Difference between Bailable and Non-Bailable offences

May 16, 2022

Introduction

The word ‘Offence’ is defined in section 40 of the Indian Penal Code 1860 and Section 2(n) of the Code of Criminal Procedure 1973 which states that any act or omission of any act which is made punishable under aforementioned acts will be termed as offence.

Offence is further classified upon its nature and gravity under the following heads-

Cognizable and Non Cognizable offence
Bailable and Non Bailable offence
Compoundable and Non Compoundable offence

Bailable Offence

Bailable offence is defined in section 2(a) of the Code of Criminal Procedure 1973, By Bailable one must understand that bail is allowed in the particular offence and it can be granted by either the police officer or the court .

The offences are shown in the Schedule I of the CrPC 1973 as bailable or are made bailable by any other law for the time being in force. Schedule I of the CrPC is divided in two parts where the first part deals with offences under the Indian Penal Code and the second part deals with the offences which are under other criminal laws.

Examples of the offences which are Bailable in nature-

Causing Miscarriage (Section 312 IPC)
Simple Hurt (Section 323 IPC)
Cheating (Section 417 IPC)
Defamation (Section 500 IPC)
Insult to provoke breach of peace (Section 504 IPC)

Non Bailable offence

Non Bailable offence is not defined in the code under any particular definition but section 2 (a) states that all those offences which are not included in bailable offences are Non Bailable Offences. Further the second part of the first schedule of the CrPC defines non-bailable offences as the offences which are serious in nature and are punishable with death, imprisonment for life or imprisonment for more than 3 years and upwards.

Examples of the offences which are Non Bailable in nature-

Murder (Section 302 IPC)
Rape (Section 376 IPC)
Theft (Section 379)
Robbery (Section 392 IPC)
Cruelty to married women (Section 498A)

Provisions for obtaining bail in bailable offence

In Bailable offences it is a legal right to claim bail for an accused, the police or court has no right to reject the bail application filed by the person accused of bailable offence. A Surety is furnished against which a bail is granted to the accused if he is ready to furnish the bail, he is granted the bail by the competent authority without any further delay.

Provisions of procedure under bailable offence are mentioned in Section 436 of the CrPC 1973 which states that a person who is accused of a bailable offence at any time while under arrest without warrant or at any stage of proceedings has the right to be released on bail.

Provisions for obtaining bail in Non Bailable offence

Non Bailable offence does not mean that bail will not be granted to a person accused of a non bailable offence, it just simply means that bail will be granted on the sole discretion of the court. As in Bailable offence a person cannot claim bail as a legal right in case of non bailable offence.

Provisions of procedure under bailable offence are mentioned in Section 437 of the CrPC 1973 which states conditions which should not be fulfilled in order for an accused to get bail. One of them is that there should not be any reasonable grounds to believe that person has committed the offence punishable with death sentence or life imprisonment and second that he should not be found previously convicted with any offence punishable with imprisonment of more than 7 years.

There are different types of Bail granted under under the code-

Anticipatory Bail

Anticipatory bail is seeked by a person who is apprehending an arrest, Anticipatory bail application is always filed in a sessions court or High court and it is granted as per the direct order of the aforementioned courts.

Interim Bail

Interim bail is granted as per the direct order of the Sessions or High court, it is a temporary relief given to a person seeking an anticipatory bail and his application is pending before the court.

Regular Bail

Bail provisions are given under sections 437 and 439 of CrPC 1973 where a person can apply for regular bail. When a bail is granted the court orders a release of a person who is under arrest, Application for regular bail can be given both in bailable and non bailable offence and it can be availed as soon as a person accused of a crime apprehends arrest or even in the judicial custody or as a undertrial prisoner.

Relevant Case Laws on Bailable and Non Bailable Offences

Suresh Vasudeva v. State & Anr. 1978 Cri. L. J. 677
- Delhi High Court

In this case it was held that whether in non bailable offence the bail is applicable to apprehended an arrest whether made by a police officer in charge of a police station or by any person who is authorised by law to effect arrest and Section 438 subsection (1) of the CrPC is applicable only on Non-bailable offences.

Hussainara Khatoon v. State of Bihar 1979 Cr. L. J. 1036 (S.C.)
- Bihar High Court

In this Case, The Apex court bitterly criticised the bail system and suggested that instead of money factor, other factors such as family ties, roots in the community, job security etc. should determine the grant of bail.

Om Prakash & Anr v. Union of India 2011
- Supreme Court of India

By this Judgement the Supreme court held that all offences under the Central Excise Act, 1944 and the Customs Act, 1962, are non-cognizable, and on the same reasoning the offences are also bailable. Consequently, it was decided that in bailable offences, if the person arrested offers bail, he shall be released on bail according to the procedures of aforesaid acts and if not then with the bail provisions of the CrPC 1973.

Conclusion

Spirit of Article 21 which states the Rights of life and liberty enshrined in the Indian Constitution is kept intact at the time of granting of bail But the complicated system of bail in the country’s criminal law system often fails to appreciate it. At the same time it must not go unchecked that the Grant or refusal of bail depends on the merit of the case. There have been recommendations by the Law Commission on bail reforms and with their implementation a fair and transparent system of bail will prevail in the country.

References

https://indiankanoon.org/doc/1373215/ Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, … on 9 March, 1979

https://indiankanoon.org/doc/1843699/ Om Prakash & Anr vs Union Of India & Anr on 30 September, 2011

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May 16, 2022