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Bailable and Non-Bailable offence

The offences and their punishments have been given under Indian Penal Code, 1860 (hereinafter referred as IPC) and the procedure for the same has been given in the Code of Criminal Procedure, 1973 (hereinafter referred as CrPC). Under CrPC, the offences have been mainly classified under two heads- bailable and non-bailable offences.

Definition of Bailable offence

Section 2(a) of CrPC defines bailable offences as the offence that has been shown in the First Schedule as bailable or which is made bailable by any other law for the time being in force. The first schedule of the CrPC is divided into two parts wherein the first part deals with the offences given under IPC and the second part deals with the offences under other laws. As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only. Some of the common bailable offences are: Simple Hurt (Section 337; IPC), Bribery (Section 171E; IPC), Public Nuisance (Section 290; IPC), Death by Rash or Negligent Act (Section 304A; IPC).

Right to be released on bail

As per Section 50 of CrPC Whenever a person is arrested without warrant, it is the duty of the police officer to communicate the full detail of the offence for which the person is arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety.

As per Section 436 of CrPC, whenever a person accused of a bailable offence is arrested without warrant and is prepared to give bail, such person shall be released on bail. The discretion to decide the bail amount is with the Court or with the officer, as the case may be.

In the case of Rasik Lal v Kishore (2009) 4 SCC 446, Supreme Court held that, in case a person is arrested for any bailable offence, his right to claim bail is absolute and indefeasible and if the person accused is prepared, the court or the police as the case may be will be bound to release him on bail.
In order to apply for a bail in the case of a bailable offence, the person needs to fill a form of bail i.e. Form No. 45 which is given in the first schedule and apply for bail and the Court will have to grant bail.

Definition of Non-Bailable Offence

As per Section 2(a) of CrPC, non-bailable offence includes all those offences which are not included in bailable offence in the First Schedule. Further, the First Schedule in its Second part at its end has defined non-bailable offence as the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years.

Right to be released on Bail

A person accused of a non-bailable offence doesn’t have right to be released on bail but the bail can be granted at the discretion of the court, subject to certain conditions given in Section 437 of CrPC. If a person is arrested on accusation of commission of any non-bailable offence, then the person will not be released on bail if there appears a reasonable ground that the person is guilty of an offence punishable with death or imprisonment of life. A person accused with an offence punishable with death or imprisonment of life can be released on bail if the person is Below the age of sixteen years.

A woman Sick Infirm Further, if at any stage of investigation it appears to the Court that there are reasonable grounds for believing that the person has not committed a non-bailable offence, the person may be released on bail at the discretion of Court on execution of a bond.

In a case a person is accused with commission or abetment or conspiracy or attempt to commit any offence against state or with offences affecting human body or with offences against property may be released on bail but the Court may impose conditions that it deems necessary in order to ensure that the person shall Attend the Court in accordance with the conditions of the bond executed.

Not commit any offence similar to the offence of which he is accused or suspected.

In the case triable by Magistrate, if the trial of a person accused with a non-bailable offence is not concluded within a period of sixty days, such person will be released on bail. The condition for granting the bail is that the person needs to be in custody during whole period. If the bail is not granted to such a person, the reason for not granting the bail will be recorded in writing by the Magistrate. Further, if the person accused of non bailable offence is granted bail because of any of the conditions mentioned above, the authority granting the bail will have to record the reason in writing.

Anticipatory Bail

In case a person is of the apprehension that he might be arrested on the accusation of a non-bailable offence, he can apply to High Court or Court of Session for bail under Section 438 of CrPC. The grant of bail will be on the discretion of the Court subject to certain conditions, including conditions that the person shall:
1. Make himself available for interrogation by Police Officer as and when required.
2. Not make any inducement, threat or promise to any person so as to deter him from disclosing any material facts to the Court or any police officer.
3. Not leave India without prior permission of the Court.

Procedure for Anticipatory Bail

In order to apply for Bail under Section 437 or Section 438 of CrPC, the accused is required to fill the Form No. 45 given in the First Schedule and apply for bail. After that, it will be the discretion of the Court whether it grants or rejects the application for bail.

Difference between Bailable and Non-Bailable Offences

Bailable Offences Non-Bailable Offence
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. Non-Bailable Offence means any other offence.
Bailable offences are regarded as less grave and less serious. Bailable offences are grave and serious offences, For example- offence of murder.
Under bailable offences, bail is claimed as a matter of right. Under Non-bailable offences, bail is a matter of discretion.

Application for Bail

For non-bailable offence one has to move an application setting out the grounds for the grant of bail. In case the court is convinced that bail should be granted it passes the order after hearing the arguments. At that stage one has to fill in the bail bond duly signed by the surety and to be filled through his advocate. In case the accused is before the court, he is set at liberty in the court itself and in case the accused is under detention in the jail, orders of grant of bail are sent to the concerned jail.

To get oneself released on bail in bailable or non-bailable offences one has to file the bail bond The bail bond is filed by the surety who takes the responsibility for producing the accused person in the court or before the investigating agency. Any person who has the capacity, control and competence to produce the accused in case of non-appearance or to pay the amount of the surety can be accepted by the court for the purpose.

Personal Bond and Cash Security
In some cases while granting bail the court directs for personal bond as well as security in cash.

Amount of Bond
The amount of every bond executed shall be fixed with due regard to the circumstances of the case.

Cancellation of Bail
A High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application filed by the complainant or the prosecution.

Written By: Sagar Gujjar - IInd YEAR, L.L.B.,(HONS), K.R Mangalam University, Gurugram

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