Legal Provisions of Section 436 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
A person other than a person accused of a non-bailable offence may be released on bail under this section on such terms as may appear reasonable to the police officer or the Court. A person released under this section by the police officer need not approach the Court for a fresh bail as held by the High Court of Rajasthan. But the Allahabad High Court has opined that a person released on bail by the police must seek fresh bail from the Court for the purpose of appearing before the Court.
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The power to release the accused on bail under Sections 436 and 437 vests in the Court before whom he appears or is brought. The power of the Magistrate to grant bail does not depend upon his competence to try the case but on the punishment prescribed for the alleged offence. Therefore, an Executive Magistrate has power to grant bail only in respect of offences punishable with fine or imprisonment upto three months.
It has been held in a number of decisions that the conditions of the bail-bond should not be unreasonable or unduly harsh and oppressive so as to nullify the purpose of bail. The amount of bond or bail-bond should not be too high it should be fixed keeping in view the circumstances of the case and the capacity of the accused person.
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The object of granting bail being to secure the appearance of the accused person to answer the charge at a specified time and place, the Court while considering the bail application should take into consideration the nature and gravity of the offence charged, the likelihood of accused’s involvement in it, the police report, the facts stated in the petition as also the grounds of opposition to the grant of bail etc.
It has been held that refusal to grant bail in contravention of Section 436 will render the detention of the accused illegal and the police officer causing such detention may be held guilty of the offence of wrongful confinement under Section 342, IPC.
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Sub-section (2) provides that where a person accused of a bailable offence has been released on bail pending his trial; if he absconds or commits a breach of the condition of bail-bond or is found to intimidation of, bribing or tampering with the prosecution evidence or indulging in any subversive act which is prejudicial to fair trial, the High Court or the Court of Session may invoke its inherent power under Section 482 and cause such person to be arrested and to be kept in custody cancelling his bail-bond. The Court may also order recovery of penalty from the surety under Section 446 of the Code.
It has been held by the Bombay High Court that the order granting bail and incidental terms is essentially an interim order which is capable of modification as and when deemed necessary. While granting bail, the Court has the power to restrict the movements of the accused outside India and may direct him to surrender his passport.
The right to be released on bail in case of a bailable offence being a legal and constitutional right of the accused person, refusal of this right is a curtailment of the right of personal liberty guaranteed by Article 21 of the Constitution of India and, therefore, there should be no question of discretion in granting bail.
In Rasiklal v. Kishore Khanchand Wadhwani, the accused was released on bail for the offence of defamation which is bailable offence. Held, the Court is not bound to issue notice to the complainant and hear him before allowing the accused his release on bail.
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Therefore, cancellation of bail of the accused on the ground that complainant was not heard and thus principles of natural justice were violated was held not to be justified. The appeal was therefore, allowed by the Apex Court.
[436-A. Maximum period for which an undertrial prisoner can be detained:
Where a-person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation:
In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.]
Comment:
This specific provision has been inserted in the Code of Criminal Procedure to provide safeguards to undertrial prisoners against indiscriminate incarceration which at times exceeds far more than the imprisonment of the term with which the offence committed by the undertrial is punishable.
The section provides that an undertrial who has undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for the offence alleged to have been committed by him, shall be released by the Court on personal bond with or without sureties.
The Court may, however, order the continued detention for a longer period than one-half in exceptional cases for reasons to be recorded in writing. Where the proceedings have been delayed at the instance of the accused undertrial, such period of delay shall be excluded in computing the period of detention under this section.