Whether proviso to Section 436(1) Cr. P. C. 1973 is in conflict with Section 57 of Cr.P.C, 1973.
I. Introduction:-
On bare reading of proviso and explanation to section 436(1) Cr.P.C., it seems that it is in conflict with Section 57 of Cr.P.C. In order to find out whether said proviso is really in conflict with section 57 of Cr.P.C, an attempt is made in this article.
II. Discussion:-
1) For easy reference Ss. 57 and 436 (1) of Cr.P.C is extracted hereunder
Section 57. Person arrested not to be detained more than twenty- four hours. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court.
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, 1 [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) It is to be pointed out that as per Section 57 of Cr.P.C, an accused can be detained by the police officer only for a period of 24 hours, and thereafter accused has to be forwarded to the nearest learned Judicial Magistrate whether offence is bailable or not. Section 57 of CrPC is mandatory and so, police officer cannot detain an accused after 24 hours from the arrest.
3) Section 436 (1) CrPC speaks about in what cases bail to be taken. In bailable offence bail is right of an accused and no discretion is left with the learned Judicial Magistrate. But, the amount of bond and number of surety can be decided by the learned Judicial Magistrate. No condition except to direct the accused to furnish sureties for his release can be imposed.
AIR 2009 SC 1341 Rasiklal Vs Kishore.
“The right to claim bail u/s 436 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 Section 436 of CrPC is imperative”.
4) As per the proviso to Section 436 (1) Cr.P.C read with explanation appended to the said proviso if an accused is unable to produce surety
within a week from arrest, he must be presumed as an indigent person and have to be discharged on his own bond without insisting for sureties.
5) Now, the point for determination is,
a) Whether “such officer” as mentioned in the proviso to Section 436(1) Cr.P.C is a police officer?
Section 436 (1) CrPC and proviso clause has to be read conjointly, so “such officer” would mean only police officer who arrested the accused.
b) Whether the police officer can presume an accused as an indigent person and discharge him after authorization of detention by the Judicial Magistrate?
c) Whether after the judicial custody police officer can grant bail to an accused in a bailable offence by presuming that the accused is an indigent person.
6) As per the explanation given in Section 436 (1) Crl.P.C if a person is unable to furnish sureties within a week of the date of his arrest, it shall be a sufficient ground for the Officer or the Court to presume that the accused is an indigent person for the very purpose of proviso to section 436(1) Crl.P.C. No doubt “such officer” coined in proviso and explanation to sec 436 (1) Cr.P.C. would mean police officer who caused arrest of the accused.
7) It is to be pointed out that in order to raise presumption one and only explanation available in Cr.P.C. is that if an accused is unable to furnish sureties for a week from the date of arrest. But under no stretch of imagination a police officer can wait for one week to raise presumption and release the accused on bail who is an indigent person, because Section 57 Cr.P.C mandates that accused cannot be detained for more than 24 hours.
8) It is crystal clear from the very language of Section 57 and S.436 (1) Cr.P.C along with proviso and explanation clause that an indigent person has to be discharged from the custody on his execution of own bond. In order to arrive at right conclusion whether an accused is an indigent person or not, the one and only test is inability of the accused in furnishing the sureties within a period of a week from the date of arrest. So, in order to declare an accused as an indigent person, it will take a week time but within 24 hours from the arrest the arrested person has to be forwarded to the nearest Judicial Magistrate as mandated u/s 57 of Cr.P.C. So, the word “such officer” as found in the proviso clause is directly in conflict with Section 57 of CrPC.
9) It is to be noted that after a Judicial order authorizing the detention of the accused by the Judicial Magistrate, the police officer can’t grant bail. So, also “such officer” as found in proviso to Section 436 (1) Cr.P.C and in explanation is directly in conflict with Section 57 of Cr.P.C.
III. Conclusion:
As discussed supra the word “ Such Officer ” as found in proviso to Section 436 (1) Cr.P.C and in explanation appended with the said proviso would be a police officer and so it is in conflict with Section 57 of Cr.P.C. Hence, the proviso clause and explanation appended to Section 436(1) Cr.P.C requires reconsideration.