Skip to content
Home » Special Powers of High Court or Court of Session regarding Bail

Special Powers of High Court or Court of Session regarding Bail

Code of Criminal Procedure, 1973 – Section 439 – Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct,—

(a) 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;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside 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 triable exclusively by the Court of Session or which, though not so triable, 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 in 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.


The grant of bail is a matter which implicates the liberty of the Accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application Under Section 439 of the Code of Criminal Procedure would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the Accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that counsel for the “respective parties do not press for further reasoned order”. If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny. Grant of bail Under Section 439 of the Code of Criminal Procedure is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail – as in the case of any other discretion which is vested in a court as a judicial institution – is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana (Koli), 2021 (222) AIC 91 : AIR 2021 SC 2011 : 2021 (2) ALD (Cri) 233 : 2021 (4) BLJ 80 : 2021 (4) GLR 2716 : 2021 (3) MWN (Cr) 289 : 2021 (2) PLJR 430 : 2021 (3) RCR (Criminal) 60 : (2021) 6 SCC 230

When  bail  has been   granted   to   an   accused,   the   State   may,   if   new circumstances  have  arisen  following  the  grant  of  such  bail, approach  the  High  Court  seeking  cancellation  of  bail  under section  439  (2)  of  the  CrPC.  However,  if  no  new  circumstances have  cropped  up  since  the  grant  of  bail,  the  State  may  prefer an  appeal  against  the  order  granting  bail,  on  the  ground  that the  same  is  perverse  or  illegal  or  has  been  arrived  at  by ignoring  material  aspects  which  establish  a  primafacie  case against  the  accused. Gurcharan Singh v. State (Delhi  Admn.), AIR 1978 SC 179 : 1978  CriLJ  129 : (1978) 1 SCC 118 : 1978 (1) SCC(Cri) 41 : 1978 (2) SCR 358

Manoj Kumar Khokhar v. State of Rajasthan

Bail – While elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. JT 2022 (1) SC 208 : 2022 (1) SCALE 368