This article has been written by Anubhav Pandey and Gautam Chaudhary and further updated by Pruthvi Ramakanta Hegde. In this article, the author covers the difference between bailable and non-bailable offences with relevant examples. Further, the article covers the list of bailable and non-bailable offences under the Bharatiya Nyaya Sanhita (2023). The article covers different judicial approaches to the grant of bail to an accused.
This article has been published by Anshi Mudgal.
Under the Bharatiya Nyaya Sanhita (BNS) 2023, the offences are divided into compoundable, non-compoundable, bailable, and non-bailable offences. Bailable offences are those offences where a person has a right to be released from prison. Accordingly, bail can be taken as a matter of right without any prohibition. On the other hand, in non-bailable offences where bail is a matter of discretion while granting bail. Herein, the judiciary needs to carefully determine the facts and other relevant factors while deciding the matters related to the bailable and non-bailable offences.
The concept of bailable and non-bailable offences and the provisions of bail are one of the most necessary concepts in criminal procedure. For instance, petty crimes such as minor theft, public nuisance, or defamation are often categorised as bailable offences. On the other hand, in non-bailable offences, in a case of grievous assault, the court can deny bail to the accused if it believes the accused could interfere with the investigation.
To understand the ambit of bailable and non-bailable offences, one needs to understand the meaning of bail and the legislative provisions governing the same. So let us dive deep into the understanding of the same.
Meaning of bail
In general, bail is the temporary release of an accused person from jail. According to Black’s Law Dictionary, bail is defined as “securing the release of an individual from legal custody by guaranteeing that they will appear at the specified time and place and submit to the court’s jurisdiction and judgment.” As per the definition, a person is allowed to be released from jail after they agree to showcase his/her presence at a designated time and place and follow the court orders.
As per Section 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 “bail” refers to an act of releasing a person who is accused of or suspected of committing a crime from the custody of law. In order to get the bail, the person must agree to certain terms and must sign a document known as a bail bond or bond. This document is a promise that they will return to court for future hearings or trials as required.
In India, bail was introduced during British colonial rule. By that time the Code of Criminal Procedure Code of 1861 and 1898, made a distinction between bailable and non-bailable offences. After independence, the Criminal Procedure Code of 1973 refined the laws governing bail. Today it is Bharatiya Nagarik Suraksha Sanhita, 2023 which deals with the ambit of criminal offences in India. Let us learn more about bailable and non-bailable offences and understand what falls within its ambit.
Bailable offences
What are bailable offences?
The bailable offences are defined under Section 2(1)(c) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (earlier it was under Section 2(a) of the CrPC) and states that bailable offences are those offences which are shown in the first schedule of the code. The definition of bailable offences in the law is not complete because it does not clearly explain what these offences are. The bailable offences are those where a person has the right to get bail. This is because these offences are deemed to be not very serious.
Usually, the bailable offences are punishable by a prison term of up to three years or just a fine. Even though an offence may seem minor, it does not always mean it is a bailable offence because there are many exceptions to this rule. For example, an offence under Section 117(2) of the BNSS, which involves voluntarily causing grievous hurt, is punishable by up to 7 years in prison, but it is considered a bailable offence. In the case of bailable offences, the accused has the right to get bail, which can be granted either by the police officer or by the court.
The First Schedule of the BNSS contains provisions where offences that are not very serious are marked as bailable offences. For example, under Section 189(2) of the BNS, being a member of an unlawful assembly is considered a bailable offence. Similarly, the offence of doing obscene acts or singing obscene songs under Section 296 BNS are classified as a bailable offence.
Characteristics of bailable offences
Let’s discuss the characteristics of bailable offences. Bailable offences have their characteristics, which include:
- In a bailable offence, a person has the right to get bail. This means they will get bail and be released from jail until their court case is decided.
- Moreover, bailable offences are generally for less serious crimes.
- In the bailable offence, the police can grant bail at the station itself without going to court.
Legal implications of bailable offence
Bail in bailable offences
Section 478 of BNSS (Section 436 of the CrPC) outlines the right of an accused to be released on bail in the case of bailable offences. A “bailable offence” is one where the accused has the legal right to seek bail. The police officer or the court handling the case must release the person on bail once they provide the required sureties or bonds. The provision also states that the accused does not have to remain in custody unnecessarily if the offence is classified as bailable under the law.
The word “shall” in legal terms indicates an obligation or a mandatory action. In the context of Section 478 of BNSS (Section 436 of the CrPC), the use of “shall” makes it compulsory for the police officer or the court to grant bail to the accused in cases of bailable offences.
In Rasiklal vs. Kishore s/o Khanchand Wadhwani (2009), the Honourable Supreme Court of India clarified that, for bailable offences, Section 436 of the CrPC grants the accused an absolute and indefeasible right to bail. The words of Section 436 are “imperative.” Accordingly, there is no discretion or judgment by the police or court. If the offence is bailable, bail must be granted. The accused simply has to apply for bail, and it must be provided as a matter of right. The decision confirmed that for bailable offences, an accused person is entitled to get bail as a matter of right. They can ask for bail from the police or the court, and it must be granted. Unlike non-bailable offences, where the court decides whether to grant bail or not, bailable offences guarantee bail to the accused.
Section 436 of the Criminal Procedure Code (1973) deals with bail for bailable offences. It states that if a person is arrested or detained by the police for a bailable offence without a warrant, they must be released on bail. This applies when the person is brought before the court or appears in court on their own. Bail must be granted as long as the person is ready to provide bail, whether while in police custody or at any stage of the legal proceedings. The same was noted in the case of Ratilal Bhanji Mithani vs. Asstt. Collector of Customs, Bombay (1967). The honourable Supreme Court held that if a person is accused of a bailable offence, they have the right to be released on bail immediately after their arrest.
Further, if a police officer refuses to grant bail in a bailable offence, it can lead to legal consequences. In the case of Dharmu Naik vs. Rabindranath Acharya (1978), the Orissa High Court ruled that if bail is denied in violation of Section 436 of the Criminal Procedure Code 1973, the detention becomes unlawful. The police officer responsible for this wrongful detention could be found guilty of wrongful confinement under Section 342 of the Indian Penal Code 1860 (now this section is embedded under Section 127 of the BNS)
However, now Section 436 of the CrPC is replaced by Section 478 of the BNSS. It contains the provisions for the right to bail for persons accused of bailable offences. It allows the release of the accused person on a bailable offence without a warrant. Further states that, if the person cannot afford surety, they may be released based on their bond. The Section allows the court or officer to have the discretion to discharge a poor person without taking bail, and such a type of bail is called default bail.
Default bail
Default bail is also called mandatory bail, which is to be granted in cases of bailable offences. The provisions regarding default bail are given under Section 187(3) of the BNSS (earlier Section 167(2) of CrPC) which states if the police do not complete their investigation and file the charge sheet within a certain period, the person accused of a crime has the right to be released on bail. It is also known as mandatory bail. This period is 90 days for serious crimes like those punishable by death, life imprisonment, or a minimum of 10 years in jail and 60 days in case of offences of a less serious nature. If the police fail to meet these deadlines, the accused can be released on bail by law.
If the accused person is ready to take bail, they must be released if the investigation is not completed in time. Once the investigation is finished, the police officer files a final report, called a charge sheet, under Section 189 of the BNSS (earlier Section 173 of the CrPC). If the police fail to file this report within the time limits mentioned, 90 or 60 days, the accused has the right to be released on default bail.
Application for bail in bailable offences
If a person is accused of a bailable offence, it is easier to get bail. They have bail as a right. After the arrest, the person can get bail from the police station by providing a guarantee called a surety. However, even after getting bail from the police, the person still needs to go to court to get bail officially. It is called judicial bail.
In Haji Mohammed Wasim And Ors. vs. State of U.P (1991), the Allahabad High Court ruled that even if a person is released on bail by the police, they must still apply for bail from the court as part of the legal process.
To get bail from the court for a bailable offence, the person needs to:
- Apply to Section 436 of the Criminal Procedure Code, 1973 (Section 478 of BNSS).
- After the application is filed, the accused can provide bail by either giving a personal bond or through sureties.
Who can grant bail in bailable offences?
In a bailable offence, even police can grant bail directly at the police station without the court’s intervention. Since the person has a right to bail in bailable offences, the police usually release them after setting bail conditions. However, in certain circumstances, if the case goes to court, the court can also grant bail, but in most cases, it’s done by the police first.
Judicial pronouncement about bailable offences
There are various judicial pronouncements about bailable offences, which include:
Rasiklal vs. Kishore (2009)
Facts
In the case of Rasiklal vs. Kishore (2009), Rasiklal was accused of defamation under Sections 499 and 500 of the IPC (now it is added under Section 356 of the BNS). Kishore, the complainant, alleged that Rasiklal defamed him in an interview on Star News TV Channel. Kishore filed a criminal complaint against Rasiklal in January 2005. The Judicial Magistrate First Class in Indore issued a summons to Rasiklal in May 2006. Rasiklal appeared in court in November 2006 and requested bail. On December 1, 2006, the Magistrate granted him bail after considering the offences were bailable. Kishore challenged this decision in the Madhya Pradesh High Court and contended that he was not heard before the bail was granted.
On March 24, 2008, the High Court of Madhya Pradesh, Bench at Indore, cancelled the bail granted to Rasiklal. It was rejected on the ground that the complainant (Kishore) was not heard before granting the bail. The High Court sent the case back to the lower court with directions to reconsider the matter in the interest of natural justice. After being aggrieved by the High Court’s order, Rasiklal appealed to the Supreme Court under Article 136 of the Constitution of India.
Issues
- Whether the High Court was right to cancel the bail granted by the Judicial Magistrate on the grounds of violation of natural justice, specifically that the complainant was not heard?
- Whether the bail granted for bailable offences be cancelled on the ground of not hearing the complainant?
Arguments
The appellant contended that the bail granted was by the provisions for bailable offences. Further argued that the respondent being heard before granting bail is not required under the law for bailable offences.
On the other hand, the respondent contended that the bail granted without hearing the respondent violated the principles of natural justice. Further argued that the High Court should have reviewed the procedure and heard the complainant before granting bail.
Judgement
Honourable Supreme Court observed under Section 436 of the CrPC, that a person accused of a bailable offence has an absolute right to bail if they are willing to comply with reasonable conditions. The court must grant bail without discretion if the accused is ready to provide a surety or execute a bond. For non-bailable offences, the court has discretion regarding bail, and the complainant may be heard. Further observed that for bailable offences, the principles of natural justice, such as hearing the complainant before granting bail, are not mandatory.
The Supreme Court held that the High Court erred in cancelling the bail on the ground that the complainant was not heard because the bail was for a bailable offence. The court held that bail granted for bailable offences cannot be cancelled solely on the grounds of not hearing the complainant. The right to bail in such cases is absolute and does not depend on hearing the complainant. Thereby, the Supreme Court set aside the High Court’s order and restored the bail granted by the Judicial Magistrate.
Suresh Pal and 3 Ors. vs. State of U.P. and Ors. (2019)
Facts
In the case of Suresh Pal and 3 Ors. vs. State of U.P. and Ors. (2019), Sureshpal and three others were accused in a case registered under several Sections of the IPC. They were registered under Sections 147 (now under Section 191 of the BNS), Section 148 (now under Section 191 of the BNS), Section 149 (now under Section 190 of the BNS), Section 323 (now under Section 119 of the BNS), Section 504 (now under Section 352 of the BNS), Section 506 (now under Section 351 of the BNS), and Section 352 of IPC (now under Section 131 of the BNS). Later, during the investigation, the charges under Sections 325 (now under Section 117 of the BNS) and Sections 308 IPC (now under Section 110 of the BNS) were added. The applicants were already granted bail for the initial charges. However, they further filed for anticipatory bail because they feared being arrested after the new charges were added.
Issues
The main issue was whether the applicants, who were already granted bail for the earlier charges, could be arrested for the newly added non-bailable offences without their earlier bail being cancelled.
Arguments
They argued that since they were already out on bail for the earlier charges, they should not be arrested again just because new charges were added. They relied on Supreme Court rulings.
- Joginder Kumar vs. State of U.P. (1994), the Supreme Court held that the power to arrest must be exercised sparingly and only when necessary. The court emphasised that arrest should not be automatic, especially when an individual is already out on bail.
- Arnesh Kumar vs. State of Bihar (2014), this judgment stressed that the police must follow due process before arresting someone, including providing reasons for the arrest, and it should not be done automatically. It emphasised that the police should consider whether the arrest is necessary and not make arrests as a routine measure.
- Dataram Singh vs. State of U.P. (2018) The Supreme Court stated that bail should be the rule and jail the exception, particularly when the accused is already on bail for related charges. The court clarified that an accused person on bail should not be arrested again merely because new charges are added without proper judicial scrutiny.
On the other hand, the State contended that with the addition of serious and non-bailable offences, the applicants should either surrender and apply for fresh bail or be arrested since the nature of the case has changed.
Judgement
The Allahabad High Court concluded that the applicants could not be arrested without a court order or cancellation of their previous bail. The application for anticipatory bail was dismissed, but the applicants were advised to take appropriate legal steps as per the law, such as applying for fresh bail for the new charges.
The court also held that, if someone has already been granted bail for certain charges, and later additional charges are added that are non-bailable, it does not automatically cancel their earlier bail. The person cannot be arrested for these new charges unless the court specifically orders their arrest or decides to cancel the bail that was previously granted.
Referred Cases
Instances of bailable offences concerning BNS
As per Section 88 of the BNS, a miscarriage is an offence that is punishable by imprisonment for up to 3 years, along with a fine, or both can be imposed. This offence is considered a bailable offence and is tried by a Magistrate of the first class. Earlier, this offence was tried as per Section 312 of the IPC.
Within the same Section if the woman is “quick with child” i.e., the foetus of the child has reached a stage where movement is detectable. In such time the punishment increases to imprisonment for up to 7 years, along with a fine. This offence remains non-cognizable and bailable and is also tried by a Magistrate of the first class.
As per Section 106(1) of the BNS, if in case death is caused by negligence, it is an offence under the BNSS, punishable by imprisonment for up to 5 years and a fine. This offence is still bailable, and it is tried by a Magistrate of the first class. Earlier, this was done as per Section 304A of the IPC. Also under the same Section, if the offence is committed by a registered medical practitioner, in such a case, the punishment is reduced to imprisonment for up to 2 years and a fine. This is considered still a cognizable and bailable offence. It is also tried by a Magistrate of the first class.
Non-bailable offences
What are non-bailable offences?
A non-bailable offence is considered more serious. In this kind of offence, the accused does not have an automatic right to be released on bail. In these cases, bail is not granted as a matter of right, but it is instead decided by the court. The crimes like murder, rape, kidnapping, and other serious criminal acts are considered as non-bailable offences. The judicial officers, having discretionary power, may grant bail to the accused based on the facts of the case. Therefore, in non-bailable offences, bail may be granted or denied depending on the circumstances and facts presented before the court.
Characteristics of a non-bailable offence
Let’s discuss the characteristics of non-bailable offences. Non-bailable offences have their characteristics, which include:
- In the non-bailable offence a person does not have the automatic right to get bail. They need to apply for bail before the court of competent jurisdiction. The court may or may not grant bail as it is the discretion of the court.
- These offences are serious. For instance, murder, rape, or kidnapping.
- In these offences, only the court has the power to decide whether bail should be granted or not.
Legal implications of non-bailable offence
Bail in non-bailable offences
Section 480 of BNSS (earlier Section 437 of the CrPC) deals with the procedure for granting bail in non-bailable offences. In cases of non-bailable offences, the accused does not have an automatic right to bail. If the Section uses the word “may” several times, it indicates that the decision to grant bail is not mandatory but rather discretionary. This shows that granting bail in non-bailable offences is not a matter of right; it depends on the discretion of the court. The use of “may” signifies that the court has the authority to decide whether or not to grant bail based on the specifics of each case.
The process for getting bail in non-bailable cases is different from that for bailable offences. According to Section 480(4) of the BNSS (earlier Section 437(4) of the IPC), a police officer can grant bail in non-bailable cases if they provide sufficient reasons in writing. However, in practice, police officers usually do not release the accused on bail.
Judicial bail in such cases is applied under Section 480 of BNSS if the case is pending in any court other than the Sessions Court, and under Section 483 of BNSS (Section 439 of CrPC) if the case is pending in the Sessions Court or High Court. When applying for bail, the accused, through their lawyer, explains the facts of the case to the court and presents reasons why bail should be granted. While doing this, the accused also mentions previous court decisions (judicial precedents) that support their request for bail. This is done to persuade the judge by showing that similar cases have resulted in bail being granted. When the accused submits their bail application, they agree to follow any conditions the court might impose. The bail granted in such a case is referred to as regular bail or interim bail if given for a temporary period. Let us understand them below.
Regular bail
Bail in non-bailable cases is referred to as regular bail. Section 480 of the BNSS is used to outline the provisions for regular bail in criminal cases. To invoke this Section, a person must be accused or suspected of a non-bailable offence and is arrested or detained without a warrant, but not in a High Court or Court of Sessions. However, as per the Section, there are certain situations where the court cannot grant bail. That includes:
- If the person is guilty of an offence punishable by death or life imprisonment.
- If the offence is serious and the person has a history of convictions. Such an offence is punishable by death, life imprisonment, or imprisonment for seven years or more.
- If the person has been convicted two or more times for cognizable offences punishable with imprisonment for three years or more.
As per Section 480 of the BNSS, if the accused is under sixteen years of age, sick, infirm, or a woman, the court may grant bail, though the offence is serious. In such cases, if the accused has been convicted two or more times for non-bailable and cognizable offences, the court may still grant bail. Similarly, if the accused is charged with a cognizable offence and has prior convictions for offences punishable by death, life imprisonment, or imprisonment for seven years or more, bail may still be granted. This is possible if the court finds special reasons that releasing the accused is just and proper.
If an accused person is eligible for bail, bail cannot be denied just because a witness identified them during the investigation. However, the accused must agree to follow any conditions or directions set by the court as part of the bail process. The same was held in the case of Saurabh Bali vs. State (2021). The Delhi High Court held that bail cannot be denied solely because a witness identified the accused during the investigation. The decision to grant bail must be based on the specific facts and circumstances of each case. Mere identification by a witness is not enough to refuse bail.
Further, if a person is accused of an offence that is punishable by death, life imprisonment, or imprisonment for seven years or more, they cannot be granted bail without hearing the public prosecutor’s arguments. The court must allow the public prosecutor to be heard before deciding whether to grant bail in such serious cases.
Section 480 of the BNSS states that if, at any stage during a trial, inquiry, or investigation, the officer or court believes that there is no strong reason to think that the accused has committed a non-bailable offence, in such situations, the accused can be released on bail. However, the court or officer must still think there are grounds for further investigation into the accused’s guilt. In such cases, bail can be granted under the condition outlined in Section 485 of the BNSS, which requires the accused to execute a bail bond. The accused may be allowed to provide bail by signing a personal bond, which depends on the court or officer’s discretion.
Section 480(3) of the BNSS (earlier Section 437(3) of CrPC) lists the conditions that can be imposed while granting bail. These conditions also apply if the offence falls under Chapter VI, Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita (earlier Chapter VI, XVI, or XVII of the IPC) or is an offence of abetment, conspiracy or attempt to commit, any offence given under the above-mentioned chapters shall impose the following conditions:
- A person released on bail must attend all court hearings as specified by the bail conditions. Further, while on bail, the person must not commit the same crime for which they were originally accused or suspected.
- The accused must not influence, threaten, or make promises to anyone involved in the case. They should also not prevent anyone from giving important information to the police or tampering with the evidence.
- Sub-section 3 also allows the court to set any other conditions if it is necessary for justice.
Further, Section 480(4) of the BNSS (earlier under Section 437(4) of the CrPC) and Section 480(5) of the BNSS (earlier Section 437(5)) explain the general steps that the officer and court must follow for granting bail. Section 480(4) of the BNSS states that the officer or court must write down the reasons or special reasons for granting bail under sub-sections 1 and 2.
Section 480(6) of BNSS (earlier Section 437(6) CrPC) contains provisions for trials before a magistrate. It states that, if a case involving a non-bailable offence is tried by a magistrate, and the trial is not completed within sixty days from the date set for taking evidence, the accused must be granted bail if they have been in custody for the entire period. Even if this condition is met, the magistrate can deny bail if they believe the accused should not be released. The magistrate must record their reasons for denying bail.
Section 480(7) of BNSS (earlier Section 437(7) CrPC) outlines what happens after the trial is concluded but before the judgment is pronounced. If the court believes there are reasonable grounds that show the accused is not guilty of a non-bailable offence, the court must release the accused. However, if the accused is still in custody, they will only be released after signing a personal bond.
Interim bail
The term “interim” means ” for a temporary period.” In the context of bail, this means that the court grants bail for a specific and limited time only. This period could be fifteen days, a month, or any other duration set by the court. During this time, the accused is released from prison. After the interim bail period ends, the accused must return to prison.
To obtain interim bail, the accused must apply to the relevant court. Interim bail is typically granted for non-bailable offences, as bail for bailable offences is a right. The court has the discretion to extend the period of interim bail if it deems appropriate. In the case of Athar Parvez vs. State (2016), the Delhi High Court emphasised that exceptional circumstances must be present for granting interim bail.
The court, while deciding this case, observed whether “interim bail” is distinct from “bail” in the context of the Narcotic Drugs and Psychotropic Substances Act, 1985. But it also touched on broader principles related to personal liberty under Article 21 of the Constitution of India. Additionally, the court referred to the distinction between “bail” and “parole” in criminal jurisprudence. It stated that the purpose of both terms is the same, but they are different legal concepts.
Further, it is important to note that bail can also be granted before the arrest of the accused has taken place and in cases where the arrest is anticipated, this is dealt with below for better understanding.
Anticipatory bail
Anticipatory bail is a kind of legal protection that a person can get from the court to avoid being arrested in the future for a non-bailable offence. Under Section 482 of the BNSS (Section 438 of the CrPC), if someone believes they might be arrested for such an offence, they can apply to the High Court or Sessions Court for anticipatory bail. This type of bail is only handled by these higher courts. Similarly, a person cannot apply for it in lower courts.
Section 482 mentions certain factors that the court considers before granting anticipatory bail:
- The seriousness and type of accusation.
- Whether the person has a criminal history, like if they have been convicted and jailed for a crime or not.
- The chance that the person might run away to avoid legal action.
- If the accusation seems to be made just to harm or embarrass the person by getting them arrested.
In the case Sanjay Kumar Gupta vs. State of U.P. (2021), the Honourable Supreme Court addressed two main questions:
- Can an accused person apply for anticipatory bail after being taken into custody by the police?
- Can anticipatory bail be granted based on general statements about the law, fundamental rights, or study reports?
The court stated that once a person is taken into custody, they cannot apply for anticipatory bail. Instead, they must apply for regular bail under Sections 437 of the CrPC (now under Section 480 of BNSS) or Section 439 of the CrPC (now under Section 483 of the BNSS) depending on the situation. The person applying for anticipatory bail must present specific and relevant facts and strong evidence to the court.
Factors considered while granting bail under non-bailable offences
For non-bailable offences, the situation is different. Bail in such cases is at the discretion of the court. The court decides whether to grant bail by considering these factors:
- The specific facts and circumstances of the case.
- The age, gender, health, and background of the accused.
- The role the accused played in the alleged crime.
In the case of Pramod Kumar Maglik & etc. vs. Saihna Rani & etc. (1989), the term ‘may’ denotes the discretion of the court. The court examined the evolution of bail provisions, starting from the Criminal Procedure Code, 1898, and how the legislature intentionally distinguished between “bailable” and “non-bailable” offences. The court noted that the use of the words “may” and “shall” in different sections of the CrPC indicates a conscious choice by the legislature. “May” signifies judicial discretion, while “shall” indicates a mandatory requirement.
Therefore, the legislature provides magistrates with discretion when deciding bail in non-bailable offences. The Allahabad High Court concluded that the word “may” in the first provision of Section 437(1) CrPC is discretionary, not mandatory. This decision overruled the view taken in Shakuntala Devi vs. State of UP (1986), where it was held that bail must be granted to certain categories of individuals. The court in this case provided more clarity on the judicial discretion, especially in granting bail under Section 437 CrPC.
In the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court Of Andhra (1977), it is stated that the judge is never free as he/she is always occupied with the questions related to the personal freedom and liberty of a person facing a criminal trial. Furthermore, he is expected to adjudicate the matter at hand in accordance and agreement with the already existing laws and provisions. He/she is to exercise their sole discretion along with clear justification, logical reasoning and a mature mindset. Further, the judge has to take a look at the facts and circumstances of the case, and he/she is never to be influenced by the sentiments of either of the parties because he must only look at the facts and question the law.
In the case of Mansab Ali vs. Irsan & Anr. (2002), the Supreme Court of India emphasised that granting bail to an accused person is a matter of judicial discretion. The decision to grant or deny bail is not automatic, and it must be carefully considered by the court. The court must balance two important factors:
- The personal freedom and rights of the individual accused of a crime should not be unnecessarily restricted, as everyone is presumed innocent until proven guilty.
- The safety and interests of the public and society at large must also be protected.
Who can grant bail in non-bailable offences?
In non-bailable offences, bail can only be granted by a court. The accused has to apply for bail first and after the court will decide whether to grant the bail or not. the court will consider this based on the seriousness of the offence and other factors.
Judicial pronouncements about non-bailable offences
There are various judicial pronouncements about non-bailable offences, which include:
Arnesh Kumar vs. State of Bihar & Another (2014)
Facts
In the case of Arnesh Kumar vs. State of Bihar and Anr. (2014), Arnesh Kumar, the appellant, was accused by his wife under Section 498-A of the IPC (now under Section 85 of the BNS) and Section 4 of the Dowry Prohibition Act, 1961. The allegations were based on the demand for dowry of Rs. 8 lakhs, a Maruti car, an air conditioner, a television and other things. When the wife brought these demands to the appellant’s attention, he reportedly supported his parents and threatened to marry another woman if she did not comply. This situation led to the wife feeling forced to leave her matrimonial home due to the constant pressure and threats.
When these demands were not met, the wife alleged that she was harassed and driven out of her matrimonial home. Arnesh Kumar denied these allegations and applied for anticipatory bail, which was rejected by the Sessions Court and the High Court. Consequently, he approached the Supreme Court for the same matter. In the present case, the appellant seeks protection from arrest through anticipatory bail.
Issues
The primary issue was whether the arrest of the accused under Section 498-A IPC, without adequate justification, was lawful or not.
Arguments
Arnesh Kumar argued that the allegations were false and baseless. He contended that Section 498-A IPC was being misused by his wife to harass him and his family.
The State of Bihar and the wife (respondent) argued that the allegations were serious and justified his arrest.
Judgement
After hearing both parties’ contention, the Honourable Supreme Court recognised the misuse of Section 498-A of the IPC and emphasised the need for caution in making arrests under this Section. The court noted that arrests should not be made simply because the offence is non-bailable and cognizable. The court further held that arrests under Section 498-A IPC should be made only after the police officer is satisfied that such an arrest is necessary for one or more purposes mentioned in Section 41 of the CrPC (Now under Section 35 of the BNSS). The court further redirected some of the guidelines that police officers have while making any arrests; they have to justify such an arrest. The court finally granted anticipatory bail to the appellant in this case.
Pradeep Ram vs. The State of Jharkhand (2019)
Facts
In the case of Pradeep Ram vs. The State of Jharkhand (2019), petitioner was accused in an FIR registered under Sections 304(A) (now under Section 106 of the BNS), Section 279 (now under Section 281 of the BNS), Section 337 and Section 338, (now under Section 125 of the BNS), and Section 427 (now under Section 324 of the BNS) of the IPC along with Sections 184 and Section 134 of the Motor Vehicles Act, 1988. These offences were bailable, so the petitioner was granted bail by the Judicial Magistrate under Section 436 of the Code of Criminal Procedure (CrPC), 1973.
Later, the respondent state sought to add new, more serious offences such as Section 304 of the IPC (now under Section 105 of the BNS), which are non-bailable and triable by the Sessions Court. The respondent moved an application to cancel the bail that had been earlier granted to the petitioner. The appellant was granted bail by the High Court after the charge sheet was filed under the same Sections. On 11.03.2016, the Chief Judicial Magistrate took cognizance of the charges. The appellant then filed a petition to quash the proceedings. But the matter was stayed by the High Court on 15.12.2016. Later, the Investigating Officer added offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The Central Government ordered the National Investigation Agency (NIA) to take over the investigation. NIA re-registered the FIR as RC-06/2018/NIA/DLI on 16.02.2018. The NIA sought a production warrant for the appellant, who was already in jail in connection with another case. The Special Judge, NIA, Ranchi, remanded him to judicial custody. The Judicial Magistrate did not cancel the bail but instead directed the petitioner to surrender within ten days and apply for bail for the newly added non-bailable offences. The appellant filed appeals against the decision made by the High Court of Jharkhand on 26.09.2018. The appellant challenged the remand order and the re-registration of the FIR in the High Court, which dismissed both petitions. The appellant then appealed to the Supreme Court.
Issue
The main issue was whether the prosecution could apply to Section 437(5) CrPC for cancelling bail when the petitioner was initially granted bail under Section 436 CrPC and whether the Judicial Magistrate had jurisdiction to direct the petitioner to surrender and apply for bail for the new offences.
Arguments
The petitioner argued that since they were granted bail under Section 436 CrPC, the prosecution could not move an application under Section 437(5) CrPC.
It was also argued that the Judicial Magistrate had no jurisdiction to entertain such an application or to direct the petitioner to surrender and apply for bail again for the new offences.
Judgement
The Supreme Court acknowledged that the petitioner was correct in arguing that the prosecution should not have applied to Section 437(5) CrPC, as bail was initially granted under Section 436 CrPC. The court held that if new, more serious non-bailable offences are added to an already granted bail, it is not necessary to cancel the original bail before allowing the arrest of the accused. The court can allow the accused to be arrested and taken into custody based on the new offences without cancelling the earlier bail.
Sudha Singh vs. The State of U.P. (2021)
Facts
In the case of Sudha Singh vs. The State of U.P.(2021), the appellant, Sudha Singh, is the wife of Raj Narain Singh, who was allegedly murdered by the accused in conspiracy with others. A First Information Report (FIR) was registered, and the accused was charged under Sections 120-B of IPC (now under Section 61 of the BNS) and Section 302 of IPC (now under Section 103 of the BNS), along with Sections 3 and Section 25 of the Arms Act, 1959. The prosecution claims that the accused is part of an organised crime gang operating in Azamgarh.
Issues
The main issue in this case was whether the Allahabad High Court was correct in granting bail to the accused, after considering his criminal record and the risk he posed to witnesses and the victim’s family.
Judgement
The Supreme Court of India set aside the Allahabad High Court’s order granting bail to the accused. The court emphasised that in cases involving dangerous criminals, courts must carefully consider the potential threats to witnesses and the victim’s family before granting bail.
The Supreme Court, in this case, decided that it is up to the courts to consider the impact on the victims and their families when deciding whether to grant bail to the accused or not. While the accused person’s right to personal freedom is important, on the other hand, the potential effects of granting bail to the victims and their families must also be carefully considered with proper reasoning.
Kanumuri Raghrama Krishnan Raju vs. State of Andhra Pradesh (2021)
Facts
In the Kanumuri Raghurama Krishnam Raju vs. The State of Andhra Pradesh (2021) case, the petitioner, who was a Member of Parliament, was arrested on 14 May 2021. An FIR was lodged against him by the Andhra Pradesh Crime Investigation Department on charges under Sections 124-A, Section 153(A) (now under Section 196 of the BNS), Section 505 of the IPC (now under Section 353 of the BNS), read with Section 120-B of the IPC. The appellant was charged with making comments that were thought to provoke negative feelings, disrespect, or unhappiness towards the government. Specifically, these allegations target the “Reddy” and “Christian” communities.
Petitioner was accused of conspiring with two media channels, TV5 and ABN, to amplify his messages. Petitioner filed a bail petition in the Andhra Pradesh High Court, which was dismissed on 15 May 2021. The petitioner claimed that his arrest and the charges were politically motivated as a retaliation for his criticism of the Chief Minister and his application for the cancellation of the Chief Minister’s bail. The petitioner was tortured in police custody and also injured. These injuries were confirmed by a medical examination conducted by the Army Hospital in Secunderabad, Telangana.
Issue
Whether Kanumuri Raghurama Krishnam Raju should be granted bail, given the allegations of sedition and the claim of being tortured in custody.
Judgement
The Supreme Court allowed the appeal and granted bail to Kanumuri Raghurama Krishnam Raju. The court confirmed the wrongful actions taken against the appellate after going with the medical report from the Army Hospital. Further held petitioners must cooperate with the investigation and present themselves for interrogation if called upon.
The Supreme Court found merit in the petitioner’s bail plea primarily due to the custodial torture he allegedly suffered, his health condition, and the nature of the charges, which did not require custodial interrogation.
In this case, the Honourable Supreme Court considered whether a High Court can hear a bail application under Section 439 of the CrPC when the accused directly applies to it, without going to the Trial Court first. The Supreme Court confirmed that a High Court can hear such applications and that Section 439 gives both courts the power to handle bail requests. So, if the accused goes straight to the High Court, the High Court can still consider the bail application.
Prem Shankar Prasad vs. The State of Bihar (2021)
Facts
In the case of Prem Shankar Prasad vs. The State of Bihar (2021), Prem Shankar Prasad, the appellant, filed an FIR against respondent No. 2 (accused) in Chapra Town Police Station, Saran, in Case No. 453 of 2018. The accused was charged with offences under Sections 406 of IPC (now under Section 316 of the BNS), Section 420 of the IPC, Section 468 of the IPC (now under Section 336 of the BNS), and Section 506 of the IPC (now under Section 351 of the BNS) for the offence of criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for cheating, and criminal intimidation.
The Chief Judicial Magistrate issued an arrest warrant against the accused on 19 December 2018. Subsequently, proceedings under Sections 82 (now under Section 84 of the BNSS) and Section 83 of the CrPC (now under Section 85 of the BNSS) were initiated, declaring the accused as a proclaimed offender. The accused applied for anticipatory bail, which was rejected by the Trial Court on 29 January 2019, considering the seriousness of the charges and the accused’s absconding behaviour. Despite these facts, the accused later approached the Patna High Court, which granted anticipatory bail on 14 August 2019.
Issues
Did the High Court make an error by granting anticipatory bail to the accused even though the accused was already declared as a proclaimed offender under Sections 82 and 83 of the CrPC?
Whether the High Court properly consider the seriousness of the allegations against the accused under Sections 406, 420, 468, and 506 of the IPC?
Arguments
The appellant’s counsel argued that the High Court committed a grave error in granting anticipatory bail to the accused, who had absconded and was declared a proclaimed offender. It was contended that the High Court ignored the seriousness of the charges, which included criminal breach of trust, cheating, and forgery, and the fact that the Trial Court had already rejected the anticipatory bail considering these factors. The appellant’s counsel cited the Supreme Court’s decision in the State of Madhya Pradesh vs. Pradeep Sharma (2013) to argue that a person declared as an absconder is not entitled to anticipatory bail.
The respondent’s counsel argued that the dispute arose out of a business transaction, and mere dishonour of a cheque does not necessarily constitute the offences alleged under the IPC. It was argued that the case should be considered under Section 138 of the Negotiable Instruments Act, 1881, rather than the IPC. They further contended that the accused was not missing or trying to escape, instead, they were around and could be found and questioned by the authorities. The respondents further argued that even though a charge sheet had been submitted, the Magistrate had not yet officially acknowledged or acted on it.
Judgement
The Supreme Court, in this case, decided the question as to whether a person declared an absconder in law is entitled to get relief of anticipatory bail. The Hon’ble Court held that in the case of absconders, the relief of anticipatory bail is completely absent. The court set aside the High Court’s order granting anticipatory bail to the accused. The court reiterated its stance from State of Madhya Pradesh vs. Pradeep Sharma (2013) and stated that a person declared as an absconder under Section 82 of CrPC is not entitled to anticipatory bail. The court hereby allowed the appeal and quashed the High Court’s order. Thus, the court denied anticipatory bail to the accused.
Gautam Navlakha vs. National Investigation Agency (2021)
Facts
In the case of Gautam Navlakha vs. National Investigation Agency (2021), Gautam Navlakha was detained on August 28, 2018, under Section 167 of CrPC (now under Section 187 of the BNSS) and was supposed to be moved from Delhi to Pune due to an FIR against him under Unlawful Activities Prevention Act (UAPA), 1967. The Delhi Court stopped his transfer, so he remained under house arrest for 34 days.
On February 14, 2020, his request for anticipatory bail was denied, and he was ordered to surrender by April 8, 2020. He surrendered to the National Investigation Agency (NIA) on April 14, 2020. Navlakha’s request for default bail was denied because the NIA had not filed charges within 90 days. Later, the Bombay High Court rejected his appeal. The NIA filed charges against him on October 9, 2020, but the 90-day limit had already passed.
Issue
The key issue was whether the 34 days Navlakha spent under house arrest should count as part of the custody period for default bail.
Arguments
The appellant contended that house arrest should count as custody. They also held that the nature of house arrest was a form of detention which is allowed under Section 167 CrPC. Further argued that time spent under house arrest should be included in the 90-day limit for filing charges.
Respondent argued that house arrest does not qualify as custody under Section 167 of CrPC. Custody must involve police interrogation and is not the same as house arrest.
Judgment
The Honourable Supreme Court decided that house arrest does not count as legal custody under Section 167 CrPC. Thus, the 34 days Navlakha spent under house arrest were not included in the 90 days for default bail. The court ruled that the time in house arrest should not be counted for default bail purposes. The court held that house arrest, while sometimes used by courts, does not qualify as detention under Section 167 CrPC for calculating default bail.
Instances of a non-bailable offence concerning BNS
Now let’s discuss some instances of non-bailable offence concerning BNS. As per Section 70(1) of the BNS gang rape is considered as a serious offence under the BNSS. The punishment for this offence is rigorous imprisonment, which is not less than 20 years. Further, it may extend to imprisonment for life along with a fine. This offence is considered a non-bailable offence and is tried in the Court of Session. Earlier, this offence was embedded as per Section 376D of the IPC.
As per Section 80(2) of the BNS dowry death is considered as one of the serious offences. The punishment for this offence is 7 years imprisonment, and it may extend to life imprisonment. This offence is considered a non-bailable offence. This offence is tried in the Court of Session. Earlier this was inserted as per Section 304B of the IPC.
Murder is one of the most serious offences under the BNSS. As per Section 101 of the BNS, murder is punishable by death or imprisonment for life, along with a fine. This offence is considered a non-bailable offence. This offence is tried in the Court of Session. Earlier, this offence was inserted as per Section 302 of the IPC.
Difference between bailable and non-bailable offences
| Basis | Bailable offences | Non-bailable offences |
| Gravity | In bailable offences, the gravity of the offence is lower as compared to non-bailable offences. | In non-bailable offences, the gravity of the offence is higher. |
| Punishment | In bailable offences generally, the quantum of sentence is below or up to three years. Although there are exceptions in respect of this rule. For example, the offence of kidnapping under Section 137 of BNSS is bailable but is punishable by imprisonment for seven years and a fine. | Sentences are higher in the case of non-bailable offences as they are punishable with death, imprisonment for life, or imprisonment which may exceed three years or seven years. |
| Bail | In bailable offences, bail can be granted as a matter of right. | In non-bailable offences, bail is not a matter of right, but rather it is a matter of the discretion of the court of law. |
| Power to grant bail | In case of bailable offences, either the police officer or the court can grant bail. | In the case of non-bailable offences, mostly the accused get bail through a court of law. Yet there is a provision under Section 480(3 (earlier under Section 437 subsection 4 ) that empowers the police officer to grant bail while recording reasons in writing. Though in reality, police officers do not grant bail. |
| Offence | Refusal of bail in case of a bailable offence shall amount to wrongful confinement under Section 127 of BNS. | There is no offence committed if the officer or the court does not grant bail to the accused. |
| Examples | Kidnapping (Section 137 BNS), Stalking (Section 78 BNS), Dishonest Misappropriation of Movable Property (Section 314 BNS) and Cheating (Section 318 BNS), etc. | Criminal Breach of Trust (Section 316 BNS), Theft (Section 305 BNS), Snatching (Section 304 BNS), Rape (Section 63 BNS), Murder(Section 109 BNS) |
List of bailable and non-bailable offences under BNS, 2023
| Section | Offence | Bailable/ Non-bailable | Punishment |
| 49 | Abetment | It varies based on the offence | Based on the offence |
| 61(2)a | Criminal conspiracy to commit an offence punishable with death | It depends on the offence. For example, the punishment for murder is non-bailable. | Depends on the offence |
| 147 | Engaging in, attempting to engage in, or aiding in war against the Government of India | Non-bailable | Death or imprisonment for life and a fine |
| 152 | Act endangering sovereignty, unity and integrity of India | Non-bailable | Imprisonment for life, or imprisonment for 7 years and fine. |
| 131 | Assault or criminal force otherwise than on grave provocation | Bailable | Imprisonment for 3 months, or a fine of 1,000 Rs, or both. |
| 137(2) | Kidnapping | Bailable | Imprisonment for 7 years and a fine |
| 139(1) | Kidnapping a child for the intention of begging | Non-bailable | Rigorous imprisonment not be less than 10 years but which may extend to imprisonment for life, and fine. |
| 156 | A public servant willingly allows a prisoner of state or war under their custody to escape. | Non-bailable | Imprisonment for life, or imprisonment for 10 years and fine. |
| 165 | A deserter hidden on a merchant vessel due to the negligence of the master or person in charge of the vessel | Bailable | Fine of 3000 Rs |
| 168 | Wearing a uniform or carrying a symbol used by a soldier, sailor, or airman | Bailable | Imprisonment for 3 months or a fine of 2000 Rs or both |
| 173 | Bribery | Bailable | Imprisonment for 1 year or fine |
| 174 | Undue influence or impersonation during an election | Bailable | Imprisonment for 1 year or a fine or both |
| 175 | Furnishing false statements in connection with an election | Bailable | Fine |
| 176 | Illegal payments in connection with elections | Bailable | Fine of 10000 Rs |
| 177 | Failure to keep the election accounts | Bailable | Fine of 5000 Rs |
| 178 | Counterfeiting coins, government stamps, currency notes, or banknotes | Non-bailable | Imprisonment for life or 10 years, along with a fine |
| 180 | Possessing forged or fake coins, government stamps, currency notes, or banknotes | Non-bailable | Imprisonment for seven years along with a fine |
| 189(2) | Being a member of an unlawful assembly | Bailable | Imprisonment for 6 months or fine or both |
| 189(4) | Participating in an unlawful assembly while carrying a deadly weapon | Bailable | Imprisonment for two years along with a fine or both |
| 189(7) | Sheltering individuals who have been hired to join an unlawful assembly | Bailable | Imprisonment for 6 months or fine or both |
| 191(2) | Rioting | Bailable | Imprisonment for 2 years or fine or both. |
| 191(3) | Engaging in a riot while carrying a deadly weapon | Bailable | Imprisonment for 5 years or fine or both |
| 194(2) | Committing affray | Bailable | Imprisonment for 1 month along with a fine of INR 1000 |
| 199 | Public servants disobeying direction under law | Bailable | Rigorous imprisonment for not less than 6 months, which may extend to 2 years and a fine. |
| 202 | A public servant unlawfully participating in trade or business activities. | Bailable | Imprisonment for 1 year or fine or both |
| 201 | Public servant framing an incorrect document with the intent to cause injury. | Bailable | Imprisonment for 3 years, or fine, or both. |
| 221 | Obstructing a public servant from carrying out their official duties | Bailable | Imprisonment for 3 months or a fine of 2500 Rs or both |
| 300 | Disturbing religious assembly | Bailable | Imprisonment for 1 year with a fine |
| 302 | Intentionally speaking or making remarks, or performing actions, to hurt someone’s religious sentiments. | Bailable | Imprisonment for 1 year with a fine |
| 303(2) | Theft | Non-bailable | Rigorous imprisonment for not less than 1 year, but which may extend to 5 years, and a fine. |
| 304(2) | Snatching | Non-bailable | Imprisonment for 3 years and a fine. |
| 308(2) | Extortion | Non-bailable | Imprisonment for 7 years or fine or both |
| 309(4) | Robbery | Non-bailable | Rigorous imprisonment for 10 years and a fine |
| 309(6) | Causing hurt | Non-bailable | Life imprisonment, or rigorous imprisonment for 10 years and a fine |
| 310(2) | Dacoity | Non-bailable | Imprisonment for life or rigorous imprisonment of 10 years with a fine |
| 318(2) | Cheating | Bailable | Imprisonment for 3 years or fine or both |
| 324(2) | Mischief | Bailable | Imprisonment for 6 months or fine or both |
| 329(3) | Criminal trespass | Bailable | Imprisonment for 3 months and a fine of 5000 Rs or both |
| 329(4) | House-trespass | Non-bailable | Imprisonment for 1 year with a fine of 5000 Rs. |
| 336(2) | Forgery | Bailable | Imprisonment for 2 years, or fine, or both. |
| 351(2) | Criminal intimidation | Bailable | Imprisonment for 3 years or fine or both. |
| 351(3) | If the threat involves causing death or serious injury | Bailable | Imprisonment for 7 years or fine or both |
| 356(2) | Defamation against the President, Vice-President, Governor of a State, Administrator of a Union Territory, or a Minister related to their official duties, when a complaint is made by the Public Prosecutor | Bailable | Imprisonment for 2 years or fine. |
Conclusion
One can understand from this topic that the concept of bail in India has gone through various stages of dynamic change. Every change has moulded the law of bail, and the Supreme Court of India has played a paramount and vital role in the same. The purpose of bail is not to release an accused person permanently but to temporarily release them from custody. This is done either on their bond or based on the assurance from their guarantors that the accused will not evade the law and will appear before the court when required.
Observing the intensity of the crime, offences are classified or rather divided,d as bailable and non-bailable offences. Less serious crimes are bailable, whereas offences of a grave nature are non-bailable. In the case of bailable offences, the accused does not have an absolute right to bail. They can usually get bail, but the court has the authority to keep them in custody if it finds valid reasons to do so and provides justification for its decision.
The same is the case with non-bailable offences, where it is expressly shown that in such cases, bail cannot be granted, but it is not always the view. In many cases of serious nature, the accused is granted bail due to the lacuna performed by the investigation agency or any other factor.
Recently, the Supreme Court on August 23, stated that the new bail rules under the Bharatiya Nagarik Suraksha Sanhita (BNSS) will apply to past offences. This means that even if someone committed a crime before the BNSS started on July 1, first-time offenders can still request bail based on the new rules. This decision could greatly affect the large number of undertrial prisoners in India. According to a report from the National Crime Records Bureau in 2022, Indian prisons are overcrowded, with an occupancy rate of 131.4%. Out of about 573,200 prisoners, around 75% are undertrials. The ruling enables these individuals to get more chances to be released.
In India, the rule is bail but not jail. However, it is still not considered as a matter of right of an individual unless it is bailable in nature. Arrested persons should not be kept in jail before they have proven guilty. The main legal maxim followed is that the “accused is innocent until proven guilty”. Courts have made it clear in many judgments. The bail helps to protect the liberty of the person.
Frequently Asked Questions (FAQs)
Can we get bail in criminal cases?
There are two types of criminal bail, one is bailable and the other is non-bailable. When it comes to bailable cases, as the name already suggests, it is easy to get bail right. While in non-bailable cases, granting a is not a matter of right. So it solely depends on the court and the judge.
Who are sureties?
Sureties are the individuals who assure the court in their capacity that the accused won’t escape the law after being released on bail.
How long is a bail valid?
In a criminal trial, both regular and anticipatory bail remain valid until the trial is completed. If it is an interim bail, then it is granted temporarily for the time being. If the court finds it appropriate, it has the authority to cancel the bail and place the accused in custody.
How many times can bail be filed?
A bail application can be filed as many times as the applicant likes. There is no bar or limitation on the same. However, courts usually accept subsequent applications when there is a material change in circumstances.
How much is the bail amount?
Under Indian criminal law, it is expressly mentioned that the bail amount is set by the court after looking at the financial condition of the accused and his family members. Thus, there is no specific amount for furnishing the bail.
How does a bail bond work?
In a criminal trial, there are two types of bail bonds, a personal bond and a surety bond. As the name suggests, a personal bond is a bond that is and can be executed by the accused himself, whereas a surety bond is executed by the accused sureties. When the court accepts the bail application filed by the accused and agrees to set him free from custody, it sets an amount, for example, of rupees. Twenty-five thousand for the bail bond.
Then, upon setting the amount, either the accused himself or his sureties on his behalf submit any object or thing that is of the same value as the bond, such as a car, bike, or property papers. After following the procedure to execute the bail bond, the accused is released on bail. However, it is important to remember that a bail bond cannot be executed in cash.
How can one file for anticipatory bail?
Steps to file for anticipatory bail:
- The accused person has to consult with a lawyer with expertise in criminal law. A lawyer is needed to assist with drafting the anticipatory bail application.
- The lawyer will apply for the anticipatory bail application by outlining the need for bail.
- The anticipatory bail application is filed in either the Sessions Court or High Court, depending on the jurisdiction.
- On the date of the hearing, the lawyer will argue on behalf of the accused.
- The court, at its discretion, will decide to grant or deny anticipatory bail to the accused person. If the bail is granted, it prevents the accused from being arrested during the case.
- If granted, the accused must comply with any conditions set by the court.
How can one file for bail in bailable and non-bailable offences?
For bailable offences, if an accused person is arrested in court since the offence is bailable, the accused has a right to bail. A bail application is filed in the police station or court. Bail is granted as a matter of right. In order to get bail, the accused has to provide surety or a personal bond. After providing the necessary bail bond or surety, the accused is released from custody.
For non-bailable offences, the accused is arrested in court. A bail application is filed in court by the lawyer. In non-bailable cases, bail is not a right and depends on the discretion of the court. After hearing from the prosecution and defence, the court will decide to grant or deny bail. If the court is satisfied with the facts, the court may grant bail, with certain conditions. If bail is granted, the accused provides the necessary surety or bond and is released under the conditions imposed by the court.
References
S.N. Misra’s The Code of Criminal Procedure, 1973. Thirteenth Edition. .
https://keydifferences.com/difference-between-bailable-and-non-bailable-offence.html
https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1292&context=pilr
https://indianexpress.com/article/explained/explained-law/sc-bail-undertrials-bnss-9535391/#:~:text=A%20Supreme%20Court%20ruling%20on%20Friday%20(August%2023)%20said%20that
Kelkar’s Criminal Procedure Code, Second Edition
Dr. P.K. Singh’s A to Z of Criminal Trial.
