UNDERSTANDING THE DIFFERENCE BETWEEN BAILABLE AND NON-BAILABLE OFFENCES IN CRIMINAL LAW
As a criminal law firm with over 20 years of experience, The Law Codes has seen countless cases involving various categories of offenses under Indian law. One of the key distinctions that often arise in criminal cases is whether an offense is bailable or non-bailable. This distinction is crucial because it determines an accused person’s ability to obtain bail and significantly impacts the legal proceedings. In this article, we will explain the concept of bailable and non-bailable offenses, the process of obtaining bail for each type, and some landmark judgments that have shaped the law in this area.
What Are Bailable and Non-Bailable Offenses?
Under the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), offenses are classified as bailable or non-bailable based on the severity of the offense and the potential punishment it attracts.
BAILABLE OFFENSES
A bailable offense refers to a crime for which an accused person has a right to be released on bail. Essentially, these offenses are considered less severe, and the accused can apply for bail as a matter of right. If the person is arrested for a bailable offense, the police or the court is obligated to release them on bail, provided they meet the conditions set by the court or the police.
Some key characteristics of bailable offenses are:
- The punishment for bailable offenses is generally less severe (such as a fine or imprisonment for a short duration).
- The accused person is entitled to bail as a matter of right, and there is minimal discretion for the police or the court to refuse bail.
- The law under Section 436 of the CrPC ensures that the accused is granted bail in cases of bailable offenses, unless there are specific grounds for denying it.
Examples of bailable offenses:
- Simple theft (Section 380 of IPC)
- Defamation (Section 499 of IPC)
- Causing hurt (Section 323 of IPC)
NON-BAILABLE OFFENSES
In contrast, non-bailable offenses are considered more serious in nature and involve greater punishment, such as imprisonment for a longer duration or even death or life imprisonment in some cases. For non-bailable offenses, an accused person does not have an automatic right to bail. Instead, they must apply for bail, and the decision to grant or deny bail is at the discretion of the court.
Some key characteristics of non-bailable offenses are:
- These offenses carry more severe punishment and may involve long imprisonment terms or even capital punishment.
- Bail is not a matter of right, and it is granted based on the merits of the case.
- The accused may be detained in custody unless the court finds sufficient grounds to release them on bail.
Examples of non-bailable offenses:
- Murder (Section 302 of IPC)
- Rape (Section 376 of IPC)
- Terrorism-related offenses (under the Unlawful Activities (Prevention) Act, 1967)
PROCESS OF BAIL FOR BAILABLE AND NON-BAILABLE OFFENSES
The process for granting bail differs significantly for bailable and non-bailable offenses.
Bail Process for Bailable Offenses
For bailable offenses, the process is relatively straightforward:
- Arrest: If an individual is arrested for a bailable offense, they can apply for bail immediately.
- Application: The accused may apply for bail at the police station or approach the court for bail.
- Grant of Bail: Since bailable offenses are considered less serious, the police or the court is generally required to grant bail unless there is a special reason to deny it, such as the risk of the accused absconding or tampering with evidence.
- Conditions: The court or police may set certain conditions for the grant of bail, such as providing sureties or attending court hearings.
Bail Process for Non-Bailable Offenses
The process for non-bailable offenses is more complex:
- Arrest: If a person is arrested for a non-bailable offense, they can still apply for bail, but the court has the discretion to grant or deny it based on the seriousness of the offense and other relevant factors.
- Application: The accused can apply for bail either before the Magistrate Court or the Sessions Court. In some cases, if the Sessions Court refuses bail, the accused can approach the High Court.
- Court’s Discretion: The court will consider factors such as:
- The severity of the offense and the punishment it attracts.
- The likelihood of the accused absconding or influencing witnesses.
- Whether the accused is likely to repeat the offense.
- The possibility of the accused tampering with evidence.
- Conditions: If bail is granted, it may be subject to specific conditions, such as surrendering the passport, not leaving the jurisdiction without permission, or appearing before the police regularly.
The Indian judiciary has given several landmark rulings that have clarified and shaped the law related to bailable and non-bailable offenses. These judgments emphasize the importance of personal liberty, the role of courts in balancing individual rights and societal interests, and the circumstances under which bail should or should not be granted.
In State of Rajasthan v. Balchand, 1977 SCC (4) 308, the Hon’ble Supreme Court held that bail in non-bailable offenses and should not be denied unless there are compelling reasons to do so. The Court emphasized the need to balance the rights of the accused with the societal need for justice and stated that, in general, every person has a right to be granted bail unless there are specific reasons to detain them.
The ruling laid down in this judgment stated that “Bail is the rule and jail is the exception”, stressing that a person should not be kept in custody unless absolutely necessary. The court clarified that personal liberty is a fundamental right and that bail should not be denied without sufficient reasons, even for serious offenses.
The Hon’ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, elaborated on the principles to be followed when granting bail in non-bailable offenses. The Court held that in cases involving economic offenses or white-collar crimes, while bail may be more difficult to obtain, it is still a possibility if the accused is not likely to interfere with the investigation or flee the jurisdiction. The judgment stressed the need for proportionality in denying bail and said that merely because an offense is serious does not mean bail should be automatically denied.
CONCLUSION
It is crucial to understand the distinction between the bailable and non-bailable offenses because it directly affects the availability of bail and the legal strategy to be employed. While bailable offenses allow for an automatic right to bail, non-bailable offenses require a more detailed judicial examination to determine whether the accused should be granted bail or not.
The process of obtaining bail differs greatly between these two categories, with bailable offenses offering a more straightforward process, while non-bailable offenses demand more judicial scrutiny. The Law Codes, we leverage our 20 years of experience in criminal law to help clients navigate the complexities of bail applications, ensuring that their rights are protected and that they are granted fair treatment under the law. Whether dealing with a bailable or non-bailable offense, we are committed to offering personalized legal strategies to secure the best possible outcome for our clients.