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Report No. 268

A. Bailable Offences

5.2 The sections pertaining to bailable offences has to be read harmoniously with other provisions of the Code especially ss. 50, 56, and 57 of Cr.PC. When read conjointly, they undoubtedly give effect to the constitutional mandate in Article 22 of the Constitution, wherein the arrested person has right to be informed of the nature of the offence and the ground of his arrest.101 In addition the discretion of granting bail is not mechanical and must be based on a preliminary inquiry. Further, a reasonable period is justified for conducting interrogation and concluding other procedural requirements such as recording of statements, recording fingerprints and photographs, etc.102 Moreover, s. 167 Cr.P.C. is not available for bailable offences to obtain the remand of the arrested person.103

5.3 Section 436 of Cr.PC is mandatory in nature and the court or the police has no discretion in the matter. Any accused person arrested for a bailable offence willing to provide bail must be released.104 The only discretion available with the police is to release the accused either on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must produce the accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of Cr.P.C. Subsequently, when the person accused of an offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate must release the accused person and the only discretion available is to release either on personal bond or a bond with sureties.

The Magistrate cannot authorize detention of a person who is willing to furnish bail with or without sureties even for the purposes of aiding the investigation. Further, the Magistrate cannot issue an order exacting a person so released to appear before the police to aid in the process of investigation of the alleged offence.

5.4 In Rasiklal v. Kishore s/o Khanchand Wadhwani 105 the Supreme Court held that the right to bail for bailable offences is an absolute and in-defeasible right and no discretion can be exercised as the words of s. 436 Cr.P.C are imperative and the person accused of an offence is bound to be released as soon as the bail is furnished.106 It further observed that there is no need for the complainant or the public prosecutor to be heard in cases where a person is charged with a bailable offence. Moreover, the court has no discretion to impose any conditions except to demand security.107 Thus any condition to surrender passport,108 directing the person accused of an offence to appear before police109 or the police commissioner110, or even directing such accused person not to take part in public demonstration or make any public speech111 cannot be imposed.

5.5 Upon reading s. 436 Cr.P.C it is clear that the section is applicable to all persons other than those accused of a non-bailable offence. For instance, where on receiving a complaint a Magistrate summons a person as a witness and not as a person accused of an offence to ascertain the veracity of the complaint, and upon directing police to conduct an inquiry under s. 202 (of the old Code), orders such a person to provide bail, the Magistrate is said to be acting well within his powers under s. 496 of the old Code.112

The powers under s.496 of the old Code correspond to the new s.436 of the Cr.P.C. This section applies to proceedings under Chapter VIII of Cr.P.C. except section 116 (3) and 446A of Cr.P.C as stated in the section itself. Thus, in security proceedings where a show cause notice has been issued against a person, the Magistrate has the power to demand interim security from such a person and he must furnish an interim bond pending inquiry.113 In such a security proceedings, where such an interim security is not furnished by a person, there is no question of releasing him on bail. He may be detained when he fails to furnish the bond. However, when the person appears on receiving a notice and no interim bond is demanded, no bail bond is required to be furnished.114

Thus, the provisions of s. 436 of the Cr.P.C would not be attracted. Nevertheless, when a person is brought under arrest and the police prays for the commencement of security proceedings, the detainee has to be released without delay upon security either through personal bond or surety under s. 436 Cr.P.C. unless the Magistrate demands interim bond from him under s. 116 (3) Cr.P.C.115Sub-section 2 of s. 436 Cr.P.C empowers the Magistrate to cancel the bail of an accused person enlarged under s. 436 (1) of Cr.P.C who contravenes any of the conditions of bail. Apart from this provision, s. 439 (2) of Cr.P.C empowers the High Court and the Court of Sessions to cancel any bail granted under Chapter XXXIII, irrespective of the type of offence if the person accused of an offence by his conduct has forfeited the concessions granted through bail116.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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