Section 437 in The Code Of Criminal Procedure 1973

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Section 437 in The Code Of Criminal Procedure, 1973

437- When bail may be taken in case of non- bailable offence.

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more,

or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, subject to the provisions of section 446 A and pending such inquiry, be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its reasons or special seasons for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.


NOTE

Under Section 437(1) (i) of Cr.P.C., rider has been made upon the jurisdiction of the Magistrate in granting bail to the person arrested for non-bailable offences. The bar under Section 437 (1) (i) of Cr.P.C. is not an absolute bar but discretion is granted to Magistrate to consider and grant bail in exceptional circumstances as envisaged in first proviso to Section 437 (1) of Cr.P.C. The exceptions are that the person is under the age of 16 years or is woman or is sick or infirm . Only under the above contingencies, the Magistrate can allow bail on the application of persons who is charged for offence punishable with death or imprisonment for life.

Reasonable ground for believing means that upon considering prima facie material placed before him and not to consider the evidence.

Though under Section 437 (1) (i), there is no bar in entertaining application by the Judicial Magistrate First Class for grant of bail under Section 437 of Cr.P.C. but under Section 437 (1) (i) of Cr.P.C., there is restriction in release if there appear reasonable grounds for believing that applicant is guilty of offence punishable with death or imprisonment for life.

Hon’ble Supreme Court in case of Prahlad Singh Bhati Vs. NCT Delhi & Anr. reported in (2001) 4 SCC 280 has held that the Magistrate will have no jurisdiction to grant bail unless offence is also exclusively triable by the Court of Sessions. Provision under Section 437 of Cr.P.C. does not make any difference that the offence alleged to be triable by the Judicial Magistrate or by the Court of Sessions, but it only mentions the restriction upon the jurisdiction of Magistrate to enlarge the person on bail arrested for commission of non-bailable offence if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Under Section 437 of Cr.P.C. what has been made important is consideration of punishment prescribed for the non-bailable offence and not the offence to be triable by the Court of Judicial Magistrate or Sessions Court. In case of Prahlad Singh Bhati (supra), Hon’ble Supreme Court in paragraph-7 has held “Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought.