Bailable and Non-Bailable Offences - Explained

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In the intricate labyrinth of the legal system, understanding the distinction between bailable and non-bailable offences is crucial. But what exactly sets them apart? Stay tuned as we delve into the heart of legal jurisprudence to unravel this mystery. 

Welcome to our website Barristery.in, your go-to source for demystifying the legal world. Today, we're exploring a topic that lies at the very core of criminal law.

First up, bailable offences. These are typically less severe crimes, where the defendant has the right to secure their release on bail. Think of it as a legal mechanism that recognizes the presumption of innocence until proven guilty. But how does it contrast with non-bailable offences? These are generally more serious in nature, where bail is not a right but a privilege that the court may or may not grant based on various factors."

From the implications on personal liberty to the procedural intricacies that govern these classifications, the distinction impacts both the accused and the judicial proceedings.

So, whether you're a legal enthusiast, a student, or someone navigating the legal system, understanding these differences is paramount.

Bailable and Non-Bailable Offences

What is Bailable Offence?

In Indian law, the definition and classification of bailable offences are provided under the Code of Criminal Procedure, 1973 (CrPC). The CrPC does not explicitly define "bailable offence" in a single section, but rather explains the concept through the categorization of offences as either bailable or non-bailable and outlines the procedure and rights associated with each category. 

A bailable offence in Indian law is an offence for which the accused has the right to be released on bail. This means that the court must grant bail upon fulfillment of certain conditions, unless compelling reasons exist not to do so. The primary definition of a bailable offence comes from Section 2(a) of the Criminal Procedure Code, 1973 (CrPC):

"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; and "non-bailable offence" means any other offence;

For bailable offences, bail is seen as a right rather than a privilege. This means that if a person is arrested for such an offence, they are entitled to be released on bail upon their arrest, provided they can furnish the required bail bond and surety.

In the case of bailable offences, the police have the authority to grant bail to the accused at the police station itself, without the need for the accused to present their case before a court for bail. This is in contrast to non-bailable offences, where the decision to grant bail generally rests with a court.

Bailable offences are generally considered less severe and serious compared to non-bailable offences. The law assumes that the accused of such offences poses a lesser risk to society and thus should not be deprived of their liberty unnecessarily.

Some examples of bailable offences under the IPC include unlawful assembly (Section 143), bribery in relation to elections (Section 171E), and defamation (Section 500). However, the determination of bailability can depend on the context and specific details of each case, including the applicable laws beyond the IPC.

Upon being arrested for a bailable offence, the accused or someone on their behalf must offer the required bail amount and a surety (another person who guarantees the accused's compliance with the bail conditions and appearance in court). The police are then obligated to release the accused from custody.

Important points:

  • An offence is considered bailable if it is listed as such in the First Schedule of the CrPC.
  • It can also be considered bailable if another law specifically declares it as such.
  • If an offence is not listed as bailable in the First Schedule or any other law, it is automatically considered non-bailable.
  • Granting bail in bailable offences is mandatory, though specific conditions might be imposed.
  • The quantum of bail (amount) is determined by the court based on various factors.
  • Non-bailable offences require the court's discretion to grant bail, considering specific circumstances and the severity of the offence.

What is Non-Bailable Offence?

A non-bailable offence, in the context of Indian law, refers to a category of crimes for which the right to bail is not automatic. In cases of non-bailable offences, the decision to grant bail is at the discretion of the court, rather than a right that the accused can demand. These offences are generally considered more serious in nature, and the legal system imposes stricter conditions for the release of the accused pending trial.

In Indian law, the definition of a non-bailable offence primarily comes from Section 2(a) of the Criminal Procedure Code, 1973 (CrPC):

"non-bailable offence" means any other offence;

This essentially means that an offence is considered non-bailable if it is not listed as bailable in the First Schedule of the CrPC or any other law in force. In simple terms:

  • Bailable offences are listed in the First Schedule and the accused has the right to bail upon fulfilling certain conditions.
  • Non-bailable offences are not listed in the schedule and bail is at the court's discretion.

For non-bailable offences, the court has the discretion to grant or refuse bail to the accused, considering factors like the nature and severity of the offence, the accused's background, the possibility of the accused fleeing justice, and the potential influence on witnesses or tampering with evidence.

Non-bailable offences typically include crimes that are considered serious by nature. This may include offences such as murder, rape, robbery, and serious acts of fraud.

In cases of arrest for non-bailable offences, the accused must be presented before a court, and it is the court that decides whether to grant bail based on the merits of the case and other judicial criteria.

When bail is granted for non-bailable offences, it often comes with stringent conditions, which may include a higher bail amount, restrictions on travel, or requirements for regular check-ins at a police station.

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Difference between bailable and non-bailable offences

The distinction between bailable and non-bailable offences in Indian law hinges on several key factors, including the gravity of the offence, the prescribed punishment, procedures for granting bail, and the power to grant bail. Understanding these differences is crucial for grasping the broader framework of criminal law in India.

The classification of offences into bailable and non-bailable categories is provided in the First Schedule of the Code of Criminal Procedure, 1973 (CrPC). Sections 437, 438, and 439 of the CrPC outline the provisions for bail in non-bailable offences.

Nature of Offence:

Bailable Offences: These are considered less serious crimes. The law grants the accused the right to be released on bail.

Non-Bailable Offences: These are viewed as more serious crimes. The grant of bail is not a right but at the discretion of the court.

Punishment

Bailable Offences: The punishment for bailable offences typically does not exceed three years of imprisonment, though exceptions exist. For instance, kidnapping under Section 363 of the IPC is a bailable offence but carries a punishment of up to seven years in prison.

Non-Bailable Offences: These offences carry harsher sentences, including the death penalty, life imprisonment, or imprisonment exceeding three or seven years.

Right to Bail:

Bailable Offences: The accused has the right to demand and be granted bail by the police or the court, subject to the furnishing of a bail bond and surety.

Non-Bailable Offences: Bail is not a right but may be granted by a court under its discretion, considering various factors including the nature of the crime, the accused's background, and the likelihood of the accused fleeing or tampering with evidence.

Power to Grant Bail

Bailable Offences: Both police officers and courts have the authority to grant bail for bailable offences.

Non-Bailable Offences: Bail is primarily granted by courts. However, Section 437(4) of the CrPC does allow police officers to grant bail under specific conditions, though this power is seldom exercised in practice.

Legal Consequences of Refusal to Grant Bail

Bailable Offences: Denying bail in bailable offence cases can be considered wrongful confinement under Section 342 of the IPC.

Non-Bailable Offences: There is no legal offence committed by an officer or court for refusing bail in cases of non-bailable offences.

Examples

Bailable Offences: Examples include Kidnapping (Section 363 IPC), Stalking (Section 354D), Dishonest Misappropriation of Movable Property (Section 404 IPC), and Cheating (Section 417 IPC).

Non-Bailable Offences: Examples include Criminal Breach of Trust (Section 406 IPC), Theft (Section 379 IPC), Snatching (Section 379A IPC), Rape (Section 376 IPC), Murder (Section 302 IPC), and Culpable Homicide (Section 304 IPC).

This overview underscores the critical distinctions between bailable and non-bailable offences in India, reflecting the balance between ensuring justice and protecting societal interests. Understanding the distinction between bailable and non-bailable offences is essential for navigating the legal system, especially for those involved in criminal proceedings. It highlights the balance between ensuring the accused's rights and the need to protect society and ensure justice in cases of serious crimes.

The history of the bail system

The origin of the bail system can be traced back to medieval England, making it a practice with a history that spans several centuries. The bail system developed as a means to balance the judicial system's need to ensure that accused individuals would appear for their trial, against the principle of not unduly restricting their liberty before conviction. The evolution of bail has been influenced by legal reforms, societal changes, and evolving notions of justice and rights through the ages.

Early Development in England

Before the Norman Conquest of 1066, Anglo-Saxon law in England allowed individuals accused of crimes to be released to a surety. This surety, often a person of standing in the community, would guarantee that the accused would appear for trial.

After the Norman Conquest, the system became more formalized under the feudal system. The concept of bail was integrated into the legal system, with local sheriffs playing a key role in deciding who should be granted bail.

The principle that would later underpin the right to bail was enshrined in the Magna Carta, a foundational document in English law (1215). Clause 39 of the Magna Carta stated that no man would be imprisoned without a lawful trial, hinting at the early concepts of legal fairness and due process.

Evolution Through the Ages

During the 13th and 14th Centuries, The Statute of Westminster the First (1275) categorized offences for the first time into bailable and non-bailable offences. This was a significant step in formalizing the bail system.

Habeas Corpus Act (1679) reinforced the principle that detention before trial should not be arbitrary, ensuring that a person could challenge unlawful detention, a principle central to the concept of bail.

Bail Act (1976) in England was a significant reform in modern times, setting out the conditions under which a person could be granted bail, with a presumption in favor of bail for most offences.

Bail System in the United States

The English system of bail was transported to the American colonies and became integrated into the American legal system. The United States Constitution and the Bill of Rights, particularly the Eighth Amendment, which prohibits excessive bail, reflect the influence of English common law traditions.

While the concept of bail originated in England, various forms of pre-trial release exist worldwide, shaped by local legal traditions, culture, and societal norms. The fundamental principle behind the concept of bail, balancing the rights of the individual against the needs of society to prosecute crimes, remains a common thread in legal systems around the globe.

The bail system's origins in medieval England laid the groundwork for a complex set of practices that balance individual rights and societal needs. Over centuries, the system has evolved and been adapted by legal systems worldwide, reflecting changes in law, society, and the principles of justice.

Types of bail

Bail is a legal mechanism that allows the temporary release of an individual awaiting trial on criminal charges, under certain conditions meant to ensure their appearance at court when required. There are several types of bail in the legal systems of many countries, including India, each with specific conditions and purposes. Here’s an overview of the primary types of bail:

1. Regular Bail

Regular bail is granted to a person who has already been arrested and kept in police custody. It is granted by a court allowing the accused's release from jail during the pendency of the trial. The application for regular bail can be made under sections 437 and 439 of the Criminal Procedure Code (CrPC) in India.

2. Interim Bail

Interim bail is a temporary bail granted for a short period. It is usually awarded when the court needs time to decide on a regular bail application. The purpose of interim bail is to ensure the accused's liberty until the final decision on the bail application is made.

3. Anticipatory Bail

Anticipatory bail is sought before arrest. It is a direction to release a person on bail even before the person is arrested. In India, Section 438 of the CrPC deals with anticipatory bail. It is granted on the condition that the person will be available for investigation and not abscond when summoned by the police or court.

4. Conditional Bail

Conditional bail imposes certain conditions on the accused when the court grants bail. These conditions might include restrictions on travel, requirement to report regularly to the police, and others aimed at preventing tampering with evidence or influencing witnesses. If these conditions are violated, the bail can be revoked.

5. Unconditional Bail

Unconditional bail does not impose any conditions on the release of the accused. This type of bail is less common and usually granted when the court is satisfied that the accused poses no flight risk or danger to the community.

6. Surety Bail

Surety bail involves a third party agreeing to be responsible for the accused's appearance in court. The surety must promise to pay a specified sum of money if the accused fails to appear. The court holds the surety responsible for the accused's failure to comply with the bail conditions.

7. Personal Recognizance Bail

Also known as PR bail, this type of bail involves the release of an accused on their personal recognizance, without any financial obligation. The court releases the accused based on a written promise that they will attend all court proceedings as required and not engage in illegal activity.

8. Cash Bail

Cash bail requires the accused or someone on their behalf to deposit the entire bail amount in cash with the court. This amount is refunded once the legal proceedings are concluded and the accused has complied with all court appearances.

9. Default Bail

Default bail, commonly referred to as mandatory bail, is a critical provision in the criminal justice system, aimed at protecting the accused's right to liberty in the face of investigative delays. The legal framework for default bail is outlined in Section 167(2) of the Code of Criminal Procedure (CrPC), which mandates the release of the accused on bail if the investigating officer fails to file the charge sheet within prescribed timelines.

  • For offences punishable with death, life imprisonment, or imprisonment for a term of not less than 10 years, the charge sheet must be filed within 90 days from the date of arrest.
  • For all other offences, the charge sheet needs to be filed within 60 days.
  • If the investigating authority does not file the charge sheet within these specified periods, the accused is entitled to be released on bail, provided they are willing and able to furnish bail.
  • An investigation is a systematic process conducted by the investigating officer to gather evidence against the accused. It involves collecting data, examining the facts, and documenting findings to establish the occurrence of an offence and identify the perpetrator(s).
  • The culmination of an investigation is the filing of a final report under Section 173 of the CrPC, detailing the evidence collected and the conclusion reached regarding the accused's involvement in the offence.

The provision for default bail serves as a safeguard against undue delays in the investigation process, ensuring that the accused's right to liberty is protected. It acts as a check on the investigating authorities, compelling them to complete their investigations within the stipulated timeframes.

Default bail emphasizes the principle of "bail, not jail," underscoring the presumption of innocence until proven guilty. It prevents the unjustified detention of individuals whose guilt has not been established within the reasonable time defined by law.

This provision is a testament to the balance the legal system strives to maintain between ensuring public safety and upholding individual rights, ensuring that the process of justice does not unduly infringe upon an individual's freedom without timely and proper justification.

Special Considerations:

Certain laws like the Narcotic Drugs and Psychotropic Substances Act, 1985, and the Prevention of Money Laundering Act, 2002, have specific provisions related to bail. These laws often make it more challenging to obtain bail, given the seriousness of the offenses covered under them.

The law also provides different considerations for granting bail to certain categories of offenders, such as juveniles, women, or individuals with illnesses, under specific circumstances.

The type of bail granted depends on various factors, including the nature of the crime, the accused's background, the risk of absconding, and the potential threat to the community or witnesses. The legal system uses these various forms of bail to balance the accused's rights with the interests of justice and public safety.

List of bailable and non-bailable offences under the Indian Penal Code

Section 107: Abetment of a thing. The bailability and punishment depend on the specific offence abetted.

Section 120B: Criminal conspiracy to commit an offence punishable with death. It is generally non-bailable, and the punishment depends on the specific offence conspired to commit.

Section 121: Waging, or attempting to wage war, or abetting the waging of war against the Government of India. This is non-bailable, punishable with life imprisonment or imprisonment of up to 10 years, plus a fine.

Section 124A: Sedition. It is non-bailable, with punishments ranging from imprisonment for life and fine, to imprisonment for 3 years and fine, or just a fine.

Section 131: Abetting mutiny, or attempting to seduce a soldier, sailor, or airman from his duty. Non-bailable, punishable with imprisonment for life or up to 10 years, and a fine.

Section 140: Wearing the garb or carrying any token used by a soldier, sailor, or airman with the intention that it may be believed that he is such a soldier, sailor, or airman. It is bailable and punishable with imprisonment for up to 3 months, or a fine of ₹500, or both.

Section 144: Being a member of an unlawful assembly. It is bailable, punishable with imprisonment for up to 6 months, or a fine, or both.

Section 154: The owner or occupier of land on which an unlawful assembly is held. Bailable, punishable with a fine of ₹1000.

Section 158: Being engaged or hired to be part of an unlawful assembly or riot; being present at such activities. It is bailable, punishable with imprisonment for 6 months up to 2 years, along with a fine.

Section 166A: Public servants disobeying law, with intent to cause injury to any person. Bailable, punishable with imprisonment for 6 months up to 2 years.

Section 167: Public servant framing an incorrect document with intent to cause injury. Bailable, punishable with imprisonment for up to 3 years and a fine.

Section 172 pertains to absconding to avoid service of summons, classified as non-bailable, with penalties including imprisonment for up to 1 month or a fine of INR 1000.

Section 177 addresses furnishing false information, which is bailable and carries a punishment of imprisonment for 6 months and a fine of INR 1000.

Section 181 involves making a false statement on oath to public servants. This bailable offence is punishable by imprisonment for up to 3 years and a fine.

Section 186 covers disobedience to orders duly promulgated by a public servant, a bailable offence, punishable with imprisonment for 3 months and a fine of INR 500.

Section 189 concerns threats of injury to public servants, a bailable offence, punishable by imprisonment for up to 2 years and a fine.

Section 191 is about giving false evidence, considered bailable, and punishable by imprisonment for up to 7 years and a fine.

Section 195A deals with threatening any person to give false evidence, a bailable offence, with penalties including imprisonment for up to 7 years and a fine.

Section 203 involves giving false information respecting an offence, which is bailable and carries a punishment of imprisonment for up to 2 years and a fine.

Section 210 pertains to fraudulently making a false claim in court, a bailable offence punishable with imprisonment for up to 2 years and a fine.

Section 213 covers taking a gift to screen an offender from punishment, a bailable offence, with penalties ranging from imprisonment for 3 to 7 years along with a fine.

Section 223 addresses escape from confinement or custody negligently suffered by a public servant, a bailable offence, punishable by imprisonment for up to 2 years and a fine.

Section 228 involves intentionally insulting or interrupting a public servant sitting in a judicial proceeding, a bailable offence, punishable with imprisonment for 6 months and a fine of INR 1000.

Section 275 concerns the sale of adulterated drugs, categorizing it as a bailable offence. Violators may face up to 6 months in prison along with a fine of INR 1000, emphasizing the legal consequences for compromising drug quality.

Section 279 addresses rash driving or riding on a public way, a bailable offence due to the risk it poses to public safety. It is punishable by imprisonment for up to 6 months and a fine of INR 1000.

Section 283 pertains to causing danger or obstruction in a public way or line of navigation, which is bailable. The penalty is a fine of INR 200, highlighting the importance of maintaining public safety and order.

Section 292 deals with the sale of an obscene book, a bailable offence reflecting societal standards regarding obscenity. It carries a punishment of imprisonment for up to 2 years and a fine of INR 2000.

Section 295 involves injuring or defiling a place of worship with the intent to insult the religion of any class. This non-bailable offence is punishable by imprisonment for up to 2 years and a fine, emphasizing the protection of religious sentiments.

Section 295A covers deliberate and malicious acts intended to outrage the religious feelings of any class by insulting their religious beliefs, classified as non-bailable. Offenders may face imprisonment for up to 3 years along with a fine.

Section 297 concerns trespassing on burial places, a bailable offence that respects the sanctity of final resting places. It is punishable by imprisonment for up to 1 year and a fine.

Section 302 defines the punishment for murder, a non-bailable offence with severe consequences including life imprisonment or the death penalty, reflecting the gravity of taking a life.

Section 304 addresses culpable homicide not amounting to murder, a non-bailable offence. Punishments include imprisonment for up to 10 years and a fine, differentiating it from murder based on intent and circumstances.

Section 304A deals with causing death by negligence, a bailable offence acknowledging the lack of intent to kill. It carries a penalty of imprisonment for up to 2 years.

Section 304B pertains to dowry death, a non-bailable offence with serious implications, punishable by imprisonment ranging from 7 years to a life term, highlighting the legal stance against dowry-related violence.

Section 306 involves abetment of suicide, classified as non-bailable. The law imposes imprisonment for up to 10 years and a fine, underscoring the seriousness of contributing to another's decision to end their life.

Section 307 addresses attempts to commit murder, a non-bailable offence reflecting the intent to cause death. Punishments can include imprisonment for up to 10 years and a fine.

Section 308 deals with attempts to commit culpable homicide, considered non-bailable. It is punishable by imprisonment for 3 to 7 years and a fine, differentiating from attempts to murder based on the severity of intent.

Section 309 pertains to attempts to commit suicide, a bailable offence. While it can result in imprisonment for up to 1 year or a fine, it's worth noting that societal and legal perspectives on this issue are evolving.

Section 318 involves the concealment of birth by secret disposal of the body, a bailable offence. The law imposes up to 2 years in prison and a fine, addressing the concealment of birth or death.

Section 323 concerns causing hurt, a bailable offence with a relatively lighter penalty of imprisonment for up to 1 year and a fine, reflecting the varying degrees of physical harm.

Section 349 addresses using force, a bailable offence punishable by imprisonment for up to 3 months or a fine of INR 500, underscoring the legal boundaries around the use of physical force.

Section 354D deals with stalking, a bailable offence recognizing the violation of personal space and safety. It carries a penalty of imprisonment for up to 3 months or a fine, highlighting legal protections against harassment.

Section 363 addresses kidnapping, considered a bailable offense, punishable by imprisonment for 7 months or with a fine, reflecting the illegal act of taking someone against their will.

Section 369 deals with the abduction of a child under 10, a non-bailable offense, punishable by imprisonment for 7 months or with a fine, highlighting the seriousness of abducting young children.

Section 370 pertains to trafficking of persons, classified as non-bailable. It carries a severe penalty of imprisonment ranging from 7 to 10 years or with a fine, emphasizing the gravity of human trafficking.

Section 376 outlines the punishment for rape, a non-bailable offense with rigorous imprisonment for life or not less than 7 years, underlining the severe impact of such a crime on the victim.

Section 376D discusses gang rape, a non-bailable offense, with imprisonment for 20 years which may extend to life, reflecting the compounded severity of the crime involving multiple perpetrators.

Section 377 addresses unnatural offences, considered non-bailable, punishable by imprisonment for 10 years which may extend to life, covering sexual acts against the order of nature.

Section 379 pertains to theft, a non-bailable offense, with a punishment of imprisonment for 3 years and a fine, addressing the unlawful taking of someone's property.

Section 384 deals with extortion, classified as non-bailable and punishable by imprisonment for 3 years, highlighting the crime of obtaining something through coercion.

Section 392 covers robbery, a non-bailable offense, punishable by imprisonment for 3 years and a fine, combining theft with the threat or occurrence of violence.

Section 395 involves dacoity, a non-bailable offense, with imprisonment for 10 years and a fine, referring to robbery by a large group of five or more individuals.

Section 406 addresses criminal breach of trust, a non-bailable offense, with a punishment of imprisonment for 3 years and a fine, involving the betrayal of trust over property or duties.

Section 411 concerns dishonestly receiving stolen property, a non-bailable offense, punishable by imprisonment for 3 years and a fine, focusing on the possession of property known to be stolen.

Section 417 pertains to cheating, a bailable offense, with imprisonment for 1 year and a fine, involving deception to gain an advantage.

Section 420 covers cheating and dishonestly inducing the delivery of property, a non-bailable offense, with imprisonment for 7 years and a fine, highlighting the serious nature of fraud.

Section 426 deals with mischief, a bailable offense, punishable by imprisonment for 3 months, involving actions causing damage or loss to another without theft or fraud.

Section 447 addresses criminal trespass, a bailable offense, with imprisonment for 3 months and a fine of INR 500, involving entering someone's property without permission.

Bail in bailable offence in India

The provision regarding bail in bailable offences in Indian law is primarily contained within the Code of Criminal Procedure, 1973 (CrPC), specifically in Section 436. Here’s a summary of the legal provision as per the CrPC. A bailable offence is one where bail is a matter of right.

Section 436 - In what cases bail to be taken:

In cases of bailable offences, the accused has the right to be released on bail upon arrest. This means that if a person is arrested for a crime that is classified as bailable, they can demand to be released on bail.

When a person accused of a bailable offence is arrested without a warrant by a police officer or appears or is brought before a court, they are entitled to be released on bail. This can be done by providing a surety or a bail bond as assurance for their appearance in court when required.

The police have the authority to grant bail in cases of bailable offences. If the accused is in custody, they can be released by the police station upon fulfilling the requirements for bail. If the accused is presented before a court, the court can grant bail.

The court or the police officer may impose certain conditions while granting bail, such as the requirement for the accused to appear before the police station for further investigation, not to leave the country without permission, or to not tamper with the evidence or influence witnesses.

The accused may be required to sign a bail bond, which is a legal document agreeing to the conditions of bail and ensuring the accused's appearance in court when required. The bail bond may include a certain sum of money that the accused pledges as a guarantee.

In some cases, the court or the police might require a surety from one or more persons who assure that the accused will abide by the bail conditions and appear before the court when called upon.

The CrPC outlines the procedures and conditions under which bail can be granted in cases of bailable offences. The process is intended to ensure that the accused person is available for trial while not unnecessarily being detained in custody.

Bail in non-bailable offence in India

Bail in non-bailable offences in India is governed by a more stringent set of criteria than bailable offences due to the seriousness of the crimes involved. The provisions for bail in non-bailable offences are primarily found in Sections 437 and 439 of the Code of Criminal Procedure, 1973 (CrPC).

Section 437 - When bail may be taken in case of non-bailable offence:

Discretionary Power of Court: Unlike bailable offences, the grant of bail in non-bailable offences is not a matter of right but lies within the discretion of the court. This section allows a court to grant bail to a person accused of a non-bailable offence under specific circumstances, but it also lays down conditions where bail cannot be granted.

The court may grant bail to someone accused of a non-bailable offence if:

  • The person is under the age of 16,
  • The person is a woman,
  • The person is sick or infirm, or
  • If there is no reasonable ground to believe that the accused has committed the offence.

The court is also guided by the nature and severity of the offence, the character of the evidence, circumstances peculiar to the accused, and the likelihood of the accused fleeing from justice.

This section also specifies that bail should not be granted if there appear reasonable grounds for believing that the accused has been involved in an offence punishable with death or imprisonment for life, especially if the accused is previously convicted of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more.

Section 439 - Special powers of High Court or Court of Session regarding bail:

Higher Judicial Discretion: The High Court and the Court of Session have been vested with special powers to grant bail, even in non-bailable offences, under this section. They can impose any condition while granting bail they consider necessary.

These courts have broad discretion and can grant bail by imposing conditions they deem fit to ensure that the accused will comply with the terms of the bail, such as surrendering their passport to prevent them from fleeing the country.

The decision to grant bail in non-bailable offences involves a delicate balancing act, considering the seriousness of the offence, the accused's rights, the societal interest in ensuring that justice is served, and the risk of flight. The primary considerations are the nature and gravity of the offence, the character of the evidence, the history of the accused, and the possibility of the accused to flee or influence witnesses if released on bail.

Bail Conditions in India

Bail conditions in India are set by courts to ensure that an accused person complies with the judicial process and does not interfere with the ongoing investigation or trial. These conditions are imposed to balance the accused's right to liberty with the community's interest in ensuring justice. The conditions can vary depending on the nature of the crime, the accused's background, and other relevant factors. Here are some common bail conditions that courts in India may impose:

Personal Bond: The accused may be required to sign a bond promising to pay a sum of money if they fail to appear in court when required.

Sureties: The court may ask the accused to provide sureties, which are guarantees from one or more persons that the accused will attend all court proceedings. The sureties may also have to pledge a certain amount of money.

Passport Surrender: To prevent the accused from leaving the country, the court may require the surrender of the accused's passport.

No Contact with Witnesses: The accused may be prohibited from contacting any of the witnesses in the case to prevent any potential influence or intimidation.

Regular Reporting to Police: The accused might be required to report to a local police station at specified intervals until the completion of the trial.

Residence Requirement: The accused may be ordered not to leave a particular city or state without the court's permission and to inform the court of any change in their place of residence.

No Involvement in Similar Activities: If the accused is charged with a particular type of crime (e.g., financial fraud), they may be prohibited from engaging in similar activities that led to their arrest.

Electronic Monitoring: In some cases, especially involving serious charges, the court might order electronic monitoring of the accused to track their movements.

Prohibition from Possession of Weapons: The accused might be ordered not to possess any weapons for the duration of the bail.

Temporary Custody: For certain crimes, the court might require the accused to spend a specific part of the day or week in custody (e.g., weekends in jail) while being out on bail for the rest.

Any Other Condition: Courts have the discretion to impose any other condition they deem necessary to ensure that the accused will not abscond or interfere with the proceedings.

Violation of any bail condition can lead to the cancellation of bail and the accused being taken into custody. The conditions are tailored to each case, taking into account the severity of the offence, the accused's history, the potential risk to the public and witnesses, and the likelihood of the accused fleeing justice.

Conclusion

In conclusion, the distinction between bailable and non-bailable offences in India is a fundamental aspect of the criminal justice system, reflecting the balance between the rights of the accused and the interests of society. Bailable offences are considered less severe, and the law entitles the accused to bail as a matter of right. In contrast, non-bailable offences are viewed as more serious, and the decision to grant bail is at the discretion of the court, based on various factors including the nature of the crime, the accused's background, and the potential impact on society.

The conditions attached to bail in both bailable and non-bailable offences aim to ensure the accused's appearance in court, protect the integrity of the judicial process, and safeguard the community. While the legal system endeavors to respect individual freedoms, it also imposes necessary restrictions on those accused of crimes to prevent interference with the investigation and ensure their presence at trial.

This framework reflects the legal principle that an accused is presumed innocent until proven guilty, while also recognizing the need to maintain public order and trust in the legal process. The careful consideration of bail applications and the imposition of appropriate bail conditions demonstrate the judiciary's role in balancing these competing interests, ensuring justice is served while upholding the rights of individuals.

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Barristery.in: Bailable and Non-Bailable Offences - Explained
Bailable and Non-Bailable Offences - Explained
The distinction between bailable and non-bailable offences in Indian law hinges on several key factors, including the gravity of the offence, the pres
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