Section 439 Cr.P.C. - A Study

While the scope of Section 439 Cr.P.C. is a matter for discussion, it is pertinent to extract the very section of Law.

Section 439-Special powers of High Court or Session regarding bail.

(1) A High Court or Court of Session may direct:

(a) that any persons 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 is considers necessary for the purpose mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set side 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 terrible exclusively by the Court of Sessions or which, though not so terrible, 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 is 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.

From the language of the Section extracted supra, it appears special powers have been conferred on the High Court or Court of Sessions regarding exercising the power, or granting bail of a person who is in custody. Therefore, any person in custody can approach the Hon'ble Court or Sessions Court for grant of bail. Custody whether Judicial or Police is always a custody and the liberty of a citizen is curtailed, who is inside it. Therefore, if bail not jail, is the principle, a party not to suffer in pre-trial state for which, such type of beneficial legislation is incorporated in the statute.

The view of the author, is the Court exercising jurisdiction as per Section mentioned above, is to be satisfied that the accused is in custody. Even, any bail rejection order of lower Court, should not be insisted. Under the Section stated above the Court's having no power to revise the orders of the Court Subordinate to it. Since Advocates are the Officers of the Court, on their certificate or by a certificate of the jail authority or otherwise, if courts are satisfied, that the accused is in custody can exercise their discretion. As there are restriction on the Magistrate, that they should not exercise their discretion in a case of accused who has been involved in a case exclusively terrible by the Court of Sessions, the High Court and Sessions Court as initial Court to take up the case of persons, involved, in such case directly and in custody.

Moreover Courts can impose conditions on cases coming within the purview of Section 439 Cr.P.C., if the nature of offence mentioned as per cases mentioned in Section 437(3) Cr.P.C.

Proviso, of the Section has also given scope to the Courts, to deal with a bail application in any exceptional circumstances waiving service of copy of the bail petition on the Public Prosecutor if it is felt that service of copy of bail application is not practicable. This proviso probably kept in statute, due to non-availability of Public Prosecutor readily in Court. Or if a bail petition is received from accused directly from police custody or jail custody, Court, may, taking into account the circumstances of each case, consider bail of under trial prisoners or pre-trial prisoners as the case may be.

Also during lawyers strike from months together, boycotting of any Court, a Court of Sessions of High Court, can exercise jurisdiction and pass orders only hearing the person in custody or his representative or by going through bail application and other materials on record.

Cumbersome procedure of filing rejection copy of bail order of Magistrate Court, or the bail application of accused has been pending in the Court below is no ground, is not entertaining an application under Section 439 Cr. P.C. by Hon'ble Court or Sessions Court, specially when special powers have been conferred on such courts. At the same time, it is mentioned here that, because, the powers are given to Courts , they should not use the power indiscriminately but sparingly, exercising discretion considering each case, taking into account, facts, circumstances, condition of accused and other materials, required for consideration of bail in general.