BAILABLE & NON-BAILABLE OFFENCES
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.
Law Lexicon defines “Bail” as security for the appearance of the accused person on giving which he is released pending trial or investigation. The basis of bail lies in the principle that there is a presumption of innocence of a person till he is found guilty.
BAILABLE OFFENCES
- 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.
- 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.
- 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.
( please read the earlier blog - POLICE CUSTODY VS JUDICIAL CUSTODY (INDIAN SCENARIO) and the case law DK BASU vs STATE OF WEST BENGAL)
- 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.
Procedure
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.
NON-BAILABLE OFFENCES
- 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.
- 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 does not 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.
- 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.
Magistrate grants bail and Records
- 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.
- 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:
- Make himself available for interrogation by Police Officer as and when required.
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. It is the discretion of the Court whether it grants or rejects the application for bail.
Cancellation of Bail
CrPC under Section 439(2) provides for cancellation of bail by a High Court or a Court of Session. 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.
- In the case of Public Prosecutor v. George William,
- the Court listed 5 circumstances under which bail could be cancelled. They were:
- Where the accused during the period of bail commits the same offence for which he is being tried;
- Hampers investigation;
- Tampers evidence, like intimidating prosecution witness;
- Runs away or goes beyond the control of sureties;
- Commits acts of violence against police or informant
Other grounds as inferred from judicial dicta are as under:
- Misrepresentation of facts
- Improper exercise of discretion by Judges
- Bail granted on the basis of irrelevant material
Power of Police to Grant Bail
In case of bailable offence the police has power to grant bail, but after the challans are filed in court.
If a person is arrested for a bailable offence, he is entitled to be released forthwith on bail at the police station itself as a matter of right on furnishing a bail bond.
If bail application has been rejected, can the same be filed again?
- Yes, bail application can be subsequently filed even after rejection. The principle of constructive res judicata does not apply to such applications,However, subsequent applications shall be placed before the same Judge who had passed earlier orders to prevent abuse of process of Court [Shahzad Hassan Khan v. Ishtiaq Hassan Khan (1987)
In which cases release on bail is mandatory
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