In the Indian criminal justice system, bail is the legal process by which a
person accused of committing a crime is released from custody, subject to
certain conditions, pending trial. Bail is discretionary, which means the judge
has the power to decide whether or not to grant bail based on the circumstances
of the case. In non-bailable offences, the right to bail is not automatic and
the accused must specifically apply for bail.
The Supreme Court of India has laid down guidelines for granting bail in non-bailable
offences, which lower courts have followed. However, the use of these guidelines
has been criticized and controversial. In this article, we will examine the
Supreme Court's guidance on bail in non-bailable offenses and examine its
application in practice.
Bail is a legal process that allows a person arrested or detained on suspicion
of committing a crime to be released from custody pending trial. In India, the
Code of Criminal Procedure, 1973 (CrPC) governs the process of granting bail.
While bail is an issue of right in bailable offenses, it does not exist as an
issue of right in non-bailable offenses.
However, the accused may still apply for the hearing. In this article, we will
discuss the process of granting bail on non-bailable offenses in India, the
factors considered by courts while granting bail, and the circumstances under
which may be imposed on the accused person while on bail. We will also examine
some recent case law on bail in non-bailable offenses and its impact on the
criminal justice system in India.
Guidelines for Granting Bail in Non-Bailable Offenses:
The Supreme Court of India has laid down several guidelines for granting bail in
irredeemable offences. These guidelines include the following:
Nature of the offence:
The seriousness of the offense is the first and foremost consideration in
determining whether to grant bail. The more serious the crime, the less likely
it is that bail will be granted.
Evidence against the accused:
If there is strong evidence against the accused, conviction is less likely to be
granted. However, if the evidence is weak or circumstantial, the court may grant
Character and reputation of the accused:
The past criminal record, character, and reputation of the accused are also
considered in determining whether to grant bail. If the accused has a history of
good behavior and no criminal record, this may justify bail.
Probability of absconding of the accused:
If there is a possibility of absconding of the accused if released on bail,
court is less likely to grant bail.
Risk to witnesses or the public:
If the release of the accused would pose a danger to witnesses or the public,
the court is unlikely to grant bail.
Length of time the accused has already spent in prison: If the accused has
already spent some time in prison, the court may grant bail.
Critical Analysis of the Application of Guidelines in Practice:
Notwithstanding the guidelines established by the Supreme Court for bail in
irredeemable offences, their application in practice has been challenged and
controversial. Critics say the guidelines are often not followed in practice,
and the discretion given to judges leads to fair and unequal treatment of the
One of the main criticisms of the use of bail guidelines is that lower courts do
not always follow them. The discretion given to judges has led to
inconsistencies in the way bail is granted, with some judges being more lenient
and others harsher. This has resulted in inequality between the accused,
depending on the judge who is trying them.
Another criticism is that the guidelines do not provide sufficient clarity or
guidance for lower courts, creating confusion and uncertainty in the application
of the law. For example, different judges often interpret the instruction that
evidence against the accused must be considered in determining custody
differently, with some placing greater emphasis on the strength of the evidence
and others emphasize the type of evidence to be presented.
This has resulted in an inconsistent and inequitable treatment of the accused
persons. In addition to these criticisms, there is also concern that the bail
system is being abused by those who have the wherewithal to pay for the best
legal representation. Accused people who have money are generally able to get
bail faster than those who can't afford a lawyer.
The concept of bailable and non non-bailable offenses in India dates back to the
Criminal Procedure Code, which was first enacted in 1861 during the British
Under the Criminal Code, bailable offenses are those for which bail is available
as a matter of right, and non-bailable offenses are those for which bail is
granted at the discretion of the court. Initially, there were only a few
offenses that were considered non-bailable, such as murder, rape, and fraud.
However, the list of non-participatory offenses has expanded over time to
include a variety of other offences.
In 1973, the Code of Criminal Procedure was amended to provide for the right of
an accused to bail in non-bailable offences, subject to certain conditions for.
These circumstances include the nature of the offense, the likelihood that the
accused will flee or tamper with evidence, and the danger the accused poses to
In 2017, the Indian government introduced the Criminal Code (Amendment) Bill,
which revised the classification of offenses as recoverable and non-recoverable.
The law introduced a new set of offenses known as "compoundable offences", which
are offenses for which the victim can bargain with the accused, and bail can be
granted as a privilege. The law also increased penalties for certain offenses,
including rape and sexual assault, and made it impossible for them to face jail
In India, the classification of offenses as punishable by imprisonment or non-bailable
is an ongoing process, with periodic adjustments to reflect the nature of crime
and the changing socio-economic, and political climate of the country.
Bailable and non-bailable offenses In India:
In India, the offenses are classified into two categories: bailable and non-bailable
offenses. Bailable offenses are those in which the accused person is entitled to
bail as a matter of right, whereas in non-bailable offences, bail is granted at
the discretion of the court. The distinction between bailable and non-bailable
offenses is made in the Code of Criminal Procedure, 1973, which classifies the
offenses as follows:
Offenses which are punishable with imprisonment for a term of less than three
causing hurt, theft, cheating, and simple assault.
Offenses which are punishable with imprisonment for a term of three years or
murder, rape, dacoity, and kidnapping. However, there are
exceptions to this general rule, and certain offenses carrying a penalty of less
than three years imprisonment are also classified as non-extraditable offences.
Similarly, certain offenses punishable by a penalty of three years or more may
also be punishable by imprisonment if the discretion of the court so permits.
It is important to note that even in non-indictable offences, the accused person
has the right to apply for bail, and the court may depend on various factors
such as the nature of the offence, the severity of the punishment , the
likelihood of bail the accused person will escape, and the likelihood of the
accused person interfering in the investigation or tampering with evidence.
Here is a list of some bailable and non-bailable offenses in India along with
the relevant sections of the Code of Criminal Procedure CrPC
- Causing simple hurt - Section 323
- Voluntarily causing hurt - Section 324
- Theft - Section 379
- Mischief causing damage to property - Section 427
- Assault or criminal force to deter a public servant from discharging his duty -
- Causing death by negligence - Section 304A
- Criminal breach of trust - Section 406
- Forgery - Section 467
- Murder - Section 302
- Kidnapping - Section 363
- Robbery - Section 392
- Rape - Section 376
- Attempt to commit murder - Section 307
- Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985
- Offences under the Prevention of Corruption Act, 1988
It is important to note that this is not an exhaustive list and there may be
other offenses that are classified as bailable or non-bailable based on their
severity and other factors. Additionally, the classification of an offense as
bailable or non-bailable can also depend on the specific circumstances of the
case and the discretion of the court.
In comparison with UK and USA:
In the UK and the USA, offenses are generally not classified as bailable or non-bailable
as they are in India. Instead, the law provides that trials are based on the
gravity of the offense, the likelihood that the accused person will have fled,
and the danger that an accused poses to society.
In the UK, the Bail Act 1976 governs the law relating to bail. The law provides
that an accused may be released on bail prior to trial, subject to certain
conditions. The accused person may be released on bail if the court is satisfied
that a trial will be held and no further offense will be committed or witnesses
or evidence will not be interfered with. However, if the offense is serious, or
there is a risk that the accused person will flee or commit another offence, the
court may refuse bail.
In the USA, pretrial release or detention is determined by state or federal law,
depending on the jurisdiction in which the case is being heard. Generally, the
accused person is entitled to pre-trial release unless they are considered a
flight risk or danger to the public. The court may impose conditions on a
release, such as a requirement to wear an electronic monitoring device or stay
away from certain places or persons.
In both the UK and the USA, the decision to release or grant pre-trial custody
is based on a variety of factors such as the nature of the offence, the criminal
history of the accused, the strength of the evidence against them, and the risk
of there is the possibility of escape or the danger of being entangled. The
decision is made by the court, depending on the specific circumstances of the
Key points on which Parliamentary debate can happen:
In India, bailable and non-bailable offenses are defined in the Code of Criminal
The following are some of the key issues that can be argued in the Indian
Here is how a bail bond for a non-Bailable offense is granted in India:
- Criteria for granting bail:
One of the key issues in the doubtful can be the criteria used by the courts
to grant bail in the types of offenses that can and cannot be collected. In
India, the courts consider factors such as the gravity of the offence, the
likelihood of the accused fleeing or tampering with evidence, and the
criminal record of the accused.
- Bail provisions have non-bailable offences:
In India, some irredeemable offenses like murder and rape do not mean
automatic imprisonment. The debate could consider whether bail provisions
should be made in such cases, and what criteria should be applied to
determine whether an accused can be granted bail in the case of non-bailable
- Bail under special laws:
There are several special laws in India, such as the Prevention of Money
Laundering Act and the Unlawful Activities (Prevention) Act, which prescribe
strict provisions on bail. The argument may focus on whether such provisions
are necessary to deal with serious offenses under this statute, or whether
they are too harsh and infringe upon the rights of the accused.
- Trial delay and effect on bail:
Another point of contention is the impact of trial delay on the accused's
right to bail. In India, the courts have held that delayed trial can be
grounds for granting bail to the accused. The argument could focus on
whether such a delay should be taken into account in determining whether
bail should be granted to an accused, and whether there should be a fixed
period of completion trial on criminal grounds.
- Balancing the rights of the accused and the victims:
The argument may also include the need to balance the rights of the accused
with the rights of the victims of the s. While the accused has the right to
be presumed innocent until proven guilty, the accused have the right to a
speedy and fair trial, and to seek justice for the harm they have caused so
the ho. The debate can focus on how the law can strike a balance between
these competing rights.
Overall, the legislative debate on bailable and non bailable offenses in
India may provide an opportunity for legislators to scrutinize existing
statutory provisions and consider changes if it can exist to ensure the
fairness and efficiency of the criminal justice system.
- How is bail granted for a non-bailable offence:
When a person is charged with a non-bailable offense in India, the procedure
for granting bail differs from the bailable offence. For non-bailable
offences, the accused person is not entitled to bail as a matter of right.
However, the accused may still apply for the hearing.
- The accused person or their attorney must file a petition before the
court having jurisdiction over the case.
- The court will consider the bail application and examine the facts and
circumstances of the case, including the nature and gravity of the offence,
the evidence against the accused, and the probability of commission the
charge will evade justice, tamper with evidence, or influence witnesses.
- The court may also consider factors such as the accused's prior
experience, the complexity of the case, and the interests of the accused and
- If the court is satisfied that there are reasonable grounds to believe
that the accused is not guilty of the alleged offence, or that it is
unlikely that the accused is committing any offense while on bail may
- The court may impose certain conditions while granting bail, such as
requiring the accused to produce a personal statement or collateral,
surrender his passport, report regularly to the police, avoid contact with
witnesses or the appellant, and stay within the jurisdiction of the court
- In some cases, the court may also require the accused to deposit a
certain amount of money as security, which will be forfeited if the accused
violates the order issued.
It is important to note that bail in non-bailable offenses is discretionary
and depends on the facts and circumstances of each case. The court may refuse to
grant admission if it feels that the accused is likely to flee, tamper with
evidence or influence witnesses, or if there are reasonable grounds to believe
that the accused committed the alleged offense.
Detailed analysis on application of guidelines given by Supreme Court:
Bail in non-bailable offenses is a complex issue which calls for careful
scrutiny of the directions issued by the Supreme Court. In India, offenses that
are not guaranteed are those that are considered more serious and attract severe
punishment. The law assumes that an accused should not be granted bail unless
there are exceptional circumstances. However, the Supreme Court has laid down
guidelines over the years to ensure that the process of granting or refusing
bail is fair and just.
One key direction given by the Supreme Court was how to assess the gravity of
the offence. The court has emphasized that while deciding on an application for
bail, the court must consider the nature of the offence, the severity of the
punishment, the impact on the victim and the society and on the possibility of
the accused tampering with evidence or influencing witnesses.
The court has also directed the lower courts to consider the antecedents of the
accused, the probability of the accused's absconding, and the probability of the
Another important direction given by the Supreme Court is the consideration of
the length of imprisonment. The court has emphasized that a longer term of
imprisonment should not be denied on the ground that the accused has been
imprisoned for a longer period of time. The court has held that the length of
detention is only one of the factors to be considered in deciding an application
In addition, the Supreme Court has issued guidelines on the factors to be
considered in granting bail, such as the health and age of the accused,
availability of evidence, and the financial condition of the accused. The court
has also emphasized that the purpose of bail is not to punish the accused, but
to ensure the presence of the accused during the trial.
However, notwithstanding these guidelines, there have been cases where
interference is denied in the case of irredeemable offences. There have been
cases where the accused has been denied bail for unreasonably long periods. In
such cases, the accused suffers severe prejudice because the length of
imprisonment is itself a punishment.
To address these issues, it is important to ensure that the guidelines issued by
the Supreme Court are properly implemented. Lower courts should be made aware of
the importance of considering all relevant factors when deciding an application
for remand. There should also be a mechanism to monitor the compliance of the
lower courts with the directions issued by the Supreme Court.
In addition, the law should be amended to ensure that bail is not arbitrarily
granted or used as a tool to harass the accused. The right to bail is a
fundamental right, and any violation of this right must be remedied immediately.
The issue of bail in non-bailable offenses has been a matter of debate and
discussion in the legal system for a long time. The Supreme Court has issued
guidelines on the application of bail in non-bailable offences, but challenges
remain in its implementation.
One of the main challenges is the inconsistent interpretation and application of
guidelines by the lower courts, which has resulted in arbitrary denial of
intervention. The lack of clear and specific criteria for determining whether a
case qualifies has also created confusion and uncertainty in the decision-making
Moreover, the socio-economic status of the accused and the nature of the offense
have generally influenced the court's bail decision, despite the guidelines
recommending an objective and non-discriminatory approach towards him. In
conclusion, the Supreme Court's direction on bail in non-bailable offenses is a
step in the right direction towards ensuring fairness and justice in the legal
However, their implementation requires consistent and fair interpretation by the
lower courts, as well as specific and clear criteria for determining eligibility
for bail. Socioeconomic status should not influence the court's decision, and
there should be a non-discriminatory process in deciding whether to grant
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