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  • Writer's pictureLAWGIC STRATUM

An Analysis on Section 439 of Code of Criminal Procedure,1973

Updated: Aug 5, 2021

Author: Pasapala Syed Mustaq


Among the different legal systems, two systems are prominent. One is a Civil law system and the second, being the Common law system. The former one that is the Civil Law system is followed by countries like Germany, Switzerland, China, Russia, etc. In this system of law, the countries do not follow or depend on the precedents laid down by the Courts. Whereas the Countries following Common Law systems like India, the US, and the UK, etc., Courts have to follow precedents laid by their superior Courts.

One of the countries which is following the Common law system is India. Indian Courts have to depend upon the precedents laid by their superior Courts and it is binding on the lower Courts. In India, again there are two types of procedural laws. One is Civil cases that are said to be Private wrong for the Code of Civil Procedure,1908. In this piece of article, the author mainly focuses on Section 439 of the Code of Criminal Procedure which prescribesspecial powers of the High Court or Court of Session regarding bail.

Before going into the details of this article, the author would like to enlighten the vital concepts of the Criminal Procedure Code.

What is meant by a Cognizable offence?

Section 2(c) of Cr.P.C[1], states that for a cognizable offence, the police officer will have the power to arrest a person without a warrant and register a cognizable case. This procedure should follow by relying on First Schedule to the Cr.P.C or any other law time being in force.

What is meant by Non Cognizable offence?

Section 2(l) of Cr.P.C[2], states that for a Non Cognizable offence, the police officer should obtain a warrant from the concerned judicial magistrate to arrest a person.

What is meant by a Bailable offence?

Section 2(a) of Cr.P.C[3], states that a bailable offence, means the offence committed by the accused, the accused will be having the right to get bail as mentioned in the first schedule to the Cr.P.C, and a non-bailable offence will be otherwise( will not be having the right to get bail).

What is meant by Compoundable offence: means an offence which will be compoundable (compromise) offence as mentioned in Section 320 of Cr.P.C[4], non-compoundable offence will be otherwise.

Court of Session: The Superior Court or Appealable Court or Top Court to the Subordinate Courts in that District Jurisdiction for the Criminal Side. This Court has the power to award death sentence provided it should be confirmed by the concerned High Court.

High Court: The Superior Court or Appealable Court or Top Court to the Subordinate Courts in that State Jurisdiction both Civil, Criminal and Constitutional. This Court has the power to award death sentence and also possesses the power to confirm the death sentence which is awarded by the Court of Sessions.

Procedure for Cognizable Offence:

As discussed above the cognizable offence, the offence in which the police officer will have the power to arrest without a warrant and can register a case.

Some of the examples which are cognizable offencesare: Murder, Rape, Theft, etc.

The author would like to draw the attention of the reader to understand the procedure relating to cognizable offence by relying on one example. A has committed Murder, in this murder B has died at the spot. C who is a bystander near the scene or spot has given the information to the police about the grave incident that happened before him. Such information is known as First Information. Once the information is given by the complainant, it has to be penned down by the Police officer in accordance with Section 154 of Cr.P.C[5], said to be First Information Report.

Section 154 of Cr.P.C states that, if the complainant gives the information of an act that is cognizable, the police officer in charge of the concerned police station shall pen down the information and shall also read out the said information to the complainant. A copy of the same report after recording shall be given for free to the complainant and aggrieved parties inthe case. If the police officer has refused to register the complaint, the aggrieved party can send the information in writing by post to the superior officer ofthe district that is Superintendent of Police (S.P.),and the superior officer shall himself investigate the case or can assign the same to his subordinate.

In State of U.P. vs Krishna Master,[6] it is stated that information is enough if it gives an indication to the police officer that such offence is a cognizable offence to start an investigation and in Bhagwan Sing vs State of M.P.[7] and Lalitha Kumari vs Govt of U.P.,[8]it has been stated that the FIR is to set the criminal law in motion and further held that legislative intent in both the old and new code is to make registration of FIR compulsory in case ofcognizable offence without conducting any preliminary inquiry into the case. The FIR can be used only to corroborate or contradict the evidence as opined in Babu Singh vs State of Punjab.

Once the registration of FIR is completed, the police officer is duty-bound to reach the crime scene or the crime spot. The police officer has to conduct inquiry about the crime and record the statements made by the witness (who saw the crime). The police officer has to prepare the Panchanama report about the crime then has to search for the person who has committed the offence. If the person is found, then the police have to arrest him immediately without a warrant. The readers may get a doubt that why the author using the word “Person” instead of naming him/her accused. This is because the person is said to be innocent until or unless he is proven to be guilty beyond reasonable doubt. Once the person gets arrested by the police, the said police in charge has to produce the person before the concerned Judicial magistrate within 24 hours. Even the arrested person has fundamental rights under Article 21 and Article 22(2) of the Constitution of India and also statutory procedure under Section 57[9] and 167[10] of Cr.P.C, putting the obligation upon the police officer to produce the arrested person before the judicial magistrate within 24 hours of such arrest as held in Satyajit Ballubhai Desai vs State of Gujarat[11].

For the suspected persons in the crime that is in a cognizable offence, the police have the power to arrest such person without a warrant under Section 41 of Cr.P.C[12]. The police have to send Section 41ACr.P.C[13]notice to the concerned person to appear before them, the notice will be sent if the police officer suspects any person in the crime. As soon as the police have made an arrest, the police officer is duty bound to inform the relatives or friends of the arrested person. The police officer has to allow the arrested person to meet with his/her lawyer.

While producing before the magistrate, the police officer has to submit the Remand Report. The said report will contain the particulars of the crime(who was involved in the crime, where the crime has occurred, etc.). Through the remand report, the police will seek an extension of the time and permission of the magistrate to send an arrested person into police custody to interrogate the arrested person because the investigation would not have been completed within 24hours. The police will seek the arrested person to be sent to police custody. In police custody, the police have the power to put the questions to the person who is involved in the crime, not in judicial custody. The magistrate may at his discretion send the person either to Police custody or Judicial custody for a period of 14 days. Such a period can be extended at the discretion of the Court. The period to apply for bail will start once the person is sent to remand as prescribed in Section 436[14] and Section 437[15] of Cr.P.C which states that bail can be granted in bailable and non-bailable offences respectively. The bail will be granted if the party applies by executing the bond along with the sureties to the Court. The said bail can be rejected by the Court, if the person contravenes the conditions or violates the bail conditions, this can be done at the discretion of the Court. Another type of bail called Anticipatory Bail is granted to protect any person from arbitrary arrests. The aggrieved party has to apply for anticipatory bail only in Sessions Courts and High Courts but not in Judicial Magistrate Court, before his arrest or if he is anticipating that the police are going to arrest him in influential cases. The requirements prescribed under Section 438 of Cr.P.C should be followed to grant the anticipatory bail[16].

Section 439 of Cr.P.C[17], gives special powers to High Court or Court of Sessions to grant or modify the bail. The said either Courts has the power to release the person who is accused of committing the offence and who is detained in custody, they can also impose conditions while releasing the accused on bail and can also set aside or modify any condition which is imposed by the Magistrate while releasing the accused on bail and it can also order to arrest and commit him to custody. Finally, if the Court considers that, the said committed offence exclusively triable by the Court of Session, notice should be given to the Public Prosecutor unless the reasons were recorded in writing.

Judgments pertaining to Section 439 of Cr.P.Care as follows:

1. Prasanta Kumar Sarkar vs Ashis Chatterjee[18],Myakala Dharmarajan vs State of Telangana[19]in this judgment, the Court laid down the guidelines to be followed while considering bail application:

1. Whether there is any prima facie or reasonable ground to believe that the accused has committed the offence.

2. Nature and gravity of the accusation.

3. The severity of the punishment in the event of conviction.

4. The danger of justice being thwarted or absconding or fleeing off accused, if released on bail.

5. Likelihood of the offence being repeated, character, means, and position of the accused standing in the society.

6. Reasonable apprehension of the witnesses being influenced and it also stated in the latter judgment that, cancellation of bail can be done, where the order of the bail suffers from serious infirmities resulting in miscarriage of justice.

While granting bail to the accused, the High Court has not followed the essential requirements, the Supreme Court can cancel the bail as held in Gobarbhai Naranbhai Singala vs State of Gujarat[20].

2. Parvinder Singh vs State of Punjab[21], wherein the Apex Court held that the HighCourts should not hold fresh bail application is not legally maintainable, should always consider it with fresh circumstances and subsequent events.

3. Ramcharan vs State of M.P.[22], in this case, the apex Court stated that, while granting or cancelling the bail which is granted earlier by the Magistrates different considerations shall be taken into account and the order of bail can be cancelled not by reappreciation of evidence but by taking the existence of cogent and overwhelming circumstances.

4. Manjoor Khan vs State of Bihar[23], held that the HighCourt possesses the power to entertain the bail petition or not but it could not prevent an accused from seeking bail.

5. Neeru Yadav vs State of U.P. and Another[24], in this case, it has been held that it is true that individual will have personal liberty and he has right to enjoy his liberty but he cannot take the law into himself, he cannot harm others, he cannot be a nuisance to collective.


[1] Cognizable offence: means an offence for which, and cognizable case means a case in which, a police officer may, accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. [2]non- cognizable offence: means an offence for which, and non- cognizable case means a case in which, a police officer has no authority to arrest without warrant. [3]bailable offence: means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non- bailable offence means any other offence. [4] [5] [6]State of U.P. vs Krishna Master ,(2010) 12 SCC 324 [7]Bhagwan Sing vs State of M.P. ,(2002) 4 SCC 85 [8]Lalitha Kumari vs Govt of U.P., (2014) 2 SCC 1 [9] [10] [11]Satyajit Ballubhai Desai vs State of Gujarat, (2014) 14 SCC 434. [12] [13] [14] [15] [16] [17],Court%20of%20Session%20regarding%20bail.&text=(2)%20A%20High%20Court%20or,and%20commit%20him%20to%20custody. [18]Prasanta Kumar Sarkar vs AshisChatterjee ( 2010) 14 SCC 496 [19]Myakala Dharmarajan vs State of Telangana ( 2020) 2 SCC 743 [20]Gobarbhai Naranbhai Singala vs State of Gujarat, ( 2008) 3 SCC 775 [21] Parvinder Singh vs State of Punjab,(2003) 12 SCC 615 [22]Ramcharan vs State of M.P,(2004) 13 SCC 617 [23]Manjoor Khan vs State of Bihar, (1998) 8 SCC 368 [24]Neeru Yadav vs State of U.P. and Another, (2016) 15 SCC 422

About the Author:

Pasapala Syed Mustaq is a law graduate, who is passion to learn things pertinent to legal aspects, and interested in reading legal books, Articles, Newspapers. He is interested in Politics and would love to lead the team!!!.

He is a former Editor-in-chief of Lawgic Stratum.

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