“PROVISIONS RELATING TO BAIL IN BAILABLE

AND NON BAILABLE OFFENCES”

Manipal University Jaipur

School of Law

Supervised by- Submitted by-

Ms SONU AGARWAL Anshul Ranjan Srivastava
161401020
B.A.LL.B (Hons.)
VI Semester

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CERTIFICATE

This is to certify that Mr. Anshul Ranjan Srivastava, student of B.A. LL.B. (Hons.) semester
VI, School of Law Manipal University Jaipur has completed the project work entitled
“PROVISIONS RELATING TO BAIL IN BAILABLE AND NON BAILABLE
OFFENCES” under my supervision and guidance.

It is further certified that the candidate has made sincere efforts for the completion of this
project.

________________
Ms SONU AGARWAL

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ACKNOWLEDGEMENT

I hereby acknowledge the help and support of the teachers, who helped me in compiling this
project. I thank the faculty and management of Manipal University Jaipur, School of Law, as
the resources that were necessary to complete the project were provided by them.
I am highly indebted to my teacher “Ms SONU AGARWAL” for her guidance and constant
supervision as well as for providing necessary knowledge regarding the subject at hand and
also for her support in completing the project.
I would like to express my gratitude towards my parents and friends for their kind
cooperation and encouragement which help me in completion of this project.

Anshul Ranjan Srivastava

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Table of Contents
CERTIFICATE...........................................................................................................................................2
ACKNOWLEDGEMENT...........................................................................................................................3
INTRODUCTION.....................................................................................................................................5
Bail in Non-Bailable Offence..................................................................................................................9
CONCLUSION.......................................................................................................................................13
WEBLIOGRAPHY..................................................................................................................................15

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INTRODUCTION

Bailable / non – bailable offences

The offences committed by an accused fall under two categories:

1.Bailable offences

When any person accused for a bailable offence is arrested or

detained without warrant by an officer in charge of a police station, or appears or is brought

before a Court, and

is prepared at any time while in the custody of such officer or at any stage of the proceeding
before such Court to give bail, such person shall be released on bail.

In case of a bailable offence bail is a matter of right

If such officer or Court, thinks it fit such person maybe released on a personal bond without
sureties. In case of bailable offence, one has to only file the bail bonds and no application is
required.

2.Non-bailable offences

In case a person is accused of a non-bailable offence it is a matter of discretion of the court to

grant or refuse bail and application has to be made in court to grant bail.

1. When a person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer in charge of a
police station or appears or is brought before a Court other than the High Court or
Court of Session, he may be released on bail, but –Provided that the Court may direct
that a person referred to in clause (i) or clause (ii) as above, be released on bail if such
person is under the age of sixteen years or is a woman or is sick or infirm: Provided
further that the Court may also direct that a person referred to in clause (ii) be released
on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused may be required for being identified
by witnesses during investigation shall not be sufficient ground for refusing to grant

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 bail if he is otherwise entitled to be released on bail and gives an undertaking that he
shall comply with such directions as may be given by the Court.

i. such person shall not be released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;

ii. such person shall not be so released if such offence is a cognizable offence and
he had been previously convicted of an offence punishable with death,
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 :

2. If it appears to such officer or Court at any stage of the investigation; inquiry or trial,
as the case may be, that there are not reasonable grounds for believing that the
accused has committed non-bailable offence, but that there are sufficient grounds for
further inquiry into his guilt, the accused shall, subject to the provision of section 446-
A and pending such inquiry, be released on bail or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties for his appearance as
hereinafter provided.

3. When a person accused or suspected of the commission of an offence punishable with

imprisonment which may extend to seven years or more or of an offence under
Chapter 6, Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or
abetment of, or conspiracy or attempt to commit, any such offence, is released on bail
under sub-section (!), the Court may impose any condition which the Court considers
necessary-

a. in order to ensure that such person shall attend in accordance with the
conditions of the bond executed under this Chapter, or

b. in order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected,
or

c. otherwise in the interests of justice.

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 4. An officer or a Court releasing any person on bail under sub-section (1) or sub-section
(2), shall record in writing his or its reasons or special reasons for so doing.

5. Any Court, which has released a person on bail under sub-section (1) or sub-section
(2), may, if it considers it necessary so to do, direct that such person be arrested and
commit him to custody.

6. If, in any case triable by a Magistrate, the trial of a person accused of any non-
bailableoffence is not concluded within a period of sixty days from the first date fixed
for taking evidence in the case, such person shall, if he is if 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.

7. If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that there
are reasonable grounds for believing that the accused is not guilty of any such offence,
it shall release the accused if he is in custody, on the execution by him of a bond
without sureties for his appearance to hear judgment delive

The Code of Criminal Procedure, 1973 (hereinafter called "CrPC") defines Bailable Offence
to "mean an offence which is shown as bailable in the 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." The distinction between Bailable and Non-Bailable Offences is based on the
gravity of the offence, danger of accused absconding, tampering of evidence, previous
conduct, health, age and sex of the accused person. Though the schedule for classification of
offences as Bailable or Non Bailable is provided in CrPC; however, it is mostly the offences
which are punishable with imprisonment for not less than three years that are classified as
Non-Bailable.

The question that arises for deliberation is whether there is any scope for grant of Bail in case
the offence falls within the category of Non-Bailable Offence. Section 437 of CrPC is
required to be studied in this regard. Section 437 of CrPC empowers the Court to release an
accused person on Bail. What is interesting to analyse is the balance between right to liberty
as defined under the Constitution of India as well as the principles of law in so far as
commission of Non-Bailable offences is concerned. The Hon'ble Supreme Court in the matter

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of Shahzad Hasan Khan v. Ishtiaq Hasan Khan has observed that "Liberty is to be secured
through 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."

The aim of arresting a person accused of having committed a crime is to ensure that he/she
does not escape the rigours of law, when proved guilty or that the 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 he/ she is
accused of a Non-Bailable offence and the right of an accused person should not be dealt with
by a court in a superficial manner. In fact, CrPC provides that in case the court has sufficient
reason to believe that the case in hand requires further investigation to prove the guilt of the
accused; such person should be enlarged on bail.

It has also been the opinion of courts that since right to liberty is an imperative right of a
person, an application seeking Bail should not be decided in a mechanical and perfunctory
manner. It is also relevant to point out that there may be instances when a woman is detained
for being an accused of committing a Non-Bailable offence. It has been held by various
courts that releasing a woman accused of having committed a Non-Bailable offence on
special grounds is not discriminatory. In the matter of Mst. Chokhi v. State, a woman accused
of committing murder of her one child was released on bail as there was no one to look after
her other child at home. Further, it has been the opinion of courts at large that where the
prosecution is unable to persuade the court that there is any reasonable ground for believing
that the accused person is guilty of commission of a Non-Bailable offence, in such case the
accused person should be released on Bail. Even in cases where the person is accused of
having committed an offence under Section 307 is enlarged on Bail owing to ill-health.
However, it is necessary to appreciate that there is no specific rule as to when Bail should be
granted. It has been the view of the courts that where a Non- Bailable offence is not
punishable with life imprisonment or with death sentence, Bail should generally be granted
and liberty of an accused should not be compromised with.

Having said so, it may be pointed out that courts have abstained from enlarging an accused on
bail in cases punishable with death sentence. The Delhi High Court laid down certain
guidelines to be kept in mind while granting bail. Though it is settled position of law that

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grant of Bail in Non-Bailable offences is the discretion of a court and that the court dealing
with grant of bail is to only satisfy if there is a prima facie case against the accused. However,
it has been time and again held by various courts that the said discretion is to be exercised in
a judicious manner and not as a matter of course. Further, it has also been categorically held
that an order enlarging an accused person on Bail without any cogent reason cannot be
sustained.

Bail in Non-Bailable Offence

Liberty of a person is of great importance and most important Fundamental right guaranteed
in the Indian Constitution. Grant or refusal of Bail to an accused is the matter that has to be
handled with caution and efficiency. Even the Code of Criminal Procedure, 1973 speaks for
the grant of bail because BAIL and not JAIL is what the aim of the Law is.

The judges in the matters of the Bail is in no need to use any calculations or research any
special provisions of law as bail in bailable offence is a matter of course, and that has to be
done at a pre-trial stage. The actual interpretation of Judiciary comes when the offence is
Non Bailable.

Section 437 of CrPc says When bail may be taken in case of non-bailable offence.

(1) When any person accused of, or suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer in charge of a police station or appears or
is brought before a Court other than the High Court or Court of Session, he may be released
on bail, but—

(I) such person shall not be so released if there appear reasonable grounds for believing

That he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had

Been previously convicted of an offence punishable with death, 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:

Provided that the Court may direct that a person referred to in clause (I) or clause (ii) be
released on bail if such person is under the age of sixteen years or is a woman or is sick or
infirm:

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Provided further that the Court may also direct that a person referred to in clause

(ii) Be released on bail if it is satisfied that it is just and proper so to do for any other special

Reason: Provided also that the mere fact that an accused person may be required for being
identified by witnesses during investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the
shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as
the case may be, that there are not reasonable grounds for believing that the accused has
committed a non-bailable offence, but that there are sufficient grounds for further inquiry into
his guilt, the accused shall, subject to the provisions of section 446A and pending such
inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by
him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with

Imprisonment which may extend to seven years or more or of an offence under Chapter VI,

Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of,
conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1)
the Court may impose any condition which the Court considers necessary—

(a) In order to ensure that such person shall attend in accordance with the conditions of

The bond executed under this Chapter, or

(b) In order to ensure that such person shall not commit an offence similar to the offenceOf
which he is accused or of the commission of which he is suspected, or

(c) Otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section
(2), shall record in writing his or its reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2),
may, if it considers it necessary so to do, direct that such person be arrested and commit him
to custody.

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(6) If, in any case tried by a Magistrate, the trial of a person accused of any non-bailable
Offence is not concluded within a period of sixty 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 period, be
released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable
offence and before judgment is delivered the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.

Evidence in the case, such person shall, if he is in custody during the whole of the period, be
released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable
offence and before judgment is delivered the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.

Even though bail is a matter of right and not a matter of choice , person cannot exercise this
right for indefinite times. He cannot go on filing bail applications, because if he does so then
that will amount to an abuse of process of the court and consequently will disturb the already
set law. Any fresh application for the grant of the bail by an accused person without any
substantial change of the facts and circumstances of the case in no circumstances is
maintainable and must be dismissed; court must evaluate the entire available material against
the accused carefully. Also bail may be granted in non-bailable offences if the investigating
offciers think that there prevails no more need of detention of accused then bail can be
granted. But there must prevail such sufficient reasons for so. Through principles of Res
Judicata and principles analogous thereto are not applicable in criminal proceeding, still the
courts are bound by doctrine of judicial discipline, having regard to the hierarchical system
prevailing in the country[1]. When bail applications are made in higher courts after rejected
by lower court, the higher court should not ignore the reasons why lower court rejected the
bail and due weight should be given to those reasons for rejection before entertaining

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application and granting bail. Similarly Court cannot cancel bail, once granted and that its
cancellation is subject to provisions under section 437(5) of the Code of Criminal Procedure,
1973 and that these powers are to be exercised in extraordinary circumstances only.

It can be said that judges should exercise their immense power of interpretation of law,

The court must try to determine that how the provision of Bail even after not being a matter
of right in case of non-bailable offences still stands firmly by the accuse and is helpful in
protecting his basic right to life i.e freedom.[2]"No person shall be deprived of his life or
personal liberty except according to procedure established by law." Liberty is a dynamic
concept, therefore, continual research is necessary to regularly assess the changing dimension
of the right to personal liberty guaranteed. .The entire intention of law is justice. And that of
punishment is to set an example in society of the consequences that one could meet with if
they violate or disobey the law, it is not to put somebody behind the bars even before they
are proven guilty by giving priority in granting bail. Before refusing bail in non-bailable
offences the court must from every side of the case should analyse the following factor with
complete caution and acute sense of judgement. Arrest should be the last option and that too
when there is no room left for the judge to grant bail. The factors that can be taken into
consideration is as follows:

The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made.

The antecedents of the applicant including the fact as to whether the accused has
previously undergone imprisonment by conviction on Court in respect of any cognizable
offence.

The possibility of the applicant to flee from justice.

The possibility of the accuser’s likelihood to repeat similar or the other offences.

Where the have been made only with the object of injuring or humiliating the applicant by
arresting him or her. Impact of grant of anticipatory bail or bail.

The courts must evaluate the entire available material against the accused very carefully, the
court must also clearly comprehend the exact role of the accused in the case. The cases in
which accused is implicated with the help of section 34 and 149 of the Indian Penal Code,

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they should consider with even greater care and caution because over-implication in the cases
is a matter of common knowledge and concern.

If there does not prevail any of the above possibilities then there arises no question of
retaining a person in jail. At the time of entertaining bail application court should not go into
the merits of the case. Court should take into consideration the gravity of the alleged
offence, the deep roots of the accused in the society, the possibility of his appearing in the
court during trial, the control of the surety over the accused and various other guidelines laid
down by the Supreme Court in its judgements delivered from time to time. It is not at all
desirable that the court should appreciate the evidence at the pre-trial stage. The vague
allegation that the accused may tamper with the evidence or witnesses may not be a ground
to refuse bail, if the accused is of such a character that his mere presence at large would
intimidate the witnesses or if there is material to show that he use his liberty to subvert justice
or tamper with the evidence, then bail may be refused[5]. Also the grant of bail by cryptic
order without taking into consideration the relevant circumstances is not proper[6].Indeed in
a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any
invariable rule or evolve a straight jacket formula. The court must exercise its discretion
having regard to all the relevant facts and circumstances.

CONCLUSION
To conclude The granting of bail is usually considered to be an inherent right. However, there
are certain circumstances where bail may be refused. In non-bailable offences accused may
be granted bail if competent authority deems it fit, exceptional circumstances should be
brought in and presented to show that bail would not harm further process of trial and justice.
A court is bound to presume a person innocent till the trial is complete. A bail hearing is not a
hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore
granting of bail is the norm except in cases where specific grounds are made out based on
which the bail can be refused. It is true that our law has some loopholes but law also has
perfect provisions for every occurring in society and there is very rare no for turning the law.

[1] . Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42: AIR 2005
SC 921: 2005 Cr LJ 944.

[2] The constitution of India guarantees this fundamental right in part II under section 21.
The fundamental right of right to life also include right to life with dignity. Keeping a person

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in jail even when his crime is not proved is nothing but depriving him of his personal
freedom thereby setting his dignity at critical position in society and hurting his dignity.

[3] Section 41 of CrPc specifies that Police officer can arrest a person without warrant or
without order from magistrate when a person has committed a cognizable offense. The said
section was amended, amendment to this section is a police officer is empowered to arrest a
person in all cases of cognizable offences only when it is committed in his presence in all
other situations if the offense is punishable.

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WEBLIOGRAPHY

1.) https://www.legallyindia.com/views/entry/bail-in-non-bailable-offence
2.) https://www.vakilno1.com/legal-news/criminal-law-grant-bail-non-bailable-
offences.html

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