Does the proviso under S. 436A of CrPC conflict with underlying principle of S. 436A.

“Under the Indian Judicial system, a person under-trial is kept under detention only if there is a chance of the accused fleeing, influencing, or threatening the witnesses and tampering the evidence. These triple tests are the primary factors that must be considered before granting bail to an accused. If these triple tests are satisfied, then there is no reason why the accused must remain in jail.”[1] The court will never oppose a bail plea even if the person is accused of a very grave offence. “In ‘Sanjay Chandra v. CBI’[2], the court said that right to bail cannot be denied merely because the charge is serious and its punishment is severe, since, the triple tests have been satisfied, the bail must be granted.”[3] Hence, if the triple test is fulfilled, there is no reason why the court will reject the bail application.

However, in some cases, there might be a possibility that the accused has remained in jail for a considerably long period of time. “Under s. 436A, if such a person has remained in custody for almost half of the maximum period of imprisonment given for that offence, he is entitled to get bail.”[4] This is a progressive law and the rationale behind such a law is to free the prisoners who have been awaiting their trial since a long period of time. “In India, every accused person is presumed to be innocent until proven guilty and to keep an innocent in custody for a long period would amount to punishing him for the offence even before the completion of his trial. In such a case, isolating him unnecessarily is also against his ‘Right to personal liberty’ guaranteed under Article 21 of the Indian Constitution.”[5] Hence, as a matter of right, every such person is released from the judicial custody.

The proviso of s. 436A, says that if a public prosecutor opposes such a bail, the court can use its discretionary and extraordinary power to reject the bail application. I would say that such a provision would not go against the underlying principle of section 436A. Consider a situation, where the chargesheet has been filed and the accused is still in custody. After few days, police finds a new lead in the case and start their investigation regarding it. In such a case, there is a possibility that half period of the maximum period of punishment of the offence that the person is accused of is over but granting the accused a bail in such a case could hinder the police investigation and courtroom proceedings. Another example would be that there might be a chance of the accused fleeing from justice even after completing a long period in detention and in fact, he might have a history of fleeing. Many a times, accused commit crimes when they are on bail. In such cases, courts would be hesitant to grant bail even under ‘s. 436A of CrPC’[6].

Hence, the accused might be entitled to bail as a matter of his right, but it might be more necessary to keep him/her in custody to carry out proper investigation and ‘ensure a fair trial which is also a facet of Article 21’[7]. I believe that the proviso under s. 436A is important because it balances the rights of the defense and prosecution. If the accused, after his release, harms the witnesses or the victim, it would be detrimental to the society as s. 436A would become a loophole and will fail to fulfil its purpose. In such a case, proviso under s. 436A which acts as an exception helps s. 436A achieve its purpose by avoiding the misuse of s. 436A.  Hence, proviso under s. 436A does not cut the benefit of s. 436A rather, compliments it.

I also believe that the reason so many persons are under-trial prisoners is due to lack of awareness in them about their rights, poor representation and huge negligence and ignorance on the part of government and judiciary. Proviso under s. 436A is not made to deepen these already existing atrocities but to cater to a completely different situation where the triple test would not be satisfied. Presence of proviso under S. 436A does not lead to people not getting bail as the courts have recognized ‘Bail as the rule and jail as the exception’[8]. It only distinguishes the situation of an accused who might be harmful from an accused who might not be. Hence, the underlying principle of s. 436A would not get hurt by the proviso as the proviso helps to accommodate every kind of situation though these situations might be rare. So, using it in exceptional scenarios will not necessarily breach the right of liberty of the accused.


[1] Gurcharan Singh v. State (1978) 1 SCC 118, https://indiankanoon.org/doc/534034/.

[2] Sanjay Chandra v. CBI (2012) 1 SCC 40, https://indiankanoon.org/doc/1563495/.

[3] Sanjay Chandra v. CBI (2012) 1 SCC 40, https://indiankanoon.org/doc/1563495/.

[4] Criminal Procedure Code, 1973, Section 436A, https://legislative.gov.in/sites/default/files/A1974-02.pdf.

[5] State of Rajasthan v. Balchand AIR 1977 SC 2447, https://indiankanoon.org/doc/8258/.

[6] Criminal Procedure Code, 1973, Section 436A, https://legislative.gov.in/sites/default/files/A1974-02.pdf.

[7] Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516, https://indiankanoon.org/doc/146351380/.

[8] P. Chidambaran v. Directorate of Enforcement (2019) SC 1549, https://indiankanoon.org/doc/42679608/.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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