In what cases bail to be taken? When bail may be taken in case of non bailable offence? Section 436 and 437 of Code of Criminal Procedure 1973

In what cases bail to be taken and when bail may be taken in case of non bailable offence are defined under Section 436 and 437 of CRPC 1973. Provisions under these sections are:

Section 436 of CRPC "In what cases bail to be taken"

(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:-

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.

STATE AMENDMENTS

Uttar Pradesh:-- In sub-section, in first proviso for the word "discharge" the word "release" shall be substituted I.P Act 1 of 1984 w.e.f. 1-5-1984.

Section 437 of CRPC "When bail may be taken in case of non bailable offence"

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but-

(i) such person shall not be so released if there appears reasonable grounds for believing that he has

been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he has been

previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven

years or more, or he had been previously convicted on two or more occasions of a non-bailable and

cognizable offence:

Provided that the Court may direct that a person referred to in clause (1) of clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary,-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond

executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is

accused or of the commission of which he is suspected, or

(c) otherwise in the interests of Justice.

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons, for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgement delivered.

CASE LAW

Guiding factors for granting or refusing bail. MR 1979 SC 1360 = M9 Cr LJ 1036 = i 984 (3) SCC 555 = 1984 Cr. LJ 1211.

STATE AMENDMENT

Punjab -In Sec. 437, after sub-sec. (7), the following sub-sec (8) shall be added, namely --

"(8) Before releasing the accused on bail under sub-section (1) or sub-section (2), the Court shall give the prosecution a reasonable opportunity to show cause against such release." Punj: Act 22 of 1983, w.e.f. 27-6-1983.

Union Territory of Chandigarh - Same as in Punjab.

PROVISIONS AS TO BAIL AND BONDS

In what cases bail to be taken? When bail may be taken in case of non bailable offence? Section 436 and 437 of Code of Criminal Procedure 1973

What is direction for grant of bail to person apprehending arrest? Section 438 of Code of Criminal Procedure 1973

What is Special powers of High Court or Court of Sessions regarding bail? Section 439 of Code of Criminal Procedure 1973

What is Amount of bond and reduction thereof? What is Bond of accused and sureties? What is Discharge from custody? Section 440, 441 and 442 of Code of Criminal Procedure 1973

What is Power to order sufficient bail when that first taken is insufficient? What is Discharge of sureties? What is Deposit instead of recognisance? Section 443, 444 and 445 of Code of Criminal Procedure 1973

What is the Procedure when bond has been forfeited? What is Cancellation of bond and bail bond? Section 446 and 446A of Code of Criminal Procedure 1973

What is the Procedure in case of insolvency of death of surety or when a bond is forfeited? When Bond required from minor? What is the procedure in Appeal from orders under Section 446? What is Power to direct levy of amount due on certain recognizances? Section 447, 448, 449 and 450 of Code of Criminal Procedure 1973

 

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