The code of Criminal Procedure 1973 classifies offence into two categories-Bailable and Non Bailable offences. The classification is solely based upon the gravity of the offences and the punishment provided for such offences. In general terms the, bailable offence is considered to be less grave in contrast to the non bailable offences. The terms bailable and non bailable offences have been defined under Section 2(a) of the code of Criminal procedure 1973 as follow
- “Bailable offence” means an offence which is shown as bailable in 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 other than bailable offence.
It is important to note that the individual offences under Indian Penal Code has been specifically declared as bailable or non– bailable under the first part of the first schedule to Criminal Procedure Code of 1973 and in order to find out whether that offence is bailable or non bailable, the general rules mentioned under the second part of the First schedule to the Code of Criminal Procedure must be referred have to be referred for deciding whether offence is bailable or not. The Code of Criminal Procedure 1973 has also classified the offences into two categories namely as bailable and non bailable depending upon the gravity of offences and the punishment mentioned under the Indian Penal Code of 1860. The Supreme Court in the case of Nirmal Kumar Banerjee v. State, it was observed that the provision relating to bail in bailable and non bailable cases is contained under Sections 436 to 450 of the Code of Criminal Procedure 1973. The distinction between the bailable and non bailable offences is based on the gravity of offence, previous conduct, tampering of evidence, danger of accused absconding, health, age and sex of the accused person. Although the schedule for the classification of offences as bailable and non bailable is provided under Criminal Procedure Code of 1973, however it is mostly the offences which are punishable with imprisonment for not less than three years are classified as Non Bailable. The question that arises from such instance is that, whether there is the scope for the grant of bail for the offences falling under the category of Non Bailable offences. Section 437 of the Code of Criminal Procedure 1973 empowers the court to release an accused person on bail. The Supreme Court of India while making its deliberations to analyse the balance between Right to liberty and as defined under the Indian Constitution observed in the case of Shahzad Hasan v. Ishtiaq Hasan Khan that “Liberty is to be secured through the process of law, which is administered in keeping in mind the interests of the accused, the near and dear of the victim who has lost his/he life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that the parties do not lose faith in the institution and indulge in private retribution.
DIFFERENCE BETWEEN BAILABLE AND NON BAILABLE OFFENCES
When a person accused for a bailable offence is arrested or detained without warrant by an officer in charge of the police station or is brought before the court and is prepared at any time while in the custody of such officer in charge or at any stage of the proceeding before such court to give the bail to the person accused of offence and shall be released on bail.
In case of bailable offences, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of the accused person. The accused may be released on the bail on executing bail bonds with or without furnishing sureties. The bail bond may impose certain terms and conditions such as that the accused will not leave the territorial jurisdiction of the state without the permission of the police officer and the court. The accused is bind to give his presence before the police officer every time whenever required to do so. The accused will not attempt to tamper with any evidence whatsoever, undertaken by the police officer for the investigation. The court is further empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of bail bond.
EXAMPLES OF BAILABLE OFFENCES
- False statement in connection with elections
- Being a member of unlawful assembly
- Public servant disobeying the directions of the law with an intent to cause injury to the person
- Bribery in relation to elections
- Obstructing the public servant in the discharge of his functions
- Fabrication of false evidence during judicial proceeding
- Furnishing false information
- Using force
- Punishment for Cheating
- Punishment for defamation
- Misconduct in public by drunken person
- Criminal intimidation
- Selling any drink or eatables knowing to be noxious
- Causing disturbance to an assembly gathered in religious place
NON BAILABLE OFFENCES
In case of person accused of non bailable offence, it is matter of discretion of the court to grant bail or refuge bail and application has to be made in court to grant bail.
When a person accused of, or suspected of the commission of non bailable offence is arrested or detained without warrant by an officer in charge of the police station or is brought before the court other than the High Court or Court of Session, he may be released on the bail if such person is under the age of sixteen years or is a woman or is sick or infirm. However the application for the bail can be rejected by the court if the
- If there is a reasonable ground for believing that the person arrested is guilty of offence punishable with death or imprisonment for life.
- If the person arrested has been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non bailable and cognizable offence.
A non bailable offence is one in which bail cannot be granted as a matter of right. The accused in this particular case has to apply before the court, and it will be the discretion of the court to grant bail or not. The court is empowered to refuse the bail if the bail bond has not been duly executed or if the offence committed is of such a heinous nature or if the offence committed is punishable with imprisonment for life or is punishable with death or where court has reasonable doubt that the accused may attempt to abscond. Thus, in all the cases mentioned above, the court has the power to refuse to grant bail to the accused. The application for the bail shall be filed before the magistrate, who is conducting the trial of the accused. The application will be heard by the magistrate and thereafter the magistrate can pass such orders as it deem fit.
EXAMPLES OF NON BAILABLE OFFENCES
- Murder(Section 302 of IPC)
- Dowry Death(Section 304B of IPC)
- Attempt to murder(Section 307 of IPC)
- Voluntary Causing Grievous Hurt( Section 326 of IPC)
- Kidnapping (Section 363 of IPC)
- Rape (Section 376 of IPC)
- Import or export of counterfeiting coins (Section238 of IPC)
- Adulteration of drugs (Section 274 of IPC)
- Abetment of suicide (Section 306 of IPC)
- Trafficking of person (Section 370 of IPC
- Punishment for theft (Section 379 of IPC)
- Punishment for dacoity (Section 395 of IPC)
- Dishonestly receiving stolen property (Section 411 of IPC)
- Punishment for Extortion (Section 384 of IPC)
- Punishment for Criminal breach of trust (Section 406 of IPC)
The aim of arresting a person accused of offence, is to ensure that he/she does not absconds or escapes from the rigours of law, when proved guilty or that accused person does not tamper with the prosecution evidence. While dealing with the issue of grant of bail in non bailable offences, it has been held that a person is entitled to his liberty even in case of non bailable offences and the right of accused person shall be dealt by the court in the superficial manner. In the case of Kashiram and others v. State , the court was of the opinion that where there is a sufficient reason to believe that the case in hand requires further investigation to prove the guilt of the accused person; such person should be released on the bail. The Supreme Court in the case of Ram Govind Upahadya v. Sudharshan Singh laid down the guidelines to be kept in mind while granting bail. Although it is a settled position of law that grant of bail in case of non bailable offence is the discretion of a court and court while dealing with grant if bail is to only satisfy if there is a prime facie case against the accused. However from time and again it has been held by the court that the said discretion is to be exercised in a judicious manner and not as a matter of course. Further, it has been categorically held that an order enlarging an accused person on bail without any cogent reason cannot be sustained under the ambit of law.
 1973 CriLJ1582
 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) SCC 528.
 (1987) 2 SCC 528
 AIR 1960 MP 312
 (2002) 3 SCC 598