Tue. Nov 24th, 2020

Section 439 Special powers of high court or court of session regarding Bail

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Section 439 Special powers of high court or court of session regarding Bail

(1) A High Court or Court of Session may direct.

(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition, which it considers necessary for the purposes mentioned in that sub-section;

(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to he recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

                                                                                   STATE AMENDMENTS

                                                                                                 Section 439 A

Punjab and Union Territory of Chandigarh:

After section 439 ,Insert the following section ,namely –

“439A.Power to grant bail- Notwithstanding anything contained in this code,no person-

(a) Who, being accused or suspected or committing an offence under any of the following sections, namely- sections 120 B, 121, 121A, 122, 123, 124A, 153A, 302, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, sections 3, 4, 5, and 6 of the Explosive Substances Act. 1908, and sections 25, 26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a court; or

(b) Who, having any reason to believe that he may be arrested on accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of’ Session for a direction for his release on bail in the event of his arrest shall be released on bail or, as the case may be, directed to be released on bail, except on one or more of the following grounds, namely:-

(i) That the court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

(ii) That such person is under the age of sixteen years or a woman or a sick or an infirm person;

(iii) That the court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct that release of the accused on bail”.

[Vide Punjab Act 22 of 1983, sec. 11 (w.e.f. 27-6-1983)].

Tripura

After section 439, the following section shall be inserted namely.

“439A. Power to grant bail Notwithstanding anything contained in this Code, no person,

(a) Who being accused of or suspected of committing an offence under sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 364, 365, 366, 366A, 366B, 367, 368, 376, 386, 387, 392, 394, 395, 396, 397, 399, 412, 436, 449 and 450 of the Indian Penal Code, (45 of 1860) and sections 25, 26, 27 and 28 of the Arms Act, 1959 (54 of 1959) and sections 3,4, 5 and 6 of the Explosives Substances Act, 1908, (Act VI of 1908), is arrested or appears or is brought before a court; or

(b) Who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a) has applied to the High Court or Court of Session for a direction for his release, on bail in the event of his arrest shall be released on bail or, as the case may be, directed to be released on bail except on one or more of the following grounds, namely.

(i) That the court including the High Court or the Court of Session for reasons to be recorded in writing,, is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

(ii) That such person is under the age of sixteen years or a woman or a sick or infirm person;

(iii) That the Court including the High Court or the Court of Session, for reasons to he recorded in writing, is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail.”

[Vide Tripura Act 6 of 1992, sec. 3 (w. e. f. 29-7-1992)].

                                                                                                    COMMENTS

(1)The supreme court should not ordinarily,save in exception cases,interfere with order granting or refusing bail by the high court because the high court should normally be the final arbiter in such matter ;Himanshu chandravadan Desai v.state of Gujarat ,AIR 2006  SC 179

(2) For cancellation of bail,Conduct subsequent to release on Bail and the supervening circumstances alone are relevant.But in an appeal against grant of Bail ,all aspects that are relevant continue to be relevant ;State through CBI v. Amarmani Tripathi,AIR 2005 SC 3490

(3)Before granting Bail in cases involving non-bailable cases ,the court is required to take intop consideration the matter such as nature and seriousness of the offence,likelihood of the accused fleeing from the justice and tempering with prosecution evidence ,circumstances which may be peculiar to thye accused ,larger interest of the public or state ,etc;Anil Sharma v. State of Himachal pradesh,(1997)3 Crimes 135 (HP).

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