SECTIONS 436, 436(A) AND 437 OF CRPC: AN ANALYSIS

By- Aaditya Sinha

In this long lockdown, I have now divided these months associated with certain things, when the lockdown started from mid-march to the end march, I only used to watch two Bollywood films named Tamasha (2015 Hindi language Film) and Rockstar (2011 Film) then the whole April went in watching Ramayana and Mahabharata.

May was also in probably the same league because both Ramayana and Mahabharata again re-released on private channels and then came June. I don’t know about you but I am a huge Bollywood film-buff and for me 14th June 2020 is nothing but a black day forever. On that day we lost a talented Bollywood actor and probably a polymath[1] named Sushant Singh Rajput.

Unlike many people, I knew what a good actor and visionary person, he was before 14th June. I have watched all his films (Drive is an exception obviously) and was inspired by his many interviews, however, this blog is not about remembering about him, although I would love to write about him more and more.

Here we will talk about what happened after 14th June, everyone became detectives on social media and on 19th August everyone was waiting for the Supreme Court decision like we used to wait for CBSE results, although there were many things which I thought were bad, unethical and also deeply problematic, amidst this noisy time, there was something which gave me hope.

It was the power of people, I understood the actual meaning of “We the People of India”, but contrary to this hope there was also something which scared me like hell and that was the idea of being “Nuanced”. Believe me or not this was the word which I learned from Sushant Singh Rajput. He used this word many times.

We have just forgotten that if we are talking about something related to the law we first have to understand the basics of that legal term. Here I will try my best to give information about some legal words which you have heard many times but in a very loose and in a very narrow way. I will try my best to describe them in a more “nuanced” and broader way.

Criminal Law: CRPC, IPC, Indian Evidence Act

Before starting with section 436 of CRPC, I would briefly like to explain the difference between IPC (Indian penal code) and CRPC (The code of criminal procedure). CRPC is a procedural law which means that in CRPC we will understand the powers and duties of police, Magistrates, Judicial Magistrates, etc. The structural and functional way of courts in our country and many more things.

IPC on the other hand is a substantive law where we study the “law” and their sanctions. For example “Rape[2] is an offense, and its sanction is a minimum of 10 years. This is studied in IPC but in which court we can file the case and what will be the procedure to file the case is explained in the CRPC.

IPC, CRPC along the Indian Evidence act complete the major part of the Criminal Law. Now, I assume that you all must have gotten a basic idea of criminal law.

Section 436 of CRPC: In what cases bail to be taken?

Section 436 talks about bail-in “Bailable offense”. In CRPC section 2(a) Bailable offense is that offense which is shown as bailable in the first schedule or it is bailable by other law at the time being in force. In section 436 it is written that in a bailable offense, a person can get bail, and one can get by giving a specific surety.

Section 436 states “In what cases a bail to be taken”: It says that in a bailable offense if the person is arrested without a warrant or he appears before a court if he is ready for bail then he will get the bail. The important thing is that in section 436 the word which is used is “shall” which interprets that if the person is ready for the bail by giving surety then bail is his “right” and it is not the discretion of the court.

Provision on Surety: It can be deduced that if the court feels that the person is very poor or is not able to pay his bail then the court can give bail without taking surety. If after one week the person is unable to pay the surety then it can be pre-assumed by the court that he is not able to pay the surety amount.

Section 436(A)

This section of CRPC talks about the maximum duration for which an under-trial prisoner can be detained.

If a person, during the period of investigation, or any kind of trial in CRPC and under section 436(A) this is an offense under any law where the detention for a maximum period which can be extended to one half of the maximum period of imprisonment which is specified for the offence which is under that law, the person shall be released from the Court on his bond and it can be with or without sureties;

It has to be provided that the Court may, after hearing the Public Prosecutor and for the reasons which have to be recorded formally and it has to be written down.

There is also a point that it has to be provided further that there is no such person in any case that can be detained in the period of any investigation or inquiry or any kind of trial for more than the maximum period of imprisonment.

There is an important case of Sandeep Jain v. NCT Delhi. In this case, the court said that the accused must give a surety amount of 2 Lakh Rupees, the honorable Supreme Court said that this is a non-reasonable decision.

There was also a case of Dhruv K Jaiswal v. state of Bihar. In this case, Patna high court dismissed the bail application which was later dismissed by the Supreme Court.

Section 437

This section deals with non-bailable offenses. As we know section 436, it deals with the bailable offenses.

In section 436, the accused has the right to get the bail if he of course has fulfilled all the requirements of bond and surety. However in section 437 in non-bailable offenses, it is up to the court if they want to give bail to the accused or not. In other words, it is under the discretion of the court.

Conclusion

The reason why I started with the example of Sushant Singh Rajput was that in recent times I have seen people assuming many things on their own and discussing the same but in all these discussions and debates they actually forget the basic thing which is the law itself.

Also please don’t think that I am against those who are continuously seeking for CBI, it was their right and the Supreme Court has also proved that “law is a very essential tool to get the justice”, (It is also a dialog from one of my best films Section 375) I am just saying that by asking the justice which is totally fine some people start talking about some legal terms in a very loose manner, and it is perfectly fine if someone is using them in their personal life but actually in today’s world nothing is personal.

The purpose of the law is to get justice but to get the justice we also have to think that in order to get the justice we have to follow a procedure which is the reason we have so many extensive texts in the form of “Bare-acts”.

In order to get justice one has to follow the law and while talking about the whole procedures one has to be nuanced while talking about these legal terms.


[1] A polymath is one who has knowledge on diverse fields like Science, Arts, and Space etc.

[2]Section 376(2) IPC Subs. By Act 13 of 2013, sec. 9, for section 376 (w.r.e.f 3-2-2013)

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