BAIL
PROVISIONS AS APPLICABLE IN WEST
BENGAL AFTER INCORPORATION OF THE STATE AMENDMENTS THEREIN.
167.
Procedure when investigation cannot be completed in twenty-four
hours.
(1)
Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period
of twenty-four hours fixed by section 57, and there are grounds for
believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making
the investigation, if he is not below the rank of sub-inspector,
shall forthwith transmit to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter prescribed relating to the case,
and shall at the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom all accused person is
forwarded under this section may, whether he has or not jurisdiction
to try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, a term not
exceeding fifteen days in the whole; and if he has no jurisdiction to
try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction:
Provided that-
1[(a)
The Magistrate may authorize the detention of the accused person,
otherwise than in the custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period
exceeding-
(i)
Ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not
less than ten years;
(ii) Sixty days, where the investigation
relates to any other offence,
And,
on the expiry of the said period of ninety days, or sixty days, as
the case may be, the accused person shall be released on bail if he
is prepared to and does furnish bail, and every person released on
bail under this sub-section shall be deemed to be to released under
the provisions of Chapter XXXIII for the purposes of that
Chapter;]
(b) No Magistrate shall authorize detention in any
custody under this section unless the accused is produced before
him;
(c) No Magistrate of the second class, not specially
empowered in this behalf by the high Court, shall authorize detention
in the custody of the police.
2[Explanation
I. For the avoidance of doubts, it is hereby declared that,
notwithstanding the expiry of the period specified in paragraph (a),
the accused shall be detained in Custody so long as he does not
furnish bail.]
3[Explanation
II].If any question arises whether an accused person was produced
before the Magistrate as required under paragraph (b), the production
of the accused person may be proved by his signature on the order
authorizing detention.
2[(2A)
Notwithstanding, anything contained in sub-section (1) or sub-section
(2), the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of a
sub-inspector, may, where a Judicial Magistrate is not available,
transmit to the nearest Executive Magistrate, on whom the powers of a
Judicial Magistrate or Metropolitan Magistrate have been conferred, a
copy of the entry in the diary hereinafter prescribed relating to the
case, and shall, at the same time, forward the accused to such
Executive Magistrate, and thereupon such Executive Magistrate, may,
lot reasons to be recorded in writing, authoress the detention of the
accused person in such custody as he may think fit for a term not
exceeding seven days in the aggregate; and on the expiry of the
period of detention so authorized, the accused person shall be
released on bail except where an order for further detention of the
accused person has been made by a Magistrate competent to make such
order; and, where an order for such further detention is made, the
period during which the accused person was detained in custody under
the orders made by an Executive Magistrate under this sub-section,
shall be taken into account in computing the period specified in
paragraph (a) of the proviso to sub-section (2):
Provided that
before the expiry of the period aforesaid, the Executive Magistrate
shall transmit to the nearest Judicial Magistrate the records of the
case together was a copy of the entries in the diary relating to the
case which was transmitted to him by the officer in charge of the
police station or the police officer making the investigation, as the
case may be.]
(3) A Magistrate authorizing under this section
detention in the custody of the police shall record his reasons for
so doing.
(4) Any Magistrate other than the Chief Judicial
Magistrate making such order shall forward a copy of his order, with
his reasons for making it, to the Chief Judicial Magistrate,
(5)
If, in respect of -
(i)
Any case triable by a Magistrate as a summons case, the investigation
is not concluded within a period of six months, or
(ii) Any
case exclusively triable by a Court of Sessions or a case under
Chapter XVIII of the Indian Penal Code (45 of 1860), the
investigation in not conducted within a period of three years,
or
(iii) Any case other than those mentioned in clauses (i)
and (ii), the investigation is not conducted within a period of two
year, from the date on which the accused was arrested made his
appearance, the Magistrate shall make an order stopping further
investigation into the offence and shall discharge the accused unless
the officer making the investigation satisfies the Magistrate that
for special reasons and in the interests of justice the continuation
of the investigation beyond the period mentioned in this sub-section
is necessary.
Where
any order stopping further investigation into an offence has been
made and
the accused has been discharged under sub-section (5),
the Sessions Judge may, if he is satisfied, on an application made
to him or otherwise, that further investigation into the offence
ought to be made, vacate the order made under sub-section (5) and
direct further investigation to be made into the offence subject to
such directions with regard to bail and other matters as he may
specify.
[Vide
W.B. Act 24 of 1988 sec. 4].
436.
In what cases bail to be taken.
(1)
When any person other than a person accused of a 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, and is
prepared at, any, time-, while-in, the custody of such officer or at
any stage of the proceeding before such court to give bail, such
person shall be released on bail:
Provided that such officer
or court, if he or it thinks fit, 1"may,
and shall, if such person is indigent and is unable to furnish
surety, instead of taking bail" from
such person, discharge him on his executing a bond without sureties
for his appearance as hereinafter provided:
Provided further
that nothing in this section shall be deemed to affect the provisions
of sub-section (3) of section 116 2[or
section 446A].
3"Explanation.-Where
a person is unable to give bail within a week of the date of his
arrest, it shall be a sufficient ground for the officer or the Court
to presume that he is an indigent person for the purposes of this
proviso.".
(2)
Notwithstanding anything contained in sub-section (1), where a person
has failed to comply with the conditions of the bail-bond as regards
the time and place of attendance, the court may refuse to release him
on bail, when on a subsequent occasion in the same case he appears
before the court or is brought in custody and any such refusal shall
be without prejudice to the powers of the court to call upon any
person bound by such bond to pay the penalty thereof under section
446.
1"436A.
Maximum period for which an undertrial prisoner can be detained.-
Where
a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for
which the punishment of death has been specified as one of the
punishments under that law) undergone detention for a period
extending up to one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by
the Court on his personal bond with or without sureties:
Provided
that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued
detention of such person for a period longer than one-half of the
said period or release him on bail instead of the personal bond with
or without sureties:
Provided
further that no such person shall in any case be detained during the
period of investigation, inquiry or trial for more than the maximum
period of imprisonment provided for the said offence under that law.
Explanation.-In
computing the period of detention under this section for granting
bail, the period of detention passed due to delay in proceeding
caused by the accused shall be excluded.''.
1.Inserted
by the Criminal Procedure (Amendment) Act,2005,w.e.f. 23-6-2006
437.
When bail may be taken in case of non-bailable offence.
1[(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
2"a
cognizable offence punishable with imprisonment for three years or
more but not less than seven years" :
Provided
that the court may direct that a person referred to in clause (i) or
clause (ii) be released on bail if 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 the
shall comply with such directions as may be given by the court.]
3"Provided
also that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment for life, or
imprisonment for seven years or more, be released on bail by the
Court under this sub-section without giving an opportunity of hearing
to the Public Prosecutor.";
(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, 4[the
accused shall, subject to the provisions of section 446A 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, Chatter XVI or Chapter XVII of the Indian Penal
Code 45 of 1860 or abetment of, or conspiracy or attempt to commit,
any such offence, is released on bail under sub-section (1) 5"the
Court shall impose the conditions,-
(a)
that such person shall attend in accordance with the conditions of
the bond executed under this Chapter,
(b)
that such person shall not commit an offence similar to the offence
of which he is accused, or suspected, of the commission of which he
is suspected, and
(c)
that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer or tamper with the evidence,
and
may also impose, in the interests of justice, such other conditions
as it considers necessary".
(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
6[reasons
or special reasons] 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, 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.
1. Subs. by Act 63
of 1980. Sec. 5, for sub-section (1) (w.e.f. 23-9-1980).
2.Substituted
for "a non-bailable and cognizable
offence" by the Criminal Procedure (Amendment)
Act,2005,w.e.f. 23-6-2006
3.Inserted
by the Criminal Procedure (Amendment) Act,2005,w.e.f. 23-6-2006
4.
Subs. by Act 63 of 1980. Sec. 5. for certain words (w.e.f 23-9-1980)
.
5.Substituted
for 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. by the Criminal Procedure
(Amendment) Act,2005,w.e.f. 23-6-2006
6.
Subs. by Act 63 of 1980. Sec. 5, for "reasons" (w.e.f.
23-9-1980).
438.
Direction for grant of bail to person apprehending arrest.
(1) (a)
When any person has reason to believe that he may be arrested on an
accusation of' having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction under this
section that in the event of such arrest, he shall be released on
bail:
Provided that the mere fact that a person has
applied to the High Court or the Court of' Session for a direction
under this section shall not, in the absence of any order
by that court, be a bar to the apprehension of such person, or the
detention of such person in custody, by an officer-in-charge of a
police station.
(b) The High Court or the Court of Session, as
the case may be, shall dispose of an application
for a direction under
this sub-section within thirty
days of
the date of such application:
Provided that where the
apprehended accusation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than
seven years, no final order shall be made on such application without
giving the State not less than seven
days' notice to present its case.
(c)
If any person is arrested and detained in custody by an
officer-in-charge of a police station before the disposal of the
application of such person for a direction under this subsection, the
release of such person on bail by a court having jurisdiction,
pending such disposal shall be subject to the provisions of section
437.
(1A) The provisions of sub-section (1) shall have effect
notwithstanding anything to the contrary contained elsewhere in this
Act or in any judgment, decree or order of any court, tribunal or
other authority".
[ Vide W.B. Act 25 of 1990].
(2)
When the High Court or the Court of Session makes a direction under
sub- section (1), it may include such conditions in such directions
in the light of the facts of the particular case, as it may thinks
fit, including -
(i)
A condition that the person shall make himself available for
interrogation by a police officer and when required;
(ii)
A condition that the person shall not, directly or indirectly,-
make any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such
facts to the court or to any police officer,
(iii) A condition
that the person shall not leave India without the previous
permission of the court;
(iv) Such other condition as may be
imposed under sub-section (3) of section 437, as if the bail were
granted -under that section.
(3)
If such person is thereafter arrested without warrant by an officer
in charge of a police station on such accusation, and is prepared
either at the time of arrest or at any time while in the custody of
such officer to give bail, he shall be released on bail, and if a
Magistrate taking cognizance of such offence decides that a warrant
should issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of the
court under sub-section (1).
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.
BAIL
PROVISIONS IN NDPS CASES1
[2[36A.Offences
triable by Special Courts
(1)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974),-
(a)
All offences under this Act which are punishable with imprisonment
for a term of more than three years shall be triable only
by the Special Court constituted for the area in which the
offence has been committed or where there are more Special Courts
than one for such area, by such one of them as may be specified in
this behalf by the Government;
(b) Where a person accused of
or suspected of the commission of an offence under this Act is
forwarded to a Magistrate under sub-section (2) or sub-section
(2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of
1974), such Magistrate may authorise the detention of such person in
such custody as he thinks fit for a period not exceeding fifteen
days in the whole where such Magistrate is a Judicial Magistrate
and seven days in the whole where
such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where
such Magistrate considers-
(i)
When such person is forwarded to him as aforesaid; or
(ii)
Upon or at any time before the expiry of the period of detention
authorised by him, that the detention of such person is unnecessary,
he shall order such person to be forwarded to the Special Court
having jurisdiction;
(c)
The Special Court may exercise, in relation to the person forwarded
to it under clause (b), the same power which a Magistrate having
jurisdiction to try a case may exercise under section 167 of the Code
of Criminal Procedure, 1973 (2 of 1974), in relation to an accused
person in such case who has been forwarded to him under that
section;
(d) A Special Court may, upon perusal of
police report of the facts constituting an offence under this Act or
upon complaint made by an officer of the Central Government or a
State Government authorised in this behalf, take cognizance of
that offence without the accused being committed to it for trial
(2)
When trying an offence under this Act, a Special Court may also try
an offence other than an offence under this Act with which the
accused may, under the Code of Criminal Procedure, 1973 (2 of 1974),
be charged at the same trial
(3) Nothing contained in this
section shall be deemed to affect the special powers of the High
Court regarding bail under section 439 of the Code of Criminal
Procedure, 1973 (2 of 1974), and the High Court may exercise such
powers including the power under clause (b) of sub-section (1) of
that section as if the reference to "Magistrate" in that
section included also a reference to a "Special Court"
constituted under section 36
(4) In respect of persons accused
of an offence punishable under section 19 or section 24 or section
27A or for offences involving commercial quantity the references in
sub-section (2) of section 167 of the Code of Criminal Procedure,
1973 (2 of 1974) thereof to "ninety
days", where they occur, shall be construed as reference
to "one hundred and eighty
days": Provided that, if it is not possible to
complete the investigation within the said period of one hundred and
eighty days, the Special Court may extend the said period up to
one year on the report of
the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the
accused beyond the said period of one hundred and eighty days
(5)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), the offences punishable under this Act with
imprisonment for a term of not more than three years may be tried
summarily.]]
1. Sec. 36 to 36D
Substituted by Act No. 2 of 1989, (w.e.f. 29-5-1989).
2.
Substituted by Narcotic Drugs and Psychotropic Substances (Amendment)
Act, 2001, w.e.f.2-10-2001 vide SO 957 (E), dt. 27-9-2001.
36C.
Application of Code to proceedings before Special Court.
1[36C.
Application of Code to proceedings before Special Court
Save
as otherwise provided in this Act, the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), (including the provisions as to
bail and bonds) shall apply to the proceedings before a Special Court
and for the purposes of the said provisions, the Special Court
shall be deemed to be a Court of Sessions and the person
conducting a prosecution before a 'Special Court' shall be deemed to
be a Public Prosecutor.]
1.
Sec. 36 to 36D Substituted by Act No. 2 of 1989, (w.e.f. 29-5-1989).
37.
Offences to be cognizable and non-bailable.
1[37.
Offences to be cognizable and non-bailable
(1)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), -
(a)
Every offence punishable under this Act shall he cognizable;
(b)
No person accused of
an 2[offences
under section 19 or section 24
or section 27A and also for offences involving commercial
quantity] shall be released on
bail or on his own bond unless-
(i)
The Public Prosecutor has been given an opportunity to oppose the
application for such release, and
(ii) Where the Public
Prosecutor opposes the application, the
court is satisfied that
there are reasonable grounds for
believing that he is not guilty of such offence and that he is not
likely to commit any offence while on bail.
(2)
The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974), or any other law for the time
being in force on granting of bail.]
1.
Subs. by Act No. 2 of 1989, (w.e.f. 29-5-1989).
2. Substituted
for "a term of imprisonment of five year or more under this Act"
by NDPS (Amendment) Act, 2001, w.e.f. 2-10-2001 vide SO 957 (E), dt.
27-9-2001.