PLS FIND THE ATTACHED JUDGMENT FOR BAILABLE OFFENCES
Equivalent citations: 1997 (1) ALT Cri 608, ILR 1997 KAR 719, 1997 (2) KarLJ 245
Bench: A Farooq
Hanumanthegowda And Anr. vs State Of Karnataka on 8/11/1996
ORDER
A.M. Farooq, J.
1.Petitioners are two of the accused in Crime No. 99/96 of Vidyaranyapura Police Station, Bangalore
registered for offence punishable under Sections 143, 147, 448, 427, 504, 506 read with Section 149 IPC. The
petitioners voluntarily surrendered before the learned Chief Metropolitan Magistrate and sought bail under
Section 436 Cr.P.C., since all the offences alleged against them are bailable offences. The Learned Magistrate
accepted the surrender of the petitioners and on consideration of the application filed by them under Section
436 Cr.P.C., they were released on bail by his Order dated 25.6.1996. While passing the Order, the Learned
Magistrate has imposed certain conditions and one of the conditions is that they shall appear before the
Investigating Officer once in three days for a period of three months from the next day of passing of the
Order. Further the petitioners were also directed not to tamper with prosecution witnesses and they should not
leave the jurisdiction of the Court till the completion of the investigation without the prior permission of the
Investigating Officer. In this petition, the petitioners have made a prayer to relax the conditions imposed on
them directing them to appear before the Investigating Officer once in three days for a period of 3 months.
2. The State has filed objections for relaxation of the conditions. I have heard the Learned Counsel for the
petitioners and also the Learned High Court Government Pleader for the State.
3. Sri Hasmath Pasha, Learned Counsel appearing for the petitioners contended that the offences alleged
against the petitioners in the case are all bailable offences and as a matter of right the petitioners are entitled to
be released on bail. It is submitted that when the Court released the petitioners on bail under Section 436
Cr.P.C., the Court releasing them on bail cannot impose conditions other than directing furnishing of surety to
ensure the attendance of the accused. The Learned Counsel has relied upon the judgment in RE KOTA
APPALAKONDA AND ORS., AIR 1942 Mad 740. The Division Bench of the Madras High Court in the said
judgment where the petitioner therein was released on bail for bailable offence, considering whether any
conditions can be imposed while releasing the persons on bail under Section 496 Cr.P.C., of 1898, which is
now Section 436 Cr.P.C., held that with regard to non-bailable offence, the Magistrate has an option to grant
bail or refuse the bail and he has also power to impose conditions. But with regard to bailable offence, a
Magistrate has no discretion and in such case, the Magistrate must release the accuse persons on bail provided
that he is willing to execute bonds for his appearance. It is also held that if the Magistrate imposes extraneous
conditions like directing the accused not to enter the disputed land, it would mean that if the condition were
not fulfilled, he would have to refuse bail, but that is not permitted under the provisions of Section 496
Cr.P.C., which is equivalent to Section 436 of the present Code. In the said case, their Lordships did not
uphold the condition imposed by the Magistrate other than the one directing him to execute bond and
furnishing a surety. In another case in re THE DISTRICT MAGISTRATE OF VIZAGAPATAM, AIR 1949
Mad 77 the Madras High Court has held that in bailable offences, there is no question of discretion in granting
bail as the words of Section 496 (present Section 436 of the Code) are imperative. The only choice for the
Court is as between taking a simple recognizance of the principal offender or demanding security with surety.
The Criminal Court has no discretion in bailable offence while granting bail to impose any condition except
demanding of security with surety. Sections 436 to 439 of the Code of Criminal Procedure, 1973 reads as
follows:
436(1) When any person other than a person accused of 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
Hanumanthegowda And Anr. vs State Of Karnataka on 8 November, 1996
Indian Kanoon - https://indiankanoon.org/doc/6137/ 1
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, may, 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 provisions of Sub-section(3) of Section
116, (or Section 446A).
437(3) When a person accused or suspected of the commission of an offence punishable with imprisonment
which may extent to seven years or more of or an offence under Chapter VI, Chapter XVI or Chapter XVII of
the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on
bail under Sub-section (1), 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.
4. It could be seen from the above provisions that under Section 436(1) when any person accused of a bailable
offence is arrested or detained without warrant by an officer incharge of a Police Station or appears or brought
before a Court and is prepared at any time or at any stage of the proceedings before such Court to give surety,
such person shall be released on bail. Sub-section (3) of Section 437 itself specifically mentions that
conditions may be imposed in such case, which are mentioned in the said sub-section. Even under Section
439(1)(a) & (b) the conditions imposed by the Magistrate under Section 437(3) can be modified by the High
Court or the Sessions Court. The wordings of the three sections make it clear that under Section 436 of the
Code of Criminal Procedure, there is no discretion left to the Court to impose a condition while releasing a
person on bail when he is accused of a bailable offence. I am in respectful agreement with the judgments cited
above of the Madras High Court 1 & 2. I, therefore, hold that the conditions imposed by the learned
Magistrate while granting bail to the petitioners are without jurisdiction and they are accordingly set aside
except releasing the petitioners on bail on their executing a personal bond for Rs. 10,000/- each with one
surety for like sum for their appearance.
Hanumanthegowda And Anr. vs State Of Karnataka on 8 November, 1996
