In what cases bail to be taken
Section 436 of the Code of Criminal Procedure, 1973 deals with in what cases bail to be taken. 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 befor The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
(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.
1 Ins. by Act 63 of 1980, s.4 (w.e.f. 23.9.1980)
Section 436, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 478 In what cases bail to be taken Text carried over almost unchanged 95%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Rasiklal v. Kishore Wadhwani
Court's Decision & Legal Precedent
Judgment of Main Case order-7.pdf 2009-02-20 DATE VERIFIED. Crl A 343/2009. Panchal/Raveendran. Bail in a bailable offence is an absolute/indefeasible right under CrPC 436; the Magistrate/court need not hear the complainant before granting 436 bail, and the High Court cannot cancel 436 bail solely because the complainant was not heard. Map 436 only; do not pad 446/482/499/500/200.
On this section: Bail in a bailable offence is an absolute right under s.436; the court need not hear the complainant before granting it (Rasiklal).
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Satender Kumar Antil vs Central Bureau of Investigation
Court's Decision & Legal Precedent
Bail is the rule and jail is the exception in criminal procedure. The presumption of innocence, being a facet of Article 21 of the Constitution, places the burden on the prosecution to prove guilt. Courts must exercise their discretion in granting or refusing bail judiciously, considering all relevant factors including the nature and gravity of the offence, the severity of punishment, the conduct of the accused during investigation, the delay in trial, and the likelihood of the accused absconding. Investigating agencies must comply with Section 41 and 41A of the CrPC by recording reasons for arrest and for not arresting. Non-compliance with these provisions entitles the accused to bail. Courts must act as guardians of liberty and ensure that personal liberty is protected in accordance with the procedure established by law.
On this section: Maximum period for which undertrial prisoner can be detained; default bail provision
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Hussain vs Union of India
Court's Decision & Legal Precedent
Speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India. This right cannot be denied due to lack of resources. When criminal trials or appeals remain pending for extended periods without fault of the accused, the accused is entitled to either expedited trial completion within specified timelines (6 months for magisterial trials and 2 years for sessions trials with accused in custody; 5 years for appeals) or bail. High Courts are constitutionally obligated to issue directions to subordinate courts ensuring these timelines are met, and to monitor compliance through appropriate action plans and judicial performance assessments. The State is required to augment judicial infrastructure, including appointing additional judges, establishing forensic laboratories, and digitizing case records, to fulfill this constitutional obligation. Undertrial prisoners who have undergone detention exceeding the likely sentence upon conviction must be released on personal bond. These are mandatory obligations, not discretionary matters.
On this section: Provides for grant of bail when undertrial has undergone detention upto one half of maximum prescribed imprisonment; Court applied this as baseline for bail consideration and suggested supplementary approach
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Javed Gulam Nabi Shaikh vs The State of Maharashtra
Court's Decision & Legal Precedent
When an undertrial prisoner has been in custody for an extraordinarily long period (over four years), the trial court has not framed charges, and there is no likelihood of trial being completed within reasonable time despite stringent statutory bail restrictions, the constitutional courts can grant bail on grounds of violation of the fundamental right to speedy trial under Article 21. The test for bail is whether the accused will appear at trial, not the seriousness of the crime. Bail cannot be withheld as punishment. The rigours of stringent statutory provisions like Section 43-D(5) of UAPA melt down when the period of incarceration has exceeded a substantial part of the prescribed sentence and speedy trial cannot be ensured.
On this section: The Court held that Section 436A, which requires the accused to be enlarged on bail if trial is not concluded within specified periods, applies to special Acts like UAPA in the absence of specific provisions, as liberty of a person is at stake.
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Om Prakash vs Union of India
Court's Decision & Legal Precedent
Offences under the Central Excise Act, 1944, and offences under Section 135 of the Customs Act, 1962, are non-cognizable in the sense that police officers cannot arrest without warrant and cannot investigate without Magistrate's order under Section 155 Cr.P.C. However, such offences are also bailable, because (1) they relate to recovery of revenue rather than punishment for grave crimes, (2) Sections 20 and 104(3) mandatorily empower officers to release arrested persons on bail, (3) the legislative scheme indicates intent that such offences should be bailable, and (4) the deeming language in Sections 9A and 104(4) making offences non-cognizable does not negate bailability. Non-cognizable and bailable are separate characteristics, and a statute can make offences both non-cognizable (restricting arrest authority) and bailable (entitling accused to bail).
On this section: Provides that persons arrested for non-bailable offences shall not be released on bail except by court. Court uses this to discuss bail principles.
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Vaman Narain Ghiya vs State of Rajasthan
Court's Decision & Legal Precedent
Section 439 of the Code of Criminal Procedure, 1973 requires that an accused person must be in actual custody to file a bail application before the High Court or Court of Session. The protective umbrella provided by anticipatory bail under Section 438 is of limited duration, intended only to allow the accused to move the regular court for bail. Once that limited period expires, the accused cannot bypass the statutory requirement of Section 439 by seeking to extend Section 438 protection. The distinction between Sections 438 and 439 must be maintained, and no part of the statute can be rendered redundant or dead letter by circumventing the express requirement of custody under Section 439.
On this section: Provides for granting bail in bailable cases; distinguishes bailable offences where bail is a right
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Ankush Vipan Kapoor vs National Investigation Agency
Court's Decision & Legal Precedent
Supreme Court will not exercise its discretionary jurisdiction under Article 136 to grant special leave to appeal or interim relief in criminal matters involving National Investigation Agency investigations where the petitioner has failed to establish exceptional circumstances or demonstrate that the High Court's order rejecting interim relief was manifestly wrong or violated principles of natural justice. Once a special leave petition is dismissed, any interim relief previously granted in relation to that petition stands automatically vacated, allowing the criminal investigation and prosecution to proceed without restriction.
On this section: Provisions relating to bail in criminal proceedings
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Rakesh Sharma vs The State of Madhya Pradesh
Court's Decision & Legal Precedent
When an accused has undergone a substantial period of incarceration and the eye-witness examination has been completed, bail may be granted subject to conditions imposed by the Trial Court, balancing the individual's liberty interests against State interests in ensuring trial presence and justice delivery.
On this section: Bail provisions governing discretionary relief in criminal matters and conditions for bail grant
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Sarvjeet Herbert vs The State of Uttar Pradesh
Court's Decision & Legal Precedent
When investigation into criminal charges is completed, chargesheet is filed, and the case is committed to the trial court, continued judicial custody of the accused pending trial—particularly when trial may take a considerable time—is not justified. The accused must be released on bail with appropriate conditions to ensure trial attendance, as extended pre-trial detention without conviction effectively constitutes punishment without trial and violates principles of justice. The Supreme Court will exercise its discretionary jurisdiction under Article 136 to grant bail in such circumstances.
On this section: These sections prescribe the conditions for grant of bail in criminal cases. Although not explicitly cited in the order, they form the procedural foundation for bail consideration. The Court's decision implicitly applies these provisions by granting bail subject to Sessions Court imposing terms and conditions.
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Amrik Singh @ Sonu Sarvansing Malhi vs The State of Gujarat
Court's Decision & Legal Precedent
Where an accused in a narcotic drugs case has already undergone substantial pre-trial detention of approximately 19 months, and the entire facts and circumstances of the case are considered, a case for bail is made out, warranting the accused's release on bail despite the serious nature of NDPS charges.
On this section: The Court applied CrPC provisions regarding bail discretion and conditions, directing usual terms and conditions to be imposed by the concerned court
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Anilbhai Nayaka vs The Union Of India
Court's Decision & Legal Precedent
Non-applicability of the strict rigors of Section 37 of the NDPS Act to controlled substances does not automatically entitle an accused to bail. The court can refuse bail if there is seizure of huge quantity of controlled substance with potential for manufacturing narcotic substances, existence of incriminating material, and likelihood of non-availability during trial, particularly in cases involving trans-border drug trafficking operations.
On this section: Default bail provision if undertrial prisoner has undergone half of maximum punishment. Respondent argued petitioners have not completed half of 10-year maximum sentence.
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Anilbhai Nayaka vs Union Of India
Court's Decision & Legal Precedent
Even though Section 37 of the NDPS Act (twin test for bail) may not strictly apply to controlled substances as opposed to narcotic drugs, the non-applicability of this section does not automatically entitle an accused to bail. Courts retain discretion to refuse bail in controlled substance cases based on: (1) seizure of huge quantity of controlled substance with potential for manufacturing narcotic drugs, (2) presence of incriminating material establishing active participation in drug trafficking, (3) likelihood of accused absconding or becoming unavailable for trial, particularly when accused are non-residents of the trial jurisdiction, and (4) transnational/international aspects of the drug trafficking operation. The burden remains on the accused to satisfy the court that bail should be granted, and in cases involving serious drug trafficking with international linkage, courts should exercise caution in granting bail.
On this section: Automatic release on bail if undertrial prisoner has undergone half of maximum punishment. Respondent argued that accused have not completed half of 10-year maximum punishment under Section 25A/29 NDPS, hence not entitled to bail under this section.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Magistrate has failed to exercise its jurisdiction vested upon it, which caused serious miscarriage of justice and which tantamounts to abuse of the process of the Court. Learned Advocate General has further submitted that the Ld. Court below wholly misread and misconstrued the provisions of Sections 436 and 437 of the Code of Criminal Procedure in rejecting the prayer of the Statepetitioner. It is the further contention of learned Advocate General that the Ld. Court has failed to evaluate the principle enunciated in Hamida vs. Rashid alias Rasheed, (2008) 1 SCC 474 as well as the decision of the Supreme Court in …
Questions about Section 436
What have the courts held on Section 436 of the Code of Criminal Procedure?
Rasiklal v. Kishore Wadhwani (20 Feb 2009) is the leading judgment on this section among those set out below: Bail in a bailable offence is an absolute right under s.436; the court need not hear the complainant before granting it (Rasiklal). Another 11 judgments on this section are set out below, 10 of them from the Supreme Court. They run from 2008 to 2025.
How do I find court cases under Section 436 of the Code of Criminal Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CRPC 436, section 436 CRPC, section 436 of the Code of Criminal Procedure. People searching for it also type crpc 436 in bnss and crpc 436a. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 12 reported judgments on this section are set out on this page, beginning with Rasiklal v. Kishore Wadhwani (20 Feb 2009).
What should I read with Section 436 of the Code of Criminal Procedure, and has it changed?
Its own text turns on section 116 (Inquiry as to truth of information), section 446 (Procedure when bond has been forfeited), section 446A (section against his surety or sureties, and, ;if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved), so none of them can safely be read on its own. 1 other provision in this corpus refers back to it. For anything done on or after 1 July 2024 the provision to read is BNSS 478 (In what cases bail to be taken), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 436 of the Code of Criminal Procedure come into force?
Section 436 of the Code of Criminal Procedure, cited as CRPC 436, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.