Introduction
Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other Law for the time being in force. Non–Bailable Offence means any other offence. Bailable offences are regarded as less grave and less serious. Non-bailable offence are serious offences where bail is a privilege and only the courts can approve it.
What is an offence?
Meaning of an offence: – Offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871. Any act which is considered to be a crime by any law is an offence. Any act which causes violation to the right of others, or causes harm to the other and affects the society at large is an offence.
What is Bail?
Meaning of Bail: – Bail is a judicial release from the custody because that person makes written promise to appear in the court without being in the custody. CRPC does not define bail, but essentially, bail is an agreement in which a person makes a written promise to appear before the court whenever required and to comply with any of the conditions laid down in the agreement. He assures forfeiture of a specified amount of money if that person fails to abide by any of the terms and conditions of the agreement.
What is a Bailable Offence?
Meaning of Bailable offence: – Bailable offence are crimes or offences that are not very serious in nature. In such cases, bail is a right and the arrested person should be released after submitting bail with the police. The police have the power to grant bail in such cases. The accused can be released on bail, on the execution of “surety bond”, with or without presenting the surety amount. Any person gets arrested without warrant and he is ready to appear in the court whenever needed.
Section 2(a) of the code of criminal procedure defines Bailable offence as the offence that has been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force. The first schedule of the CrPC is divided into two parts wherein the first part deals with the offences given under IPC and the second part deals with the offences under other laws. As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only. Some of the common bailable offences are: Simple Hurt (Section 337; IPC), Bribery (Section 171E; IPC), Public Nuisance (Section 290; IPC), Death by Rash or Negligent Act (Section 304A; IPC).
Bail bond; Section 436(2)
Meaning of Bail Bond: – A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom.
The Bail Bond will consist of certain conditions on which a person will be released, such as: –
- That the accused person will not leave that territory or country without the permission of the court or police officer.
- The Accused will have to give his presence before the police officer or court every time, he is required to do so.
- The Accused will not interfere with the evidence which is required by the police in the investigation.
The court has the right to refuse bail to an accused person, even if the offence is bailable, where the person granting the bail fails to comply with the terms of the bail bond.
Examples: –
- To be a member of an unlawful assembly
- Rioter, armed with a deadly weapon
- The public servant disobeys one direction of the law, intending to injure a person.
- Wearing garb or token used by public servants with fraudulent intentions.
What is anticipatory bail?
Meaning of anticipatory bail: – The delivery of the accused is given temporarily to the surety on the promise that he will be produced before the court. Further, when a competent court grants “anticipatory bail“, it makes an order that when the arrest happens, the person shall be released on bail.
In case a person is of the apprehension that he might be arrested on the accusation of a non-bailable offence, he can apply to High Court or Court of Session for bail under Section 438 of CrPC.
The grant of bail will be on the discretion of the Court subject to certain conditions, including conditions that the person shall: –
1. Make himself available for interrogation by Police Officer as and when required.
2. Not make any inducement, threat or promise to any person so as to deter him from disclosing any material facts to the Court or any police officer.
3. Not leave India without prior permission of the Court.
Procedure for Anticipatory Bail
In order to apply for Bail under Section 437 or Section 438 of CrPC, the accused is required to fill the Form No. 45 given in the First Schedule and apply for bail. After that, it will be the discretion of the Court whether it grants or rejects the application for bail.
What is Non- Bailable Offence?
Meaning of Non-bailable offence: – Non-bailable offence are serious offences where bail is a privilege and only the courts can approve it. When arrested and detained for a serious or non-bailable offence, no person can ask to be released on bail as a right. As per Section 2(a) of CrPC, non-bailable offence includes all those offences which are not included in bailable offence in the First Schedule. Further, the First Schedule in its Second part at its end has defined non-bailable offence as the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years.
The court can usually refuse bail if: –
- “Bail Bond” is not duly executed, or if the offence committed is one, which carries the sentence of death or life imprisonments, such as “Murder” or “rape” or the accused has attempted to abscond, and his Credit is doubtful.
- Such person shall not be released on bail if the accused person had been previously convicted of an offence punishable by death, imprisonment for life or imprisonment for 7 or more than 7 years, or if he is convicted under 2 or more cognizable offence and the punishment for same is imprisonment for 3 or more years.
Examples of Non-Bailable Offence: –
- Murder (Section 302) IPC
- Dowry Death (Section 304-B) IPC
- Murder attempt (Section 307) IPC
- Voluntary causing grievous hurt (Section 326) IPC
- Kidnapping (Section 363) IPC
- Rape (Section 376) etc.
Section 437(1) when a person is charged with or suspected of a Non-Bailable Offence, if he is arrested or detained without warrant by the officer-in-charge of a police station and is brought before a court other than the High Court or the Sessions Court then he may be released on bail.
Court has discretionary power in the grant of bail, which will be guided by the law. As there are some principles: –
- Such a person shall not be released if there are reasonable grounds to believe that he has been given the punishment of the death penalty or life imprisonment;
- If such a crime is a cognizable offence, such person shall not be released and was previously sentenced to death, life imprisonment or imprisonment for seven years or more, or was convicted on two or more occasions before of a non-bailable offence and cognizable offences.
Application for Bail
For non-bailable offence one has to move an application setting out the grounds for the grant of bail. In case the court is convinced that bail should be granted it passes the order after hearing the arguments. At that stage one has to fill in the bail bond duly signed by the surety and to be filled through his advocate. In case the accused is before the court, he is set at liberty in the court itself and in case the accused is under detention in the jail, orders of grant of bail are sent to the concerned jail.
To get oneself released on bail in bailable or non-bailable offences one has to file the bail bond. The bail bond is filed by the surety who takes the responsibility for producing the accused person in the court or before the investigating agency. Any person who has the capacity, control and competence to produce the accused in case of non-appearance or to pay the amount of the surety can be accepted by the court for the purpose.
Exceptions to Section 437(1)
- Section 437[1(a) and (b)]: –
- Released on bail if such a person is under the age of sixteen years or is a woman or is sick or infirm.
- If the court is satisfied that it is proper and appropriate to do so for some other specific reason.
- The fact that an accused may be required to be identified by witnesses during the investigation will not be a sufficient grounds for the refusal to grant bail if he is otherwise entitled to release on bail and makes a promise that he will follow the instructions given by the court.
- Section 437(2): – A person can be released, if it is visible to such officer or court at any of the stages of investigation; the investigation or trial, as the case may be, does not constitute reasonable grounds to believe that the accused has committed a non-bailable offence, but that there are sufficient grounds for further investigation of his crime, the accused shall be subject to the provision of section 446 (A) and pending such investigation, may be released on bail or at the discretion of such officer or court, upon his execution by a bond without sureties for his appearance as hereinafter provided.
- Section 437(3): – When any person who is accused or suspected for committing an offence which is punishable with imprisonment or the punishment may extend to seven years or more or of any offence, under Chapter 6, Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such type of offence, that person will be released on bail under sub-section (i), the Court may impose any condition which it considers necessary: –
- To ensure that such person shall participate as per the terms of the bond executed under this chapter, or
- To ensure that such person shall not commit the same offence for the person charged or the commission in which he is a suspect, or
- Otherwise in the interest of justice.
- Section 437(4): – states that if an officer or court releases any person on bail under sub-section (1) or sub-section (2), shall record in writing his reasons or special reasons for doing so.
- Section 437(5): – states that if any court which has released a person on bail under sub-section (1) or sub-section (2), if court thinks that the accused person is not complying with the conditions of the bail then court may refuse his bail and such person be arrested and he will be taken into custody.
- Section 437(6): – states that if, in any case by a magistrate, the hearing of a person accused of any non-bailable offence is not completed within a period of sixty days from the first date fixed for taking evidence in the trial, such person will be released from custody during the said period, on bail to the satisfaction of the magistrate, regardless of any reasons to be recorded in writing, the magistrate otherwise directs.
- Section 437(7): – If in any case before the judgement, court thinks that there are reasonable grounds to believe that person is not guilty of such offence, if he is in custody, he can be released on bail, without any hearing on bail.
Difference between Bailable and Non-Bailable Offence
| Bailable Offence | Non-Bailable Offence |
| Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other Law for the time being in force. | Non-Bailable Offence means any other offence. |
| Bailable offences are regarded as less grave and less serious. | Bailable offences are grave and serious offences, For example- offence of murder. |
| Under bailable offences, bail is claimed as a matter of right. | Under Non-bailable offences, bail is a matter of discretion. |
Case laws under Bailable and Non-Bailable Offence
- Sandeep Jain vs. NCT Delhi
In this case, a lower court demanded 2 crores as sureties for the bail of a person.
Judgment: – The Supreme Court held that the condition imposed by the lower court is very harsh, as the amount for the bail is too much and the person will not be able to take the bail because of this reason.
- Dhruv.K.Jaiswal vs. State of Bihar
In this case, The Patna high court dismisses a bail order.
Judgment: – The Supreme Court held that if any bail is refused by any of the courts without any reason than that order will be considered as improper.