Introduction
Right from its early stages of settlement, every society consists of two sects of followers: law abiders and law abusers. Thus, in every structural arrangement of society, violation of laws or, more certainly, the practice of any such action that is recognised as unethical from the eye of law possesses a significant share. But, the identity of persistent law abusers cannot be coated with the title of offender every time merely because of their persistence in committing crimes. Also, the one who has been accused of criminal activity cannot be given the same treatment as being given to the criminals. Therefore, to promote a sense of equality in society and refraining from the practice of directly detaining a person without legit evidence of his involvement in the crime, the concept of bail was introduced. Moreover, as not, all the crimes or offences could be entitled to seeking such relief, and to avoid any such threat situation that could be anticipated on evaluating the gravity of such offence being committed by the person reasonable distinction has been made with regard to bailable and non-bailable offence.
Commission of an offence by any person regardless of his status, caste, creed or gender is compensated with punishment under established law. As per section 40 of IPC[1] the word offence denotes a thing or action that is punishable under IPC or any other law established. In layman terms, an offence is a breach of law or rule. Any offence and its relevant punishments are being defined under the Indian Penal Code 1860 and further, the relevant or equivalent procedure for the execution of such punishment is being provided by Criminal Procedure code 1973. “It is based on the fundamental principle of criminal jurisprudence that “bail is a rule and jail is its exception”[2]
Significance of Bail
If an offence is being committed by a person, he cannot be designated as a convict unless his involvement in the commission of the offence is proved. Such a law abuser will be connoted as an accused and same can claim for bail that would protect his detention rights and will not be eligible to be treated ruthlessly.
“Any accused in a criminal proceeding is prima facie presumed to be guilty, but the bail provisions in contrast are in support of the accused to protect his right against detention. Bail is the pretrial release of a criminal defendant after security has been taken for the defendant’s future appearance at trial, has for centuries been the answer of the Anglo-American system of criminal justice to a vexing question: what is to be done with the accused, whose guilt has not been proven, in the “dubious interval,” often months long, between arrest and final adjudication”[3].
Granting of bail refers to the procedure under which a temporary release is awarded to a person who is accused of a crime, basically, it is a procedure through which the court ascertains the attendance of the accused in the court and compels the accused to stay within the jurisdiction of the court for pending reference or revision. Bail is provided with a surety by someone who possesses the capability to bring the accused before the court of law as and when demanded by the court. Offences are further classified as Bailable and non bailable offences. Also, in historical sense No man’s person shall be restrained or imprisoned by any Authority whatsoever before the law hath sentenced him thereto, If he can put insufficient security, Baylor mainprise, for his appearance . . . unless it be in Crimes Capital, and Contempts in open Court, and in such cases where some expressed act of Court [viz. the legislature] doth allow it.[4]
Bailable And Non-Bailable offences
According to section 2 (a) of CrPC, bailable offences are those offences that are shown as bailable under the first schedule, or any such special mention made in any other law as a bailable offence for the time being in force will be classified under bailable offence.[5] Thus, any offences mentioned in the first schedule are bailable, and with respect to the first schedule of CrPC, it is primarily divided into two halves. The part of the first schedule declares the offences given in IPC, whereas the second part deals with other laws. Furthermore, it was also stated in the first schedule that any offence in order to classify as a bailable offence per se should be punishable with an imprisonment of fewer than three years or be compensated with a fine only.
Whereas, on the other hand, as per section 2(a) of CrPC non-bailable offences consist of those offences which are not included in bailable offences and also at the end of the second part of the first schedule non-bailable offences has been defined as such offences which are punishable with death, imprisonment of life and imprisonment for more than seven years.
Also, in Rashik Lal v. Kishore (2019)[6], the apex court had held that, if a person is arrested for committing a bailable offence, it is his right to claim bail and that is absolute and indefensible too. Moreover, if the individual arrested is ready with the surety and bail bond, then the court or police may be considering the case and are bound to grant him bail.
Bailable and non bailable offences are primarily distinguishable on the procedures followed, definitions, causes and conditions, the gravity of offences and vulnerability of threat. It is a basic right of an accused to know the cause for his detention, and the same has been secured under section 50 of CrPC.
Section 50 of CrPC.[7] binds a duty on the police officer if arrested a person without a warrant to inform the detainee about the cause of arrest. Moreover, if the person is arrested for any bailable offence, it would also be the duty of the competent officer to communicate the possibility of a grant of bail by providing surety. The procedure for the release of the accused of bailable offences is further envisaged under section 436 of CrPC. Section 436[8] of CrPC provisions the rights of accused if detained under bailable offences, such that – whenever a person is arrested without a warrant for any bailable offence and secures an ability to give bail, such person shall be provided bail. But, the compensatory amount sought from the competent police officer or the court will decide bail, and such amount is calculated considering the gravity of an offence.
Whereas, if the person is accused of a non bailable offence will not be entitled to assessing direct bail following direct communication with the officer in charge. Rather, the person accused will still be granted bail by conferring procedure under section 437 of CrPC[9]. This provision of CrPC in contrary to the bailable offence consists of a few subjects and conditions which shall be analysed by the court and only at the discretion of the magistrate, the accused shall be released. Also, if the person committing a non-bailable offence in anyways explicitly or implicitly get involved or if there is a reasonable apprehension of his being guilty then even the court could reject the request of bail.
Not all the rights are absolute even the CrPC Moreover, if a sick woman anytime during the proceedings appears to be reasonably innocent in the commission of a crime, can claim for bail and same shall be granted at the discretion of the court, regardless of whether the person is accused with death or life imprisonment. If in a case, a person is accused of committing few minor crimes against the state such as abetment, conspiracy or offences against property could be considered as a legitimate bail seeker, and same would be granted only at the discretion of the judge, but such relaxation could be initiated only after accenting to the conditions of the bond executed. The provision also mentions that, if the accused is not proved to be a convict under non-bailable offence within 60 days from the detainment, such a person shall be entitled to claim bail but only if the person has been in full custody. All the procedures such as the reason for proving or rejecting a bail should happen in writing.
If a person has an apprehension that he could be arrested for commission of a non-bailable offence before actually being arrested is also entitled to request bail. Such bail on the apprehension of being arrested is known as anticipatory bail. Such an anticipatory bail on non-bailable offences could be requested under section 438 of CrPC[10]. Even under this section bail is subject to the conditions such as He should make himself available for interrogation and also should not leave the country unless being allowed by the court. Form 45 of the first schedule is demanded to be filled and submitted to the competent officer or court to seek bail under both bailable i.e. section 436 and non-bailable offences such as section under sections 437 and 438.
Critical analysis of key difference between bailable and non bailable offence
Apart from all the distinguishing traits embossed above, bailable and non-bailable offences could also be allotted different stances on the terms of its matter, severity, the quantum of punishment etc. The basic difference between bailable and non bailable offence on the matter of their existence could be advocated as; issuance of bail with respect to bailable offences is a matter of right to the accused because granting of bail unless the person is not proved to be guilty in few less serious crimes envisages a right of a human being to stay free. This right to bail under such offences thus becomes a matter of high priority too. However, in case of non-bailable offences the accused is originally presumed to be involved in the heinous crime thus grant of bail in such obligation cannot be quoted as right, rather, accepting of the request of bail is at the discretion of the court and that is wholly subjective to the circumstances and stance or situation of the accused. Bail acts as a reconciling mechanism to accommodate both the defendant’s interest in pre-trial liberty” and society’s interest in assuring the defendant’s presence at trial.[11]
Bailable offences are generally less serious in nature and they do not possess any greater threat to the society or individual and could be granted bail easily on presentation of surety, for example, Section 323 (Punishment for causing hurt), Section 304 A (Rash and negligible act) and Section 191 (false evidence) of IPC. When it comes to bail bonds, the bail bond is needed to be provided with or without guarantee in case of bailable offences. But in case of Non-bailable offences bail bonds are executed with stringent measures. As against, non-bailable offences, on the other hand, are comparatively more serious in nature and there is always an apprehension that such offences are likely to cause serious threat to society and individuals. Majorly, non-bailable offences consolidate those crimes which are crimes against society, for example, Section 302 (Murder), Section 304 B (Dowry death) and Section 326 (Voluntarily causing grievous hurt by dangerous weapons).
In Shahzad Hasan Khan v. Ishtiaq Hasan Khan[12] honourable apex court observed that
“Liberty is to be secured through a process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his 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 parties do not lose faith in the institution and indulge in private retribution.”
Also, Concerning the criteria of quantum of punishment, bailable offences include offences that have a punishment provided in IPC or any other law for less than 3 years, whereas non bailable offences generally enchant those offences which are associated with a punishment of more than 3 years. However, this distinguishing feature is also subject to certain exceptions.
Bailable and non-bailable offences are not distinguished merely to avoid ambiguity, rather such an articulation is reinforced with strong reasoning. The basic purpose of arrest under a warrant or without a warrant is to secure the presence of the accused at the time of inquiry or trial. Another purpose is to ensure that he is available to receive a sentence on conviction. If these objectives can be achieved without forcing detention on the accused during inquiry and trial, it would be an ideal blending of two apparently conflicting claims, namely the freedom of the individual and the interest of justice.[13] Thus, in order to achieve those objectives, such a distinction between bailable and non-bailable offences were made.
If such a categorisation of offences was not done, and if all the offences ignoring the strategic disposal of offences was removed then all the offences regardless of their seriousness and the gravity of crime would have been accommodated under a single umbrella of crimes. As a result, it possesses a constant threat to the court concerning the release of an accused in the heinous crime and in innocuous crimes will stand the same. Same restrictions cannot be put to both the crimes of different magnitude. This will firstly infringe the right to personal liberty of an accused despite the person committing a less harmful crime. Also, articles 19, 21 and 14 of the Indian constitution which provides the basic right to live a dignified life would have landed on the verge of getting violated.
In the case of Mt. Choki vs The State[14], a woman was accused of killing her child, later on, request to the court that there is no one to take care of the other child. This court granted bail, as there was reasonable ground. Further, the court was also of the opinion that, if the prosecution fails to provide the reasonable grounds to prove the person guilty of commission of a non bailable offence, in such cases depending upon the severity the person should be released.
Under the 5th column of the first schedule, the offences which can be titled as bailable and non-bailable has been mentioned, such that offences with more than three years of imprisonment are entitled as non-bailable whereas offences which can be compensated with just fine or less than 3 years of imprisonment are entitled as bailable. But, still few exceptions play their role wherein offences such as- Section 193, 201, 211 (second para), 212, 213 etc. of IPC, despite being treated with serious punishment are categorised under bailable offences; and Sec 153 AA of IPC despite being compensated with 6 months of imprisonment and fine of RS 2000 is entitled under non-bailable offence.
Conclusion
Every individual has a right to exercise his fundamental rights, thus it also becomes a duty of the state to provide such a mechanism through which citizens’ rights are not infringed. Therefore, this bifurcation of offences into bailable and non-bailable will assist the state to protect the right and help the accused, who has not been proved guilty yet, exercise the freedom.
[1] Indian Penal Code, 1860, § 40.
[2] Gurucharan Singh v. State {Delhi Administration) (1978) 1 SCC 118.
[3] 4 W. Blackstone, Commentaries *300.
[4] Massachusetts Body of Liberties, reprinted in The Colonial Laws of Massachusetts? 18, at 37 (W. Whitmore ed. 1889).
[5] CrPC, 1973, § 2 (a).
[6] Rasik Lal v Kishore (2009) 4 SCC 446.
[7] CrPC, 1973, § 50.
[8] CrPC, 1973, § 436.
[9] CrPC, 1973, § 437.
[10] CrPC, 1973, § 438.
[11] See United States v. Reynolds, 80 S. Ct. 30, 32 (Douglas, Circuit Justice, 1959.
[12] Shahzad Hasan Khan vs Ishtiaq Hasan Khan & An, (1987) AIR 1613.
[13] BAIL: LAW AND PROCEDURE WITH TIPS TO AVOID POLICE HARASSMENT by Janak Raj Jai.
[14] Mt. Choki vs The State, AIR 1957 Raj 10
This article has been written by Vansh Dhoka, 2nd Year BA. LL.B student at School of law Christ University.
