Understanding Bail in India: Bailable vs. Non-Bailable Offences, Rights of the Accused, and Legal Procedures

The concept of bail is interwoven into the very fabric of the Indian criminal justice delivery system, inextricably linked with the fundamental right to life and personal liberty. It represents a fine balance the law has to achieve between the individual liberty of a person who is presumed to be innocent till proved guilty and the societal interest in ensuring the justice delivery system is effectuated. The classification of offences into 'bailable' and 'non-bailable' emerges as the prime factor which determines both the procedure and the principles underlying the grant of pre-trial release. This article shall discuss this differentiation, explore the procedural aspects of securing bail, and investigate the rights of an accused as reflected by the jurisprudence of the Supreme Court of India

Bailable vs. Non-Bailable Offences: The Fundamental Distinction

According to Vidur's Knowledge, offences in India are divided based on the seriousness of the offence, which in turn decides that an accused person is entitled to bail as a matter of right or he can seek it as a matter of judicial discretion.

• Bailable Offences: These are considered to be the less serious offenses. In bailable offense, the question of discretion does not arise and granting of bail is a right of the accused. A person arrested on a bailable offense is thus entitled to be released on bail upon giving surety or a bail bond. The police officer in-charge of the police station or the court could grant bail

• Non-Bailable Offences: These are graver and more serious offences. For these, the bail is not a right but a privilege at the discretion of the court. The accused cannot claim to be released on bail. The court has to be satisfied that a sufficient case for bail exists. It will consider various factors before deciding upon granting bail. An offence under the PMLA, 2002, for example, is non-bailable and similarly a cognizable offence.

 Here is a comparison to illustrate the key differences:

The Sanctity of Personal Liberty: The Constitutional Framework for Bail

The jurisprudence on bail in India has its anchor in the constitutional guarantee of personal liberty; the Supreme Court has repeatedly emphasized this right.

While deliberating upon the case of Nikesh Tarachand Shah v Union of India, the Supreme Court referred to Article 21 of the Constitution, which guarantees the right to life and personal liberty, as the "Ark of the Covenant" of the Fundamental Rights.[1][2] The Court added that this right is considered so sacrosanct that even during a state of emergency, in conjunction with Article 20, it cannot be suspended. This constitutional mandate lays the bedrock upon which the principles of bail operate, as from the point of view of the law, the incarceration of a person shall be an exception and not a rule.

Similarly, in Siddha ram Satlingappa Mhatre v State of Maharashtra, the Supreme Court held that "personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case". This indicates the high threshold that must be met before the freedom of an individual is curtailed pending trial.

The Rights of the Accused and the Consequences of Pre-Trial Detention

The legal system operates on the presumption of innocence. Pre-trial detention, therefore, places a significant burden on an individual who has not yet been convicted of any crime. The Supreme Court, in Moti Ram v State of M.P., eloquently detailed the grave consequences of such detention. It held that defendants who are presumed innocent are subjected to the psychological and physical deprivations of jail life, often under conditions more onerous than those imposed on convicted individuals. The Court highlighted the cascading negative effects: the jailed defendant loses their job, is hindered from preparing their defence, and their detention imposes a heavy burden on their innocent family members. This judicial observation reinforces the principle that bail should be the norm and jail the exception, to prevent the infliction of punishment before a verdict of guilt is rendered.

Procedure and Judicial Discretion in Non-Bailable Offences

In the case of bailable offences, bail is a right; however, the procedure in non-bailable offences is much more complex and discretionary on the part of the judge. But this discretion is not to be exercised whimsically. The Supreme Court has come out with elaborate guidelines so that the grant of bail or refusal thereof would be judicious, fair, and just with reference to principles of law.

While deliberating on the landmark case of Gurcharan Singh v State (Delhi Admn.), the Court reiterated that in non-bailable cases, bail should be granted normally, unless there are exceptional circumstances that may impede a proper investigation or a fair trial [1][2]. It has also been explained by the Court that in very serious offences, like those punishable by death or life imprisonment, the discretion of the magistrates to grant bail is restricted.

Building upon this, the Supreme Court in Babu Singh v State of U.P. emphasized that there was a need for evolved jurisprudence of bail to prioritize personal liberty. It thus laid down a number of factors which have necessarily to be considered by a Judge while deciding an application for bail of a non-bailable offence:

1. The Likelihood of Interference: In granting bail, the court should consider that the accused, upon release into the community, will not tamper with the evidence or interfere with witnesses. This is a primary consideration for ensuring a fair trial.

2. Record of Conviction: Past criminal history of the accused can be a relevant factor for determining the likelihood of his committing further offences if released.

3. Balancing Individual Rights and Community Safety: The court has to do a delicate balancing. In Siddha ram Satlingappa Mhatre v State of Maharashtra, it was said, "Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important".

4. Other Considerations: The Court in Babu Singh also drew attention to the pragmatic considerations like burdening of the public treasury, lengthened imprisonments, and sub-jail conditions.

Recent Judicial Pronouncements and Their Impact on the Rights of the Accused

The jurisprudence surrounding bail in India is dynamic, constantly evolving through judicial interpretation to safeguard the fundamental right to personal liberty enshrined in Article 21 of the Constitution. While the foundational principles laid down in cases like Gurcharan Singh v State (Delhi Admn.) and Babu Singh v State of U.P. remain pivotal, recent judgments, particularly from the Supreme Court, have further clarified and strengthened the rights of the accused, especially in the context of non-bailable offences and stringent economic laws.

Reaffirming the Primacy of Personal Liberty

A significant modern precedent that continues to influence bail jurisprudence is the Supreme Court's decision in Nikesh Tarachand Shah v. Union of India (2018). In this case, which pertained to the Prevention of Money-Laundering Act, 2002 (PMLA), the Court described Article 21 of the Constitution as the "Ark of the Covenant" of Fundamental Rights. It emphasized that the right to life and personal liberty is so sacrosanct that it cannot be suspended even during an emergency. This judgment strongly reiterated the principle that any condition or law that unreasonably curtails this liberty must be scrutinized for constitutional validity. It set a powerful precedent, reinforcing that even in cases involving serious economic offences, the presumption of innocence and the right to liberty cannot be casually disregarded. The Court's historical overview in this case, referencing decisions as old as Nagendra v. King-Emperor (1924), reaffirmed the age-old legal maxim that the grant of bail is the rule and its refusal is the exception.

Prohibition of Onerous and Punitive Bail Conditions

One of the major recent trends affecting the rights of the accused was the firm judicial stand of the Supreme Court on avoiding arbitrary and unreasonably rigorous conditions for bail. This happens especially in cases involving economic offenses, where too often, courts have required large money deposits as a condition of release.

Subash Chouhan v. Union of India and Another (2023): In this case, the Supreme Court deemed a bail condition requiring the appellant to deposit ₹70 lakhs as unsustainable. The case involved an alleged wrongful availing of Input Tax Credit (ITC) under the GST Act. The Court's reasoning was that since there was no final assessment of the appellant's liability under the GST Act, it was unclear if the amount was legally due. Therefore, imposing such a deposit condition was considered unjustified. This ruling is a crucial safeguard for the accused, ensuring that bail is not denied indirectly by imposing financial conditions that are impossible to meet, effectively turning the process into a punishment before trial.

Yashik Jindal v. Union of India (2023): This 2023 case followed the ratio of Subash Chouhan and saw the Supreme Court set aside a High Court condition that required the appellant-accused to deposit ₹2 crores to secure bail. The Court stated unequivocally that such burdensome conditions are untenable. This judgment lays down the rationale that while framing conditions, it is essential to ensure that the same are proportionate and work towards facilitating the presence of the applicant during the trial and are not used as a tool for punishment or recovery.

These decisions, taken together, safeguard the right of the accused against what virtually is a pre-trial punishment and thwart an exercise of the grant of bail depending upon the ability of the accused to pay.

Consideration of Custody Duration and Parity

The judiciary has also increasingly taken into consideration the prolonged pre-trial detention that by itself can tend to be punishment. 

Ramachandra Vishnoi etc. v. Union of India (2022): In this case, the Supreme Court granted bail to the appellants by considering two important factors: the long period of custody, which was almost 14 months, and the fact that the co-accused in the case had already been granted bail. This judgment has invoked the principle of parity, wherein similarly situated accused persons must be treated alike, and the courts must avoid prolonged and indefinite detention while pending trial.

 Strengthening Procedural Safeguards at the Time of Arrest

The recent jurisprudence has also tended to reinforce the rights of the accused in the procedure at the very commencement of the criminal process, that is, the arrest. In the context of the GST laws, which contain provisions for non-bailable offences, specific guidelines have been underscored so as to prevent arbitrary action by authorities.

the following as some of the essential safeguards which have been judicially ordained:

1. Higher Threshold of "Reasons to Believe": In authorities must have credible material to form a "reason to believe" that any person has committed a scheduled offence. This is higher threshold and more stringent norm than mere "reasonable suspicion".

2. Records of the reasons for arrest: The arresting authority shall write down the reason for the arrest and orally communicate the reason behind arrest to the suspect without any delay. This provides transparency and allows the accused to avail legal remedies.

3. Strict Adherence to Statutory Safeguards: Arrest is not to be made without justification. Strict adherence needs to be followed to the safeguards as provided in the statute and the Constitution, also taking into consideration the guidelines formulated in the milestone judgment of D.K. Basu v. State of West Bengal.

These requirements are fundamental to guard the accused against unwarranted deprivation of liberty and to ensure that the arrest process passes the test for fairness.

Summary of Recent Landmark Judgments and Their Impact

The Overhaul of India's Criminal Laws: From Discussion to Legislation

the view that the legislative deliberations pertaining to the rights of the accused and the general facility of criminal justice administration in India have resulted in landmark changes in legislation. Instead of mere piecemeal amendments, the government has brought into force new laws for the purpose of replacing the colonial-era criminal codes. This was preceded by an all-encompassing review from high-power committees assigned the responsibility of completely overhauling the entire regime of criminal administration.

The Committees on Criminal Justice Reform

These changes were thus based upon a preliminary foundation laid by various committees constituted for the purpose of discussing and recommending lacunae in the existing criminal laws.

1. The Justice Mali math Committee (2000): This Committee was set up by the Ministry of Home Affairs in November 2000 to remake the Criminal Justice System. Its objectives were to study, within a broad frame of reference given to it, the cardinal principles of criminal jurisprudence, bringing the CrPC, IPC and the Indian Evidence Act in consonance with each other, simplifying court procedures so as to make justice delivery quicker, speedier, and more effective. The committee recommended 158 amendments, and these reforms were not accepted by the then government.

2. The National Level Committee for Reforms in Criminal Laws (2020): At a more recent setting, the Ministry of Home Affairs constituted another committee in May 2020 to do a fresh review of the criminal laws. Its stated effort was to recommend reforms in such a manner that the safety and security of the individual and the nation are ensured while prioritizing constitutional values of justice, dignity, and the worth of the individual. This committee was assigned the task of harmonization of CrPC with judicial decisions and consideration of recommendations of previous committees.

3. The Culmination of Legislative Discussions: Three New Criminal Acts

       The work of the National Level Committee directly led to the most important development of the legislation in the history of Indian Criminal law. The committee sent its report to the government on February 27, 2022. Based upon this report, the government brought in, and the Parliament subsequently passed, three new Acts to replace the existing principal criminal statutes.

The new legislations that received the assent of the President on December 25, 2023, mark the end of the recent debate in the legislatures and will radically change the procedural and substantive rights of the accused

Here is a summary of the new legislation:

Potential Impact on the Rights of the Accused

The Bharatiya Nagarik Suraksha Sanhita, 2023, once it replaces the whole Code of Criminal Procedure, will directly affect the rights of the accused since it is this Code that governs the entire procedural aspect of the criminal justice process, which includes arrest and investigation, bail, and trial.

• Timeline for Judgment

The old CrPC, 1973, provided under Section 235 that a judge shall, after arguments, deliver a judgment. The new law has a binding timeline; according to Section 258 of the Bharatiya Nagarik Suraksha Sanhita, 2023, "As soon as possible, within a period of thirty days from the date of completion of the arguments and for reasons to be recorded in writing, extend it to a period of sixty days".

It is a clear legislative step toward lessening delays in the justice delivery system. To an accused, especially one in custody, such alteration in the legal scenario is of immense significance as it lessens the period of uncertainty and long incarceration till the final verdict is pronounced.

Conclusion

The distinction between bailable and non-bailable offences is a fundamental aspect of India's criminal procedure, directly impacting an accused person's right to liberty. While bailable offences guarantee release as a matter of right, the law vests significant discretion in the judiciary for non-bailable offences. This discretion, however, is not unfettered. It is guided by the constitutional mandate of Article 21 and a rich body of jurisprudence developed by the Supreme Court. The judiciary is tasked with balancing the precious fundamental right to personal liberty against the societal need for peace, order, and the proper administration of justice. The principles laid down in key judicial pronouncements serve as a vital safeguard, ensuring that pre-trial detention is not used as a punitive measure and that the maxim of 'innocent until proven guilty' remains a lived reality in the Indian legal system.

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