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Provision of Bail in Bailable offence Section 436 of Criminal Procedure Code 1973

The term 'bail' is not defined under the Code of Criminal Procedure 1973. However, it is termed as “bail’ is a temporary release from legal custody on furnishing requisite security/surety to available for trial.

In other words, it is considered as the temporary release of an accused from legal custody upon giving sufficient security for his appearance later on. It is based on the principle that the law recognize that every person has liberty, which should be protected and that every person, including the accused, is entitled to liberty unless he is found guilty of committing a serious crime. Bail cannot be claimed as a matter of right in the case of non-bailable offense. However, this does not mean that there can be no bail for such offenses.

Section 436, gives power to court or police officer in charge of police station to release the accused of bailable offence on bail

The meaning of bail is temporarily release from legal custody on furnishing requisite security or surety to appear for trial. If we more simplify, if any acquainted person who takes a guarantee of accused that whenever the appearance of accused is required during trial, he will present him. Such person is known as bailer in the legal term, for this he will have to furnish a surety, surety amount will be guided by officer or court, Surety can be like as RC of Vehicle, FD, and Registry of land or any such type of asset whose value is more surety amount. Bailer must be owner of such assets only then he can be bailer.

According to section 436(1) of Criminal Procedure Code 1973, if a person arrested or detained without warrant by police officer in charge of police station in a bailable offence, during custody, officer in charge of police station shall be release such accused on bail.

Or if such person appears himself or brought before court by arresting him, hon’ble court shall be released him on bail during any stage proceeding.

If the accused person is poor and is unable to furnish surety, instead of taking bail from such person,  Police officer in charge of police station or court as he thinks fit may release him on personal bond, means release him without sureties.  Accused person will be presumed as poor, if he is unable to give sureties within a week from the date of arrest.

According to section 436(2), if the person has breached the condition of bail-bond as regard the time and place of his attendance, whenever he appears or brought in custody before court, court may refuse to release him on bail and Such refusal will not affect the powers of the Court to forfeit the bond and recover penalty from the surety as laid down by section 446

There is no express provision in the Code prohibiting the Court from re-arresting the accused who has been released on bail. The High Court in the exercise of its inherent powers can cancel a bail bond.

Section 436A was introduced in 2005 in amendment of Criminal Procedure code, this section provide a provision to undertrial prisoner about maximum detention
According to Section 436A, During a period of investigation, Inquiry or trial, if the person has undergone detention more than one half of the maximum imprisonment of the offence which he did, court shall be release him on personal bond with or without sureties, but the court may order to continue detention more than half of the maximum imprisonment of the offence after hearing the public prosecutor and reason to be recorded by it in writing about such prolong detention . 

 No person shall be detained in any case more than the maximum imprisonment of the offence during the period of investigation, enquiry or trial,  

Case Law

Talab Haji Hussain v Madhukar Purshottam Mondkar, (1958) SCR 1226 : 60 Bom LR 937 : AIR

1958 SC 376 : 1958 Cr LJ 701

The Supreme Court has held that though a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release, is found to be prejudicial to a fair trial, he forfeits his right to be released on bail and such forfeiture can be made effective by invoking the inherent power of the High Court under section 482 of the Code.

 Ratilal v Asst Collector of Customs, AIR 1967 SC 1639 : 1967 Cr LJ 1576 .

In this case it was held that , if at any subsequent stage of proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This power can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Virsa Singh v State through CBI, 1992 Cr LJ 164 (Del); Jagannath Mishra (Dr) v CBI, (1998) 9 SCC 611 : (1998) 9 JT 149 (1) : 1998 SCC (Cri) 1337

In this case, Accused was granted bail who was in jail for six years. No progress was made in trial because of an order of the President, not to remove the accused from the jail. There was no indication as to when the above order would be withdrawn. There was no apprehension that the accused would tamper with the evidence. The bail was granted


Chowriappa Constructions v Embassy Constructions & Developments Pvt Ltd, 2002 Cr LJ 3863 (Kant).

While granting bail in respect of a bailable offence, insistence on personal bond and surety is a matter of discretion and within the jurisdiction of the Court under section 436



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