Section 439

Special powers of High Court or Court of Session regarding bail.

439. (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 (45 of 1860), 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 (45 of 1860).]

(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

PUNJAB/UNION TERRITORY OF CHANDIGARH

■ Section 439

In its application to the State of Punjab and Union Territory of Chandigarh 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 or suspected of committing an offence under any of the following sections, namely—
		Sections 120B, 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 (45 of 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 (54 of 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 inform 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 No. 22 of 1983, w.e.f. 27-6-1983.

TRIPURA

■ Section 439A

- After section 439, the following section shall be inserted—

"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 Explosive Substances Act, 1908 (Act No. 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 be 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 No. 6 of 1992, w.e.f. 29-7-1992.

CASE LAWS

There can be no reason to accord any special consideration for an accused by virtue of a simple fact that he is a citizen of a different country. The law under section 439 Cr PC is very clear and in the eye of the law every accused is the same irrespective of their nationality - Lachhman Das v. Resham Chand Kaler [2018] 3 Supreme Court Cases 187.

It is not expected from the High Court to pass mandatory orders commanding the subordinate Court to compulsorily grant bail. Recently, this Court on similar facts in Madan Mohan v. State of Rajasthan [2018] 12 SCC 30, has laid down that Courts cannot issue mandatory directions which breach the independence of subordinate Courts. Therefore, such circuitous method undertaken by the respondent in obtaining a bail is a gross abuse of the Court process undertaken in bad faith instead of the fact that he was declared as a proclaimed offender before the grant of bail, which was not taken into consideration by the High Court. The order of the High Court was to be set aside and the concerned authorities are to be directed to take accused into custody forthwith - Lachhman Das v. Resham Chand Kaler [2018] 3 Supreme Court Cases 187

The compact disc (CD) filed with the petition, showed that a prima facie case was made out against the accused, as the group of persons were seen committing the offence using deadly weapons and sticks. The seriousness and gravity of the offence could be clearly observed from the CD. However, the aforesaid observations must not be construed as findings on merits. Though the accused was not a citizen of this country (British national), yet the fact remained that he along with other persons had indulged in the criminal activity. The case of the prosecution mainly revolved around him as he was alleged to be the kingpin of the criminal conspiracy which demanded his custodial interrogation, the order of the High Court granting bail to the accused was to be set aside and the concerned police authorities should take the accused into custody immediately - Lachhman Das v. Resham Chand Kaler [2018] 3 Supreme Court Cases 187.

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