Special jurisdiction of the High Court and the Court of Sessions with respect to bail
Abhishek Rathee 24 Apr 2020

Special jurisdiction of the High Court and the Court of Sessions with respect to bail

The term 'bail' has not been specified in the Code of Criminal Procedure, 1973(“CrPC”). However, Section 2(a) of CrPC deals with "bailable offense" and "non-bailable offense" and is defined as an offense which is shown to be bailable in the First Schedule or which has been made to be bailable by any other law for the time being in force; and "non-bailable offense" means any other offence; 

In the Black Law dictionary, what is envisaged in the bail is to secure the release of a person from legal custody by promising that he or she will appear at the time and place appointed and submit himself or herself to the jurisdiction and judgment of the Court.

Bail, in general terms, is described as the temporary release of the convicted person pending trial, often on the condition that he or she is under the jurisdiction of the Court. In the case of a bailable offense, bail is the responsibility of the accused and, in the case of a non-bailable offense; it is the discretion of the Judge.

Chapter-XXXIII of CrPC deals with different rules on bail and bonds. Sections 436-450 set out where  bail is the privilege of a prisoner and where  bail is the discretion of  Court. It further illustrates the cases where the discretion of the court can be exercised, how the protection can be discharged, what are the terms and conditions that will be expected of the prisoner, what is the process under which the bond has been forfeited, who has been released on bail, and what powers are vested on the accused.

Specifically, Section 439 of CrPC deals with the special powers of the High Court and the Court of Sessions relating to bail.

Section 439- (1) A High Court or Court of Session may direct—



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;



that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:


In general terms, this section gives the High Court and the Court of Sessions special powers with respect to bail and these powers are broad. It may order that any person accused of an offence and in custody be released on bail. It may also enforce any condition which it considers necessary. Another special power bestowed on the Courts under this provision is the power to enforce or set aside any condition imposed by the Magistrate upon the release of the individual on bail.

If the crime is strictly punishable by the Court of Session, the High Court or the Court of Session shall give notice of application for bail to the Public Prosecutor, unless they are of the opinion that it is not appropriate to give such notice and the reasons are reported in writing by the Court.

Concurrent jurisdiction

The High Court and the Court of Sessions have at concurrent jurisdiction over the granting of bail pursuant to Section 439 of CrPC. However, it is deemed appropriate for the High Court to move the lower courts in this matter first. This is considered to be of great importance because, if the High Court expresses its opinion on a matter in particular where the jurisdiction of the Court is exercised, such an opinion of the Higher Court may have an effect on the judgment of the lower courts. 

In the case of Hajialisher vs. State of Rajasthan, the Court held that it was only in extraordinary or unusual circumstances that the High Court could transfer, first or directly, for a bail application. Generally, these cases are referred first to the lower courts.

In the case of Ram Pratap Yadav vs. Mitra Sen Yadav, the Supreme Court held that the power provided to the High Court under Section 439 of CrPC should be exercised in the light of the reasons given by the lower courts for either refusing or approving the plea for bail. Various parameters must be taken into account before such an application is taken into consideration by the High Court.

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