CrPC Section 436 - In What Cases Bail To Be Taken

CrPC was introduced in 1973 by the government, under which justice could be exercised with the rights of the accused as well as the victim. In the CrPC law, there are different sections; one of them is CrPC Section 436, which is a complete overhaul of India’s criminal procedural laws and is an attempt to streamline bail provisions and clean up a prison overcrowding issue.

This was so as this section deals with the maximum period an undertrial prisoner can be detained, and with the process of granting bail moving drastically in terms of the period. Section 436, viewed with relation to its application, legal meaning, and in what cases bail is to be taken, is the subject of discussion in this article.

Understanding Bail Under Indian Law?

Bail is covered in CrPC sections 436 to 450 in Chapter XXXIII and is a formal agreement of custody that is made on an accused person to provide his/her appearance in court for trial.

As per Section 436 CrPC, if a person is accused of a bailable offense, then he/she has a right to be given 'Bail,’ and the Courts/police are bound to grant the said ‘bail’ if the accused does not provide the required surety/bond.

Difference Between Bailable vs. Non-Bailable Offenses

A non-bailable offence allows for the warrantless search of a person without a Court order, unlike a bailable offence, where the Court accepts either bail or a deposit with surety to allow the person to remain out of Jail until the trial commences.

Indian law distinguishes between bailable and non-bailable offences. Here's how they differ:

• Bailable Offense: For bailable offences, the police or Court is bound to release the accused on bail when he or she satisfies the conditions of bail. There is a right of bail to the accused.
• Non-Bailable Offense: The Court has discretion to grant or deny bail in a non-bailable offence and accused the no right to bail.

• For less serious crimes, the law gives the right to get bail, so these are called bailable offenses.
• Serious crimes are called non-bailable offences, and in these cases, getting bail depends on the Court's decision.
• Under Section 436 of the CrPC, bail is a right for bailable offences. But for non-bailable offenses, it is up to the Court to decide whether to grant bail or not.

This distinction is extremely important to understand while dealing with bail provisions of CrPC because that has a direct bearing on the process as well as the ease with which an accused can get released from custody.

CrPC Section 436: In What Cases Bail Is To Be Taken?

Right To Bail:

Bail is a right for persons accused of bailable offenses, not a privilege. For such cases, the police or court cannot arbitrarily deny bail.

Discretion Of The Court:

Bail is certainly a right for bailable offenses, but the court has some discretion in the bail amount and to which conditions it dictates a person released on bail should adhere. Surrendering travel documents, regularly appearing before the court, or just making good behavior can be these conditions.

Refusal Of Bail:

Except in a few limited exceptions, the court is under an obligation to grant bail for bailable offenses. The typical exceptions are where there’s concern that an accused will abscond (become a flight risk), tamper with evidence, or threaten witnesses.

Personal Bond For Indigent Persons:

Under CrPC 436, if the accused person fails to raise sureties or money to make bail, the court can release the accused on a personal bond. This means that the accused agrees to attend court trial proceedings without providing any immunity.

Crucial Points to Remember:

• Section 436 of CrPC applies only to bailable offenses. Bail for nonbailable offenses may be granted by the court at their discretion depending on the severity of the offense, the accused criminal history, etc., upon believing that the accused would tamper with the evidence or will attempt to intimidate the witness.
• The limit on the period for which an undertrial prisoner may be detained cannot exceed the maximum sentence for the offense. Practically for care and humanity, that provision is supposed to bar prolonged incarceration without trial.
• On the other hand, if your accused person violates the terms of their bail bond, the court can revoke their bail and remand them back into custody.

Granting Bail When Sureties Are Unavailable

CrPC Section 436 recognizes the fact that an accused person may not be able to furnish sureties as persons who vouch for the accused to appear in court.

Such provision comes into play in such cases in which the accused can be released on a personal bond, not with sureties by the court.

This shows that the legal system is trying to establish a balance between the need to ensure that the accused is present in Court and his financial situation.

Maximum Detention Period For Under-Trial Prisoners

The limitation of as long as CrPC Section 436 for the detention of under-trial prisoners is one of the important aspects of CrPC Section 436.

The section ensures that an under-trial prisoner cannot be kept for more than the maximum sentence that is awarded for the offense for which he is charged. It is a safeguard against very lengthy detention—however long — before trial.

Procedure For Granting Bail In Bailable Offenses

The procedure for securing bail under Section 436 is relatively straightforward in cases of bailable offences:

• Arrest and Detention: When arrested, the accused is charged and told of the right to bail.
• Filing of Bail Application: If the accused or their lawyer wants to be released from custody, they ask to be bailed.
• Bail Hearing: This refers to the law according to which the court or the police officer (the case then depends on) assesses whether the conditions of offense comply with the bailable offences under BMSS.
• Granting Bail: If these conditions are met, bail is granted to the accused upon terms of recognizance, or as in default of personal recognizance, with or without a fine, bond, or surety.
• Release from Custody: If bail is granted and surety furnished, the prisoner is released from custody.

Importance Of Bail Under Section 436

1. Preservation Of Liberty:

It provides that no person is unnecessarily detained until his trial and accordingly preserves his constitutional right to personal liberty.

2. Reduction In Jail Overcrowding:

The law grants bail in bailable offenses and helps spare the overpopulation of the prison system, often with undertrial prisoners.

3. Economic Considerations:

A bail without surety is permitted if need be by the law, having regard to the fact that poverty should not be a motive for the inability to secure bail.

4. Prevention Of Harassment:

Section 436 prevents the unnecessary harassment of persons subjected to lesser offenses by stopping the detaining of such persons in detention for a long duration.

Revocation Of Bail under Section 436

Section 436 CrPC confers the right to the grant of bail to bailable offences, but it is a qualified right. There are circumstances under which bail may be revoked:

1. Failure to Appear in Court: The bail can be revoked whenever the accused fails to appear in court on a date when he is supposed to appear.
2. Tampering with Evidence: Tampering evidence is one of the grounds that can make for cancellation of bail, no matter how the accused attempts this.
3. Violation of Bail Conditions: In such cases, if the accused violates any of the conditions imposed by the court during bail, the court may revoke the bail and remand the accused to custody.

CrPC Section 436 vs. BNSS Section 479: Comparison

In 2023, the government changed the CrPC sections into the BMSS Section, whose full form is Bharatiya Nagarik Suraksha Sanhita. And CrPC Section 436 has changed into BNSS Section 479.

The subject provision is a building on the premises created by Section 436 A of CrPC, inserting restrictions on the detention periods during which undertrial prisoners can be detained.

Section 479, however, further ensures that no one is detained for more time than the maximum term of imprisonment allowed for the alleged offense and brings in first-time offenders.

Here we mention all the changes that happened in BMSS Section 479:

Conclusion

Section 436 of CrPC is important as bail is given in a bailable offense. It stops people from being unfairly imprisoned before their trial to free up the prison system and stop people from being wrongly jailed.

However, this provision takes note of economic disparity among people and gives bail on an emergency basis without sureties, so no one is refused liberty because of their inability to provide sureties.

Section 436, under which bail is granted during the trial of bailable offenses, provides for granting bail, though it has to be exercised cautiously to strike the balance between personal liberty and the dispensation of justice.

Courts, so essential in permitting the accused out of prison on bail, must hurry and do so without stringent conditions, but they should also be on their guard that those released on bail comply with these requirements.