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Report No. 268

H. Need for modification of sections 436 and 436A of Cr.P.C.

11.22 The language of the section must be made unambiguous in communicating that the bail under this section is a matter of right, which cannot be trounced by imposing or demanding unreasonable or excessive sureties. Since the code does not provide for any standards to decide sureties other than the surety mentioned in s. 440 of the Cr.P.C which states that the sureties would be prescribed with due regard to the circumstances of the case not being excessive. Sections 436 and 437 of the Cr.P.C must be read in consonance with this provision.

11.23 Condoning delays either by the judiciary or the investigating authorities cannot be at the expense of the rights of the person accused of an offence. The delays and the difficulties that judges face currently were some reasons for which the law was amended, yet the high bar set in the section defeats the purpose. Recently, the Supreme Court in Bhim Singh279 while considering the scope of s. 436A of Cr.P.C, directed judicial officers to identify undertrial prisoners who have completed half the term, they may be sentenced with, if found guilty. It was further directed that an appropriate order may be passed in jail "itself, for release of such under trial prisoners who fulfil the requirement of s. 436A of Cr.P.C, for their release immediately280". D

irections in Bhim Singh281 may be implemented by amending the section to make the criteria for release of undertrials. For offences upto seven years under trial who have completed one third period of the maximum sentence imposed may be released; while for offences with punishment more than seven years, under trials who have completed one half period of the maximum sentence imposed may be released. Further provision be made to have the undergone part, considered with remissions. The Supreme Court has observed in many cases that putting under trials in prison for long with hardened criminals may influence or induce criminal tendencies in the person accused of an offence.

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

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