Introduction
The Criminal Procedure Code, 1973 (CrPC) classifies offences into bailable and non-bailable categories under Section 2(a) and the First Schedule of the CrPC. This classification determines whether an accused person has a right to be released on bail or if their release is at the discretion of the court. The concept of bail lies at the intersection of two essential principles of criminal law — the presumption of innocence and the need to ensure justice.
The classification reflects the seriousness of the offence and the risk associated with granting bail. While bailable offences involve relatively minor wrongs, non-bailable offences are grave crimes that may endanger public safety or obstruct justice if bail is granted indiscriminately.
Meaning of Bailable Offence
According to Section 2(a) CrPC, a bailable offence is one that is shown as bailable in the First Schedule of the Code or is made bailable by any other law for the time being in force.
In such offences, the accused has the right to be released on bail, either by the police officer in charge or by the court. The intention is to prevent unnecessary detention for minor crimes while ensuring that the accused appears before the court when required.
Examples of Bailable Offences:
- Simple hurt (Section 323 IPC)
- Wrongful restraint (Section 341 IPC)
- Public nuisance (Section 290 IPC)
- Death by negligence (Section 304A IPC)
- Defamation (Section 500 IPC)
Key Characteristics:
- The accused has a statutory right to bail.
- Police can grant bail at the police station itself.
- Generally involve lesser punishment (usually imprisonment up to 3 years).
- Courts cannot refuse bail if the accused is willing to furnish the required bond or surety.
Relevant Section:
- Section 436 CrPC – Provides that in bailable offences, bail must be granted as a matter of right.
Illustrative Case:
Talab Haji Hussain v. Madhukar Purshottam Mondkar (1958) – The Supreme Court held that in bailable offences, the accused is entitled to be released on bail as a matter of right, and the court has no discretion to deny it.
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Meaning of Non-Bailable Offence
A non-bailable offence is defined negatively, meaning all offences that are not bailable are non-bailable. These are serious or heinous offences, where granting bail requires judicial discretion and careful evaluation of circumstances.
In such cases, the accused cannot claim bail as a right; rather, it is granted by the court’s discretion under Section 437 and Section 439 of the CrPC.
Examples of Non-Bailable Offences:
- Murder (Section 302 IPC)
- Rape (Section 376 IPC)
- Dowry death (Section 304B IPC)
- Kidnapping for ransom (Section 364A IPC)
- Criminal breach of trust by public servant (Section 409 IPC)
Key Characteristics:
- The accused cannot demand bail as a right.
- Court decides based on the gravity of offence, likelihood of tampering with evidence, or fleeing from justice.
- Generally involve severe punishment, often imprisonment for more than 3 years, life imprisonment, or death.
- The Sessions Court or High Court usually handles bail applications for such offences.
Relevant Sections:
- Section 437 CrPC – Bail in non-bailable offences by Magistrate.
- Section 439 CrPC – Special powers of High Court and Sessions Court to grant bail.
Illustrative Case:
Gudikanti Narasimhulu v. Public Prosecutor (1978) – Justice V.R. Krishna Iyer emphasized that the question of bail should be decided by balancing personal liberty and social interest, highlighting that bail decisions must not be mechanical but based on judicial discretion.
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Also Read: Judicial Review & Public Interest Litigation (PIL)
Difference between Bailable and Non-Bailable Offences
| Basis | Bailable Offence | Non-Bailable Offence |
|---|---|---|
| Definition | Offences where bail is a matter of right. | Offences where bail is granted at the discretion of the court. |
| Section | Defined under Section 2(a) CrPC | Not defined specifically; inferred from First Schedule. |
| Right to Bail | Accused has a right to bail. | Bail is a privilege, not a right. |
| Authority to Grant Bail | Police or Magistrate can grant bail. | Only Court (Magistrate, Sessions, or High Court) can grant bail. |
| Nature of Offence | Less serious or minor offences. | Serious or heinous offences. |
| Punishment | Usually imprisonment up to 3 years. | Imprisonment for more than 3 years, life imprisonment, or death. |
| Examples | Defamation, wrongful restraint, public nuisance. | Murder, rape, kidnapping, dowry death. |
| Discretion | No discretion – must be granted. | Full discretion – may be refused. |
| Relevance of Past Conduct | Generally not considered. | Courts consider conduct, criminal history, and risk factors. |
| Relevant Sections | Section 436 CrPC | Sections 437 and 439 CrPC |
Principles Governing Grant of Bail in Non-Bailable Offences
The court considers the following while deciding bail:
- Nature and seriousness of the offence.
- Likelihood of the accused fleeing from justice.
- Possibility of tampering with evidence or influencing witnesses.
- Previous criminal record of the accused.
- Societal interest and public safety.
Case Law:
State of Rajasthan v. Balchand (1977) – The Supreme Court famously stated, “Bail is the rule and jail is an exception.” This principle upholds the presumption of innocence and the importance of personal liberty.
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Recent Judicial Developments
- Arnab Manoranjan Goswami v. State of Maharashtra (2020) – The Supreme Court reiterated that liberty cannot be denied without due justification, emphasizing that the courts must protect personal freedom even in high-profile cases.
- Satender Kumar Antil v. CBI (2022) – The Court issued guidelines for granting bail, emphasizing the need to prevent unnecessary arrests and decongest prisons.
Importance of the Classification
- Protects the right to liberty while ensuring justice.
- Enables efficient administration of justice.
- Differentiates minor from major crimes, balancing procedural fairness with public interest.
- Prevents misuse of bail provisions in serious crimes.
Conclusion
The distinction between bailable and non-bailable offences under the CrPC ensures that the criminal justice system remains balanced, safeguarding both individual rights and public safety. While bailable offences offer an absolute right to bail, non-bailable offences subject the accused to judicial scrutiny before release. Courts thus play a crucial role in maintaining the delicate equilibrium between liberty and law enforcement.
Also Read: Call for Submissions Abhilekh Journal by GNLU Legal Services Committee