This article is written by Adhila Muhammed Arif, a student at Government Law College, Thiruvananthapuram. This article seeks to explain the concept of bail, non-bailable offences, how they are different from bailable offences, and the provisions relevant to non-bailable offences.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Bail is an integral part of the criminal justice system in most countries across the globe, including India. It not only ensures a person accused of criminal offence liberty and freedom from arrest but also ensures his appearance before the court for the trial of his charges. The right to this conditional release also comes within the scope of Article 21 of the Indian Constitution as per the decision in the case of Babu Singh v. State of UP (1978). However, this right to bail is not a guaranteed right in all circumstances. Bail is not granted as a right for some offences, which are labelled as non-bailable offences. It is only in exceptional situations that bail is granted for such offences. For such offences, it is also possible to procure bail even before the arrest takes place, but this is also left to the discretion of the court.
Before we look into non-bailable offences and provisions for bail for such offences, let us first look at what bail means.
What is a bail
The term ‘bail’ has been derived from the French word ‘bailer’, which means ‘to give.’ While the term ‘bail’ has not been defined in the Code of Criminal Procedure, 1973, it can be defined as a type of security paid for guaranteeing the appearance of the accused, on the giving of which he is released temporarily. This is granted when there is a pending trial or investigation. He can be asked to appear in court whenever it is required and the bail guarantees this appearance. The objective behind providing bail is to provide liberty to the accused as the investigation or trial is pending and he has not yet proven to be an offender. Provisions as to bail and bonds are contained in Chapter XXXIII of the CrPC from Sections 436-450.
The Code of Criminal Procedure has classified offences into three categories: cognizable and non-cognizable, bailable and non-bailable, and compoundable and non-compoundable.
Now, let us jump into the core topic, which is non-bailable offences.
Non-bailable offences
Non-bailable offences are those offences for which bail cannot be granted. Hence, if a person has been booked for a non-bailable offence, he cannot claim bail as a right. Section 2(a) of the Code of Criminal Procedure provides that non-bailable offences are those offences which are not bailable as per the First Schedule of the Code.
Now, let us look at all the 30 offences that have been listed as non-bailable offences.
List of non-bailable offences
| SL.NO. | Section | Offence | Punishment |
| 121 | Waging or attempting or abetting the waging of war against the Government of India. | Imprisonment for life or up to 10 years with a fine. | |
| 124A | Sedition | Imprisonment for life along with a fine or it could be imprisonment for 3 years along with a fine or simply just a fine. | |
| 131 | Abetting mutiny or attempting to seduce a soldier, sailor, or airman. | Imprisonment for life or 10 years along with a fine. | |
| 172 | Absconding to avoid service of summons. | Imprisonment for 1 month or a fine of Rs. 1000. | |
| 232 | Counterfeiting Indian coins. | Life imprisonment or imprisonment for 10 years along with a fine. | |
| 238 | Import or export of counterfeiting Indian coins. | Life imprisonment or imprisonment for 10 years along with a fine. | |
| 246 | Fraudulently diminishing the weight of the coin. | Imprisonment for 3 years along with a fine.. | |
| 255 | Counterfeiting of government stamps. | Imprisonment for 3 years along with a fine. | |
| 274 | Adulteration of drugs. | Imprisonment for 6 months along with a fine of Rs. 1000. | |
| 295A | A deliberate and malicious act intended to outrage the religious feelings of any class by insulting their religious beliefs. | Imprisonment for 3 years along with a fine. | |
| 302 | Punishment for murder | Life imprisonment or the death penalty. | |
| 304 | Punishment for culpable homicide not amounting to murder. | Imprisonment for 10 years with a fine. | |
| 304B | Dowry death | Imprisonment for 7 years up to life term. | |
| 306 | Abetment of suicide. | Imprisonment for 10 years with a fine. | |
| 307 | Attempt to murder. | Imprisonment for 10 years along with a fine. | |
| 308 | Attempt to commit culpable homicide not amounting to murder. | Imprisonment for 3-7 years along with a fine | |
| 369 | Abduction of a child under the age of 10. | Imprisonment for 7 months or a fine | |
| 370 | Trafficking of person | Imprisonment for 7 to 10 years or with a fine. | |
| 376 | Punishment for rape | Rigorous imprisonment for life or not less than 7 years | |
| 376D | Gangrape | Imprisonment for 20 years, which may be extended till life. | |
| 377 | Unnatural offences | Imprisonment for 10 years, which may be extended till life. | |
| 379 | Punishment for theft. | Imprisonment for 3 years and fine. | |
| 384 | Punishment for extortion. | Imprisonment for 4 years. | |
| 392 | Punishment for robbery. | Imprisonment for 3 years along with a fine. | |
| 395 | Punishment for dacoity. | Imprisonment for 10 years and a fine. | |
| 406 | Punishment for criminal breach of trust. | Imprisonment for 3 years and a fine. | |
| 411 | Dishonestly receiving stolen property. | Imprisonment for 3 years and a fine. | |
| 420 | Cheating and dishonestly inducing delivery of property. | Imprisonment for 7 years and a fine. | |
| 489A | Counterfeiting currency notes or banknotes. | Imprisonment for life and a fine. | |
| 498A | Husband or his relatives of a woman subjecting her to cruelty. | Imprisonment for 3 years and a fine. |
Now, let us look at how non-bailable offences are different from bailable offences.
Differences between bailable offences and non-bailable offences
| SL.NO. | Basis of differentiation | Bailable offence | Non-bailable offence |
| Definition | As per the definition of Section 2(a), a bailable offence is any an offence which is shown as bailable in the First Schedule | A non-bailable offence is described by Section 2(a) as any offence other than a bailable one. | |
| 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. | For a non-bailable offence, the punishment can extend up to life imprisonment. | |
| Bail as a right | In bailable offences, bail is to be claimed as a right and not as a benefit or a privilege. Section 436 of the Code states that bail can be claimed as a right by a person accused of a bailable offence, at any stage of the proceedings. When bail is claimed for bailable offences, the police officer or the magistrate has no discretion to refuse it. | On the other hand, when a person is accused of committing a non-bailable offence, that person loses the right to claim bail. In such offences, the grant of bail becomes a matter of the discretion of the magistrate or the police officer. For such offences, bail can only be granted in some exceptional circumstances. |
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 437 of the Criminal Procedure Code lays down the provision for granting bail for non-bailable offences. The following are the provisions for bail in a non-bailable offence:
- The granting of bail for non-bailable offences is totally at the discretion of the court or the concerned police officer.
- When a person accused of a non-bailable offence is arrested or detained without a warrant, he may be granted bail by the police officer in charge of the concerned police station. However, there are some restrictions to this power. Under any of the following circumstances, the police officer cannot grant bail to such a person:
- There are reasonable grounds for believing that he is guilty of committing an offence that prescribes a punishment of death or life imprisonment.
- The offence is cognizable and there has been a previous conviction for an offence punishable with death, life imprisonment, or imprisonment for at least 7 years.
- If there have been two or more convictions of the accused for a cognizable offence, that prescribes a punishment of imprisonment of 3 years to 7 years.
- Once a police officer has granted this bail, he must record the reasoning behind it and the same shall be mentioned in the case diary.
- When a person who has been accused of committing a non-bailable offence appears before the judicial magistrate or is brought before him, the judicial magistrate can exercise discretion in granting him bail. However, the magistrate cannot exercise this power in any of the following circumstances:
- There are reasonable grounds for believing that he is guilty of committing an offence that prescribes a punishment of death or life imprisonment.
- The offence is cognizable and there has been a previous conviction for an offence punishable with death, life imprisonment, or imprisonment for at least 7 years.
- If there have been two or more convictions of the accused for a cognizable offence that prescribes a punishment of imprisonment of 3 years to 7 years.
- Though there are restrictions to this discretionary power as mentioned above, the police officer or the judicial magistrate may grant bail to the accused if the accused is a woman, a person under the age of 16, or a person who is sick or infirm. Hence, in such cases, the restrictions in points a, b, and c will not be applied.
- In the situations mentioned in points b and c, the officer or the magistrate may still grant bail if there is any special reason for doing so.
- While releasing a person on bail, the officer or the magistrate must record the reasons or any special reason for doing so in writing.
- The mere fact that an accused has to be identified by witnesses during the investigation process does not disqualify him from being granted bail if he is entitled to bail otherwise.
- If the offence that the accused is alleged to have committed is punishable with death, life imprisonment, or imprisonment for 7 years or more, then the public prosecutor must be given an opportunity of hearing in order to grant bail to the accused.
- If at any stage of the case, whether it is during the investigation, enquiry or trial, the police officer or the magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, then the accused shall be granted bail. On doing so, the reasons or special reasons must be written and recorded.
- The trial of such an offence should ideally conclude within 60 days from the first date which was fixed for taking evidence. If not, the accused person must be mandatorily released on bail if he was in custody. If he is not released, the officer or the magistrate must record the reasons for doing so.
- A bail granted to an accused can be subsequently cancelled and the accused shall be re-arrested on the satisfying of any of the following conditions:
- Commission of the same offence by the accused.
- Hampering of the investigation process by the accused.
- Tampering of evidence by the accused, whether it is through intimidating prosecution witnesses or by eliminating the evidence of the commission of the crime.
- Violation of any of the conditions imposed by the court while granting bail.
Now that we know the procedure to get bail for a non-bailable offence, let us look at how bail can be sought by a person who fears arrest on the charge of a non-bailable offence.
In Nethra v. State of Karnataka (2022), the Karnataka High Court held that if the applicant is a woman, she can be granted bail for a non-bailable offence even if it is punishable with life imprisonment or the death penalty.
In the case of Mara Manohar v. State of Andhra Pradesh (2022), it was held that once there has been considerable progress in the investigation of a case, a bail with conditions may be granted.
Anticipatory bail for a non-bailable offence
Section 438 of the Code lays down the procedure for granting bail to a person with the apprehension of arrest on the charge of a non-bailable offence. This type of bail is called ‘anticipatory bail’. This allows a person to protect himself from getting arrested for a non-bailable offence when he has a reasonable apprehension of being accused of the same. One cannot seek anticipatory bail on the apprehension of being accused of a bailable offence as receiving bail with respect to such offences is far easier. The following are the provisions under Section 438:
- Anticipatory bail can be granted by the High Court or the Court of Sessions.
- It directs the police officer to release the accused on bail upon his arrest.
- The factors the court must consider while granting anticipatory bail are the following:
- Nature and gravity of the accusation.
- Whether the applicant has been previously convicted or imprisoned for any cognizable offence.
- Whether the accused is likely to avoid facing justice.
- Whether the accusation was made with the motive to injure the applicant or to tarnish his reputation by getting him arrested.
- The court can either reject the application for anticipatory bail or accept it and issue an interim order to grant the same.
- If there is no issuing of the interim order, the police officer can arrest the applicant without a warrant for the charge apprehended.
- Once the interim order is granted, a notice shall be sent, along with the order’s copy, to the public prosecutor and the superintendent of police so as to provide them with a reasonable opportunity to be heard during the hearing. The public prosecutor can also apply for the presence of the applicant, and if it is deemed necessary for the interest of justice, his appearance shall be made obligatory.
- The following are some of the conditions that can be imposed by the courts while granting anticipatory bail:
- Availability for police interrogation.
- No direct or indirect threat, promise, or inducement to anyone acquainted with the facts of the case in order to convince or persuade such a person to not disclose such facts to the court or the police.
- Not leaving India without taking the court’s permission.
- Any other conditions in the interest of justice.
It is clear that anticipatory bail is granted only in exceptional circumstances and not in general cases. The object of granting anticipatory bail is to save an innocent person from the apprehension and shame that comes from arrest.
Once the arrest happens, the right to apply for anticipatory bail ceases to exist. One can make the application even after an FIR has been filed, provided that the arrest has not been made. Filing of an FIR is not a prerequisite for applying for anticipatory bail. However, there must be a reasonable apprehension of arrest on the charge of a cognizable and non-bailable offence. While granting anticipatory bail, a person’s status and financial background are irrelevant. However, the allegations must indicate a falsehood.
In the case of Adri Dharam v. State of West Bengal (2005), it was held that when a person gets arrested, if he possesses the order of anticipatory bail, he shall be released immediately.
The applicant in the case of Narayan Ghosh alias Nantu v. State of Orissa (2009) was charged with criminal conspiracy and applied for anticipatory bail. He was very financially and politically influential and had the capacity to influence witnesses. There was also a possibility that the accused might flee. These factors led the court to reject the bail of the accused.
In the case of Gopinath v. State of Kerala (1986), it was held that an application for anticipatory bail can be submitted to the High Court even if it has been previously made before the Sessions Court on the same grounds and rejected. Hence, a fresh application can be made before the High Court even though it has been rejected by the Sessions Court.
In the case of Bholai Mistry And Anr. v. The State (1976), once anticipatory bail has been granted by the High Court, only the High Court can cancel the bail and not the Sessions Court.
Conclusion
To sum up, bail is not a right for non-bailable offences. There are provisions of the Code, namely Sections 437 and 438, that merely provide the grounds under which the court or the police “may” grant bail. By ensuring that for comparatively less serious offences, bail is granted as a right and for more serious offences, bail is a matter of discretion, the Code of Criminal Procedure strikes a balance between the protection of safety and the interests of the public and the individual liberty of persons accused of offences. While granting bail for non-bailable offences, the court looks into a number of factors to ensure that such a grant of bail will not impact the service of justice. Moreover, the Code also permits the attachment of conditions along with bail, and on the breach of any such condition, the bail is revoked.
Frequently Asked Questions
What is the procedure to apply for anticipatory bail?
First, the accused has to fill up Form No. 45 contained in the First Schedule of the Code. Then, the form along with an affidavit and other relevant documents like FIR is attached to it. The application is made before the Court of Sessions. Then, the application is heard and either accepted, leading to the issuing of an interim order, or rejected.
Is bail a right in non-bailable offences?
No, bail is a matter of the discretion of the court or police in the case of a non-bailable offence.
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.
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://www.legalpedia.co.in/legalnotes/difference-between-bailable-and-non-bailable-offence.html
- 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
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