BAILABLE AND NON-BAILABLE OFFENCES

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)

 

https://adityapedialegal.blogspot.com/2020/08/police-custody-vs-judicial-custody.html

 

• 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:

1. Make himself available for interrogation by Police Officer as and when required.
2. Not make any inducement, threat or promise to any person so as to deter him from disclosing any material facts to the Court or any police officer.
3. Not leave India without prior permission of the Court.

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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COGNIZABLE AND NON-COGNIZABLE OFFENCES

Schedule I of CrPC which refers to all the offences under the Indian Penal Code and puts them into cognizable and non-cognizable categories.

Cognizable offence:

• Cognizable offenses are of much serious nature. 
• In a Cognizable offense, the police officer can arrest a person without a warrant. 
• A cognizable offense is defined under section 2 (c) of the CrPC. 
• The moment it is intimated to the police that any offense which is cognizable in nature has been committed in its local jurisdiction, the police are bound to register an FIR under section 154 of the CrPC.  
• The seriousness of the offence leads for maximum punishment. A cognizable offense is an offense which is punishable with imprisonment for 3 years or more. 

• A complaint can also be given to a Magistrate and the Magistrate orders the officer in- charge and forwards the complaint. The officer then registers the FIR. 
• In a cognizable offense, the police can start the investigation immediately after filing the FIR. No permission from the Magistrate is required.
• offenses which are serious in nature examples offences-

1. Waging or attempting to wage war, or abetting the waging of war against the government of India,
2. Murder,
3. Rape, 
4. Dowry Death,
5. Kidnapping,
6. Theft,
7. Criminal Breach of Trust,
8. Unnatural Offenses.

Non Cognizable offence:

• Non Cognizable offenses have been defined under section 2 (I), of Cr.PC. as an offense. 
• A police officer has no authority to arrest without warrant.
• Such offences are minimal offences where the injury done to the society is comparatively small. 
• The aggrieved party expected to file a complaint before criminal proceedings starts.
• There are punishable with imprisonment for less than 3 years or with fine only.
• A police officer cannot arrest without a warrant and such an officer has neither the duty nor the power to investigate into such offences without the authority given by a Judicial Magistrate.

• These offences are not much serious in nature like 

1. Assault,
2. Cheating,
3. Forgery

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WARRANT AND SUMMONS

Summons 

A written notification issued by a civil court requiring that one must appear before the court in prescribed manner.Summons case means a case relating to an offence, and not being a warrant case. 

In the Code of Criminal Procedure, section 61 to 69 deals with summons. Section 204  also deals with summon issuance by the magistrate after cognizance of the offence.

• It issued by a Court are in writing, in duplicate, signed by the presiding officer of Court or other officer as the High Court may direct, and shall bear the seal of the Court.
• Its legal document issued by a Court on a person involved in a legal proceeding. 
• It severed on a person against whom legal action taken or any witness of legal proceeding. 
• A summon served on defendant by plaintiff to ensure fair trial.
• If the summons not duly served then no action lies against the defendant. 

warrant-case

Warrant-case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Warrant in CrPC

sec 70 of CrPC -Form of warrant of arrest and duration

• Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
• Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.

Types of Warrants

There are three main types of criminal warrants

• Arrest Warrant
• Bench warrant
• Search warrant

Arrest Warrant: An arrest warrant is a warrant issued on behalf of the state by a magistrate or judge, authorizing the arrest and detention of an individual, or the search and seizure of an individual's property.
Arrest Warrant includes a bailable arrest warrant and a non- bailable arrest warrant.

• Bailable Arrest Warrant - Warrant to be executed by a policeman, but after the execution, the person arrested can be released by providing a bail which can be bond or cash as per the warrant.
• Non Bailable warrant - Warrant, where arresting or executing police officer, cannot do anything but remand the accused to police station and produce the accused before a magistrate who issued the warrant who will then either recall the warrant with fine or send the accused to judicial custody and order the accused to go to court and apply for regular bail.

Bench Warrant: The arrest warrant that is ordered by a judge against the defendant in a criminal case or any similar proceedings is known as a bench warrant.
A bench warrant is issued when one fails to appear before the court. The term "bench" is derived from the traditional meaning for the judge's seat.

Differences

Arrest Warrant: Generally, the police are supposed to obtain an arrest warrant, issued by a judge based on probable cause, before taking an individual into custody.

Bench Warrant: A judge issues a bench warrant when an individual fails to appear in court. It is not at the request of the police. It is based on the court's jurisdiction over individuals to require their appearance in court.

Search Warrant: It is an order issued by magistrate or judge to authorize law officers to search for a person, his vehicle or location, to get evidence for a crime and to seize any evidence if found.


Summons in Civil Cases
Order V of the Civil Procedure Code, 1908 deals with the procedure of service of summons on the defendants and respondents in a civil suit while Order XVI of the Code deals with the procedure of service of summons on the witnesses in the proceeding. There are 30 rules under Order V that give detail explanation of the procedure of issue and service of summons distinctly.

• Rule 1 states that when the plaintiff has filed the plaint and the plaint has been admitted by the court, the court should issue a summon calling the defendant to answer the claims of the plaintiff and file a written statement which is basically a reply to the plaint.
• Rules 11 to 15 explain service of summons when there are more than one defendants. According to these rules, summon should be served to each of the defendants individually and in person as far as practicable.
• Rule 13 and 14 provide that a summon can be served to the agent of the defendant or any representative in his place of work and that shall complete proper service of summons.

if summoned person does not appear:

If the summoned person appears on the date ushered, the case continues without adjournment and moreover, the court is empowered to pass an ex-parte decree, i.e. award in favour of the party who is present in the court if the other party does not appear even after receiving the summons.

service of summons:

There are many ways of service of summons under the CPC that have been recognized by the courts. These are:

• Service by hand
• Service by post
• Service by E-mail
• Service through WhatsApp

Service by E-mail:   The courts have been inclined to use electronic means to serve summons and notices to save time and money. 

• In the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd.

Service through WhatsApp: The application has threefold tests to check the status of a sent message. It provides ‘one tick’ for messages that are sent, ‘double tick’ for messages that are received and ‘a blue double tick’ for messages that have been either read or at least opened.

•  In Tata Sons v. John Doe, the Delhi High Court permitted the plaintiff to serve summons to the defendant via WhatsApp and e-mail.
•  The landmark case in this regard, however, is Ruma Pal v. Kumar. In this case, the defendant husband had fled to Australia to avoid any suit filed by his wife for domestic violence and it was very difficult to serve summons while he was in Australia.

Summons in Criminal Cases

Chapter 6 of the Code of Criminal Procedure, 1973 deals with issue and service ofsummons upon the accused person and the witnesses in a criminal case.

•  Sections 61 to 69 are the relevant provisions whereby Section 61 deals with ideals with issue of summons and remaining provisions deal with service of summons.
• Summons are also issued to witnesses in a criminal case whom the prosecution of the defence proposes to examine. These summons contain a brief explanation of the matter and their role in the case and their need to testify.

service of summons:

criminal case, the summon is not sent through court officers or the parties but police officers, there are not multiple ways of service of summons. Summons are served in person or through post only. However, the service of summons depends upon the accused and the recognized modes are:

• Service by hand
• Service to Corporate Bodies
• Service by hand

Service by hand : As already explained, the police officer carries the summon issued by the court and the same is delivered to the accused person at his residential address and a copy of the summon is received with acknowledgement from the accused of the receipt of the summons.

Service to Corporate Bodies : When the accused is a company or co-operative society or any other form of body corporates, the summon may be served through the post to the secretary of the organization or the Local Manager or any person in authority who is the principal officer of the organisation

Service to Missing persons: When the accused cannot be found or is missing, the summon can be served to any adult member of his family provided the family members are residing in the same dwelling house or the same city and the family is responsible to intimate the accused. If there are no family members or any next kin to whom the summon can be served, the police officer may annex a copy of the summon on the house of the accused or on the walls of the places near his house where they can be easily located and read by the accused.

Summary of summon and warrant in civil and criminal cases:

• A civil court can issue warrant for arrest against certain persons and in some special circumstances.
• Witnesses are generally the persons who can be arrested under CPC
• Normally, a warrant cannot be issued against the defendant
• A defendant may or may not appear in obedience to the summons issued in a civil suit but the court has no power generally to compel his appearance;
• It is for the defendant to protect his interest in a civil case. The court, if finds that a defendant has not put appearance despite service of summons or that he deliberately avoided the service, can proceed in the matter ex-parte;
• Warrant for arrest can be issued against a defendant if he has been called as a witness or to produce a document;
• In execution of decree, a warrant for arrest can be issued against a judgment debtor;
• A warrant for arrest can be issued even against a defendant in certain exceptional situation where there is probability of his abscondence with a view to frustrate the purpose of the suit;
• All the warrants for arrest issued under the CPC are to be addressed to bailiff of the court;
• A civil court cannot direct the police to arrest a person for its proceeding under the CPC;
• Before issuance of warrant, preconditions for issuance of notice and subsistence allowance have to be complied with;
• Women cannot be arrested in execution of a money decree;

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