INTRODUCTION

In India as well as all around the globe, Bail serves to be one of the most crucial parts of the criminal justice system. It is a legal process of permitting an accused person to get free from criminal proceedings through authorized undertakings and procedures of the legal system when required.

Personal liberty is one of the most cherished values of a constitutional democracy. Article 21 of the Indian Constitution guarantees the same to its citizens. Criminal Procedure Code (CrPC) 1973 and now Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023 address the same and differentiate Bailable and Non-bailable Offences.

Bailable Offences are the offences where the person accused has the right to be released on bail Non Non-bailable offences are the offences where bail is a matter of discretion upon the judicial authorities. While granting bail, there is considerable focus on the presented facts and evidence by the respective authorities.

BAILABLE AND NON-BAILABLE OFFENCES 

Bailable Offences                                                     

Bailable Offences are defined under Section 2(a) under the Criminal Procedure Code (CrPC)   1973 and Section 2(1)(b) of the Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023

These are the kind of offences where the person who has been accused of a certain crime has the right to be released on bail. They can assert their right to be free in case of bailable offences. In case of these offences, the punishment is not very severe. The police officials and magistrates must release the accused person on bail if all the legal formalities are duly fulfilled and adhered to.

Examples of it could be minor thefts, simple hurt, wrongful restraint, defamation, etc. Section 478 of BNSS outlines the rights of the accused to be released on bail in case of bailable offences.

Non-Bailable Offences 

Non-Bailable Offences are the kinds of offences where the accused person doesn’t have the automatic right of getting bail due to the grievousness of the crime. Section 480 of BNSS ( Bhartiya Nagarik Suraksha Sanhita  2023) deals with the procedure of granting bail in non-bailable offences.

The bail in non-bailable offences isn’t granted as a matter of right but is done so as directed by the court within its jurisdiction. Non-bailable offences don’t mean no bail at all; it simply means granting of bail based on the presented facts and a constructive analysis of the circumstances.

Examples of it include heinous crimes like Murder, Rape, Kidnapping, Acts affecting national interests, etc. The purpose behind keeping such offences as non-bailable is to protect society and prevent the dangerous accused people from having the illegitimate opportunity to harm or influence others.

Key Differences 

Right to Bail

Under Bailable Offences, Bail is a right guaranteed by law. If the accused fulfills all the legal responsibilities and formalities, no police or judicial authority has the power to restrain their right to bail in these circumstances. The police have the authority to grant bail without judicial intervention.

Under Non-Bailable Offences, Bail is certainly not a right. In this case, the accused must apply to the court within the prescribed jurisdiction and ask for the granting of bail. The court has complete discretion whether to grant or deny bail based on the presented facts and evidence.

Nature of the Offence 

Under Bailable Offences, the nature of the crime is less serious than compared of Non-Bailable Offences. 

Under Non-Bailable Offences, the nature of the crime is a lot more serious, and the courts consider its gravity before granting bail.

Gravity of the Crime 

Under Bailable Offences, punishments are lighter. Usually, the imprisonment is three years or less OR a fine. Examples of it could be simple hurt, defamation, public nuisance, minor theft, etc.

Under Non-Bailable Offences, punishments are based on the grievousness of the crime committed. The crime needs to be heinous, which decides the punishment, which is usually three years of imprisonment or more, along with a fine. Examples of it could be Murder (Section 101 of BNS); Rape (Section 63 of BNS); Terrorism related offences, etc. 

RIGHTS OF THE ACCUSED

Right to apply for Bail: The accused has the undeniable right to apply for bail, whether in case of bailable or non-bailable offences. The granting of bail is based upon the judicial discretion of the court in case of non-bailable offences.

Right to have a legal representative: Every accused person has the right to have a lawyer to defend them in front of the judicial authorities.

Right to fair and speedy trial: The accused has the right to have their trial be addressed speedily and fairly. But the trial must not be dealt with in a hasty way.

Right to be informed: The accused should be provided with the grounds of their arrest, whether in bailable or non-bailable offences.

Right to be produced before a magistrate: The accused must be presented before the court magistrate within 24 hours of his/her arrest to validate or nullify the arrest made based on the circumstances.

PROCEDURE TO GRANT BAIL 

Bailable Offences 

Under Bailable Offences, the accused has the right to be released on bail, and the procedure of getting out on bail is straightforward and less complex than compared of non-bailable offences. 

The included steps generally consist of : 

1) Application for Bail: The accused or someone on their behalf can apply for bail to the police or the court magistrate within the respective jurisdiction of the same.

2) Verification: The Bail application needs to be verified by the police officials and investigated to determine whether the offences are bailable or not.

3) Bail Bond: The accused needs to provide a bail bond or surety to secure their bail if required.

4) Release: After the fulfillment of all the above legal formalities, the accused is released on bail with an assurance that he/she will attend the court proceedings whenever required. 

Non-Bailable Offences

Under Non-Bailable Offences, the procedure for granting bail is quite complex as compared to bailable offences. The accused, in order to secure his/her bail, needs to approach the magistrate or sessions court, or high court. 

There is a compulsory legal formality from the end of the police authority to have legitimate judicial intervention to carry out the procedure of the bail grant.

The court takes into account certain factors before granting bail, which include the nature and seriousness of the offence; collected evidence against the accused; chances of the accused fleeing the crime scene or from arrest or tampering with the evidence by the same; criminal record of the accused and health, age and other humanitarian conditions required in the case.

If the court is satisfied with the fulfillment of above mentioned factors and has an assurance that releasing the accused won’t endanger society, then it has the legitimate authority to grant bail to the accused with certain conditions, like surrendering the passport, reporting to the police consistently or regularly.

JUDICIAL INTERPRETATION

Bailable Offences  

State of Rajasthan V. Balchand (1977)

In this case, the State of Rajasthan challenged the decision of the High Court to grant bail to the accused after conviction. The Supreme Court upheld the decision of the High Court, stating that the granting of bail is valid unless there are strong reasons not to do so. The Apex court further held that Bail is a right and Jail is an exception.

Moti Ram and Others V. State of Madhya Pradesh (1978)

In this case, the Supreme Court of India criticized the unreasonably high rates of surety amounts of bail, unaffordable for poor accused. The court directed the magistrates to take into consideration the financial condition of the accused before fixing the surety rates. This judgment ensured the meaningfulness of the right to bail.

Hussainaira Khatoon V. State of Bihar (1979)

The case highlighted the plight of thousands of under-trial prisoners because of the delay in their trials. Most of them were convicted for bailable offences and had spent a lot more years in custody, exceeding their punishment periods. The Supreme Court laid down the prisoner’s right to a speedy trial as a fundamental right. 

Non-Bailable Offences 

Arnesh Kumar V. State of Bihar (2014)

In this case, despite the focus of the case being Section 498A IPC ( Cruelty to Wife), the case was well cited in the context of bail as well. The Apex Court held that arrest should not be automatic in cases where the offence is non-bailable, and the maximum punishment is seven years. The Court further held that the police should have the duty to check upon the necessity of arrest in such cases.

Sudha Singh V. State of  Uttar Pradesh (2021)

In this case, the accused was granted bail by the Allahabad High Court despite committing a non-bailable offence, I.e murder. The Supreme Court set aside the decision of the High Court and held that in cases involving dangerous criminals, the courts must consider the possible threats to the victim while granting bail to the accused.

CONCLUSION 

There is considerable importance of bail in the Indian Criminal Justice System. It provides the accused an appropriate amount of time to prepare their defence and simultaneously prevents overcrowding in the jails. The distinction between bailable and non-bailable offences ensures a strike balance between the presumption of innocence while having the assurance of justice being delivered. 

The contemporary scenario of Bail laws in India seems to be in a fix with the consistent delays in justice delivery and heavy backlogs of pending cases to ponder upon. The consideration of the presented facts and evidence should be given a heavier prominence than usual. Right to get bail and Right to speedy trial are the fundamental rights of every citizen, and they shouldn’t be deprived of them unless the circumstances prohibit. Having amendments based on the evolving nature of the Indian Criminal Justice System serves to be one of the most crucial measures to cater to and provide assurance of better justice delivery in the near future.

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