BAIL IN A BAILABLE CASE: SECTION 436

In bailable offences, the right to claim a bail is considered to be inexpugnable and infallible. If in a bailable offense, the accused wishes to take a bail, then he cannot be refused and neither the Police nor the Court can deny it to him and are bound to release him since due to Section 436, there is no possibility of discretion in such a matter.

Section 436(1) deals with the process of granting bail in respect of offences which are bailable in nature, where an individual is detained by the Police or arrested without a warrant. As per clause 1 of Section 436, the following three conditions must be fulfilled:

  1. The person seeking the bail has been accused of a bailable offence
  2. The individual has been arrested or has been detained without a warrant by a police officer who is in charge of a police station or if he is brought before a court
  3. He must be prepared to give bail at any stage of proceeding before the Court while being in the custody of such a police officer

If all these three aforementioned conditions have been fulfilled, then bail can be claimed.

The Court decided to grant the bail to an accused with sureties. It is prudent that the amount of the bail decided should be a reasonable amount which the accused can provide. It is also necessary that the conditions of bail granted to an accused should not be burdensome, cruel and indirectly leading to a denial in the granting of bail.

Also, it is unlawful for a Court to reject bail merely because the accused individual or his estate is situated in a different State. Section 440(1) states that the amount of money for every bail bond should be decided taking into consideration all the facts and circumstances of the case and the money should not be exorbitant. Therefore, it goes without saying that the right to claim bail as has been provided under Section 436(1) cannot be negated by fixing the amount of bail bond too high for the individual seeking release from custody.

The first proviso to Section 436(1) by the CrPC Amendment Act of 2005 specifically mentions the category of persons who can be released on a personal bail bond with sureties. As per this amendment, the Court as well as the Police officer has to release an individual on a surety if he is of indigent nature.

A clue of an individual being indigent would be the fact that he is incapable of paying surety even after a week of his arrest. According to Section 229A, Indian Penal Code which was included in the year 2006, if the individual in question fails to show up at the Court, then he can be punished with imprisonment for a term extending up to one year or with fine or with both.

As per Section 436(2), the right to claim bail is not absolute. Even though Section 436(1) is a provision which is compulsory but there is an exception to it which has been stated in Section 436(2). According to this exception, an individual who on a previous occasion was granted a bail by the Court and was released but has now absconded or has broken or not fulfilled the conditions of his bail bond, shall then not be entitled to claim his right of bail when he is brought before the Court on a subsequent date, even if the offence that he has committed is of a bailable nature.

Section 446A complements the exception provided under Section 436(2) by stating that the bail and the bond executed by his surety of the individual in question will stand absolutely cancelled.

Case Law(s):

  • Moti Ram v. State of MP, AIR 1978 SC 1394

Aishwarya Says:

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