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.


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 
121Waging or attempting or abetting the waging of war against the Government of India.Imprisonment for life or up to 10 years with a fine.
124ASedition Imprisonment for life along with a fine or it could be imprisonment for 3 years along with a fine or simply just a fine. 
131Abetting mutiny or attempting to seduce a soldier, sailor, or airman.Imprisonment for life or 10 years along with a fine.
172Absconding to avoid service of summons.Imprisonment for 1 month or a fine of Rs. 1000.
232Counterfeiting Indian coins.Life imprisonment or imprisonment for 10 years along with a fine.
238Import or export of counterfeiting Indian coins.Life imprisonment or imprisonment for 10 years along with a fine.
246Fraudulently diminishing the weight of the coin.Imprisonment for 3 years along with a fine.
255Counterfeiting of government stamps.Imprisonment for 3 years along with a fine.
274Adulteration of drugs.Imprisonment for 6 months along with a fine of Rs. 1000.
295AA 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.
302Punishment for murder Life imprisonment or the death penalty.
304Punishment for culpable homicide not amounting to murder.Imprisonment for 10 years with a fine.
304BDowry deathImprisonment for 7 years up to life term.
306Abetment of suicide. Imprisonment for 10 years with a fine.
307Attempt to murder.Imprisonment for 10 years along with a fine.
308Attempt to commit culpable homicide not amounting to murder. Imprisonment for 3-7 years along with a fine
369Abduction of a child under the age of 10. Imprisonment for 7 months or a fine
370Trafficking of personImprisonment for 7 to 10 years or with a fine.
376Punishment for rapeRigorous imprisonment for life or not less than 7 years
376DGangrape Imprisonment for 20 years, which may be extended till life.
377Unnatural offences Imprisonment for 10 years, which may be extended till life.
379Punishment for theft.Imprisonment for 3 years and fine.
384Punishment for extortion.Imprisonment for 4 years.
392Punishment for robbery.Imprisonment for 3 years along with a fine.
395Punishment for dacoity.Imprisonment for 10 years and a fine.
406Punishment for criminal breach of trust.Imprisonment for 3 years and a fine.
411Dishonestly receiving stolen property.Imprisonment for 3 years and a fine.
420Cheating and dishonestly inducing delivery of property.Imprisonment for 7 years and a fine.
489ACounterfeiting currency notes or banknotes.Imprisonment for life and a fine.
498AHusband 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 DifferenceBailable OffenceNon – Bailable Offence
Provision under CrPCIt 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 CrimeBailable offences are considered less serious in nature.Whereas, Non- Bailable offences are considered more serious / heinous in nature
Quantum of PunishmentAs 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 BailIn 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 CrPCWhereas, 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.
ExamplesCheating (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)
CasesIn 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 rightIn 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”.


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.

Siddharth jain and Co.

Siddharth Jain & Co. is a full service law firm providing quality and innovative legal solutions to clients all over the world. Our portfolio of legal and quasi-legal services is offered through our head office in New Delhi. Siddharth Jain & Co. was established in 2015. We have a team of lawyers with expertise in different fields. Our expertise revolves around 39 service areas and we continue to enter into new markets continuously. We continue to join new prospects and new clients with us every passing day due to our commitment to quality-based services. Our idea of working involves strict adherence to specified goals and creative modes of achieving them. Siddharth Jain & Co. has always worked towards attaining excellence in every case or problem presented. We continue to strive to become the leader in providing legal services in the country and abroad. Our clientele includes clients from all over the world. With several awards in our profile, we proudly continue to move forward. We are always ready and prepared to welcome and embrace any new challenge. We have worked with and for government agencies. We have worked in rural areas beyond any reach of technology. We have worked with clients alien to law whatsoever. But we have always maintained our prime goal and target of client satisfaction and would continue to go so in future.

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