Q. Bail in non-bailable offences by a Judicial Magistrate. Discuss main consideration.

Ans.: Sec. 437 of Cr.P.C. deals with grant of bail in a non-bailable offence. Unlike a bailable offence where bail is a matter of right (under S. 436 Cr.P.C.), grant of bail for a non-bailable offence under the present section is a matter of discretion. This section deals with the power of the Magistrate to grant bail in a non-bailable offence; on the other hand, the Sessions Court and the High Court have the power to grant bail in such an offence under S. 439 of Cr.P.C.

In the case of GURUCHARAN SINGH V/s. STATE (DELHI ADMN.), reported in 1978 (1) SCC 118, Hon’ble Supreme Court observed that, “In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to subsection (3) of Section 437 of the Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) of the Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some material at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) of the Cr.P.C. are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tempering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.”

Hon’ble Gujarat High Court has taken into consideration the following guiding principles in case of PRADEEP N SHARMA V/S STATE OF GUJARAT- reported in 2011 LawSuit(Guj) 649:

1. Whether releasing the accused on bail is in any way forbidden by any statutory provision?

2. Whether he would intimidate the witnesses or win-over them for getting support to his defense and/or for abstaining from supporting the prosecution?

3. Whether he would be available easily at the time of his trial and would submit to the custody if convicted and sentenced at last or would flee and would not be available?

4. Whether he would tamper with the evidence?

5. Whether he would commit like-wise or any other offence or wrong directly or indirectly remaining behind curtain?

6. Whether he would be retributive or revengeful or retaliative, i.e. whether his release will endanger safety of the persons, viz. complainant and witness or other concerned or property?

7. Whether his own safety is likely to be endangered?

8. Whether larger good, national interest, social order, national security, public safety and/or health are likely to be jeopardised?

9. The nature and gravity of offence being shocking and alarming or barbaric and day in and day out its effect spreads panic amongst the people or section of the people or damages civilization in the society turning back to jungle law?

10. Other peculiar circumstances of each case appearing on record, dictating the exercise of discretion in particular way.