Bail Under Sec. 438 of Cr.P.C And Jurisdiction of Courts
The concept of bail came out with a view from the clash between the state’s power to restrict and deprive the liberty of a person who allegedly have committed a crime and the presumption of guileless or deceitful in his favor. the meaning of the word bail mean surety. The bail shall be granted on consideration of following criteria such as:
- Any prima facie or reasonable ground to believe that accused has committed the offence.
- Nature and gravity of charge
- severity of the punishment
- danger of accused absconding or fleeing if released on bail.
- character, behavior, means, position and standing of the accused
- likelihood of offence being repeated]
- reasonable apprehension of the witnesses being tampered
- danger of justice being thwarted by grant of bail.
The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.
Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, the provisions of Sections 438 and 439 do not call for a restricted interpretation. The citizen has the right to choose. His application should be considered. Each case should be examined on its own merits. If it is found that the ground for grant of bail is not made out, the Court has the full jurisdiction to deny relief. Equally, if a case is made out the citizen’s liberty should not be allowed to be curtailed. It is for the citizen’s right to choose the forum to approach the Court and to make a prayer for bail.
Thus the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C.