Section 439 crpc talks about the power given to the High court and session court regarding bail. In this article, you will find a detail explanation about 439 crpc and its ingredients. The criminal procedure code has given exceptionally great power regarding bail to the High Court. Detail Explanation is given below. 

439 CRPC-Special powers of the High Court or Court of Session regarding bail.

(l) 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;

(2) 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.


A person can move to the High Court or Court of Session for bail under Section 439 crpc only when he is in custody, and a person is said to be in custody within the meaning of this section when he is in duress (action used to coerce someone into doing something against their will) either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence.

A person has to apply with bail application under section 439 crpc to the High court or Session court.


The discretion to grant bail given to the High Court and the court of session under “Section 439 crpc” is not fettered in terms by the restrictions contained in Section 437 (When bail may be taken in case of non- bailable offence), but, on principle, these restrictions should equally govern the exercise of the discretion by them under  439 crpc in as much as Section 439 is in a way an expansion of Section 437.

The overriding considerations in granting bail which is common both in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as its investigation and other relevant grounds, which in view of so many valuable factors, cannot be exhaustively set out.

Though the discretion given by Section 439 of crpc is in a sense unfettered and is wide enough to allow bail in case of a non-bailable offence of the worst type, it has to be exercised judicially according to well-established principles. Where a judge ordered the release on bail of the respective appellants on furnishing a bond but the effective release had been ordered on a future date ranging between 6 months to 1 year, the Supreme Court held it pre-emptive of the duties of the Court.

439 CRPC

The powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations have to be taken into account before bail is granted in a non-bailable offence.

The courts granting bail have powers to set forth any condition which they consider necessary in the interest of justice, as provided under Section 437(3)(c), the higher courts exercising powers under Section 439 should have the power to examine the correctness of that order in all its aspects and to modify or set aside any portion of the same if it is considered necessary.”


With a view to making it more difficult for persons accused of grave offences to get released on bail by an ex-parte order, and be in a position to hamper the investigation, provision has been made that in every case where the offence is punishable with imprisonment for life or is triable exclusively by a court of session. No court shall grant bail except after giving notice in writing of the application to the public prosecutor; if this is not done, reasons for not giving such notice are to be recorded in writing.

Approver in custody not to be released on bail

According to Section 306(4)(b), every person accepting a tender of pardon under Section 306(1) shall, unless he is already on bail, be detained in custody until the termination of the trial.

The approver by accepting the conditional pardon does not cease to be an accused person until he fulfils his undertaking of full and true disclosure and secures his discharge; and therefore, he, like the other accused persons, is to be detained in custody.

The effect of this provision is to take away the discretion to grant bail by providing that the approver shall be detained in custody till the termination of the trial.

The object is to protect him from the wrath of his associates whom he seeks to expose, to prevent him from the temptation of saving his companions, and to ensure his presence in court till the completion of the trial.

However, the High Court, in the exercise of the inherent powers under Section 482, may release the approver on bail in exceptional circumstances to prevent the abuse of the process of the court.”

This provision has however come to be re-examined in a different perspective. The Delhi High Court while appreciating the idea underlying Section 306(4)(b) expressed its disapproval saying that but for the availability of inherent powers with the High Court to release the approver at his risk, the vires of Section 306(4)(b) might be open to serious challenge. To the same effect was the decision of Rajasthan High Court.



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