Chapter XXXII
Section 439 CrPC: Special powers of High Court or Court of Session regarding bail
New Law Update (2024)
Section 482 BNSS
TRIAL COURT
High Court, Court of Session
Punishment
Life Imprisonment
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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 be recorded in writing, of opinion that it is not practicable to give such notice.
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
[1A. The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.]
(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.
Important Sub-Sections Explained
Section 439(1): Grant of Bail and Conditions
This sub-section empowers the High Court and Court of Session to grant bail to any accused person and to impose conditions for such release. It also allows these courts to set aside or modify any conditions previously imposed by a Magistrate.
Section 439(2): Cancellation of Bail
This sub-section grants the High Court or Court of Session the power to order the arrest of any person who has already been released on bail under this Chapter and commit them back to custody, effectively canceling their bail.
Landmark Judgements
Sanjay Chandra v. CBI (2012):
The Supreme Court emphasized that liberty is the rule and jail an exception. It laid down various factors to be considered while granting bail, including the nature of the accusation, the severity of the punishment, the evidence collected, the possibility of the accused fleeing justice or tampering with evidence, and the impact on the investigation.
P. Chidambaram v. Directorate of Enforcement (2019):
In this case involving economic offences, the Supreme Court reiterated the principles governing bail, stating that while economic offences constitute a class apart and need to be viewed seriously, the cardinal rule is that bail should not be denied as a punitive measure. Factors like the triple test (flight risk, tampering with evidence, influencing witnesses) were heavily weighed.
Satender Kumar Antil v. CBI (2022):
The Supreme Court issued comprehensive guidelines for the grant of bail, distinguishing between various categories of offences (based on punishment) and mandating compliance with Sections 41 and 41A of CrPC. It urged courts to avoid indiscriminate arrests and reiterated the principle of “bail, not jail,” especially for offences punishable with up to seven years of imprisonment.
Draft Format / Application
IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE, [District, State]
C.R. NO. [Case Number] OF [Year]
IN THE MATTER OF:
A.B.C. (S/o [Father’s Name]), aged [Age] years,
R/o [Address]
…Accused/Applicant
VERSUS
THE STATE OF [State]
…Respondent
APPLICATION FOR REGULAR BAIL UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH:
1. That the applicant is an innocent person and has been falsely implicated in F.I.R. No. [FIR Number]/[Year], registered at Police Station [Police Station Name], for offences punishable under Sections [Relevant IPC Sections] of the Indian Penal Code, 1860.
2. That the applicant was arrested on [Date of Arrest] and has been in judicial custody since then. The applicant has cooperated fully with the investigation and is not required for any further custodial interrogation.
3. That the allegations made against the applicant in the FIR are false and baseless. The applicant has a good reputation in society and has deep roots in the community. There is no likelihood of the applicant absconding or fleeing from justice.
4. That the investigation in the present case is [completed/at an advanced stage], and therefore, there is no possibility of the applicant tampering with evidence or influencing witnesses.
5. That the applicant undertakes to abide by all conditions that this Hon’ble Court may deem fit to impose for granting bail, including appearing before the Court on all dates of hearing, cooperating with the investigation, and not leaving the country without prior permission of the Court.
6. That the applicant has not been previously convicted for any similar offence and has no criminal antecedents.
7. That the continued detention of the applicant will cause undue hardship and prejudice to him/her and his/her family, especially since the trial is likely to take a considerable amount of time.
8. That no similar application for bail has been filed by or on behalf of the applicant before any other Court, nor has any such application been rejected.
9. That the applicant is ready and willing to furnish adequate bail bonds to the satisfaction of this Hon’ble Court.
PRAYER:
It is, therefore, most humbly prayed that this Hon’ble Court may graciously be pleased to:
(a) Enlarge the applicant on regular bail in F.I.R. No. [FIR Number]/[Year], P.S. [Police Station Name], upon such terms and conditions as this Hon’ble Court may deem fit and proper in the interest of justice; and
(b) Pass any other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
Date: [Date]
Place: [Place]
[Signature]
[Name of Advocate]
Advocate for the Applicant
THROUGH:
[Name of Law Firm/Individual Advocate]
[Enrollment Number]
[Contact Number]
[Email Address]