Bailable and Non- bailable offences.
Anything done contrary to law, prohibited by law, which is illegal in the eyes of law is
termed as offence. Every person is punished by law whoever commits any of a fences mentioned
in Indian penal code or in any other law for being time in force for a civilized society and
to make life worth living it is important to punish those who are interfaing into the
liberty of other the code of criminal procedure 1973 provides for procedure to punish for a
pencil as mentioned in Indian penal code 1860 and other laws.
Sec 2(n) of Cr.P.C. defines Offence as:
Offence means any actor omission made punisheable by any law for the time being in force and includes any act in respect of which a complaint maybe made under section 20 of the cattle trespass act 1871.
Kinds of offences :Offences can be categorised into –
- Bailable and Non-bailable offences ,
- Compoundable and Non-compoundable offences,
- Cognizable and Non-cognizable offences.
Bailable and Non-bailable offences : Section 2(a)
On the basis of gravity of offence, its seriousness and punishment, the offences are
classified into bailable and non-bailable offences.
Section 2(a) of Cr.P.C. provides bailable ofence 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 and non bailable offence means any other offence.
Bailable Offence -
Bailable offence is one in which bail can be claim as a matter of right. These are offences
which are not serious in nature and generally are punishable for 3 years or less than 3
years or with fine. For example simple hurt (section 337 IPC) , bribery (section 171e IPC),
public nuisance (section 290 IPC), death by rash or negligent act (section 304a IPC) .
In the case of Emperor versus Hutchinson,1931 , it was held by the court that bail is the rule and jail is the exception. In cases where the court is satisfied that accused will not abscond or tender with the evidence or will not induce or threaten witnesses and will appear before the court whenever required, the court may grant bail.
Rasik Lal versus Kishore Khan Chand Wadhwani, 2009, the Supreme Court of India held that the right to claim bail granted under section 436 in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of section 436 are imperative.
Bail in Bailable Offences:
Section 436 CrPC deals with bail in cases of bailable offences. It states when any person is arrested or detained by an officer in charge of the police station for a bailable offence without a warrant such person when brought before the court of law or he himself appears before the court, shall be released on bail when he is ready to give security while in custody or at any stage of proceeding. Refusal of bail by a police officer in case of bailable offence will attract penal consequences under section 342 IPC for making the detention illegal and the police officer causing such detention may be held guilty of wrongful confinement.
Types of Bail:
Regular bail (section 437 of CrPC ) provides for the provisions for regular
bail in criminal cases.
Interim Bail granted before question of bail is finally decided.
Default bail under section 167 provides for default bail where the investigation officer does not file the chargesheet within a specified period prescribed which is 90 days for offences punishable by death, imprisionment for life or not less than 10 years or 60 days for any other offences as the case maybe.
After completing the investigation the investigating officer has to file a final report under section 173 of the CrPC and if he fails to file the report within the above mention period then the accused must be released on default bail.
Anticipatory bail under section 438 of CrPC states that the high court or the session court may grant anticipatory bail to a person who has reasonable apprehension of arrest for a non bailable offence. It is a kind of protection against future arrest.
Procedure for Bail: A person accused of a bailable offence has the right to be released on bail. He can get bail directly from the police officer in the police station itself by presenting sureties for his bail. However it is mandatory for the accused to procure bail from the court even after getting bail from the police as a part of the procedure.
Who is Surety?
Surity is an individual who assure the court in his capacity that the accused won't escape the law after being released on bail.
Bail in Non- Bailable offences:
Non bailable offences are henius in nature and accused cannot claim bail as a matter
of right. It solely depends upon the discretion of the court whether to grant bail
or not. For example terrorism, murder, rape, kidnapping, dacoity, counterfeiting,
corruption and abetment of suicide etc.
If the court is satisfied of the conditions mentioned in section 437, the court may grant bail in case of non bailable offences.
Section 437 and section 439 of CrPC deals with bail in non bailable offences. Section 437 provides for bail in the case pending before any Court other than the session court. Section 439 provides for bail in the case pending before the sessions or high court.
Procedure for Bail in Non-bailable cases:
While applying for bail accused has to give out the grounds for bail ,he has to assure that he shall adhere to the conditions to be set up by the court and has to furnish surety or personal bond.
Mansab Ali versus Irsan , 2002 SC
The Supreme Court of India held that since the jurisdiction is discretionary under section 437 it is required to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society at large.
Sudha Singh versus State of UP, 2021 SC
The Supreme Court of India held that the effect on the victim and family members of the victim resulting from accused’s bail is to be calculated by the courts. Personal freedom of the accused is no doubt important but the effect of accused’s bail on the victim and his family members is also to be taken care of with utmost precaution. It was further held by the court that if a person is held under a non bailable offence, he cannot claim the bail as a matter of right but the law gives special consideration in favour of granting bail to child under 16 years, women, sick or infirm or if the court is satisfied that it is just and proper for any other special reason to give bail rather than to refuse.
Duration of bail :
A Bail is valid up to the conclusion of the trial. However an interim bail is valid
for the time being it is granted.
The court granting the bail has full power to cancel the bail and commit the accused to custody under section 437(5) or 439(2)
Right to Privacy.
Right to privacy is a fundamental right inherent under Article 21 of Indian Constitution i.e. Right to life and personal liberty. It is a recognized human right under Article 12 of Universal Declaration of Human Rights,1948. Indian Supreme court recognised this right as fundamental right in the case of Puttaswamy v. Union of India, 2017.