This article is written by Adhila Muhammed Arif, and further updated by Shreya Patel. This article discusses the meaning of bail as well as non-bailable offences, the difference between non-bailable and bailable offences, the provisions relevant to non-bailable offences and the case laws on non-bailable offences. This article further throws light on who can grant bail in non-bailable offences, circumstances in which bail can be granted in non-bailable offences and what will be the consequences when a person is found guilty of a non-bailable offence.
Table of Contents
Introduction
“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process”.
– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
In the Indian criminal justice system, bail is one of the fundamental parts. Bail is an important concept not only in India but throughout the globe. The concept of bail is not new to the world or India. Bail as a right can be traced back to 399 BC. Bail is a conditional right and not a total right. The accused is granted freedom from custody with certain conditions. The right to bail is not guaranteed in all circumstances. In the case of Babu Singh And Ors vs. the State of U.P (1978), it was held that the right to bail comes under Article 21 of the Indian Constitution and its scope. The concept of bail plays the role of check and balance; it ensures that the person accused is treated as innocent until proven guilty for the offence.
In India, the offences are grouped into two categories which are non-bailable offences and bailable offences. There are some offences for which the right to bail is not granted, these offences are known as non-bailable offences. The concept of bail fully depends on the nature of the crime.
There are some circumstances where the bail is also procured prior to the arrest taking place. The situations in which bail can be procured before the arrest also lie in the hands of the court. The Code of Criminal Procedure, 1973 provides different kinds of bail. The Code of Criminal Procedure, 1973 is now replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’).
Under BNSS, Section 2(1)(c) defines bailable and non-bailable offences. The new criminal laws in India are introduced with the aim of making many vital changes as per the evolving society and its needs, but the fundamental principles still remain the same, which is also seen in the case of bail.
Before we look into non-bailable offences and provisions for bail for such offences, let us first look at what bail means.
Meaning of bail
The term ‘bail’ has been derived from the French word ‘baillier’, which means ‘to give or to deliver.’ While the term ‘bail’ has not been defined in the Code of Criminal Procedure, 1973, bail is defined under BNSS’s Section 2 (1)(b) – bail as per this Section means the release of a person, who is suspected or accused of committing an offence, on a temporary basis. At the time of release certain conditions are set by the court or the officer on execution by such person of a bail bond or bail.
The meaning of the word ‘bail’ in simple words is surety, a bail acts as a surety that the person who is accused and is granted release on bail will surely return for all further court appearances and interrogation. As per Halsbury’s Laws of England, when bail is granted, it does not mean that the person that is accused is set free. It means that the person who is accused is being released from the custody of the police and is now under a surety. The surety is the person who is responsible for making the accused come to the court for all the appearances that are required.
Bail can also be defined as a type of security paid for guaranteeing the appearance of the accused, on the condition that he is released temporarily. The bail is only allowed when the trial or the investigation is pending. A bail works as an assurance that the accused person will be present for appearances in front of the court. A bail is granted to the accused person to provide him/her liberty. The accused is provided liberty as the trial/investigation is still pending and the accused is still not proven guilty.
Types of bail
Bailable offences
The offences which an individual can be granted bail as a right are known as bailable offences. The offences which are categorised as bailable offences generally are not considered very serious or which can cause grievous hurt to someone. The police when they believe that an offence is not very serious in nature they can grant bail to the accused. Bailable offences are usually punishable with imprisonment less than three years and fine. Some of the offences in which a bail can be granted are defamation, stalking,theft, bribery, public nuisance etc.
Non-bailable offences
The offences for which bail cannot be granted are known as non-bailable offences. When a person is accused of an offence which is specified as a non-bailable offence then such person cannot claim bail as a right. Section 2(c) of BNSS provides that non-bailable offences are those offences which are not bailable. Previously, a non-bailable offence was defined under Section 2 (a) of the Criminal Procedure Code, 1973 (hereinafter mentioned as ‘CrPC’). The Section states that all the offences that are not bailable are non-bailable offences. The bailable offences are the offences mentioned in the First Schedule of CrPC.
List of non-bailable offences
Below is the list of some of the key offences that are non-bailable in nature along with their punishments. A detailed list of non-bailable offences can be found in the First Schedule of BNSS.
| Sections of Indian Penal Code (IPC) | Sections of Bharatiya Nyaya Sanhita (BNS) | Offence | Punishment under Bharatiya Nyaya Sanhita |
| Section 115 | Section 55 | Abetment of any offence, which is punishable with imprisonment of life or with death, if the offence is not committed in consequence of the abetment.If done to cause harm in consequence of abetment. | Imprisonment for seven years and a fine. Imprisonment for the period of fourteen years along with a fine. |
| Section 118 | Section 58(a) | When a design is concealed for committing an offence which is punishable in nature with imprisonment for life or with death, if the offence is committed. | Imprisonment for the period of seven years and a fine. |
| Section 119 | 59(b) | When an offence is punishable with life imprisonment or death, | 10 years imprisonment |
| Section 376 | 64 (1) | Rape | An imprisonment that is rigorous in nature and is not less than ten years which may be extended to life imprisonment along with a fine. |
| Section 376 | 64 (2) | When rape is committed by a public servant or a police officer, any person of management, jail staff, staff of remand house, member of any armed force, any custody place, or children or women’s institution or by a management person or on the staff member of the hospital, the rape is committed by a trusted person or authority to the person who was raped or by a relative of the victim. | Rigorous imprisonment of not less than ten years but which may extend to imprisonment for life which shall mean the remainder of that person’s natural life and with a fine. |
| Section 376 | Section 65(1) | When the person committing the offence of rape is under 16 years of age. | Rigorous imprisonment of not less than twenty years but which may extend to imprisonment for life which means the remainder of that person’s natural life and with death or fine. |
| Section 376AB | Section 65(2) | When the person committing the offence of rape is under 12 years. | An imprisonment that is rigorous in nature and is not less than twenty years but can also extend to life imprisonment which means imprisonment for the remainder of the natural life of a person and with death or fine. |
| Section 376A | Section 66 | When the person commits an inflicting injury and rape which causes the woman to be in a vegetative state or leads to death. | An imprisonment that is rigorous in nature, which is not less than 20 years and can extend to life imprisonment, that is the person will remain in prison till natural life or death. |
| Section 376C | Section 68 | Sexual intercourse by a person in authority, etc. | An imprisonment that is rigorous in nature, which is not less than five years which can also be extended to a ten years along with the fine. |
| – | Section 69 | When sexual intercourse is conducted using deceitful means | Imprisonment which can extend to ten years along with fine. |
| Section 376D | Section 70(1) | Gang rape | Rigorous imprisonment which is not less than twenty years and can also extend to life imprisonment which means imprisonment for the remaining natural life of the person and fine. |
| Section 376DA, Section 376DB | Section 70(2) | Committing gang rape against a woman who is under the age of eighteen. | Imprisonment for life, which means imprisonment for the remainder of natural life and with death or with a fine. |
| Section 376E | Section 71 | Repeat offenders | Imprisonment for life which means imprisonment for the remainder of the person’s natural life or with death. |
| Section 354 | Section 74 | Using a criminal force or assault on a woman with the intention to outrage her modesty. | Imprisonment for one year which may extend to five years and fine. |
| Section 354A | Section 75(2) | Punishment for sexual harassment and sexual harassment which is specified in subsection (1) clause (i), (ii) or (iii). | An imprisonment that is rigorous in nature for three years, along with fine, or both. |
| Section 354A | Section 75(3) | Punishment for sexual harassment and sexual harassment which is specified in Subsection (1)(iv). | One year imprisonment, or fine, or both. |
| Section 354B | Section 76 | Using a criminal force or assault on a woman with the intention to disrobe. | Not less than three years imprisonment which may be extended to a period of seven years and fine. |
| Section 354C | Section 77 | When the conviction is for the second time or subsequent conviction. (Voyeurism) | Imprisonment which is not less than three years but can be further extended up to seven years as well as a fine. |
| Section 354D | Section 78(2) | When the conviction is for the second time or subsequent conviction. (Stalking) | Imprisonment which can be up to five years along with the fine. |
| Section 304B | Section 80(2) | Dowry death. | Imprisonment that is not less than seven years, which can also extend to life imprisonment. |
| Section 493 | Section 81 | When a man by deceit causes a woman to believe that she is lawfully married to him when she is not and cohabitates with her under the same belief. | Ten years of imprisonment as well as a fine. |
| Section 496 | Section 83 | When a person goes through a ceremony of marriage with a fraudulent intention fully aware that he is not thereby married lawfully. | Imprisonment up to seven years and a fine. |
| Section 498A | Section 85 | Punishment for subjecting cruelty towards a married woman | Imprisonment for three years and a fine. |
| Section 366 | Section 87 | Kidnapping, inducing or abducting a woman to compel her marriage, etc. | Imprisonment for ten years and a fine. |
| Section 313 | Section 89 | Causing miscarriage without the consent of the women | Imprisonment for life, or imprisonment for ten years and a fine. |
| Section 314 | Section 90(1) | A death that results from an act which is done with the intention of causing miscarriage. | Imprisonment for a period of ten years, along with a fine. |
| Section 314 | Section 90(2) | If the act is done without the consent of the woman. | Imprisonment for life, or as above. |
| Section 315 | Section 91 | When an act is done with the intention to prevent a child from being born alive or to cause it to die after the birth. | Imprisonment for ten years, or fine, or both. |
| Section 316 | Section 92 | Causing the death of a quick unborn child by an act amounting to culpable homicide. | Imprisonment for ten years and a fine. |
| – | Section 95 | Hiring, engaging or employing a child in order to commit an offence. | An imprisonment for not less than three years which can also be extended up to ten years along with the fine. |
| Section 366A | Section 96 | Procuration of a child. | Imprisonment for ten years along with fine. |
| Section 369 | Section 97 | When a child is abducted or kidnapped and the child is under the age of ten years with the intention of stealing from its person. | Seven years of imprisonment as well as a fine. |
| Section 372 | Section 98 | When a child is sold for the purposes of prostitution etc. | Ten years of imprisonment and fine. |
| Section 373 | Section 99 | When a child is bought for prostitution purposes etc. | Imprisonment which is not less than seven years but which may extend to fourteen years along with the fine. |
| Section 302 | Section 103(1) | Murder. | Death or life imprisonment and fine. |
| – | Section 103(2) | Murder by a group of people (five or more). | Life imprisonment and fine or death. |
| – | Section 104 | Murder by life (convict). | Death or life imprisonment which means the remaining time of that person’s natural life. |
| Section 304 | Section 105 | Culpable homicide that does not amount to murder, if the act by which the death is caused is done with the intention of causing death, etc. | Life imprisonment, or imprisonment for a period not less than five years but which can also be extended to ten years along with fine. |
| Section 304 | Section 105 | When an act is carried out with the knowledge that death can be caused by such an act, but the intention for the same isn’t there etc. | Ten years of imprisonment as well as a fine. |
| Section 279 | Section 106(2) | The death is caused by negligent and rash driving of the vehicles and then also escaping. | Ten years of imprisonment as well as a fine. |
| Section 305 | Section 107 | Abetment of suicide of child or person who has an unsound mind, etc. | Imprisonment for life, or death or imprisonment for ten years and fine. |
| Section 306 | Section 108 | Abetment of suicide. | Ten years of imprisonment and a fine. |
| Section 307 | 109(1) | Attempt to murder. | 10 years of imprisonment as well as a fine. |
| Section 307 | Section 109(1) | When hurt is caused to any person. | Life imprisonment , or ten years of imprisonment and a fine. |
| Section 307 | Section 109(2) | Attempted a murder | Death, or imprisonment for life, which shall mean the remaining of that person’s natural life. |
| Section 308 | Section 110 | Attempt to commit culpable homicide. | Imprisonment for three years, or fine, or both. |
| Section 308 | Section 110 | If such an act had caused hurt to any person. | Imprisonment for seven years, or a fine, or both. |
| – | Section 111(2)(a) | Organised crime which results in the death of any person. | Life imprisonment, or death and not less than ten lakh rupees fine. |
| – | Section 111(2)(b) | Other cases when an organised crime is committed | An imprisonment which shall not be less than the period of five years. It can be extended to life imprisonment along with a fine of five lakh but not less than that. |
| – | Section 111(3) | Abetting, conspiring, attempting or knowingly helping in committing an organised crime. | An imprisonment which shall not be less than the period of five years. It can be extended to life imprisonment along with a fine of five lakh but not less than that. |
| – | Section 111(4) | Being a part of an organised crime syndicate. | Imprisonment which is not less than five years but can be extended to life imprisonment along with a fine which is not less than five lakh rupees. |
| – | Section 111(5) | An offence of an organised crime committed by any person is intentionally concealed or harboured. | Imprisonment which is not less than three years but can be extended to life imprisonment along with a fine which is not less than five lakh rupees. |
| – | Section 111(6) | Possessing a property which is derived, or has been obtained from committing an organised crime. | Imprisonment which is not less than three years but can be extended to life imprisonment along with a fine which is not less than two lakh rupees. |
| – | Section 111(7) | Possession of a property on behalf of a person who is involved in an organised crime syndicate. | Imprisonment of the period of three years which can be increased up to ten years along with a fine which shall not be less than a lakh rupees. |
| – | Section 112 | Petty organised crime. | Imprisonment which is not less than one year but can be increased to seven years along with the fine. |
| – | Section 113(2)(a) | When a death takes place due to a terrorist act. | Life imprisonment along with a fine or death sentence. |
| – | Section 113(2)(b) | Other cases related to terrorist acts. | An imprisonment which may be extended to life imprisonment and not less than five years and a fine. |
| – | Section 113(3) | Conspiring, abetting, attempting, etc., or knowingly facilitating the commission of a terrorist act. | Imprisonment for not less than five years but may extend to life imprisonment along with a fine. |
| – | Section 113(4) | Organising training, camps etc., for the commission of a terrorist act. | Imprisonment which is not less than five years but may extend to life imprisonment along with a fine. |
| – | Section 113(5) | Involved in an organisation as a member that is involved in terrorist acts. | Life imprisonment and a fine. |
| – | Section 113(6) | Harbouring, concealing, etc., of any person who has committed a terrorist act. | Imprisonment for not less than three years but which may extend to life imprisonment as well as fine. |
| – | Section 113(7) | Possession of a property which is obtained or derived from committing a terrorist act. | Life imprisonment and fine. |
| – | Section 117(3) | If hurt results in disability which is permanent in nature or a persistent vegetative state. | Imprisonment that is rigorous in nature and is for a period not less than ten years but which may extend to life imprisonment which means the remaining of that natural life of the person. |
| – | Section 117(4) | Grievous hurt is caused by a group of five or more than 5 people. | 7 years of imprisonment as well as a fine. |
| Section 326 | Section 118(1) | Hurt that is caused voluntarily by any dangerous weapons or means. | Three year imprisonment, or a fine of twenty thousand rupees, or both. |
| Section 326 | Section 118(2) | Grievous hurt is caused voluntarily by dangerous weapons or means Exception as provided in Subsection (2) of Section 122]. | Life imprisonment or imprisonment which is not less than a year but may extend up to ten years along with a fine. |
| Section 331 | Section 119(1) | The hurt is caused voluntarily in order to carry out an act that is illegal or extort property. | Ten years of imprisonment as well as a fine. |
| Section 331 | Section 119(2) | The hurt is caused voluntarily which is grievous in nature for any purpose referred to in Subsection (1) of Section 119. | Life imprisonment, or ten years of imprisonment and fine. |
| Section 330 | Section 120(2) | The hurt is caused voluntarily which is grievous in order to extort information, confession or compel property restoration, etc. | Ten years of imprisonment and a fine. |
| Section 332 | Section 121(1) | Voluntarily causing hurt to a person who is a public servant in order to deter him from his duty. | Five years of imprisonment, or fine, or both. |
| Section 333 | Section 121(2) | Voluntarily causing grievous hurt to a person who is a public servant in order to deter him from his duty. | Imprisonment not less than a year, or ten years of imprisonment and a fine. |
| – | Section 123 | Causing hurt by using poison, etc., with the intention to commit an offence. | Ten years of imprisonment as well as a fine. |
| Section 326A | Section 124(1) | A grievous hurt is caused to a person, voluntarily by the use of acid, etc. | Imprisonment for not less than ten years but which may extend to life imprisonment and a fine. |
| Section 326B | Section 124(2) | Voluntarily attempting to throw acid or throwing the acid. | Five years of imprisonment which may extend to seven years along with a fine. |
| Section 344 | 127(4) | Wrongfully confined for ten or more than 10 days. | Five years of imprisonment and a fine of 10,000 rupees. |
| Section 363A | Section 139(1) | When a child is kidnapped for begging purposes. | Imprisonment that is rigorous in nature and may not be less than ten years but which may extend to life imprisonment and a fine. |
| Section 363A | Section 139(2) | Maiming a child for the purpose of begging. | Imprisonment not less than twenty years which may extend to the remainder of that person’s natural life, and a fine. |
| Section 370 | Section 143 (2) | Human trafficking | Imprisonment which is rigorous in nature not less than seven years but can be further extended to ten years along with a fine. |
| Section 121 | Section 147 | Abetting or waging or attempting to wage a war against the Indian Government. | Life imprisonment as well as a fine or death. |
| Section 131 | Section 159 | When a mutiny is abetted, or an attempt to seduce a soldier, sailor, officer or airman is made. | Imprisonment for life or ten years along with a fine. |
| Section 132 | Section 160 | Abetment of mutiny, if the mutiny is committed as a consequence. | Imprisonment for life, or death, or imprisonment for ten years along with a fine. |
| Section 133 | Section 161 | Abetment of an assault by a soldier, officer, airman or sailor on his superior officer, when he is in the execution of his office. | Imprisonment for three years and a fine. |
| Sections 232, 255, 489A | Section 178 | Counterfeiting notes of currency, government stamps, coins, or bank notes. | Imprisonment for ten years and a fine or imprisonment for life. |
| Section 274 | Section 276 | Adulterating any drug or medical preparation with the intention of selling so as to reduce the efficiency, or, to make it noxious or to change its operation. | One year of imprisonment or a fine of Rs. 5000, or both. |
| Section 295A | Section 299 | A deliberate and malicious act intended to outrage the religious feelings of any class by insulting their religious beliefs. | Imprisonment for three years, or a fine, or both. |
| Section 379 | Section 303(2) | Theft | Imprisonment that is rigorous and is for not less than a year but which may extend to five years of imprisonment, and a fine. |
| Section 384 | Section 308(2) | Extortion | Imprisonment for seven years, or a fine, or both. |
| Section 392 | Section 309(4) | Robbery | Rigorous imprisonment for ten years and a fine. |
| Section 395 | Section 310(2) | Dacoity | Rigorous imprisonment for ten years and fine or imprisonment for life. |
| Section 406 | Section 316(2) | Criminal breach of trust | Five years imprisonment and a fine. |
| Section 411 | Section 317(2) | Dishonestly receiving a property that is stolen and knowing the same. | Three years imprisonment or a fine, or both. |
| Section 420 | Section 318(4) | Inducing a delivery of the property by cheating or dishonest behaviour. | Seven years of imprisonment as well as fine. |
These are some of the offences that were non-bailable under the CrPC but now have been amended to bailable offences as per BNSS which repeals the CrPC.
| Section (CrPC) | Offence | Punishment |
| Section 172 | When a person Absconds in order to avoid service of summons. | Imprisonment for a month or a fine of one thousand rupees. |
| Section 238 | When counterfeiting Indian coins by either imported or exported. | Ten years imprisonment and a fine or imprisonment for life. |
| Section 246 | Fraudulently diminishing the weight of the coin. | Imprisonment for the period of three years along with a fine.. |
| Section 304B | Dowry death | Imprisonment for seven years which can be extended up to life term. |
| Section 369 | When a child is abducted, where the child is below the age of ten years. | Imprisonment for seven months or a fine. |
| Section 377 | Unnatural offences | Imprisonment for ten years, which may extend to imprisonment for life. |
Differences between bailable offences and non-bailable offences
| Basis of differentiation | Bailable offence | Non-bailable offence |
| Definition | Section 2(1)(c) of BNSS states that any offence which is included in the First Schedule as bailable is considered a bailable offence. | A non-bailable offence is defined in Section 2(1)(c) of BNSS. Any offence that is not a bailable offence is known as a non-bailable offence. |
| Nature | Bailable offences are relatively less serious in nature. | Non-bailable offences are relatively more serious in nature. |
| Punishment | Most bailable offences prescribe a punishment of imprisonment that is for 3 years or less. | The punishment can be extended up to full life imprisonment in case of a non-bailable offence. |
| Bail as a right | The provision that dealt with bail was Section 436 of CrPC. An accused person can claim bail when the offence for which he is accused is a bailable offence. As per Section 478 of the BNSS states that when a person is not accused of an offence that is a non-bailable offence, such person can be released on bail if the officer or the court thinks it is fit. A bail cannot be refused by a Magistrate or the police officer in charge. | When any person is charged with an offence that is non-bailable, the person cannot ask for bail. An individual’s right to claim bail does not apply in case of non-bailable offences. The officer in charge or the Magistrate decides whether the accused should be granted bail or not when it comes to a non-bailable offence. There are very rare instances where bail is granted to the accused in case of a non-bailable offence. |
Now that we know bail is a matter of discretion concerning non-bailable offences, let us look at the factors determining whether bail must be granted or not for such offences.
How is bail granted for a non-bailable offence
Section 480 of BNSS lays down the provision for granting bail for non-bailable offences. Before the BNSS Act came, Section 437 of the Criminal Procedure Code laid down the provision for granting bail for non-bailable offences. Whether bail will be granted or not depends on the court’s discretion or the police officer that is concerned.
Subsection (1) of Section 480 of BNSS
This Subsection states that when a person is suspected or accused of an offence which is non-bailable in nature, and that person is arrested or is being detained without a warrant, bail may be allowed after the accused is presented in front of the court (other than Session Court or High Court) by the police officer who is in charge. The power of granting has some restrictions.
A bail will not be allowed to the accused in the following cases:
- When there is a reasonable ground to believe that the person who is accused is guilty of an offence, then in that case bail will not be allowed to the person accused. Such an offence should be punishable with life imprisonment or death.
- Bail will not be allowed to the accused person if the offence is cognizable. A bail will also be rejected if the person accused already has a previous conviction which was punishable with imprisonment for life or with death, or the accused has been convicted two or more times of a cognizable offence which results in imprisonment for three years or more but is less than 7 years.
Provided that, an accused can be granted bail if the accused is a woman or a child or is in infirm or sick under Clauses (1) and (2) of this Subsection. Further, it is also provided that the court may grant bail to the person under Clause (2) only if the court is satisfied that it is proper and just to do the same for any other special reason.
It is also stated that the person shall not be refused bail stating reasons like they might need the person to be identified by the witness or is to be kept in the custody of the police for more than 15 days. Only when the accused agrees to adhere to all the court’s directions and also provides an undertaking.
A bail will not be allowed to the accused if he/she is accused of an offence that is punishable with either death, imprisonment for life, or imprisonment for seven or more than seven years. If such an accused person wants bail, there will be a hearing in the presence of the Public Prosecutor first. As per the principles of natural justice, the opportunity of being heard is to be given to the accused as well, this opportunity is given in front of the Public Prosecutor.
When can a bail be granted in non-bailable offences
Subsection (2) of Section 480 of BNSS
When during the inquiry, or a trial, or when the investigation is being carried out, the courts come to find that there exist no reasonable grounds that the accused is guilty of committing an offence which is non-bailable, but the accused is guilty and further inquiry is required, then the accused shall be granted bail. But this shall be subject to Section 494 and at the discretion of such court or officer by executing a bond for making an appearance whenever required for inquiry.
Subsection (3) of Section 480 of BNSS
Some conditions are laid down for the person to follow when he is granted bail where he is suspected or accused of committing an offence which is punishable with imprisonment of seven or more than seven years or the offence that is committed is under Chapter VI, VII or XVII of the Bharatiya Nyaya Sanhita, 2023, or conspiracy, or abetment, or attempt to commit any offence. The conditions are:
- The person will attend all the appearances in accordance with the conditions set in the bond which is executed.
- The person will not commit any offence which is similar in nature to the one for which he is accused or suspected.
- No direct or indirect threat, promise or inducement is to be made by such person to any person who is acquainted with the facts of the case, in order to dissuade them from revealing any facts to any police officer or the court or tampering any evidence.
Other conditions can also be imposed on the person by the court as per the requirements and in the interests of justice.
Subsection (4) of Section 480 of BNSS
When an accused is granted bail by the officer in charge (as per Subsection (1) or (2) of this Section), the reasons for which the bail is agreed and the conditions of the bail are to be recorded in writing by the police officer.
Subsection (5) of Section 480 of BNSS
An arrest can be made if a person has been released on bail under the court’s order under Subsection (1) or (2). The accused released on bail can be taken into custody if the court directs the same.
Subsection (6) of Section 480 of BNSS
The ideal period of concluding the trial of an offence should be within sixty days from the day on which the first evidence was taken. If the trial is not concluded within the said period then the accused person has to be released from the custody with a bail, if the Magistrate is satisfied with the same. If the Magistrate has reasons to not release him, then he must record those reasons in writing.
Who can grant bail in non-bailable offences
In non-bailable offences, a bail can be granted by the police officer in charge or the Magistrate only in the cases where they believe so and it should be in writing. However, when the offences are very grievous in nature, no bail is granted. A bail can be granted when the offence is non-bailable offence by the High Court or the Sessions Court.
Subsection (7) of Section 480 of BNSS states that If the person is on trial for a non-bailable offence where the trial has been concluded but the delivery of judgement is not yet done and the court has a reasonable belief that the person accused is not guilty then an order by the court can be released to release the accused from custody. Such a release of the accused comes with certain conditions and signing a bond to appear in the court when the delivery of the judgement takes place.
Consequences of being found guilty of non-bailable offences
When an individual is found guilty of an non-bailable offence the consequences for the same can be significant. Such offences are non-bailable because they are very serious in nature, hence when an individual is found guilty of an offence that is very serious in nature and such person is a threat to the society, there are drastic consequences for it. The punishments for the non-bailable offences depend on the type of crime and its seriousness. For example for an person being found of repetitive crimes, rape etc will have more imprisonment and fine or both.
The punishments for non-bailable offences is more strict then compared to bailable offences. These punishments are more extreme so they can teach the person found guilty a lesson that such an act should not be conducted again and also sets an example in the society that if anyone commits such a heinous crime then they will also have to face such extreme consequences.
Anticipatory bail for a non-bailable offences
Section 482 of BNSS (previously Section 438 of the CrPC) states the directions for granting bail to an individual who is apprehending an arrest. When an individual learns that he/she may be arrested for a crime that is non-bailable in nature, in order to protect themselves, they can apply for anticipatory bail. A bail that is granted before the arrest is known as an anticipatory bail, in simple words. An individual can protect themselves with an anticipatory bail.
When a person believes that he may be accused of any offence and will be arrested for the same, he can protect himself with anticipatory bail. An anticipatory bail is only granted when there is a valid reason given. There are only some situations which are exceptions where an anticipatory bail is granted. With the introduction of BNSS, the provision of anticipatory bail also faced some changes.
Following are the conditions which are imposed by the courts when an anticipatory bail is granted:
- One of the first conditions that is commonly imposed in all the cases is that the person will always be present for all the interrogation that the police conduct.
- Threat is not to be given by any means, direct or indirect, inducement or promise to anyone who is acquainted with the case’s facts with the intention of convincing or persuading the person for not disclosing such facts in front of the court of the police.
- The person who is accused cannot leave India without the permission of the Indian Government.
- There are other various conditions that are added as per the requirements and needs considering the interest of the justice.
Subsection 3 of the Section states that when a person is arrested thereafter when there is no warrant the police officer who is in charge of the station will have to release the person on bail if he agrees to a bond and other conditions. If it is decided by the Magistrate to issue a warrant against the accused then it shall be a bailable warrant.
Section 482(4) states that nothing in the section will apply in case the arrest is made when a person is accused of an offence under Sections 65 and 70(2) of the BNS. As per the new criminal law, a person accused of gang rape, which involves a woman under the age of 18, is prohibited from anticipatory bail.
The CrPC originally prohibited granting a anticipatory bail to those who are accused of gang rape to a woman who is under the age of sixteen years. With the new law, the scope of not granting anticipatory bail is widened.
Landmark judgements under non-bailable offences
The High Court of Karnataka in the case of Nethra vs. the State of Karnataka (2022), held that a woman may be granted bail when she is accused of a non-bailable offence. This also includes the offence which is punishable with either death or imprisonment for the whole life. In this case, the accused had surrendered before the police and there were no prior charges against the accused, hence, she was not considered a threat to society.
Due to these reasons, the court granted bail to the accused despite her being accused of murder, which is a non-bailable offence. The bail was granted with a personal bond along with some other conditions.
A bail can be granted when there has been significant progress in the investigation, even when the offence is non-bailable. The High Court of Andhra Pradesh in the case of Mara Manohar vs. State of Andhra Pradesh (2022) granted the petitioner bail, as there was a considerable amount of progress in the investigation of the case.
In the landmark case of Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010), the factors that are to be considered at the time of granting anticipatory bail were highlighted by the Apex Court of India. The critical indicators that are to be considered are the nature of the accusation, prima facie grounds for the accusations, the gravity of the accusation, the accused’s conduct, the punishment’s severity, along with the chances of influencing the witnesses or the danger to the justice.
A person can be released if he possesses anticipatory bail. The Apex Court of India in the case of Adri Dharam Das vs. State of West Bengal (2005) held that possession of an anticipatory bail makes the person arrested eligible to be released. This right is only exercised when the officer in charge of the court that has granted anticipatory bail believes that the person is accused on a false basis.
In the case of Narayan Ghosh alias Nantu vs. State of Orissa (2008) the applicant was charged with criminal conspiracy and had applied for anticipatory bail. The person belonged to a politically and financially influential family, who has connections to influence the witnesses of the case as well. There are chances that the person accused can also leave the country if bail is given. Taking all these factors into consideration, the court rejected the application of the bail of the accused.
A bail application for granting anticipatory bail can be submitted to the High Court, even when the application made previously in front of the Session Court is rejected on similar grounds. This was held in the case of Gopinath vs. State of Kerala (1985). A fresh application before the High Court can be made even after the rejection from the Sessions Court.
Conclusion
To sum up, bail is not a right for non-bailable offences. There are provisions of the BNSS, that merely provide the grounds under which the court or the police “may” grant bail. By ensuring that for comparatively lesser serious offences, bail is granted as a right.
For more serious offences, bail is a matter of discretion; previously, the Code of Criminal Procedure and now the new Bharatiya Nagarik Suraksha Sanhita aim to strike a balance between the protection, safety and interests of the public and the individual liberty of a person accused of an offence. Many significant changes were introduced in the Bharatiya Nagarik Suraksha Sanhita as compared to the Criminal Procedure Code. The BNSS also introduced the definitions for bail along with other procedures for bail.
Frequently Asked Questions (FAQs)
How to apply for anticipatory bail?
The form named ‘Form No. 47’ contained in the BNSS is to be filled by the accused. Form No. 47 is to be attached along with an affidavit and other significant documents which are required. The form is filed and the application is made in front of the Sessions Court.
Can bail be granted when the offence is non-bailable?
Granting bail is completely at the discretion of the police officer in charge or the appropriate court when the offence is non-bailable in nature.
What is conditional bail?
Conditional bail is bail which is accompanied by conditions on the breach of which the bail gets revoked, which allows the police to rearrest the applicant.
Are there any factors which are to be considered when the offence is non-bailable?
When an offence is non-bailable there are some key factors to be considered. The gravity of the crime is the most crucial factor to consider. The various other factors are whether the crime will cause potential harm to the society or not, what is the effect of the crime on the society and the people, etc.
How does the court decide the eligibility for granting bail in relation to a non-bailable offence?
In the determination of bail’s eligibility for the person accused in case of a non-bailable offence, the courts play a very significant role. All the factors are first examined by the court, which include the nature of the crime that is committed, the impact of the crime on society, the accused’s background, etc.
Is there a list which classifies the offences into non-bailable offences?
There is a list of offences which are non-bailable offences. The list is subject to all the amendments and decisions that are taken by the judiciary. As times change, the justice system also introduces various changes in the classification of the offences that are non-bailable offences. This helps in addressing the challenges that are emerging with evolving societal norms and ensures that justice is fair and effective.
What is the difference between the detention & arrest process in case of non-bailable and bailable offences?
In case of non-bailable offences, the bail is not secured immediately to the accused, there are also some specific requirements for appearing in court. There are certain strict restrictions that are followed in case of non-bailable offences as compared to bailable offences.
References
- https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/provisions-relating-to-bail/?amp=1&_gsa=1&_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#Introduction
- https://blog.ipleaders.in/bailable-non-bailable-offence/
- https://blog.ipleaders.in/bail-provisions-under-the-code-of-criminal-procedure/#:~:text=Under%20Section%20436%20of%20CrPC,to%20be%20released%20on%20bail
- https://archives.palarch.nl/index.php/jae/article/view/4085
- Microsoft Word – 6-Bail Anticipatory Bails – Sri M Sreenu (ecourts.gov.in)
- 2024010521.pdf (s3waas.gov.in)
- 320679_1601207180.pdf (iilsindia.com)
