Posted on May 22, 2023




The provisions of section 437 empower two authorities to consider the question of bail, namely (1) a court and (2) an officer-in-charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non-bailable offence. 

Although this section deals with the power or discretion of a court as well as a police officer in charge of police station to grant bail in non- bailable offences it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate. 

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to person accused of,or suspected of the commission of any non-bailable offence. 

The power to release on bail a person accused of a non-bailable offence is conferred upon only one class of police officers, namely an officer-in-charge of the Police Station under section 437 sub Section (I). 

Before exercising his power, a station officer ought to satisfy himself that the release on bail would not prejudice the prosecution in bringing home the guilt of the accused. 

In case the officer in charge admits an accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary and preserve the bail bonds until they are discharged either by the appearance of the accused in court or by the order of a competent court. 

For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: 

  1. Those which are punishable with death or imprisonment for life;
  2. those which are not so punishable. 

In case of an offence punishable with death or imprisonment for life a station officer cannot enlarge a person on bail, if there appears reasonable grounds for believing that he has been guilty of such offence. 

The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. 

These matters may be taken in view by a court only. 

An officer- in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a nonbailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment. 

Powers of the High Court or Court of Session in granting bail:-

According to Section 439(1) of the Code of Criminal Procedure, 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. 

However, the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions 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. 

As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions may direct that any person who has been released on bail under Chapter XXXIII (i.e., relating to bail) be arrested and commit him to custody. 

The powers of the High Court in granting bail are very wide; even so where the offence is non-bailable, various considerations will have to be taken into account before bail is granted in case of non-bailable offence. 

Under Section 439(1) of the Code, the High Court can only release the accused in cases pending anywhere in the State on bail or reduce the amount of bail, but cannot order the arrest or commitment to custody of any person who has been released on bail by the lower Court but it can order to arrest the person who had been released on bail under Section 439(2) of the Code. 

Hon’ble Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody.