What is a Bailable and Non-bailable offence in India?

Whenever a person commits a penal offence as given under the Indian Penal Code, 1860, the law enforcement agencies deal with the offence as per the procedure stated in the Code of Criminal Procedure, 1973. The First Schedule attached with the Code of Criminal Procedure, 1973 classifies every offence into two heads bailable and non-bailable.

Continue reading to know the meaning and different provisions dealing with the bailable and non-bailable offences in India.

 

Meaning and Origin of Bail

The word ‘bail’ is derived from the old French verb baillier, which means to give or deliver.

Bail means the security for prisoner’s appearance for trial. The effect of granting bail is, accordingly not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him at his trail at a specified time and place.

 

Bailable Offences

As stated under section 2(a) of the Code of Criminal Procedure, 1973 "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."

Generally, all those offences which are comparatively less serious in nature come under the head of bailable offences. In these kind of offences, an accused can claim to be released on bail as a matter of right. Bail could either be granted by a police officer who is having the custody of the accused or by the court after the accused person executed a “bail bond,” with or without furnishing sureties.

The “bail bond” contains all the terms and conditions concerning the bail such as:

1. The accused shall produce himself before the police officer every time he is required to do so

2. The accused shall not leave the country without the permission of the court or police officer

3. The accused shall not tamper with the evidence

In case the accused fails to comply with any of the conditions of the bail-bond then the court is empowered to refuse to release him on bail.

Section 436 of the Code of Criminal Procedure, 1973 deals with the bailable offences, as per the section an accused will be entitled to bail if:

1. He is accused of a bailable offence

2. He is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court

3. A complaint or a police report of a bailable offence is made against him, or he is suspected of having committed such an offence.

If all the above requirements are fulfilled, then the accused can apply for bail by filling out Form No. 45 which is given in the First Schedule of the Code of Criminal Procedure, 1973.

In the landmark case of Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court has laid down the guiding principles when accused can be released on personal bond without sureties. The court stated that “if the court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond.”

Examples of bailable offence

• Being a member of an unlawful assembly

• Bribery in relation to elections

• Giving or fabricating false evidence in a judicial proceeding

• Rioting, armed with deadly weapon

• Defamation

 

Non-bailable Offences  

Section 2(a) of the Code of Criminal Procedure, 1973 defines non-bailable offences as any other offences which do not come under the head of bailable offences.

A person accused of a non-bailable offence does not have right to be released on bail, it is solely on the discretion of the court whether to release the accused on bail or not by subjecting him to certain conditions.

Section 437 of the Code of Criminal Procedure, 1973 deals with bail in case of non-bailable offences. As per the section, a person accused of a non-bailable offence shall not be released on bail “if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” Thus if a person has been charged with an offence of murder or rape, there are fewer chances that he would be released on bail. But the section makes an exception for persons who are under the age of sixteen years or is a woman or is sick or infirm.

Examples of non-bailable offence

• Murder

• Dowry death

• Voluntarily causing grievous hurt

• Kidnapping

In the case of D.K. Ganesh Babu v. P.T. Manokaran, the Supreme Court stated that the distinction between an ordinary order of bail and an order of anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 is that whereas the former is granted after arrest, and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.  

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