Bail in Non-Bailable Case


Bail is the only matter of law which is known to almost all the sections of the society. Even the illiterate individuals are also seen in the courts to stand as a bailor. It is also known to all that an amount of money or property is fixed by the court concerned which grants the bail. But the said amount of money is not required to be deposited in cash, instead immovable property documents like copy of Registered Sale Deed or Jamabandi copy is accepted by the court as valuable security technically termed as bail bond. In case no land documents are available then, of course, cash money may be deposited as an alternative measure. To this extent all are acquainted with bail.

But what is bail and why is it required. What does it imply while a bail is refused or rejected? Is it granted in any non-bailable case?

The concept of bail is closely related to the notion of personal liberty. In ancient times the right to personal liberty was not well developed. There are instances too that it was dependent to some extent on the mercy and whims of The Ruler or The King. Once upon a time the human race also experienced the slavery system. But thanks to the God, we are now living in the modern age. At the cost of uncompensatable sacrifices and contributions of our great revolutionary souls, the personal liberty comes into existence and it’s now unanimously recognized to be one of the most precise human rights. It is also said that liberty is acquired by birth and its protection is paramount.

However, no rights can be absolute and beyond question. So long a right is exercised peacefully and harmoniously with law of the land, it’s okay. But at the moment it goes in conflict with law, it losses it’s supreme status and society is bound to be adversely affected thereby. At this stage the interference on the part of the State or the Government becomes unavoidable. As a result while anyone infringes law, the State curtails his liberty by arresting him and brings to book. Only then the concept of bail comes into appearance.

The bail is temporary release of an accused on condition till final trial of the offence with which he is charged. In this sense bail may be termed as a powerful weapon or shield to protect the personal liberty. Arrest and detention of a person is always seen to be a stigma of life. Therefore in a civilized society the importance of bail is unquestionable and marked to be a symbol of rule of law.

For the purpose of rule of law, offences or crimes are divided into two categories: Bailable Offence and Non-bailable Offence. Bailable Offences are generally related to offences whose impacts on the society are comparatively low and accordingly lesser punishments are assigned thereto. On the contrary, Non-bailable Offences are meant for offences with higher impact on the society and accordingly higher punishments are inflicted. In case of bailable offence, bail can be claimed as a matter of right, but in non-bailable offence, the same can’t be claimed as such.

In Indian Judiciary System, almost 90% of offences are codified under Indian Panel Code, 1860 (in short IPC) and the rest are made by various statutory enactments. The procedure for dealing such offences are prescribed by the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). In the 1st schedule of the Cr.P.C. all the offences under IPC are classified as bailable or non-bailable offences. Other non-IPC offences are prescribed by other particular acts wherein provisions are also made regarding their bailability or non-bailability. In case of bailable offence, Police Officer is authorized to grant bail to the accused but in non-bailable cases no Police Officer has such power. While we say about obtaining bail, it generally indicates to obtaining bail from the court in non-bailable cases.

Arrest and detention of anyone are always linked with non-bailable offences, because in bailable offences if any accused person is arrested, the concerned Investigating Officer is legally bound to release the accuse on bail since the said Investigating Officer cannot forward the accused to the local Judicial Magistrate for his detention or custody if he is ready to furnish bail bond. For dealing with all the offences, detailed procedure is prescribed in the Cr.P.C. Section 167 of the code provides the procedure when investigation can not be completed within 24 hours. Generally investigating officer is to complete the investigation within 24 hours. But if any accused person is arrested in connection with non-bailable offence and the investigation can not be completed within stipulated time of 24 hours, then he must be produced before the local jurisdictional Judicial Magistrate within the said time who ultimately remands the accused to judicial custody for a period of 14 days which is further extendable up to maximum 60 days or 90 days on the basis of nature of offences under which the accusation is made. In any offence where punishment is prescribed to be death or imprisonment for life or imprisonment for a term more than 10 years, then maximum remand period is 90 days and in all other cases it’s 60 days only. This general rule is, of course, subject to some exceptions too in exceptional cases. Within this 60 days or 90 days, as the case may be, if the concerned Investigating Officer fails to file any charge sheet, then the accused person is entitled to bail by default.

It has been already said that bail is a temporary release of an accused till final disposal of the case. It is a powerful weapon to protect the personal liberty. The bail is of two kinds- Regular bail and Anticipatory Bail. Regular bail means the release of any accused after arrest and the anticipatory bail is that of his release in the event of arrest (in simple words it implies release before arrest). Bail is always considered to be the discretionary power of court- it may or may not be granted by the same. However it is always expected that the said discretionary power of the court be exercised with judicious application of mind, but not in arbitrary or whimsical manner.

The provisions for bail and bail bonds are provided in Chapter XXXIII of Cr.P.C. under Section 436 to 450. As per section 437 of the code, bail petition can be moved before any court other than the High Court or Sessions Court when any person accused of or suspected of the commission of any non-bailable offence, is arrested or detained without warrant by the Officer in Charge of a Police Station, then he may be released on bail. But such person shall not be released so if he is involved with serious offences (for simplicity the term ‘serious offences’ is used) or is a previously convicted offender. However, if the accused of aforesaid category is a women or under age of 16 years or is a sick person or infirm, then he may be released on bail. While bail is granted to an accused, some conditions are impose for his binding that he will attend the court, that he will not commit the similar offence and that he will not hamper or temper evidences or threat the witnesses directly or indirectly. On the other hand the High Court and the Sessions Court are having special power regarding bail. Under section 439 Cr.P.C. it is provided that any person accused of an offence and in custody be released on bail under direction of the High Court or the Sessions Court.

So far we have discussed are related to the regular bail only. The High Court and the Sessions Court have the power to grant pre-arrest bail if there is apprehension of arrest of accused in connection with non-bailable offences. Under section 438 Cr.P.C., it is provided that where any person has reason to believe that he may be arrested in connection with a non-bailable offence, he may apply to the High Court or the Sessions court for direction that in the event of such arrest he shall be released on bail. However while passing such direction the said court considers some factors like nature and gravity of the accusation, antecedents of the accused and possibility of his jumping over the bail etc. Rejection of a bail means the accused is to remain in custody or its open to the police officer to arrest and detain the accused curtailing his personal liberty.

It is now crystal clear from the forgoing discussions that there are ample provisions for bail in non-bailable cases. However bail depends on the presentation of the case by one’s pleader and judicious application of mind by the court. Granting bail is considered to be normal and it’s rejection is exceptional since the bail is just for protection (or restoration) of the personal liberty. In a civilized society personal liberty is supreme subject to harmonious exercise of the same with laws of the land.

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