Whether the ‘bail’ is right?

Q. Whether the ‘bail’ is right?

Ans.: It is well settled principle that if a person accused of bailable offence is arrested by police without any warrant he has right to be released on bail, Section 436 of Cr.P.C is very much clear on this point. Section 436 of Cr.P.C makes an invariable rule for bail in case of bailable offences subject to the specified exception under Sub-section 2 of that section.

Offences have been classified into two categories, namely, bailable and non-bailable, for the purposes of granting bail. Section 436 of the Cr.P.C. deals with the grant of bail in a bailable offence by using the language “… any person other than a person accused of a non-bailable offence …”; on the other hand, S. 437 Cr.P.C. deals with grant of bail for non-bailable offence. It is pertinent to point out that a person involved in a bailable offence is entitled to be released on bail under this section. Bail is a matter of right in a bailable offence. On the other hand, bail in a non-bailable section, generally speaking, is discretionary.

In case of RASHIKLAL V/S. KISHORE – reported in AIR 2009 SC 1341, Hon’ble Supreme Court observed and held that, “The right to claim bail granted by Sec. 436 of Cr.P.C. in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Sec. 436 are imperative…”

“The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety …”

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