Holding

Section 436 CrPC gives an absolute, indefeasible right to bail for bailable offences, and such bail cannot be cancelled merely because the complainant was not heard; cancellation is permissible only on substantive grounds enumerated under the court's inherent powers.

Summary

The appellant, Rasiklal, was charged with defamation under Sections 499 and 500 of the IPC, both bailable offences, and was granted bail by a Judicial Magistrate under Section 436 of the CrPC on 1 December 2006. The complainant filed a revision before the High Court, which cancelled the bail on the ground that the complainant had not been heard, alleging a breach of natural justice. The Supreme Court examined whether Section 436 confers an absolute right to bail for bailable offences and whether hearing the complainant is a mandatory prerequisite. It held that bail under Section 436 is a matter of right, not discretion, and the court is not bound to issue notice or hear the complainant; cancellation is permissible only on substantive grounds such as misuse of liberty, interference with investigation, etc., under the inherent powers of the court. Consequently, the High Court's order cancelling the bail was set aside and the bail order of 1 December 2006 was restored.

Issues considered

Whether Section 436 of the CrPC confers an absolute right to bail for bailable offences.
Whether the complainant must be heard before bail is granted under Section 436.
Whether a High Court can cancel bail granted under Section 436 solely on the ground of alleged violation of natural justice.
What are the permissible grounds for cancellation of bail under the inherent powers of the court.

Legislation cited

Code of Criminal Procedure, 1973s. 200, s. 317, s. 436, s. 446, s. 482

Subjects

bailSection 436 CrPCnatural justicebailable offencecancellation of bailinherent powersSection 482 CrPCcriminal procedure

Judgment

[2009] 2 S.C.R. 795

RASIKLAL A
v.
Kl SORE
Criminal Appeal No. 343 of 2009
FEBRUARY 20, 2009
B
[R.V. RAVEENDRAN AND J.M. PANCHAL, JJ.]
Code of Criminal Procedure, 1973 :
s. 436 - Grant of bail - For bailable offence -
Cancellation of, in revision, holding it violative of principles of c
natural justice having been passed without hearing the
complainant - On appeal, held: Bail in bailable offence can
be claimed by the accused as a matter of right- While granting
bail in such cases Police/Court is not bound to issue notice to
the complainant and hear him - Grant of such bail without
0
hearing the complainant, is not violative of principles of natural
justice - Therefore, not liable to be cancelled.
Principles of natural justice - Applicability of .
Appellant was granted bail uls. 436 Cr.P.C. for the
offences committed uls. 499 and 500 IPC. In revision, High E
Court cancelled the bail, on the ground that the bail order
was violative of principles of natural justice as the same
was passed without hearing the complainant. Hence, the
present appeal.
F
Disposing of the appeal, the Court
HELD: 1. Under Section 436 Cr. P.C., a person
accused of a bailable offence is entitled to be released on
bail pending his trial. As soon as it appears that the
accused person is prepared to give bail, the police officer G
t ..._ or the court before whom he offers to give bail, is bound
to release him on such terms as to bail as may appear to
the officer or the court to be reasonable. It would even be

795 H
796 SUPREME COURT REPORTS [2009] 2 S.C.R.

-r·--
A open to the officer or the court to discharge such person
on his executing a bond as provided in the Section instead
of taking bail from him. [Para 6] [ 802-8-C & F]
2. Bail in a bailable offence can be claimed by
accused as of right and the officer or the court, as the
B case may be, is bound to release the accused on bail if he
is willing to abide by reasonable conditions which may
be imposed on him. The right to claim bail granted by
Section 436 of the Cr.P.C. in a bailable offence is an
+
absolute and indefeasible right. In bailable offences there
c is no question of discretion in granting bail as the words
of Section 436 are imperative. The only choice available t--
to the officer or the court is as between taking a simple •
recognizance of the accused and demanding security
with surety. The persons contemplated by Section 436 ~
D cannot be taken into custody unless they are unable or
not willing to offer bail or to execute personal bonds. [Para
6] [802-D-E]
3. There is no express provision in CrPC prohibiting
the court from re-arresting an accused released on bail
E under Section 436 Cr.P.C. However, High Court can cancel
the bail bond while exercising inherent powers under
Section 482 CrPC. A person accused of a bailable offence
is entitled to be released on bail pending his trial, but he
),..,
...
forfeits his right to be released on bail, if his conduct
F subsequent to his release is found to be prejudicial to a
fair trial. This forfeiture can be made effective by invoking
the inherent powers of the High Court under Section 482
Cr.P.C. [Para 7] [802-G-H; 803-A]
Ratilal Bhanji Mithani v. Asstt. Collector of Customs and
G ~
Anr. 1967 (3) SCR 926 - followed. ~.

Ta/ab Haji Hussain vs. Madhukar Purushottam Mondkar
and Anr. 1958 SCR 1226 - relied on.
4. Sub-Section (2) of Section 436 Cr.P.C. empowers
H
RASIKLAL V. KISORE 797

any court to refuse bail without prejudice to action u/s. A
446 Cr.P.C., where a person fails to comply with the
conditions of bail bond. However, bail granted to an
accused with reference to bailable offence can be
cancelled only if the accused (1) misuses his liberty by
indulging in similar criminal activity, (2) interferes with the 8
course of investigation, (3) attempts to tamper with
evidence of witnesses, (4) threatens witnesses or indulges
_.._
in similar activities which would hamper smooth
investigation, (5) attempts to flee to another country, (6)
attempts to make himself scarce by going underground
or becoming unavailable to the investigating agency, (7) c
attempts to place himself beyond the reach of his surety,
etc. These grounds are illustrative and not exhaustive.
[Para 8] [803-C-E]
'I" 5. However, a bail granted to a person accused of
", D
bailable offence cannot be cancelled on the ground that
the complainant was not heard. When a police officer
releases a person accused of a bailable offence, he is not
required to hear the complainant at all. Similarly, a court
while exercising powers under Section 436, is not bound
to issue notice to the complainant and hear him.[Para 8] E
[803-F-G]
-"- Arun Kumar vs. State of Bihar and Anr. JT 2008 (2) SC
584 - distinguished.
6. Even if notice had been issued to the respondent F
before granting bail to the appellant, the respondent could
not have pointed out to the court that the appellant had
allegedly committed non-bailable offences. Having regard
to the facts of the case, the bail granted to the appellant
for alleged commission of bailable offence could not have
,. -;,_ been cancelled by the High Court on the ground that the
G
complainant was not heard and, thus, principles of natural
justice were violated. [Para 1O] [805-A-C]
7. Principles of natural justice is not a 'mantra' to be
applied in vacuum in all cases. The question as to what H
798 SUPREME COURT REPORTS [2009) 2 S.C.R.

-r-:-
A extent, the principles of natural justice are required to be
complied with, will depend upon the facts of the case. They
are not required to be complied with when it will lead to
an empty formality. [Para 10] [805-D]
State Bank of Patiala vs. S. K. Sharma 1996 {3) SCC 364;
B Karnataka State Road Transport Corporation vs. S. G.
Kotturappa 2005 (3) SCC 409 - Relied on.
Case Law Refernece -+
(1958) SCR 1226 Relied on Para 7
c
(1967) 3 SCR 926 Followed Para 7
JT 2008 (2) SC 584 Distinguished Para 9

(1996) 3 sec 364 Relied on Para 10
~
D (2005) 3 SCC409 Relied on Para 10 ,

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 343 of 2009
From the final Judgement and Order dated 24.03.2008 of
E the High Court of Madhya Pradesh at Indore Bench in Criminal
Revision Petition No. 1362 of 2006.
Harish N. Salve and Sushil Kumar, Ankur Chawla, Abhishek
Singh, Rahul Pradat and Siddhartha Chowdhury, with them for
~
...
the Appellant.
F
Abhishek Manu Singhvi, Sanjeev Sachdeva, Saurabh
Sharma and Amit Bhandari, with him for the Respondent.
The Judgement of the Court was delivered by

G J.M. PANCHAL, J.
..-t " '
1. Leave granted.
2. The appellant is accused in Criminal Complaint No.
1604 of 2005 filed in the court of learned Judicial Magistrate
First Class, Indore, M.P., for alleged commission of offences
H ~
---{

RASIKLAL V. KISORE 799
[J.M. PANCHAL, J.]

punishable under Sections 499 and 500 of the Indian Penal A
~ Code and assails the order dated March 24, 2008, rendered
by the learned Single Judge of High Court of Madhya Pradesh,
Bench at Indore, in Criminal Revision No. 1362 of2006 by which
bail granted to the appellant by the learned Judicial Magistrate
First Class, Indore, M.P. on December 1, 2006 is cancelled on B
the ground that the order granting bail was passed by tlie learned
Judicial Magistrate First Class, Indore, without hearing the
.....
A'
original complainant and was, therefore, bad for violation of
+ principles of natural justice.
3. It is the case of the respondent that the appellant gave c
an interview on December 15, 2004 on Star News TV Channel
and defamed him. The respondent, therefore, filed a Criminal
Complaint No. 1604 of 2005 in the court of learned Judicial
Magistrate First Class, Indore, M.P. on January 27, 2005 for
,.. alleged commission of offences punishable under Sections 499 D
and 500 of the Indian Penal Code. The learned Judicial
Magistrate examined the respondent on oath as required by
Section 200 of the Code of Criminal Procedure, 1973 and
issued summons to the appellant for commission of alleged
offences under Sections 499 and 500 of the Indian Penal Code E
vide order dated May 9, 2006. The appellant appeared before
the court on November 20, 2006 and submitted an application
under Section 317 of the Code of Criminal Procedure, 1973
../. seeking exemption for personal appearance along with
vakalatnama of his counsel. In the said application prayer for j:
grant of bail was also made. The application was fixed for
hearing on December 26, 2006. However, on December 1, 2006
the appellant filed an application mentioning his appearance
before the court and to consider his prayer for grant of bail under
Section 436 of the Code of Criminal Procedure, 1973 as
G
offences alleged to have been committed by him under Sections
;.. 499 and 500 of the Indian Penal Code are bailable. The
>
application was heard on the day on which it was filed. The
learned Magistrate noticed that the offences alleged to have
been committed by the appellant were bailable. Therefore, the
H
800 SUPREME COURT REPORTS [2009] 2 S.C.R.

A appellant was admitted to bail on his furnishing a surety in the
sum of Rs.5,000/- and also furnishing a bond of the same
amount. While enlarging the appellant on bail the learned
Magistrate imposed a condition on the appellant that he would
appear before the court on each date of hearing or else he would ..
B be taken into custody and seni to jail. The order dated December
1, 2006 passed by the learned Judicial Magistrate further
indicates that in compliance of the direction issued by the court
the appellant furnished a bail bond in the sum of Rs.5,000/- and
also executed a bond for the said amount and that the bail bonds
c were accepted by the court after which the appellant was
released on bail.
4. The respondent, who is original complainant, filed
Criminal Revision No. 1362 of 2006 in the High Court of Madhya
Pradesh, Bench at Indore, on December 26, 2006 for cancelling
D the bail granted to the appellant by the learned Judicial Magistrate
First Class, Indore, on the ground that he was not heard and,
therefore, the order was violative of principles of natural justice.
The learned Single Judge, before whom the revision application
was notified for hearing, had issued notice to the appellant but
E the appellant did not remain present before the High Court. The
revision application filed by the respondent was taken up for
final disposal on March 24, 2008. The learned Single Judge, by
order dated March 24, 2008, has cancelled the bail granted to
the appellant by the learned Judicial Magistrate on the ground ,
F that the respondent, who was original complainant, was not heard -.

and, therefore, the order granting bail violates the principles of
natural justice. After cancelling the bail granted to the appellant
the learned Single Judge remitted the matter to the court below
with a direction that the matter be taken up according to law
G between the parties relating to the grant of bail to the appellant.
Feeling aggrieved the appellant has invoked appellate
jurisdiction of this Court under Article 136 of the Constitution. ~-
.... I

5. This Court has heard the learned counsel for the parties
and taken into consideration the documents forming part of the
H appeal.
RASIKLAL V. KISORE 801
[J.M. PANCHAL, J.]

6. As is evident, the appellant is being tried for alleged A
commission of offences punishable under Sections 499 and
500 of the Indian Penal Code. Admittedly, both the offences are
bailable. The grant of bail to a person accused of bailable
offence is governed by the provisions of Section 436 of the
Code of Criminal Procedure, 1973. The said section reads as B
under: -
"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
c
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:
D
,lf
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: E
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
t. "" indigent person for the purposes of this proviso.
F
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 G
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
H
802 SUPREME COURT REPORTS (2009] 2 S.C.R.

A shall be without prejudice to the powers of the Court to call
upon any person bound by such bond to pay the penalty
--r--:
thereof under section 446."
There is no doubt that under Section 436 of the Code of
Criminal Procedure a person accused of a bailable offence is
8
entitled to be released on bail pending his trial. As soon as it
appears that the accused person is prepared to give bail, the
police officer or the court before whom he offers to give bail, is
bound to release him on such terms as to bail as may appear to
the officer or the court to be reasonable. It would even be. open
-t -- I

c to the officer or the court to discharge such person on his !'
executing a bond as provided in the Section instead of taking
bail from him. The position of persons accused of non-bailable
'l

.
offence is entirely different. The right to claim bail granted by
~
Section 436 of the Code in a bailable offence is an absolute I
D ~
and indefeasible right. In bailable offences there is no question
of discretion in granting bail as the words of Section 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. The persons contemplated
E
by Section 436 cannot be taken into custody unless they are
unable or willing to offer bail or to execute personal bonds. There
is no manner of doubt that bail in a bailable offence can be
claimed by accused as of right and the officer or the court, as
the case may be, is bound to release the accused on bail if he
F is willing to abide by reasonable conditions which may be
)...
... 1 ..,,M

'

imposed on him.
7. There is no express provision in the Code prohibiting
the court from re-arresting an accused released on bail under
G Section 436 of the Code. However, the settled judicial trend is
that the High Court can cancel the bail bond while exercising
.-f -~ r-
inherent powers under Section 482 of the Code. According to
this Court a person accused of a bailable offence is entitled to
be released on bail pending his trial, but he forfeits his right to
H be released on bail if his conduct subsequent to his release is
RASIKLAL V. KISORE 803
[J.M. PANCHAL, J.]

__..,, found to be prejudicial to a fair trial. And this forfeiture can be A
made effective by invoking the inherent powers of the High Court
under Section 482 of the Code. [See: Ta/ab Haji Hussain vs.
Madhukar Purushottam Mondkar and another (1958 SCR 1226)]
reiterated by a Constitution Bench in Rati/a/ Bhanji Mithani v. Asstt.
Collector of Customs and Anr. (1967 (3) SCR 926)]. B
8. It may be noticed that sub-Section (2) of Section 436 of
-.... the 1973 Code empowers any court to refuse bail without
prejudice to action under Section 446 where a person fails to
* comply with the conditions of bail bond giving effect to the view
-f
' expressed by this Court in the above mentioned case. However, c
it is well settled that bail granted to an accused with reference
to bailable offence can be cancelled only if the accused (1)
misuses his liberty by indulging in similar criminal activity, (2)
interferes with the course of investigation, (3) attempts to tamper
~ with evidence of witnesses, (4) threatens witnesses or indulges D
..,, in similar activities which would hamper smooth investigation,
(5) attempts to flee to another country, (6) attempts to make
himself scarce by going underground or becoming unavailable
to the investigating agency, (7) attempts to place himself beyond
the reach of his surety, etc. These grounds are illustrative and E
not exhaustive. However, a bail granted to a person accused of
bailable offence cannot be can.celled on the ground that the
complainant was not heard. As mandated by Section 436 of

-- ~ A
the Code what is to be ascertained by the officer or the court is
whether the offence alleged to have been committed is a F
bailable offence and whether he is ready to give bail as may be
directed by the officer or the court. When a police officer releases
a person accused of a bailable offence, he 1s not required to
hear the complainant at all. Similarly, a cou·rt while exercising
powers under Section 436 of the Code is not bound to issue
G
notice to the complainant and hear him.
t.
•;
9. The contention raised by the learned counsel for the
respondent on the basis of decision of this Court in Arun Kumar
vs. State of Bihar and another [JT 2008 (2) SC 584], that the
complainant should have been heard by the Magistrate before H
804 SUPREME COURT REPORTS [2009] 2 S.C.R.

A granting bail to the appellant, cannot be accepted. In .the .,. t
~
decision relied upon by the learned counsel for the respondent
challenge was to the order passed by a learned Single Judge •
;·
of the Patna High Court quashing the order passed by the
learned Fast Track Court holding that the respondent No. 2
B therein was not juvenile and, therefore, there was no need to
refer his case to the Juvenile Justice Board for ascertaining his
age and then for trial. The High Court was of the view that the .,..,
prayer was rejected only on the ground that two or three _, ,.'
witnesses were examined and though the accused was in ,...
c possession of school leaving certificate, mark sheet, etc. to show
that he was a.juvenile, the prayer could not have been rejected.
This Court found that the High Court in a very cryptic manner r·
·.._
had observed that the application of the accused deserved to
be allowed and directed the court below to consider the accused
D as a juvenile and proceed accordingly. Before this Court it was -,__
submitted by the learned counsel for the informant that the .....
i
documents produced had been analysed by the trial court and )

it was found at the time of framing charge that he was major
. without any doubt. The grievance was made on behalf of the
E informant before this Court that the High Court did not even
consider as to how the conclusions of the trial court suffered
from any infirmity and merely referring to the stand of the accused
and even without analyzing the correctness or otherwise of the ).,_ :>----
observations and conclusions made by the trial court the learned -
F Single Judge came to the conclusion that the accused was a
juvenile. This Court concluded that the High Court had failed to
notice several relevant factors and no discussion was made as
to how the conclusions of the trial court suffered from any infirmity. \
I
It was also noticed by this Court that no notice was issued to the t
G appellant before the matter was disposed of. In view of the •'
above position the order impugned in the appeal was set aside ~
by this Court. To say the least, the facts of the present case are
quite different from those mentioned in the above reported
decision. Therefore the ratio laid down in the said decision
cannot be applied to the fact of the instant case.
H
RASIKLAL V. KISORE 805
[J.M. PANCHAL, J.]

- .. -y-· 10. Even if notice had been issued to the respondent before A
granting bail to the appellant, the respondent could not have
pointed out to the court that the appellant had allegedly

...
'
committed non-bailable offences. As observed earlier, what has
to be ascertained by the officer or the court is as to whether the
\
person accused is alleged to have committed bailable offences B

.. +
and if the same is found to be in affirmative, the officer or the
court has no other alternative but to release such person on bail
if he is ready and willing to abide by reasonable conditions,
which may be imposed on him. Having regard to the facts of the
case this Court is of the firm opinion that the bail granted to the c
appellant for alleged commission of bailable offence could not
have been cancelled by the High Court on the ground that the
complainant was not heard and, thus, principles of natural justice
were violated. Principles of natural justice is not a 'mantra' to
be applied in vacuum in all cases. The question as to what extent,
-'" the principles of natural justice are required to be complied with,
D
will depend upon the facts of the case. They are not required to
be complied with when it will lead to an empty formality (See
State Bank of Patiala vs. S.K. Sharma (1996 (3) SCC 364)
and Karnataka State Road Transport Corporation vs. S. G.
Kotturappa (2005 (3) SCC 409). The impugned order is, E
therefore, liable to be set aside.

..(
11. For the foregoing reasons the appeal succeeds. The
,.. order dated March 24, 2008, passed by the learned Single
Judge of High Court of Madhya Pradesh, Bench at Indore, in F
Criminal Revision No. 1362 of 2006 cancelling the bail granted
to the appellant by the learned Judicial Magistrate is hereby set
aside and order dated December 1, 2006, passed by the
learned Judicial Magistrate First Class, Indore, M.P., in Criminal
Complaint No. 1604 of 2005 is hereby restored.
G
.,,.; -~' 12. The appeal accordingly stands disposed of.

K.K.T Appeal disposed of.