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13. The grant of bail has a result of setting a person arrested at liberty on surety being taken for his appearance on a day or place certain. The surety taken is called as 'bail'. Under the old Code, Section 496 conferred absolute right to bail to a person accused of commission of bailable offence. The said absolute right has been recognised by sub-section (1) of section 436 of the said Code. The difference between the old section 496 and section 436 of the present Code is that sub-section (2) of section 436 did not find place in section 496. Sub-section (2) of section 436 gives power to the Court to decline bail in the event a person who has been enlarged on bail under sub-section (1) of section 436 fails to comply with the condition of bail bond as regards time and place of attendance.

The argument before the Apex Court was that notwithstanding the order of cancellation of bail passed by the High Court, the Appellant can again move the Court under section 496 for grant of bail and the Trial Court is bound to grant bail as the right of the Appellant to be enlarged on bail in a bailable offence was an absolute and indefeasible right. While dealing with the said contention, the Apex Court held that the commitment of the Appellant to the custody was not by reason of the fact that he is alleged to have committed a bailable offence, but the reason for his commitment to custody was a judicial order passed on the ground that he has forfeited his bail. The Apex Court held that in such a case the Appellant was not entitled to fall back on his rights under section 496 of the old Code. In that context, the Apex Court observed that indefeasible right conferred under section 496 will not be available to the Appellant. However, as stated earlier, in paragraph 3 of the Judgment, the Apex Court upheld the right to bail of an accused under section 496 of the old Code, provided the accused is willing to give bail. On plain reading of section 496 of the old Code and section 436(1) of the said Code, it is crystal clear that when a person is charged with commission of a bailable offence, he gets an absolute right of being enlarged on bail as soon as he shows his willingness to give bail. In the light of this absolute right created under section 436 of the said Code, it will be necessary to consider whether any condition can be imposed by the learned Magistrate or the Police Officer while granting bail.

16. Perusal of section 436 of the Code of 1973 shows that there is no provision therein which gives power to the Court to impose any condition while enlarging an accused on bail in a case where bailable offence is alleged. In fact, the first proviso of the said section lays down that if an accused is indigent and is unable to furnish surety, the Court is under an obligation to discharge him on his executing a bond without without sureties for his appearance. The explanation to sub-section (1) of section 436 provids that when a person is unable to give bail within a week of his arrest, it shall be a sufficient ground for the Officer or a Court to presume that he is an indigent person for the purposes of this proviso. Thus, the law makes it clear that when an accused who is alleged of commission of a bailable offence is unable to furnish bail in the form of surety within a week from his arrest, he has to be discharged on his executing a bond. Thus, not only sub-section (1) but the first proviso and the explanation thereto clearly show that an unfettered right is granted to be enlarged on bail to a person other than a person accused of non-bailable offence arrested or detained without any warrant by an Officer in charge of a police station or when such a person appears or is brought before a Court. Such a person has to be enlarged on bail provided he is prepared to give bail. If such person is indigent and is unable to furnish surety, by dispensing with the requirement of furnishing bail or surety, he has to be discharged on his executing a personal bond without sureties. If such a person is unable to give bail within a period of one week from the date of his arrest, by legal fiction, the law presumes that the person is an indigent person and thus he will have to be discharged on executing a personal bond without sureties. The decision of the Apex Court in the case of Talab Haji Hussain (supra) deals with a case where bail of an accused is cancelled and he is arrested and committed to the custody. In such a case, the Apex Court observed that the commitment of the accused to the custody is as a result of the judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct shows that he cannot be at large. The Apex Court held that in such a case when the accused seeks bail, he cannot take benefit of section 496 of the old Code and claim unqualified and absolute right to be released on bail.

19. Thus, the position of the law is that a person who is alleged to have committed a bailable offence has an unfettered and absolute right to be enlarged on bail and the Court or the Police Officer concerned, as the case may be, has no discretion to grant or refuse bail.

Subject to first proviso to sub-section (1) of section 436 of the Code of 1973, the Court may modulate the condition of bail as regards the bail amount and the number of sureties. However, the Court cannot impose a condition which is not a term as to the bail. The condition of requiring a person accused of a bailable offence to surrender his passport to the Court is not a term as to bail. If in such a case a condition is imposed that bail is granted subject to condition of deposit of passport, such a condition will defeat the absolute right of the accused under section 436(1) of the said Code to be set at liberty. In the circumstances, while enlarging the Petitioner on bail in a bailable offence, the learned Magistrate has no jurisdiction to direct deposit of the passport. The Magistrate cannot impose a condition while granting bail in a bailable offence of not leaving India without the permission of the Court. Whenever the Petitioner is enlarged on bail, he is bound to attend the concerned Court on the date fixed or whenever he is called upon to do so. This obligation is created by the bail bond. If he desires to remain absent, he will have to seek an exemption from the Court. In a given case if there is an apprehension that the accused is likely to abscond, steps can also to be taken under the appropriate provisions of law. Steps can be also taken for impounding the passport.