This article is written by Shraddha Jain, a law student at the Institute of Law, Nirma University, Ahmedabad. This article seeks to explain the concept of bail. The main focus of the article is to explain Section 436 CrPC, its various provisions, and the relevant judicial pronouncements.
It has been published by Rachit Garg.
Table of Contents
“Bail is the rule, and jail is the exception” — held by the Supreme Court of India in the case of the State of Rajasthan, Jaipur v. Balchand alias Baliya in 1978. The notion of “bail” is a fundamental part of Indian criminal law and a widely accepted principle in all judicial systems all over the world. The doctrine of bail has to coincide with two conflicting interests, such as, on the one side, the societal expectations for being protected from the dangers of being presented with the misadventures of an individual accused of having committed the crime; and then, on the other side, the basic classics of criminal jurisprudence, viz., an accused’s presumption of innocence until he is found to be guilty. There are various provisions in the Code of Criminal Procedure, 1973 (CrPC) that talk about the concept of bail. In this article, we will first briefly discuss the meaning and concept of bail as well as its objective, and then move on to discuss the provision of Section 436 of the CrPC.
What is bail
The term “bail” is not defined anywhere in the CrPC. Bail is derived from the French word “bailer,” which means to deliver or give. Bail is the provisional discharge of an accused from custody. In other words, bail serves as protection for the accused.
The Advanced Law Lexicon, 3rd Edition, defines bail as “protection for the appearance of the accused person in exchange for his discharge pending trial or investigation. Bail is intended to acquire the discharge of an individual from legal custody by undertaking that he will appear at the date and time specified and submit oneself to the authority and judgement of the court.”
Bail provisions under Indian law
Constitution of India
Article 21 of the Indian Constitution provides every person with the right to life and personal liberty. Unless proven guilty, an individual is presumed innocent. Therefore, an accused may not be detained in prison unless a fair and just procedure is followed.
Code of Criminal Procedure, 1973
The term “bail” is not defined anywhere in the CrPC. The First Schedule of the CrPC also specifies which offences can be bailable and which cannot. Non-bailable offences are usually more severe offences.
However, provisions regarding bail and bonds are covered in the CrPC in Sections 436 to 450 in Chapter XXXIII. It specifies when bail is the accused’s right and it is at the discretion of the court. Also, under what conditions bail is granted. What powers are granted in the court if the accused violates the terms and conditions of the bail order, who has been granted bail, and also what powers are vested in the court if the accused violates the bail order.
Aside from Chapter XXXIII Sections 436 to 439, another provision dealing with the notion of bail is Section 167 of the CrPC, which is commonly referred to as “default bail.” Both of these rules must be evaluated in the context of each other before determining bail.
Objective of bail
The purpose of the accused’s detention and arrest is mainly to ensure the security of his presence at the time of the trial and to ensure that if he is actually convicted, he is present to receive the punishment. This would be unfair and inequitable to deprive the suspect of his individual freedom during the pendency of the criminal trials against him if his appearance at the trial might be reasonably guaranteed other than by his imprisonment and detention.
The provisions governing the discharge of the accused on bail are all designed to ensure the accused’s presence at his court hearing without unduly and unjustly interfering with his freedom. If the accused is denied bail, even though he is considered innocent until proven guilty beyond a reasonable doubt, he will be exposed to the physical and psychological sufferings of jail life. The accused loses his employment and is unable to make an effective contribution to his defence preparations. In order to accomplish the objectives mentioned above, the legislature, to its knowledge, has provided some specific guidelines for awarding or refusing bail. In cases where the legislature enables discretion in granting bail, the discretion is to be exercised in accordance with the rules established by the law; additionally, the courts have established certain norms for the proper exercise of such discretion.
What are bailable offences
Section 436 of the CrPC deals with bail regulations for bailable offences. So, before we go to Section 436, let’s look at the bailable offences. Section 2(a) of the CrPC describes bailable offences as any offence listed as bailable in the First Schedule or made bailable through any other current legislation in force. These offences are punishable by imprisonment for not more than three years or by a fine only. These are regarded as less severe offences. The provided definition cannot be considered comprehensive because it does not address the issue of what these offences are.
In clear terms, bailable offences are acts where bail is a matter of right since they are not of a serious nature in terms of gravity, and therefore they are normally penalised for 3 years or less or with a fine. Although the assumption of a minor crime does not necessarily deem it bailable in nature because of the existence of various exceptions to this rule, such as the charge of sedition under Section 124A of the Indian Penal Code, 1860 (IPC), which is punishable by imprisonment for 3 years but is not bailable. An offence under Section 335 of the IPC, which deals with causing serious harm by grave provocation, is punishable by imprisonment for four years but is still bailable.
Some examples of bailable offences are mischief (Section 426 IPC), affray (Section 160 IPC), bribery (Section 171E IPC), simple hurt (Section 337 IPC), public nuisance (Section 290 IPC), death by rash or negligent act (Section 304A IPC), etc.
Section 436 CrPC : cases in which bail can be granted
Section 436 of the CrPC deals with bail provisions for bailable offences. This clause is mandatory, and neither the police nor the courts have any discretion in the matter.
Section 436(1) CrPC
According to Section 436(1) of the CrPC, if the alleged crime is bailable, the accused is entitled to bail as a matter of right, either before the police officer or before the Magistrate’s court (if the case is forwarded to the Magistrate’s court). Bail for bailable offences is a right, not a favour. In such cases, there is no room for discretion in providing bail.
The word “appear” under Section 436(1) of the CrPC is broad enough to encompass the voluntary presence of a person accused of a crime even if no summons or warrant has been issued against him.
It is provided that if the police officer or magistrate believes that the accused is indigent or poor and cannot afford the surety amount, he may release the accused on the execution of a bond without the surety.
It is further explained that if the accused is unable to obtain bail within one week of his arrest, the police officer and the court may presume that the person is indigent or poor and may grant bail to such an accused without surety.
Section 436(2) CrPC
Subsection (2) of Section 436 provides that an individual who absconds or breaches the terms and conditions of his bail bond when discharged on bail in a bailable case on a previous occasion must therefore not be authorised to post bail when brought to court on any specified date in the future, even if the offence is bailable. The court can also order the surety to pay the penalty under Section 446 of the Code.
Bail under Section 436-A CrPC
Under the trial, prisoners have been detained in jail for durations that exceed the maximum period of imprisonment available for the said offence. The 2005 Amendment Act adds a new Section 436A to the Code. The purpose of this Section is to establish that if an under-trial prisoner has been detained for a period lasting up to one-half of the maximum period of imprisonment provided for the alleged crime, he should be discharged on his personal bond, with or without sureties.
In Mohd. Shahabuddin v. State of Bihar, 2010 it was decided that an individual should not be imprisoned for more than the maximum period specified for the offence unless the accused person himself has caused the delay.
Bail in case of non-bailable offences
According to Section 437 of the CrPC, if a person is accused or suspected of committing a non-bailable offence, is seized or detained without a court order, or appears or is introduced before a court other than the High Court or Court of Session, he may be granted bail; however, such a person shall not be granted bail:
- If they have reasonable grounds to believe that he is guilty of a crime punishable with death or life imprisonment.
- If the crime is cognizable and he has earlier been convicted of a crime punishable by death, life imprisonment, or imprisonment for 7 years or more, or if he has earlier been convicted on two or maybe more occasions of a non-bailable and cognizable offence.
- He may be discharged if he is below the age of sixteen, a woman, or is sick or not physically or mentally strong, especially through age or illness.
- He may be discharged if it is determined that doing so is reasonable and proper for any other specific cause.
Sample bail application under Section 436 CrPC
In the court of ……………
Criminal Case No. ……….of……(year)
State v ………(name of the accused)
Crime No………….. Offence u/s ……….
Police Station ……….
An application u/s 436 CrPC for release on personal bond
The applicant humbly submits as under :
- That he was arrested by the police on ……… for the alleged offence.
- That the said offence is bailable.
- That a bail application has moved before this Hon’ble court on……….and the applicant was directed to produce surety of………..
- That he is a poor person and cannot furnish the surety amount.
- That as per the provisions of section 436 CrPC, a person who “is unable to give bail within a week of the date of his arrest” must be presumed indigent and released “on his executing a bond without sureties for his appearance.”
In view of the foregoing, it is most respectfully prayed that this Hon’ble Court may kindly release the applicant on personal bond on such terms and conditions as this Hon’ble Court may deem fit and proper in the interest of justice.
Date: Through Advocate/Superintendent ………prison
Refusal to grant bail under Section 436 CrPC
As we have seen, bail under Section 436(1) of the CrPC is a matter of right, not favour. The police officers and the court have no discretion in denying the release of the accused on bail. Therefore, the Orissa High Court held in the case of Dharmu Naik v. Rabindranath Acharya, 1978 that, even though there is no specific provision for appeal against orders refusing to grant bail under Section 436(1), the accused can move to the high court or the court of session for bail under Section 439 of the CrPC. Furthermore, refusal to grant bail in violation of this section renders the detention illegal and unfair, and the police officer responsible for the detention may be charged with wrongful confinement under Section 342 of the IPC.
In the case of Sanjay Chandra v. CBI (2011), the Supreme Court of India held that “the Court has exclusive power in granting or refusing bail.” The grant or denial is heavily influenced by the circumstances of the case. However, the right to bail should not be refused only because of societal emotions against the accused. The primary goals of bail in a criminal proceeding are to relieve the accused of imprisonment, to relieve the state of the responsibility of maintaining him awaiting trial, and to retain the accused constructively in the custody of the court, whether before or after conviction, to ensure that he might submit to the court’s jurisdiction and be present whenever required by the court.
Grounds for cancellation of bail
While exercising its powers under Section 482 of the Code, a high court may revoke the bail bond. According to this Section, a person accused of a bailable offence has the right to be granted bail pending his trial, but he forfeits that right if his conduct after his release is judged to be detrimental to a fair trial. And this confiscation can be rendered effective by exercising the high court’s inherent powers under Section 482 of the Code.
Section 439 of the CrPC also gives the high court and the court of session the authority to terminate bail. Section 439 (2) of the CrPC contains explicit procedures for bail revocation and the return of an accused to jail.
The power of bail cancellation can be used in the following two circumstances:
- On the grounds of a case, primarily on the basis that the decision granting bail was erroneous, made without sufficient consideration, or violated any substantive or procedural legislation; and
- On the basis of abuse of freedom following the grant of bail or even other supervening circumstances.
It should be noted that subsection (2) of Section 436 of the Code permits any court to reject bail without prejudice to proceedings under Section 446 if an individual fails to adhere to the terms of the bail bond, giving effect to the Court’s decision in the preceding instance. However, it is well established that bail granted to an accused in relation to a bailable offence can be revoked only if the accused-
- abuses his liberty by engaging in similar criminal behaviour,
- interferes with the investigation’s progress,
- makes an attempt to interfere with witness evidence,
- threatens witnesses or engages in similar activities that would impede smooth inquiry,
- attempts to escape to some other country,
- makes himself unavailable by going underground or being unreachable to the investigating agency, and
- places himself outside the range of his guarantor, and so on. These are only examples and are not exhaustive.
A bail given to a person accused of a bailable offence, on the other hand, cannot be revoked on the grounds that the complaint was not heard.
Judicial pronouncements on Section 436 CrPC
Moti Ram and Ors v. State of MP (1978)
In the case of Moti Ram and Ors v. State of MP, 1978, the Supreme Court held that the right to be released on bail under Section 436 (1) of the CrPC cannot be undermined indirectly by setting a too-high bail amount. Furthermore, the Court cannot refuse to grant bail solely because the surety’s property is located in the jurisdiction of another court; otherwise, Article 14 of the Indian Constitution would be violated. Finally, the Court ruled that requiring cash security or a deposit of any value in order to provide bail is unjust, irregular, and inappropriate.
Rasiklal v. Kishore Khanchand Wadhwani (2009)
In the case of Rasiklal v. Kishore Khanchand Wadhwani (2009), the Hon’ble Supreme Court held that as soon as it appears that the alleged offender is prepared to give bail, the police officer or the court to whom he seems to offer bail is obligated to discharge him on such bail terms as may seem to the police officer or the court to be reasonable and appropriate. It is even possible for the police officer or the court to release such a person if he executes the section’s bond rather than taking bail from him. However, if the purported offences are both bailable and non-bailable, the offence will be treated as a non-bailable offence, and the accused will not be able to obtain bail on the basis of a bailable offence.
Vaman Narayan Ghiya v. the State of Rajasthan (2009)
In the case of Vaman Narayan Ghiya v. the State of Rajasthan (2009), the Supreme Court ruled that in the case of bailable offences, a police officer has no autonomy to deny bail if the accused is willing to provide surety. When the accused is brought before the magistrate during the period of the investigation, he gains jurisdiction to grant bail. There is absolutely no question of choice in granting bail for a bailable offence. The court’s only option is to accept a simple recognition of the primary offender or to demand protection with surety. Persons covered by this Section 436 may not be detained unless they are unable or unwilling to offer bail or enforce personal bonds. When awarding bail under this section, the court has no discretion to enforce any condition other than the demand for security with sureties.
Bail is a crucial check and balance that ensures no innocent individual is penalised unless and until they are found guilty in court. It is possible to conclude that the concept of “bail” acts as a security lodged by the accused person, on the basis of which he can be released on a short-term basis but must appear in court when required. The bail procedure is carried out while the accused person’s trial is still pending. Typically, a person seeks this option in order to be released from police custody. These provisions are foreseen in the code and provide a summary of the bail regulations.
Frequently Asked Questions (FAQs)
Who has the authority to grant bail under Section 436 of the CrPC?
According to Section 436 of the CrPC, if the alleged crime is bailable, the accused is entitled to bail as a matter of right, either before the police station or, if transferred to the magistrate’s court, before the magistrate’s court.
Can bail be given in the absence of a surety?
In general, bail is granted by the court or police officer when the accused produces some kind of surety, but if the person is poor, the police officer or the court can release him on bail on the condition that he execute a bail bond without sureties under Section 436 of the CrPC.
- R. V. Kelkars’s Criminal Procedure Code, Sixth Edition
- S.N. Misra’s The Code of Criminal Procedure, 1973, Twentieth Edition.
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