[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-VI

Ans. A reading of Section 436(2) Cr.P.C. would indicate that it is a condition. But in Azeez v. State 1984 KLT 437 – U. L. Bhat – J, it has been held that it is only a term as to bail. If there is forfeiture of the bond executed by the surety due to the default of the accused in making appearance before the Court, it is open to the Court to take steps under Section 446 Cr.P.C. (Vide para 12 of Mohammed Kunju v. State of Karnataka (1999) 8 SCC 660 = AIR 2000 SC 6 - K. T. Thomas, M. B. Shah – JJ).

Q.27 Role, if any, of the State Government when an accused person who is granted bail executes a bond with or without sureties ?

Ans. When an accused person is granted bail with or without sureties, there is an implied term by virtue of Form No. 45 of the Second Schedule to Cr.P.C. that the accused shall attend the Police Officer or the Court on every day on which any investigation into the charge is made or any inquiry or trial on such charge is held and in the event of the accused making any default, he shall forfeit to the Government the sum specified by the Court. This is an undertaking in the form of a contract. In the very same bail bond there is an independent contract executed by the sureties, if any, to the effect that in case the accused for whom they stand as sureties, commit any default in appearing before the Police Officer or the Court, each of them shall forfeit to the Government the sum specified by the Court. Even though the undertakings by both the accused as well as sureties are executed in the same document for the sake of convenience, each undertaking is a distinct contract which can be separately enforced. (Vide Ram Lal v. State of U.P. AIR 1979 SC 1498 – S. Murtaza Fazl Ali, O. Chinnappa reddy - JJ; para 12 of Mohammed Kunju v. State of Karnataka (1999) 8 SCC 660 = AIR 2000 SC 6 - K. T. Thomas, M. B. Shah - JJ).

Q.28 Can the Magistrate grant bail under Section 437 Cr.P.C if the offence is punishable with death or, in the alternative, with imprisonment for life?

Ans. No. (Vide paras 8 to 10 and 16 of Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623 = AIR 2014 SC 1745 – k. S. Radhakrishnan, Vikramajit Sen - JJ) The Kerala High Court has held that “death or imprisonment for life” occurring in Section 437(1)(i) Cr. P.C. should be read conjuctively as in the case of murder punishable under Section 302 IPC. (See Satyan v. State of Kerala 1981 KLT 606 – Janaki Amma - JJ; Chellappan v. State of Kerala 1987 (1) KLT 435 – Padmanabhan - J and Antony Cherian v. State of Kerala 1987(2) KLT 125 – K. T. Thomas - J. Actually, it is not conjunctive sentence. What has been held is that both the sentences of death or imprisonment for life should be awardable, in the alternative, for the same offence.

Section 121 IPC (waging war or attempt or abetment to wage war against the Govt. of India) is yet another offence like murder. Offences punishable under Section 305 IPC (abetment of suicide by persons non compose mentis, Section 307 IPC (attempt to commit murder by life convict, if hurt is caused) and Section 396 IPC (murder in dacoity) are also punishable with death. But, for those offences, life imprisonment is not the only other alternative so as to attract Clause (i) of Section 437 (1) Cr.P.C.

Likewise, even though Sections 326 and 436 IPC are punishable with imprisonment for life, they do not attract the prohibition under Section 437(1) (i) Cr.P.C. since alternative death sentence is not prescribed for those offences.

Q.29 Is not the Magistrate debarred from granting bail in a case where the offences are exclusively triable by a Court of Session?

Ans. No. There is no legal bar. But it is proper and appropriate that the Magistrate directs the accused to approach the Sessions Court. (Vide Prahlad Singh Bhati v. NCT Delhi AIR 2001 (SC) 1444 – K. T. Thomas, R. P. Sethi - JJ).

Q.30 Is it permissible for the Magistrate to grant bail to a woman against whom there are reasonable grounds for believing that she has been guilty of murder?

Ans. Yes. Notwithstanding the bar under Section 437(1)(i)(ii) Cr.P.C., the first proviso thereto enables the Magistrate to grant bail to the accused person if such person “is under the age of 16 years” or is a “women” or is “sick or infirm”. The first ground, namely, “is under the age of 16 years” is not applicable now in view of the provisions of the Juvenile Justice (Car and Protection of Children) Act, 2015.

Part 5: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-V

Part 3: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-III