Criminal law in India categorizes offences into compoundable, non-compoundable, bailable, and non-bailable. Understanding the difference between bailable and non-bailable offences is essential to grasp how the bail system functions under the Bharatiya Nyaya Sanhita (BNS) 2023. The primary focus here is the concept of bail, a critical component of criminal justice that determines whether an accused can be temporarily released from custody.
Bailable offences allow the accused a right to bail, meaning they can be released from jail by providing a bail bond. These offences are generally less severe and often come with lesser punishments, such as a prison term of up to three years or a fine. Non-bailable offences, however, are more serious and do not automatically grant the right to bail. In these cases, the decision to grant bail rests with the court, which has to consider various factors before making a decision.
Meaning of Bail
In layman’s terms, bail is the temporary release of an accused person from jail. According to legal definitions, bail involves securing the release of an individual from custody by assuring their appearance in court at a specified time. This assurance is typically given through a bail bond, which is a promise by the accused to adhere to court orders and appear for future hearings.
Bail in India was influenced by British laws, with early criminal procedure codes distinguishing between bailable and non-bailable offences. Over time, these laws evolved into the current Bharatiya Nagarik Suraksha Sanhita, 2023, which outlines the framework for criminal offences and bail.
Bailable Offences
What are Bailable Offences?
Bailable offences, defined under Section 2(1)(c) of the BNSS, are those listed in the first schedule of the code. These offences are considered less serious, allowing the accused the right to bail. While the law provides a general understanding, there are exceptions where more severe offences are classified as bailable.
For instance, under Section 117(2) of the BNSS, causing grievous hurt voluntarily carries a punishment of up to seven years but is still treated as a bailable offence. In these cases, the accused can seek bail either from the police or the court.
Characteristics of Bailable Offences
- Right to Bail: Accused individuals have the right to be released on bail.
- Less Serious Crimes: These offences generally involve minor infractions.
- Police Authority: Police officers can grant bail at the station without court intervention.
Legal Implications of Bailable Offences
Bail in Bailable Offences
Under Section 478 of the BNSS, an accused has the right to bail in bailable offences. The law mandates that police or the court must release the accused upon providing sureties or bonds. This provision ensures that individuals are not held in custody unnecessarily for bailable offences.
In the landmark case of Rasiklal vs. Kishore (2009), the Supreme Court affirmed the absolute right to bail for bailable offences, emphasizing that neither the police nor the court has discretion in such matters.
Default Bail
Default bail, or mandatory bail, applies when an investigation is not completed within a specified period. Under Section 187(3) of the BNSS, if the police fail to file the charge sheet within 90 days for serious crimes or 60 days for less severe offences, the accused can be released on bail. This provision ensures the right to bail when procedural timelines are not met.
Application for Bail in Bailable Offences
For bailable offences, the process of obtaining bail is straightforward. Accused individuals can apply for bail at the police station and later formalize it in court. The case of Haji Mohammed Wasim And Ors. vs. State of U.P (1991) highlighted that even if police grant bail, judicial confirmation is necessary.
Who Can Grant Bail in Bailable Offences?
In bailable offences, police officers have the authority to grant bail directly at the station. The court may also grant bail if the case reaches the judicial system, but police officers typically handle it.
Judicial Pronouncement About Bailable Offences
Rasiklal vs. Kishore (2009)
This case reinforced the right to bail in bailable offences, ruling that bail cannot be denied on procedural grounds, such as not hearing the complainant. The Supreme Court clarified that bail is an absolute right in such cases.
Suresh Pal and 3 Ors. vs. State of U.P. and Ors. (2019)
This case dealt with the addition of non-bailable charges to an existing case. The court concluded that previous bail does not automatically get cancelled with new charges, and the accused must apply for fresh bail.
Instances of Bailable Offences Concerning BNS
Under the BNSS, examples of bailable offences include miscarriage (Section 88), causing death by negligence (Section 106(1)), and being a member of an unlawful assembly (Section 189(2)). These offences, while significant, are not deemed as severe as non-bailable offences.
Non-bailable Offences
What are Non-bailable Offences?
Non-bailable offences are considered more serious, with crimes like murder, rape, and kidnapping falling under this category. In these cases, the accused does not have an automatic right to bail, and the court exercises discretion based on the case’s specifics.
Characteristics of Non-bailable Offences
- No Automatic Right: Bail is not guaranteed and is subject to judicial discretion.
- Serious Nature: These offences involve grave crimes.
- Judicial Authority: Only the court can grant bail in these cases.
Legal Implications of Non-bailable Offences
Bail in Non-bailable Offences
Section 480 of the BNSS outlines the procedure for granting bail in non-bailable offences. The use of "may" in the legal text indicates the court’s discretion in such matters. The police can grant bail in exceptional circumstances with written reasons, but this is rare.
Regular Bail
Regular bail is granted under Section 480 for non-bailable offences, except in cases punishable by death or life imprisonment. The court assesses factors like age, health, and criminal history before deciding on bail.
Interim Bail
Interim bail is temporary and granted for a specific period. It can be extended at the court’s discretion, as seen in Athar Parvez vs. State (2016), where interim bail requires exceptional circumstances.
Anticipatory Bail
Anticipatory bail protects individuals from future arrest for non-bailable offences. Under Section 482 of the BNSS, anticipatory bail is sought in higher courts like the High Court or Sessions Court. The court considers factors like the nature of the accusation and the applicant’s history before granting bail.
Factors Considered While Granting Bail Under Non-bailable Offences
The court evaluates the case’s specifics, the accused’s background, and the potential impact on the victim or society. Judicial discretion is key, as seen in cases like Pramod Kumar Maglik & etc. vs. Saihna Rani & etc. (1989).
Who Can Grant Bail in Non-bailable Offences?
Only the court can grant bail in non-bailable offences. The accused must apply, and the court decides based on the offence’s gravity and other relevant factors.
Judicial Pronouncements About Non-bailable Offences
Arnesh Kumar vs. State of Bihar & Another (2014)
This case highlighted the misuse of Section 498-A IPC, emphasizing the need for caution in arrests under non-bailable offences. The Supreme Court granted anticipatory bail, setting guidelines for such cases.
Pradeep Ram vs. The State of Jharkhand (2019)
The court ruled that new non-bailable charges do not automatically cancel existing bail. The accused must apply for bail for the new offences, affirming judicial discretion in such matters.
Sudha Singh vs. The State of U.P. (2021)
The Supreme Court stressed the importance of considering potential threats to witnesses and victims’ families before granting bail in cases involving dangerous criminals.
Kanumuri Raghurama Krishnan Raju vs. State of Andhra Pradesh (2021)
The court granted bail due to alleged custodial torture and health concerns, illustrating the balance between personal freedom and judicial discretion.
Prem Shankar Prasad vs. The State of Bihar (2021)
This case reaffirmed that absconders are not entitled to anticipatory bail, emphasizing the need for the accused to face legal proceedings.
Gautam Navlakha vs. National Investigation Agency (2021)
The court ruled that house arrest does not count as custody for default bail, highlighting the nuances of legal detention.
Instances of Non-bailable Offences Concerning BNS
Under the BNSS, serious offences like gang rape (Section 70(1)), dowry death (Section 80(2)), and murder (Section 101) are considered non-bailable, reflecting their gravity and impact.
Difference Between Bailable and Non-bailable Offences
The key differences lie in the gravity, punishment, and right to bail. Bailable offences are less severe, often resulting in lighter sentences, while non-bailable offences involve serious crimes with harsher penalties. Bail in bailable offences is a right, whereas, in non-bailable offences, it is subject to judicial discretion.
List of Bailable and Non-bailable Offences Under BNS, 2023
The BNSS provides a comprehensive list of offences, detailing their nature and corresponding punishments. This includes both bailable and non-bailable offences, reflecting the legal framework’s complexity.
Conclusion
The concept of bail in India has evolved significantly, with the Supreme Court playing a crucial role in shaping its application. Bail serves as a mechanism to protect individual liberty while ensuring the accused’s presence in court. The distinction between bailable and non-bailable offences highlights the legal system’s effort to balance justice and individual rights.
Recent Supreme Court decisions have further clarified bail provisions under the BNSS, impacting undertrial prisoners and emphasizing the importance of judicial discretion. In India, the principle of "bail, not jail" underscores the presumption of innocence until proven guilty, safeguarding personal freedom within the criminal justice system.
