ALL ABOUT NON-BAILABLE OFFENCES IN INDIA

INTRODUCTION

Bail is an integral part of the criminal justice system in most nations across the globe, including India. Bail is a way to ensure that the accused is present before the court for trial, while also ensuring that the accused is not denied the right to prepare his defence. The right to Bail is also considered an integral part of the Right to Life and Liberty under Article 21 of the Indian Constitution as per the conclusion in the case of Babu Singh v. State of UP (1978). Under the scheme of the Code of Criminal Procedure, 1973, offences are classified into Bailable and Non-Bailable. A bailable offence is one in which Bail is granted as a matter of right, whereas in non-bailable offences, bail is not granted as a matter of right, but depends on the descretion of the court. It is only in extraordinary situations that bond is granted for aforementioned offences. For specific offences, it is also likely to procure bond even before the arrest takes place, but this is also abandoned to the discretion of the court.

WHAT IS A BAIL

The term ‘bail’ has been derived from the French word ‘bailer’, which means ‘to give.’ While the term ‘bail’ has not been defined in the Code of Criminal Procedure, 1973, it can be defined as a type of security paid for guaranteeing the appearance of the accused, on the giving of which he is released temporarily. This is granted when there is a pending trial or investigation. He can be asked to appear in court whenever it is required and the bail guarantees this appearance. The objective behind providing bail is to provide liberty to the accused as the investigation or trial is pending and he has not yet proven to be an offender. Provisions as to bail and bonds are contained in Chapter XXXIII of the CrPC from Sections 436-450.

The Code of Criminal Procedure has classified offences into three types: cognizable and non-cognizable, bailable and non-bailable, and compoundable and non-compoundable

Non-bailable offences

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

The court may generally refuse the Bail, if:

“Bail Bond” has not been duly executed, or if the offense committed is one, which imposes a punishment of death or Life imprisonment, such as “Murder ” or “Rape” or the accused has attempted to abscond, and his credentials are doubtful.

The application for bail shall be filed before the Magistrate with the help of a criminal lawyer, who is conducting the trial. The application after being filed is usually listed the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.

List of non-bailable offences

SL.NO.	Section	Offence	Punishment
	121	Waging or attempting or abetting the waging of war against the Government of India.	Imprisonment for life or up to 10 years with a fine.
	124A	Sedition	Imprisonment for life along with a fine or it could be imprisonment for 3 years along with a fine or simply just a fine.
	131	Abetting mutiny or attempting to seduce a soldier, sailor, or airman.	Imprisonment for life or 10 years along with a fine.
	172	Absconding to avoid service of summons.	Imprisonment for 1 month or a fine of Rs. 1000.
	232	Counterfeiting Indian coins.	Life imprisonment or imprisonment for 10 years along with a fine.
	238	Import or export of counterfeiting Indian coins.	Life imprisonment or imprisonment for 10 years along with a fine.
	246	Fraudulently diminishing the weight of the coin.	Imprisonment for 3 years along with a fine.
	255	Counterfeiting of government stamps.	Imprisonment for 3 years along with a fine.
	274	Adulteration of drugs.	Imprisonment for 6 months along with a fine of Rs. 1000.
	295A	A deliberate and malicious act intended to outrage the religious feelings of any class by insulting their religious beliefs.	Imprisonment for 3 years along with a fine.
	302	Punishment for murder	Life imprisonment or the death penalty.
	304	Punishment for culpable homicide not amounting to murder.	Imprisonment for 10 years with a fine.
	304B	Dowry death	Imprisonment for 7 years up to life term.
	306	Abetment of suicide.	Imprisonment for 10 years with a fine.
	307	Attempt to murder.	Imprisonment for 10 years along with a fine.
	308	Attempt to commit culpable homicide not amounting to murder.	Imprisonment for 3-7 years along with a fine
	369	Abduction of a child under the age of 10.	Imprisonment for 7 months or a fine
	370	Trafficking of person	Imprisonment for 7 to 10 years or with a fine.
	376	Punishment for rape	Rigorous imprisonment for life or not less than 7 years
	376D	Gangrape	Imprisonment for 20 years, which may be extended till life.
	377	Unnatural offences	Imprisonment for 10 years, which may be extended till life.
	379	Punishment for theft.	Imprisonment for 3 years and fine.
	384	Punishment for extortion.	Imprisonment for 4 years.
	392	Punishment for robbery.	Imprisonment for 3 years along with a fine.
	395	Punishment for dacoity.	Imprisonment for 10 years and a fine.
	406	Punishment for criminal breach of trust.	Imprisonment for 3 years and a fine.
	411	Dishonestly receiving stolen property.	Imprisonment for 3 years and a fine.
	420	Cheating and dishonestly inducing delivery of property.	Imprisonment for 7 years and a fine.
	489A	Counterfeiting currency notes or banknotes.	Imprisonment for life and a fine.
	498A	Husband or his relatives of a woman subjecting her to cruelty.	Imprisonment for 3 years and a fine.

 

Difference between Bailable and Non- Bailable Offence

Basis of Difference	Bailable Offence	Non – Bailable Offence
Provision under CrPC	It is defined u/s 2(a) of CrPC, as an offence which is shown as bailable in the 1st schedule, or which is made bailable by any other law for the time being in force.	It is also defined u/s 2(a) pf CrPC, as an any other offence other than bailable.
Intensity of Crime	Bailable offences are considered less serious in nature.	Whereas, Non- Bailable offences are considered more serious / heinous in nature
Quantum of Punishment	As a general rule bailable offences are those in which punishment is for or less than 3 years. But there are some exceptions to this rule.	The quantum of punishment is high in Non- Bailable offences which may extend to Life Imprisonment.
Power to Grand Bail	In Bailable Offences, bail can be claimed as of right and is granted as a matter of course by the police officer or by court. Its provision can be traced u/s 436 of CrPC	Whereas, bail cannot be claimed as right and court or the police officer has discretion to grand bail after considering facts and circumstances pf each case. Provision for Non- Bailable offence is given u/s 437 of CrPC.
Examples	Cheating (Sec. 407 IPC), Affray (Sec.160,IPC), Bribery for elections (Sec 171E IPC)	Dowry Death (Sec. 304B, IPC), Murder (Sec. 302, IPC), Rape (Sec.376, IPC), Voluntarily causing Grieve Hurt (Sec. 326, IPC)
Cases	In Rasiklal v. Kishore Khanchand Wadhwani[i] , It was held by the apex court that the right to claim bail granted by sec. 436 in a bailable offence is an absolute & indefeasible right	In Mansab Ali v. Irsan[ii], It was held by the apex court that since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of society at large.

How to get Bail in Non-Bailable Offence?

Bail can be granted in Non-bailable offence by the courts. Personal liberty of accused is also important for the law that’s why the Supreme Court laid down the rule of Bail, not jail. When it comes to Non-bailable offences, this rule is not generally followed, as in this case bail is not the matter of right of the accused but it is a matter of  discretion of the competent authority like Court or police officer whether to grant bail or not and it’s grant depends upon certain circumstances. This article will discuss all the situations and possibilities in which bail can be granted in Non-Bailable Offence.

Circumstances in which Bail can be granted in Non-bailable offence:

Bail is a matter of discretion of Court in case of non-bailable offence that is, an accused person is not automatically entitled to get released on bail after submission of sureties and bond. It is a matter of discretion of court and police officer to release them. The area of this discretion depends upon the following points of consideration or circumstances:

• Seriousness of the Crime, as an example, if the offence is severe i.e. punishable with death or life imprisonment then the chances of getting bail are less;
• Nature of the accusation that is, whether the accusation is severe, reliable or mild;
• Severity of the punishment; short term, long term imprisonment; death sentence.
• Nature of evidence; reliable or untrustworthy;
• Risk of accused absconding or fleeing if released;
• Risk of witnesses being tampered with;
• Protracted nature of Trial e. prolonged trials beyond necessity;
• Opportunity to the applicant to prepare his defense;
• Health, age and sex of the accused e. a person may be released if he is under the age of 16years, is a woman, a sick or infirm.
• Nature and gravity of the circumstances under which the offence is committed.
• Position and status of the accused with respect to witnesses i.e. whether he is in position to dominate them on release.
• Interest of society and possibility of commitment of more offences on release.

Who can grant bail in Non-bailable offence?

• Magistrate or Police officer: When an accused person is arrested by the police, without a warrant, in a non-bailable offence, then the officer-in-charge of the police station or the magistrate, if brought before him, can release the accused under Section 437.
• But, if the offence is of severe nature i.e. punishable with death or life imprisonment; or if the accused is a former, habitual or repetitive criminal then the accused must not be released except if he is under age of 16 years, is a woman, a sick or infirm or it appears to the Court that there are reasonable grounds to believe that accused have not committed non- bailable offence.
• Session or High Court: High Court and Court of Session can grant bail even in the offences in which magistrate cannot grant bail, on certain conditions which it deems fit in social interest and interest of justice under Section 438. The Court of Session and High court enjoy immense power regarding the bail.

Anticipatory bail in Non-Bailable Offence

A person can get the anticipatory bail under Section 438 from the High Court or Court of Session, to avoid the arrest, if he believes that he can get arrested in a Non-bailable offence or an F.I.R. get filed against him in a Non-Bailable case. Recent judgment of the Supreme Court in Sushila Aggarwal vs State (Nct Of Delhi) on 29 January 2020 increased the value of Anticipatory Bail by clearing the doubt regarding its duration that it can continue till the end of the trial, need not to be limited for a fixed period.

So, in conclusion, we can say that a Non-bailable offence is also bailable in certain circumstances and as per the will of the courts. Though the chances of getting bail in these offences are less if you have a good advocate, a good position, and have circumstances in your favor then, “no need to worry, you can get the bail”.

Conclusion 

To sum up, bail is not a right for non-bailable offences. There are provisions of the Code, that is to say Sections 437 and 438, that merely supply the domains under which the court or the police “may” grant bail. By ensuring that for relatively less serious offences, bond is granted as a right and for more weighty offences, warrant is a matter of discretion, the Code of Criminal Procedure strikes a balance between the protection of security and the interests of the public and the individual freedom of persons blamed of offences. While granting bond for non-bailable offences, the court checks a number of determinants to ensure that specific a grant of bail will not impact the help of justice. Moreover, the Code more permits the attachment of circumstances in addition bail, and on the gap of any specific condition, the bail is cancelled.