BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

PROJECT ON

Bail in Bailable and Non- Bailable Offence

SUBMITTED TO:
Mr. Vinod Kumar
Assistant Professor
The Code of Criminal Procedure
SUBMITTED BY:

MEENAL SAHU
27, BA. LL.B. VthSemester
SCHOOL OF LAW

GURU GHASIDAS VISHWAVIDHYALAYA,

BILASPUR (C.G.)

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

DECLARATION
I hereby, declare that this project is my original piece of work. The project or
any part of it is not being copied from any of the sources without being
acknowledged.

I am highly indebted to the authors of the books and the owners of the articles
and websites, from where the reference is being taken. Through the references, I
have tried to come-up with new conceptual interpretation to present the idea of
all Pros-n-cons of my subject.

(“Bail in Bailable and Non-bailable Offence”)

Meenal Sahu

ROLL NO.27

B.A. LL.B. Vth semester

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

CERTIFICATE
I, MEENAL SAHU, 27, B.A LL.B. (Vth semester, student of SCHOOL OF
LAW hereby, certifies that I have submitted my project on the subject “Bail in
bailable and non- bailable offence”. And this project is being accomplished
under the guidance of my CRPC assistant professor, Mr. Vinod Kumar

The context of the project is not being copied from anywhere without any such
acknowledgment and is the original work of mine.

Meenal Sahu Faculty Signature:

ROLL NO.27

B.A. LL.B. V semester

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

ACKNOWLEDGEMENT
I hereby, not just indebted to the authors and owners from whom I referred but
also thankful to my teacher ‘Mr. Vinod kumar who actually guided me the
way to accomplish my work on time and made the concept clear to me, so I
could tackle with the exceptions and higher level of theory of the subject.Also, I
am glad that God Almighty is always being there by my side during the
duration of the completion of my work and never let me fallen ill, and thankful
to my Parent who always supported me.

Meenal Sahu

ROLL NO.27

B.A. LL.B. Vsemester

School of law

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

.SYNOPSIS
 INTRODUCTION
 CONCEPT OF BAIL
 BAIL IN BAILABLE OFFENCES
 BAIL INNON-BAILABLE OFFENCES
 RELEVANT CASE LAWS
 CONCLUSION
 BIBLIOGRAPHY

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

INTRODUCTION

Bail – The term ‘bail’ is defined as to set at liberty a person arrested or imprisoned, on
security being taken for his appearance on a day and at a place named.

As clear from the above definition, bail is granted to a detente or arrestee after furnishing the
required bond. Bails are governed by the Code of Criminal Procedure (CrPc), which also
classifies the offences as ‘bailable’ and ‘non-bailable’.

The grant, refusal or cancellation of bail is an exercise subject to judicial discretion and,
therefore, bail is granted only after taking into account and carefully considering all relevant
factors including the nature, circumstances and gravity of crime, the character of the accused
and whether or not it would be in the interest of justice to release the accused on bail. An
important factor that is weighed is if the accused, after his release, is likely to influence the
outcome of the case in any manner.

Going by the spirit of Indian Constitution, the denial of bail is a denial of personal liberty
and, therefore, the case of bail in non-bailable offence is considered in light of Article 21 and
the exceptions to it. Article 22 of the Constitution provides for the protection against arrest
and detention in certain cases envisaging the rights of the arrestee.

Before bail is granted the court is to look to it that the bailee does come back to stand trial
and does not meddle with the evidence or the witnesses. Every accused is presumed to be
innocent until proved guilty and so bail must not be ordinarily denied unless doing so is
somehow likely to hurt the cause of justice.

A mere allegation does not make one guilty, which means that an accused is as much entitled
to his right to protection of life and personal liberty as any other citizen of India. The grant of
bail is the rule and, denial an exception.

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CONCEPT OF BAIL

The word “bail” is not defined under the Code of Criminal Procedure. In Wharton’s Law
Lexicon, the word “bail” is defined as: “Setting at liberty a person arrested or imprisoned, on
security being taken for his appearance on a day and at a place certain.” For the purpose of
bail, offences are classified into two categories- bailable and non-bailable. Chapter XXXIII of
CrPC deals with questions of bails and bonds. Sections 436, 437, 438 and 439 specifically
deal with bails under different situations and circumstances. Section 436 deals with bail in
bailable offences; Section 437 deals with bail in non-bailable offences; Section 438 deals
with anticipatory bail; and Section 439 deals with special powers of High Court or Sessions
court regarding bail. Section 389, subject to certain exceptions, provides for suspension of
sentence of a convicted person pending appeal and his release on bail or on his own bond.
Section 167(2)3 mandates the investigating police to release the accused person on bail when
they are unable to complete the investigation of a case within the stipulated time with the
Section 167(2) (a) (i) and (ii) CrPC.

In granting or refusing bail, courts generally take into consideration the following points
(1) the nature of the accusation;
(2) the nature of the evidence in support of the accusation;
(3) the severity of the punishment which the conviction will entail; and
(4) whether the accused, if released on bail, is likely (a) to tamper with the prosecution
evidence, or (b) to get up falls evidence in support of the defence.

The provisions regarding bail are essentially part of the law of procedure, and, as such, must
be regulated by the law under which a particular trial is held.
The commission of an offence does not ipso facto carry with it a right of bail. Such a right is
dependent on the provisions contained in a statute and to the statute alone can one look for
any right which the offender claims. Bail is a matter of procedural privilege at the most, and
an accrued right, at least until it granted.

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 BAIL- IN BAILABLE AND NONBAILABLE OFFENCE

BAILS IN BAILABLE OFFENCES

Section 436 of CrPC deals with bails in bailable offences. As per the provisions of the section
a person accused of a bailable offence is entitled to bail pending his trial. In case of bailable
offence under Section 436, a police officer has no discretion to refuse bail if the accused is
prepared to give bail or execute bond. The Magistrate gets jurisdiction to grant bail during the
course of investigation when the accused is produced before him and should grant bail to the
accused when he is prepared to give bail or ready to execute personal bond. When bond with
surety or sureties is to be executed heavy amount should not be demanded as surety amount
and the accused economic back ground has to be considered by the police or the court that
grant bail to the accused as provided under Section 445 of CrPC. The terms of a bond or bail
bond executed under this section should be in accordance with Form 45 of Schedule II. Only
if the accused fails or refuses to give bail or execute personal bond then only he be taken into
court custody. Only the court is vested with power to re-arrest the person arrested by
canceling the bail for any valid reason and not the police who have arrested and released him
on bail.
Section 436(1) is also applicable to persons produced before the Magistrate under a warrant
of arrest issued under the proviso to Section 113 of CrPC wherein it appears to such
Magistrate upon the report of a police officer or upon other information that there is a reason
to fear the breach of a peace, and that such breach of the peace cannot be prevented otherwise
than by the immediate arrest of such person.

• Who and when may be released on Bail: -A person who is accused of a bailable offence
will be entitled to bail under this section. He will be entitled to bail if:
i. he is accused of a bailable offence;
ii. he is arrested or detained without a warrant by an officer-in-charge of a police station
or appears or brought before a court;
iii. a complaint or police report of a bailable offence is made against him, or he is
suspected of having committed such an offence.

• Bail to an under Trial Prisoner:- By the Code of Criminal Procedure (Amendment)Act,

2005, Section 436A has been inserted to entitle a person who has, during the period of
investigation under CrPC of an offence under any law (not being an offence for which the

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punishment of death has been specified as one of the punishments under that law) under gone
detention for a period extending up to one-half of the maximum period of imprisonment
specified for that offence under that law he shall be released by the court on his personal
bond with or without sureties.

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BAILS IN NON-BAILABLE OFFENCES

Section 437 CrPC deals with bails in non-bailable offences. Bail under the section is after
arrest.
Unlike in bailable offence, in non-bailable offence bail is a matter of judicial discretion. Bail
shall not be granted by the Magistrate if the offence is punishable with death or imprisonment
for life if he is of the opinion that there appear reasonable grounds for believing that the
accused person or suspected of the commission of offence has been guilty of the offence,
provided that he may, in his discretion, grant bail to a woman or a minor under the age of
sixteen years or a sick or infirm person. In a case involving a non-bailable offence, a court
may impose reasonable conditions besides fixing the bail amount for the attendance of the
accused. Under the section an officer-in-charge of a police station can also grant bail to the
person accused of non- bailable offence but only under extra-ordinary circumstances as
provided under proviso of Section 437(1)(i) of CrPC. However, the accused concerned has to
be directed to appear before the jurisdictional Magistrate to seek regular bail. While hearing
bail application the Magistrate should give notice of the bail application to the public
prosecutor and seek his objections, if any. The public prosecutor should, in turn, consult the
concerned investigating officer as to filing of objection against grant of bail to such an
accused. The investigating officer should send up his grounds of objections along with the
case diaries of the case under investigation to submit the same to the Magistrate who is
hearing the bail application.

• Circumstances to be kept in view by a Magistrate while granting or refusing Bail: -

While granting bail Magistrate has to keep the following circumstances in mind:
i. Whether there is or not reasonable ground for believing that the applicants are
guilty of the offence;
ii. The nature and gravity of the offence;
iii. Severity and the degree of the punishment prescribed;
iv. The chances of the accused absconding, if released on bail;
v. The character, means and standing of the accused;
vi. The danger of the offence being repeated or continued;
vii. The danger of the witnesses being tampered with;
viii. Opportunity to the accused to prepare for their defence;
ix. Long period of the detention of the accused and the probability of delay of a

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further period of several months;

x. The character of evidence against the accused;
xi. Larger interests of the public;
Sub-section (4) requires that, the Magistrate should record his reasons in writing for
release of accused person. An accused person may apply for bail either himself or through his
lawyer. When an accused fail to secure bail in the instance, there is no bar for him to apply
again for bail. He can apply as many times as he wants.
Sub-clause (ii) of sub-section (1) of Section 437 imposes restrictions on the Magistrate to
grant bail. One of the restrictions is if the accused had been previously convicted on two or
more
occasions of a non-bailable and cognizable offence he shall not be released on bail.

• Grounds for cancellation of Bail: -One of the following conditions must be satisfied
before the bail is cancelled:

(1) Where the person on bail during the period of bail commits the very same offence for
which he is being trialed or has been convicted, and thereby proves his utter unfitness to
be on bail;
(2) If he hampers the investigation as will be the case if he, when on bail, forcibly prevents
the search of places under his control for the corpus delicti or other incriminating
things;
(3) If he tampers with the evidence, as by intimidating the prosecution witnesses.
Interfering with the scene of offence in order to remove traces or proof of the crime,
etc;
(4) If he runs away to a foreign country or goes underground or beyond the control of his
sureties;
(5) If he commits acts of violence, in revenge against the police and the prosecuting
witnesses or against those who have booked him or are trying to book him.
The bail granted may be cancelled by the court that has granted bail or Sessions court or High
Court.
Bail granted by a High court under Section 438 of the CrPC can only be cancelled by the
High Court under Section 439(2) of the CrPC but not by any Magistrate or Sessions Judge.

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But the High Court has an inherent power to entertain the application under Section 439(2) of
the CrPC for cancellation of bail granted by the session judge.
As a matter of principle no court can grant bail without giving prior notice to the public
prosecutor who represents prosecution case. Bail is a constructive custody, but it does not
amount to his being set at liberty; the accused person on bail will still be under the control of
the court. A Magistrate cannot direct police to hand over to other police after granting bail. It
is not in good principle for a court to get verification of the bail bond by the police for the
fitness of the surety. Bonds have to be accepted on face value as per section 446 of the CrPC.
No provision is made for the imprisonment of the person liable to pay penalty in absence
there of a surety or forfeiture.

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RELEVANT CASE LAWS

Section 436: When Bail may be Taken in Case of Bailable offence

 In Motiram v/s State of M.P S.C 1594 : In this case stated by Justice Krishna Iyer
”Bail is rule and Jail is exception”.
 In Hussainara khatoon v/s state of Bihar: In this case Justice P.N Bhagwati observed
that our bail system suffered from a property oriented approach which seem to
proceed on the errorless exception that rised from monetary loss is the only deterrent
against fixing from justice.

Section 437: In When bail may be taken in case of Non- Bailable Offence
 In Pullachichand v/ state of Kerala 1978: If someone is released on bail and accussed
feels he is free then it is not sufficient ground to keep in jail.
 In Sehat Ali v/s state 1992: In this case observed by the Rajasthan HC that sec 437
makes a distinction between person of grievous offences and less serious offences or
that it creates exceptions in favour of young person, women and infirm persons does
not render it discrimatory and unconstitutional under Article 14 became the
classification is based on intelligible differentiation and also impose a statutory
obligation upon the court through record reason in writing.

Section 438: In what cases Anticipatory Bail can be granted

 In Omkarnath v/s State of U.P 1976 : In this case held by the court that sec438
empowered to the court to grant anticipatory bail to a person who has a reasonable
apprehension that he is likely to be arrested for a accusation of having committed a
non-bailable offence.

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CONCLUSION
It is thought that from the various schemes the government operates for rural
employment, loans to farmers etc, a portion of the funds which it transfers to the
panchayat for developmental work of the same should be set aside and kept to meet
the bail amount for undertrials belonging to the particular panchayat / block. The
utilization of this fund would be in the hands of the elected leaders of the society with
the representative of district collector / district magistrate being a part of the system.
This would, go a long way in securing freedom for scores of undertrials who would
then be able to contribute to society thereby
playing an important role and forming part of the national mainstream. Such a
scenario will have the effect of reducing the burden of over-crowding in jail.
The setting up of separate jails, or at any rate isolating undertrials from convicts,
would prevent hardened criminals from exercising their deleterious influence over
undertrials. Such segregation would also change the attitude of jail authorities and
society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in
reformative homes instead and asked to do community service till the time they are
released on bail. Elementary education facilities must be granted to those under trials
who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only
be in the hands of a few, but, should be available to the masses including those who
do not have the financial capacity to afford it.

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BIBLIOGRAPHY
 Concept of Bail http://www.legalserviceindia.com/articles/bail_poor.htm
 Paranjape, Dr. N.V , Sixth edition ,2017,The code of criminal procedure ,1973
p.g.607 -620
 Class Notes by- Mr. Vinod Kumar on Provision of Bail and Bonds

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