Introduction The offences are divided into bailable and non-bailable offences. Bailable offences are those offences where a person has a right to be released from prison. Accordingly, bail can be taken as a matter of right without any prohibition. On the other hand, in non-bailable offences where bail is a matter of discretion while granting bail. To understand the ambit of bailable and non-bailable offence, one needs to understand the meaning of bail and the legislative provisions governing the same. So let us dive deep into the understanding of the same.Meaning Of BailIn general, bail can be defined as a means to set at liberty a person arrested or imprisoned on security being taken of his appearance in the court on a particular day. The word ‘bail’ covers release on one’s own bond.Bail is not defined under the CrPC 1973, however according to section 2(1)(b) of the BNSS, 2023 “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond. Bailable OffenceAccording to section 2(1)(c) of BNSS, 2023 (earlier it was under section 2(a) of the CrPC,1973), bailable offence means an offence which it shown as bailable in the first schedule, or which is made bailable by any other law for the time being in force.Legal Implications Of Bailable Offence Bail in bailaable offencesSection 478 of BNSS, 2023 (earlier section 436 of the CrPC, 1973) outlines the right of an accused to be released on bail in the case of bailable offences. A “bailable offence” is one where the accused has the legal right to seek bail. The police officer or the court handling the case must release the person on bail once they provide the required sureties or bonds. The provision also states that the accused does not have to remain in custody unnecessarily if the offence is classified as bailable under the law.the word “shall” in legal terms indicates an obligation or mandatory action. In the context of section 478 of BNSS, (earlier section 436 of the CrPC,1973), the use of “shall” makes it compulsory for the police officer or the court to grant bail to the accused in cases of bailable offence. In Moti ram vs state of M.P.(AIR 1978 SC 1594), the hon’ble supreme court of India clarified, that, the right to be released on bail under section 436(1) cannot be nullified or bail-bond to be furnished by the person seeking release (especially poor/indigent).Default bailWhere the accused has completed 60 or 90 days in detention and there is no formal charge-sheet framed against them, the court is under constitutional and procedural mandate to ask the detenu if he can furnish bail, he must be released on bail forthwith [ section 187(3) BNSS 2023, (earlier section 167(2) CrPC, proviso) ]. This provision is applicable irrespective of the fact that the offence of which he is accused of is non-bailable or the case is such that he is accused of is non-bailable or the case is such that the bail cannot be granted according to the provision of chapter XXXV of BNSS ( earlier chapter XXXIII of CrPC ) dealing with bail and bonds. Mere submission of charge-sheet cannot be a ground for cancellation of bail granted under section 187(3), BNSS ( earlier section 167(2), CrPC ).No reasonable grounds for believing the accused guilty of a non-bailable offence but sufficient for further inquiryThe accused shall be released on bail in such a case, according to section 480(2) of BNSS, (earlier section 437(2) of CrPC).Trial not concluded within 60 daysIf, in any case triable by a magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be recorded in writing the magistrate otherwise directs [ section 480(6) BNSS,2023 (earlier section 437(6), CrPC,1973) ].Release on bail after conclusion of trial but before the judgment is delieveredIf, at anytime after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused [ section 480(7) of BNSS,2023 (earlier section 437(7) of CrPC,1973 ].Non-Bailable OffenceAccording to section 2(1)(c), BNSS ( earlier section 2(a), CrPC ), non-bailable offence means any other offences which is not a bailable offence.Legal Implications Of Non-Bailable Offence1) Bail in non-bailable offences Section 480 of BNSS (earlier section 437 of the CrPC) deals with the procedure for granting bail in non-bailable offences. In cases of non-bailable offences, the accused doesn’t have an automatic right to bail. If the section uses the word “may” several times, it indicates that the decision to grant bail is not mandatory but rather discretionary. This shows that granting bail in non-bailable offences is not a matter of righ; it depends on the discretion of the court. The process of getting bail in non-bailable cases is different from that for bailable offences. According to section 480(4) of BNSS (earlier section 437(4) of the CrPC), a police officer can granting bail in non-bailable cases if they provide sufficient reasons in writing. However, in practice, police officer usually don’t release the accused on bail.2) Regular bailBail in non-bailable cases is referred to as regular bail, section 480 of BNSS (earlier section 437 of CrPC) is used to outline the provisions for regular bail in criminal cases. To invoke this section, a person must be accused or suspected of a non-bailable offence and is arrested or detained without a warrant, but not in a high court or court of sessions. However, as per the section, there are certain situations where the court cannot grant bail. That includes:If the person is guilty of an offence punishable by death or life imprisonment. If the offence is serious and the person has a history of conviction. Such an offence is punishable by death, life imprisonment, or imprisonment for seven years or more. If the person has been convicted two or more times for cognizable offences punishable with imprisonment for three years or more.As per section 480 of the BNSS, if the accused is under sixteen years of age, sick, infirm, or a woman, the court may grant bail, though the offence is serious. In such cases, if the accused has been convicted two or more times for non-bailable and cognizable offences, the court may still grant bail. Similarly, if the accused is charged with a cognizable offence offence punishable with death, imprisonment for life, or imprisonment for seven years or more, bail may still be granted. This is possible if the court finds special reasons that releasing the accused is just and proper.Further, if a person is accused of an offence that is punishable by death, life imprisonment, or imprisonment for seven years or more, they cannot be granted bail without hearing the public prosecutor’s argument. The court must allow the public prosecutor to be heard before deciding whether to grant bail in such serious cases.Section 480(3) of BNSS (earlier section 437(3) of CrPC) lists the conditions that can be imposed while granting bail. These conditions also apply if the offence falls under chapters VI,VII or XVII of the BNS (earlier chapters VI,XVI or XVII of the IPC) or is an offence of abetment, conspiracy or attempt to commit, any offence given under the above mentioned chapters shall impose following conditions: a) A person released on bail must attend all court hearings as specified by the bail conditions. Further, while on bail, the person must not commit the same crime for which they were originally accused or suspected.b) The accused must not influence, threaton or make promises to anyone involved in the case. They should also not prevent anyone from giving important information to police or tampering with the evidence.c) Sub-section (3) also allows the court to set any other conditions if it is necessary for justice.3) Interim/Anticipatory bail If a court has authority to decide the bail matter, it has authority to consider a ‘temporary bail’ or ‘parole’ or dealing with the custody of the accused and manner of it till the required material is collected.The court possess jurisdiction to release an accused on ‘interim bail’ pending final disposal of the bail application. But release on interim bail is no ground for grant of bail. Which has to be made only on merits.4) Anticipatory bailAnticipatory bail is a kind of legal protection that a person can get from the court to avoid being arrested in the future for a non-bailable offence. Under section 482 of the BNSS (earlier section 438 of the CrPC), if someone believes they might be arrested for such an offence, they can apply to the high court or sessions court for anticipatory bail.Section 482, BNSS mentions certain factors that the court considers before granting anticipatory bail:The seriousness and type of accusation.Whether the person has a criminal history, like if they have been convicted and jailed for a crime or not.The chance that the person might run away to avoid legal action.If the accusation seems to be made just to harm or embarrass the person by getting them arrested.In gurbaksh singh sibbia vs state of Punjab (1980) the supreme court recognized the “extraordinary” nature of anticipatory bail yet emphasized that this does not limit its use only to exceptional cases.Introduction guiding principles : bail is not a blanket immunity; applicants must show “reason to believe” they may be arrested on reasonable grounds; for serious offences, bail should be sparingly granted.In sushila aggarwal and others vs state (NCT of delhi) (2020) a constitutional bench ruled that anticipatory bail normally remains valid through the trial and is not limited to a fixed duration.Distinction Between Bailable and Non-Bailable offencesGenerally, serious offences i.e. offences punishable with imprisonment for 3 years or more, have been considered as non-bailable offences. While, petty offences as bailable. However, there are exceptions on either side.A person accused of a bailable offences has a right to be released on bail. Section 47(2) of BNSS (earlier section 50(2) of CrPC) makes it obligatory for a police officer arresting such a person to inform him of his right to be released on bail.But, if the offence is non-bailable that does not mean that the person accused of such offence shall not be released on bail, but here is such a case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.The classification of offence into bailable and non-bailable has been devised for making a threshold decision as to whether the accused should be released on bail.Conclusion The classification of offences into bailable and non-bailable under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, reflects the seriousness of the offence and the balance between individual liberty and public interest. Bailable offences are generally less serious in nature and grant the accused the right to be released on bail, promoting the principle of “innocent until proven guilty.” On the other hand, non-bailable offences involve more serious crimes where bail is granted at the discretion of the court, ensuring that justice, victim rights, and public safety are not compromised.BNSS continues the foundational approach of the earlier Code of Criminal Procedure (CrPC), while aiming to simplify and modernize criminal procedures. Understanding this classification is essential for legal practitioners, law enforcement, and citizens alike to ensure fair treatment under the law and to uphold the rule of law in the criminal justice system.
ARTICLE BY– MR.RUDRANSH SRIVASTAVAADVOCATE, DISTRICT AND SESSIONS COURT, SULTANPUR (U.P.)
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