHEDULE
CLASSIFICATION OF OFFENCES
Classification of Offences 1379
APPENDIX B
THE SECOND SCHEDULE
Form No. 1—I.—Summons to an accused Person 1435
Form No. 2—II.—Warrant of Arrest 1435
Form No. 3—III.—Bond and Bail—Bond after Arrest under a War-rant 1436
Form No. 4—IV.—Proclamation Requiring the Appearance of a
Person accused 1436
Form No. 5—V.—Proclamation Requiring the Attendance of a Wit-ness 1436
Form No. 6—VI.—Order of Attachment to Compel the Attendance of a Witness 1437
Form No. 7—VII.—Order of Attachment to Compel the Appearance of a Person accused 1437
Form No. 8—VIII.—Order Authorising an Attachment by the Dis-trict
Magistrate or Collector 1438
Form No. 9—IX.—Warrant in the First instance to bring up a Wit-ness 1438
Form No. 10—X.—Warrant to search after information of a Particular Offence 1439
Form No. 11—XI.—Warrant to Search Suspected Place of Deposit 1439
Form No. 12—XII.—Bond to keep the Peace 1440
Form No. 13—XIII.—Bond for good behaviour 1440
Form No. 14—XIV.—Summons on Information of a Probable Breach of the Peace 1441
Form No. 15—XV.—Warrant of Commitment of Failure to find Security to keep the Peace 1441
Form No. 16—XVI.—Warrant of Commitment of Failure to find Security for good behaviour 1441
Form No. 17—XVII.—Warrant to Discharge a Person Imprisoned on Failure to give Security 1442
Form No. 18—XVIII.—Warrant of Imprisonment on Failure to Pay Maintenance 1443
Form No. 19—XIX.—Warrant to Enforce the Payment of Mainten-ance by Attachment and Sale 1443
Form No. 20—XX.—Order for the Removal of Nuisances 1444
Form No. 21—XXI.—Magistrate’s Notice and Peremptory Order 1445
Form No. 22—XXII.—Injunction to provide against Imminent Dan-ger Pending Inquiry 1445
Form No. 23—XXIII.—Magistrate’s Order Prohibiting the Repeti-tion, etc., of a Nuisance 1445
Form No. 24—XXIV.—Magistrate’s Order to Prevent Obstruction, Riot, etc. 1446
Form No. 25—XXV.—Magistrate’s Order Declaring Party entitled to Retain Possession of Land, etc., in Dispute 1446
Form No. 26—XXVI.—Warrant of Attachment in the Case of a dis-pute as to the Possession of Land, etc. 1447
Form No. 27—XXVII.—Magistrate’s Order Prohibiting the doing of anything on Land or Water 1447
Form No. 28—XXVIII.—Bond and Bail—Bond on a Preliminary Inquiry before a Police Officer 1448
Form No. 29—XXIX.—Bond to Prosecute or give Evidence 1448
Form No. 30—XXX.—Special Summons to a Person accused of a Petty offence 1448
Form No. 31—XXXI.—Notice of Commitment by Magistrate to Public Prosecutor 1449
Form No. 32—XXXII.—I. Charges with One Head 1449
II. Charges with Two or more Heads 1450
III. Charges for Theft after previous Convic-tion 1452
Form No. 33—XXXIII.—Summons to Witness 1452
Form No. 34—XXXIV—Warrant of Commitment on a sentence of
Imprisonment or Fine if Passed by a [Court] 1453
Form No. 35—XXXV—Warrant of Imprisonment on Failure to Pay Compensation 1453
Form No. 36—XXXVI—Order Requiring Production in Court of Person in Prison for Answering to Charge of offence 1454
Form No. 37—XXXVII—Order Requiring Production in Court of Person in Prison for giving Evidence 1454
Form No. 38—XXXVIII—Warrant of Commitment in certain Cases of Contempt when a Fine is Imposed 1455
Form No. 39—XXXIX—Magistrate’s or Judge’s Warrant of Com-mit—ment of Witness Refusing to Answer or to Produce Document 1455
Form No. 40—XL—Warrant of Commitment under Sentence of Death 1456
Form No. 41—XLI—Warrant after a Commutation of a Sentence 1456
Form No. 42—XLII—Warrant of Execution of a Sentence of Death 1457
Form No. 43—XLIII—Warrant to Levy a Fine by Attachment and Sale 1457
Form No. 44—XLIV—Warrant for Recovery of Fine 1457
Form No. 44-A—XLIV-A—Bond for Appearance of Offender Re-leased Pending Realisation of Fine 1458
Form No. 45—XLV—Bond and Bail—Bond for Attendance before Officer—in—Charge of Police Station or Court 1458
Form No. 46—XLVI—Warrant to Discharge a Person Imprisoned on Failure to give Security 1459
Form No. 47—XLVII—Warrant of Attachment to Enforce a Bond 1459
Form No. 48—XLVIII—Notice to Surety on Breach of a Bond 1460
Form No. 49—XLIX—Notice to Surety of Forfeiture of Bond for good behaviour 1460
Form No. 50—L—Warrant of Attachment against a Surety 1461
Form No. 51—LI—Warrant of Commitment of the Surety of an ac-cused Person Admitted to Bail 1461
Form No. 52—LII—Notice to the Principal of Forfeiture of Bond
to keep the Peace 1461
Form No. 53—LIII—Warrant to Attach the Property of the Principal on Breach of a Bond to keep the Peace 1462
Form No. 54—LIV—Warrant of Imprisonment on Breach of a Bond to keep the Peace 1462
Form No. 55—LV—Warrant of Attachment and Sale on Forfeiture of Bond for good behaviour 1463
Form No. 56—LVI—Warrant of Imprisonment on Forfeiture of Bond for good behaviour 1463