Pre-Arrest and Post-Arrest Bail Under the Code of Criminal Procedure

Bail is argued daily and section 497 of the Code of Criminal Procedure 1898 is read selectively. Most applications live in its first fifteen words and its prohibitory clause, and stop there. The provisions that follow are shorter, harder for the prosecution to answer, and used far less than they should be.

The rule and its prohibition

Section 497(1) begins by permitting release. A person accused of a non-bailable offence, arrested or detained without warrant or brought before a court, may be released on bail. Then comes the restriction that shapes most argument:

but he 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 or imprisonment for ten years

Two things are worth noticing about that sentence. It fixes on the punishment prescribed for the offence, not on the sentence the court expects to pass. And it turns on whether reasonable grounds appear for believing guilt, which is a standard about the material on the record, not an invitation to weigh the evidence as at trial.

The first proviso is a discretion, not a right

The first proviso permits the court to direct release of a person under the age of sixteen years, any woman, or any sick or infirm person, accused of such an offence. It reads "may direct". It creates an exception to the prohibition and confers a discretion, and an application resting on it alone is arguing for the exercise of that discretion rather than claiming an entitlement.

The provisos that say "shall"

This is the part of section 497 that is most often left out of an application, and it is the part the court has least room to refuse.

Where a woman has been refused bail under the first proviso, the second proviso requires her release if she has been detained for a continuous period of six months and her trial has not concluded, unless the court is of the opinion that the delay was occasioned by an act or omission of the accused or of someone acting on her behalf.

The proviso that follows is broader and applies to every accused. The court shall direct release, subject to the same exception for delay caused by the accused, where the accused:

• being accused of an offence not punishable with death, has been detained for a continuous period exceeding one year, or in the case of a woman exceeding six months, and the trial has not concluded; or
• being accused of an offence punishable with death, has been detained for a continuous period exceeding two years, and in the case of a woman exceeding one year, and the trial has not concluded.

These are the statutory delay releases, and they are among the strongest grounds available in a system where trials run long. They are not discretionary in form, and an application relying on them is making an arithmetical case rather than a merits case: the date of arrest, the punishment prescribed, the state of the trial, and the record showing that the delay was not the accused's doing.

One further proviso removes them. They do not apply to a previously convicted offender for an offence punishable with death or imprisonment for life, to a person who in the opinion of the court is a hardened, desperate or dangerous criminal, or to a person accused of an act of terrorism punishable with death or imprisonment for life. The middle category is an opinion the court forms, which means it can be addressed on the record rather than conceded.

Further inquiry

Section 497(2) is a separate route and is frequently the right one. Where it appears at any stage of the investigation, inquiry or trial that there are not reasonable grounds for believing the accused committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall pending such inquiry be released on bail, or at the discretion of the officer or court on a bond without sureties.

The clause is not a lower standard for the same argument. It is a different argument, and it asks the court to say that the case for guilt is not made out on the present material, not that it is outweighed. An application drafted to plead the case into further inquiry reads quite differently from one drafted around the prohibitory clause.

Section 497(3) requires the officer or court releasing a person under either subsection to record reasons in writing, which is worth remembering when an order is being challenged.

Cancellation

Section 497(5) permits a High Court or Court of Session, and in the case of a person released by itself any other court, to cause a person released under the section to be arrested and to commit him to custody. Bail once granted is not beyond recall, and the power sits with the superior courts rather than with the police.

Section 498, and what it does not say

Pre-arrest bail is the busiest jurisdiction in this chapter and the words "before arrest" appear nowhere in the section that houses it. Section 498 provides that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive, and that the High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that bail required by a police officer or Magistrate be reduced.

Pre-arrest bail is built on that general power, developed by the superior courts over a long line of authority. It is treated as an extraordinary jurisdiction rather than an alternative route to the same relief, and the reported cases have consistently required an applicant to show more than an arguable defence: that the intended arrest is attended by mala fide or ulterior motive, or amounts to an abuse of the process, so that what is at stake is humiliation rather than lawful investigation. Because that requirement is judicial rather than statutory, the current formulation has to be taken from the case law rather than from the section, and it is worth reading the recent authority of the court you are before rather than relying on a remembered proposition.

Section 498-A sets a hard limit on both sections. Nothing in section 497 or section 498 requires or authorises a court to release on bail, or to direct admission to bail, any person who is not in custody, or is not present in court, or against whom no case stands registered for the time being. An order is effective only in respect of the case that stands registered and is specified in it.

Two practical consequences follow. The applicant has to be before the court, which is why pre-arrest bail is sought in person and not in absence. And relief is case specific: an order in one first information report does nothing about a second, which matters where a series of registrations follows the first.

What to check before drafting

Take the date of arrest and the punishment prescribed by the section charged, and test the statutory delay provisos first, because if one of them is available it is a stronger application than any merits argument. Then ask whether the case is a further inquiry case under subsection (2) rather than a prohibitory clause case. Only then reach for the discretionary grounds.

And read the section as it now stands, from a consolidated text. The provisos on continuous detention sit well down subsection (1), after the proviso dealing with persons under sixteen, and a surprising number of circulating copies of the Code stop before them or reproduce them with the periods garbled. That is the most common reason an advocate does not know they are there. Where a bail application is going to turn on one of them, the provision is worth reading from the Ministry of Law's consolidated code rather than from a copy of unknown provenance.