Section 436 CrPC: In what cases bail to be taken

Code of Criminal Procedure, 1973

Section 436 CrPC at a Glance

Section 436 CrPC deals with in what cases bail to be taken. From 1 July 2024 it is replaced by Section 478 BNSS. Popularly called bail in bailable offences. A person unable to give bail within a week of the date of arrest may be presumed an indigent person for the first proviso; the rule is unchanged.

Now BNSS

Section 478 →

What Section 436 CrPC Says

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, may, and shall, if such person is indigent and is 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.
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 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.

Source: Section 436, Code of Criminal Procedure, 1973

Section 436 CrPC in Simple Words

Section 436 of the Code of Criminal Procedure, 1973 deals with a person other than a person accused of a non-bailable offence. It applies when that person is arrested or detained without warrant by an officer in charge of a police station. It also applies when the person appears or is brought before a Court. The person shall be released on bail if prepared to give bail at any time while in the custody of that officer, or at any stage of the proceeding before that Court. Under the first proviso, the officer or Court may, if it thinks fit, discharge the person on the execution of a bond without sureties for appearance, instead of taking bail.

The officer or Court shall do so if the person is indigent and is unable to furnish surety. The Explanation applies for the purposes of the first proviso. Where a person is unable to give bail within a week of the date of arrest, the officer or the Court has a sufficient ground to presume that the person is indigent. Under the second proviso, nothing in Section 436 CrPC shall be deemed to affect section 116(3) or section 446A of the Code. Under Section 436(2) CrPC, the Court may refuse to release a person on bail despite Section 436(1) CrPC.

This applies where the person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance. The refusal may come when the person, on a subsequent occasion in the same case, appears before the Court or is brought in custody. Any such refusal is without prejudice to the powers of the Court to call upon any person bound by the bond to pay the penalty of the bond under section 446 of the Code.

Who Can Use Section 436 CrPC

When any person other than a person accused of a non-bailable offence is arrested or detained without a warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time during custody or at any stage of the proceeding to give bail, that person shall be released on bail under Section 436(1) of the Code of Criminal Procedure, 1973.
The first proviso to Section 436(1) CrPC permits the officer in charge of a police station or the Court, if he or it thinks fit, to discharge the person on executing a bond without sureties for appearance instead of taking bail.
Under the first proviso to Section 436(1) CrPC, if the person is indigent and is unable to furnish surety, the officer or the Court shall discharge him on executing a bond without sureties for his appearance instead of taking bail.
Section 436(2) CrPC creates an exception to Section 436(1) CrPC under which, where a person has failed to comply with the bail bond conditions as to the time and place of attendance, the Court may refuse to release him on bail when he appears before the Court or is brought in custody on a subsequent occasion in the same case.
Under Section 436(2) CrPC, any refusal by the Court to release the person on bail on a subsequent occasion is without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty under Section 446 CrPC.

Time Limits Under Section 436 CrPC

Under the Explanation to the first proviso of Section 436(1) of the Code of Criminal Procedure, 1973, where a person is unable to give bail within a week of the date of his arrest, that failure over the period of a week is a sufficient ground for the officer in charge of a police station or the Court to presume that he is an indigent person for the purposes of that proviso.Act text: “Where a person is unable to give bail within a week of the date of his arrest”

Example of Section 436 CrPC

Ramesh is arrested without a warrant by an officer in charge of a police station for an offence that is not a non-bailable offence under the Code of Criminal Procedure, 1973. If Ramesh is prepared while in custody to give bail, Section 436(1) CrPC requires that he shall be released on bail. However, Ramesh is poor and remains unable to give bail within a week of the date of his arrest. Under the Explanation to the first proviso of Section 436(1) CrPC, the officer has a sufficient ground to presume that Ramesh is an indigent person, and if Ramesh is unable to furnish surety, the officer shall discharge him on his executing a bond without sureties for his appearance.

When Section 436 CrPC Does Not Apply

Section 436(1) of the Code of Criminal Procedure, 1973 does not apply to a person who is accused of a non-bailable offence.
Under the second proviso to Section 436(1) CrPC, nothing in Section 436 CrPC applies so as to affect the provisions of Section 116(3) CrPC or Section 446A CrPC.
Under Section 436(2) CrPC, 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.

Bail Under BNSS 478: What Changed

Section 436 CrPC is now covered under Section 478 BNSS.

Section 436 of the Code of Criminal Procedure, 1973 became Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with no new sub-sections and the same rule. Every textual difference is a change of form. In Section 478(1) BNSS and Section 478(2) BNSS, bail, bond without sureties, and bail-bond become bail bond, bond, and bond or bail bond because Section 2(1)(e) BNSS defines a bond as an undertaking for release without surety and Section 2(1)(d) BNSS defines a bail bond as an undertaking for release with surety. Cross-references are renumbered from Sections 116(3), 446A, and 446 CrPC to Sections 135(3), 492, and 491 BNSS.

View detailed comparison (CrPC 436 vs BNSS 478) →

FAQs on Section 436 CrPC

When must an officer or Court release a person on bail under Section 436 CrPC?▼

Any person other than a person accused of a non-bailable offence who is arrested or detained without a warrant by an officer in charge of a police station, or who appears or is brought before a Court, shall be released on bail under the Code of Criminal Procedure, 1973. Under Section 436(1) CrPC, this duty applies whenever the person is prepared to give bail at any time while in the custody of such officer or at any stage of the proceeding before such Court.

When can a person be discharged on a bond without sureties under Section 436 CrPC?▼

Under the first proviso to Section 436(1) of the Code of Criminal Procedure, 1973, the officer in charge of a police station or the Court may, if he or it thinks fit, discharge the person on executing a bond without sureties for appearance. If the person is indigent and unable to furnish surety, the officer or Court shall discharge him on such a bond, and inability to give bail within a week of arrest is a sufficient ground to presume indigence.

Can the Court refuse bail under Section 436 CrPC if the person breaches attendance conditions?▼

Yes, Section 436(2) of the Code of Criminal Procedure, 1973 creates an exception to Section 436(1) CrPC where a person has failed to comply with the bail bond conditions as regards the time and place of attendance. On a subsequent occasion in the same case when he appears before the Court or is brought in custody, the Court may refuse bail, without prejudice to calling upon any person bound by such bond to pay the penalty under Section 446 CrPC.

Where is Section 436 CrPC found from 1 July 2024?▼

The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. From 1 July 2024, the provision corresponding to Section 436 CrPC is found in Section 478 BNSS, with Section 436(1) CrPC and Section 436(2) CrPC corresponding to Section 478(1) BNSS and Section 478(2) BNSS.

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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 27 Oct 2026 ·