The Code of Criminal Procedure, 1973 (CrPc)
436. 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, 2[may, and shall, if such person is indigent and in unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
3[Explanation. – Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.]
Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 1[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.
Cr PC (Amendment) Act, 2005 (Notes on Clauses)
In respect of bailable offences, a person has to remain in jail for his inability to furnish bail, till the case is disposed of. Sub-section (1) has been amended to make a mandatory provision that if the arrested person is accused of a bailable offence and he is an indigent and cannot furnish surety, the Court shall release him on his execution of a bond without sureties.
In section 436, in the first proviso, to section (1), for the word “discharge” the word “release” shall be substituted.
[Vide Uttar Pradesh Act 1 of 1984, sec. 10 (w.e.f. 1-5-1984].
It is true that Supreme Court does not interfere with an order granting bail but judicial discipline will be sacrificed at the alter of judicial discretion if jurisdiction under article 136 is refused to be exercised; State of Maharashtra v. Captain Buddhikota Subha Rao, (1989) Cr LJ 2317: AIR 1989 SC 2292.
1. Ins. by Act 63 of 1980. Sec. 4 (w.e.f. 23-9-1980).
2. Subs. by Act 25 of 2005, sec. 35, for “may instead of taking bail”.
3. Ins. by Act 25 of 2005, sec. 35.