INTRODUCTION

 Criminal law plays a vital role in every field of the legal system. Criminal law basically deals with the offences that are committed against the state or society at large. It outlines the acts and procedures that must be followed. In India, criminal law is not just about providing punishments, but also about protecting the rights of an accused person. One of the most important steps is bail, which is linked with the classification of Bailable and Non-Bailable offences. In this article we will understand the meaning, scope, nature, and legal framework of Bailable and Non-Bailable offences in India and the criminal legal system.

BAIL

 Bail means the release  of an accused person on the temporary basis while the criminal case that is filed against him is pending or in investigation.

 HISTORY OF BAIL

 ‘Bail’ is derived from the old French verb ‘baillier’, meaning to ‘give or deliver’.The bail system that we follow today has evolved over time. In ancient times, such as Egypt and Rome, the accused person had to provide collateral in consideration of his release while the trial was pending. One of the earliest instances of bail finalization can be seen in the assize of Clarendon in 1166. It states that bail is the fundamental procedure of the legal system in which the defendant also has the right to secure himself until the charges against him are proved. In medieval England, the bail was formalized with the signing of Magna Carta in 1215. Wharton’s Lexicon and Stroud’s Judicial Dictionary define Bail as “the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.”

In Gurbaksh Singh v. State of Punjab 1980 AIR 1632, the SC held that grant of bail means to set at liberty a person arrested or imprisoned on security being taken off his appearance in the court on a particular day. The word 'bail' covers release on one's own bond.  

In Vaman Narain Ghiya v. State of Rajasthan 2009 2 SCC 281, The Supreme Court identified the significance of bail, especially in the case of Non-Bailable offence.

 The Criminal Procedural Code of 1973 does not define the term bail, bail bond and bonds. The BNSS has introduced the terms. According to section 2(1) BNSS:

• Bail means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;

• Bail Bond means an undertaking for release with surety;

• Bond means a personal bond or an undertaking for release without surety;

 Bailable Offences:  

 Meaning of offence:

 It means an act done by the person which is forbidden by the law or a person fails to do an act which is  provided under the law, it can lead to the punishment which is called offence. Earlier it was dealt under the Code of Criminal Procedure,1973(CrPC). The new criminal law Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), now deals with the offence. There are various types of criminal offences in India:  

• Bailable and Non-Bailable offences

• Cognizable and Non-Cognizable offences

• Compoundable and Non-Compoundable offences

Conditions to consider any act as offence:

• Act or Omission

• Prohibited by law

• Punishment

 Important case law:

 State of Maharashtra v. Mohd. Yakub 1980 AIR 1111:

 Facts of the Case:

• Mohammad Yakub and others were involved in the illegal export of silver to a foreign country by sea without the necessary permission under the Foreign Exchange Regulation Act (FERA), 1973.

• They were intercepted while loading silver into a boat at a coastal area in Maharashtra.

• The prosecution argued that the accused had committed an offense under Section 135(1)(a) of the Customs Act, 1962, and Sections 5 and 23(1A) of FERA, 1973.

 Legal Issues:

 1. What constitutes an "attempt to export" under FERA and the Customs Act?

 2. Whether the accused could be convicted even if the goods were not actually exported.

 Judgment:

 The Supreme Court convicted the accused, holding that:

An attempt to export does not require the actual movement of goods across the border.

• Preparation and active steps toward completing the illegal export are sufficient to constitute an attempt.

• The accused had taken clear overt acts beyond mere preparation, like organizing transport, loading the goods into a vessel, and intending to move it toward international waters.

 Significance:

 This case clarified the distinction between preparation and attempt in criminal law, particularly under economic and smuggling offenses.  It emphasized that economic offenses are to be dealt with strictly, considering their adverse effect on national interest and economy.

 Bailable offence:

 Bailable means an offence for which bail is a matter of right. Bailable offence is defined under section 2(1)(c) of the Bhartiya Naagrik Suraksha Sanhita,2023(BNSS). Earlier in section 2(a) of the CrPC. In this, the accused have the legal right to get bail. It means that if a person is accused of any offence, he can demand bail under bailable offence. This is because it is less serious in nature. Some of the examples of bailable offences are theft, mischief, defamation, public nuisance, etc. Section 478 of BNSS provides the provision for bail in the bailable offences.

However, courts can deny bail in some conditions, such as if the accused has a history of similar offences.

 Features of Bailable offences:

 1. Bail is matter of right

It is one of the most important features of the bailable offence. The police or the court cannot deny the bail if the accused meets conditions like executing a bail bond.  

 Case laws

Rasiklal v. Kishore 2009 4 SCC 446

This case established and highlighted the importance of bail in the bailable offence. The court noted that bail of an accused person cannot be denied or canceled just because the victim was not given a chance to object.

 2. Police can grant bail

In bailable offences, a police officer has the power to grant bail at the police station itself, without producing the accused before a Magistrate.

It helps in reducing unnecessary detention, especially in minor cases.  

 3. Court Has No Discretion to Refuse Bail

 In bailable offences, the court does not have the discretionary power to refuse the bail.  

Case laws

Talab Haji Hussain v. Madhukar Purshottam Mondkar 1958 AIR 376

 This case highlighted that criminal procedure should be followed in the proper manner. It must ensure that the personal liberty of the person should not be curtailed, particularly in bailable offences.  

 4. Offences Are Less Serious in Nature

 Bailable offences are generally less serious in nature. It covers minor issues. It does not harm the society at large.

NON-BAILABLE OFFENCES:

 In this bail is not the matter of right.It can be given at the discretion of the court. It is more severe in nature. It affects the society at large. In this offense the bail can or cannot be given.  Decision based on:

• Nature of the offence.  

• Nature of Punishment.  

• Possibility whether the accused can flee or not out of the nation.  

• Chances of tampering the evidence or with witnesses etc.  

 Power to grant bail in Non-Bailable Offences

Only the court can provide the bail.  

Note: According to 480(4) of the BNSS, police officers can provide bail in Non-Bailable offences if sufficient reasoning will be provided to them in writing. Some of the examples of Non-Bailable offences are murder, dowry death etc.   Section 480 of BNSS deals with the procedures for granting bail in Non-Bailable offences. Earlier section 437 of CrPC.  

 Features of Non-Bailable Offence

 Let us understand them one by one.  

 1. Bail Is Not a Matter of Right

In Non-Bailable offences, an accused person cannot claim absolute bail. The main power lies in the hand of the court.  

 2.Discretion Lies with the Court

In Non-Bailable offenses the court has discretionary power to grant or refuse bail.

 3.Police Cannot Grant Bail as a Right

In non-bailable offences, generally the police do not have power to give bail except in exceptional cases.  

 4. Serious and Grave Nature of Offences

Non-bailable offences are generally serious in nature which harm public safety, national security and society at large. Punishments are often harsh and severe such as life imprisonment or death penalty.

 Difference between Bailable and Non-Bailable Offences

 Landmark cases on Bailable and Non-Bailable Offences:

 1. State of Rajasthan v. Balchand AIR 1977 SC 2447:  

 In this case, the Supreme Court observed that freedom is the normal state of a person, not jail. The Court said that an accused is still assumed to be innocent and should not be kept in jail unnecessarily before the trial is over.

The judges said that Article 21 protects a person’s right to life and personal liberty, and this right should not be taken away casually. Jail before conviction should be rare, not routine.

The Court made it clear that the seriousness of the offence alone is not enough to deny bail. What matters is fairness, balance, and respect for human dignity.

In simple words, Bail should be the rule, and jail should be the exception.

 2. Sanjay Chandra v. CBI 2012 1 SCC 40:  

 In this case, the Supreme Court held that economic offences are serious offences that have a wide-ranging impact on society and the economy. The court also held that the power to grant bail in such cases should be exercised with caution and that the accused must show that he is not likely to tamper with the evidence or influence the witnesses.

Conclusion

Both offences play a vital role in the legal system. It makes sure that the rights of the person are ensured, along with maintaining justice. A bailable offence is less serious in nature and deals with the small and minor cases. In this case, if any person is accused of a minor crime and against whom the case is filed, then he can claim bail in these conditions in order to protect his rights and liberties. It protects the rights of the individual person. Non-Bailable offence is more serious in nature, which harms society at large. It is more severe in nature. In these cases, bail is not a right. This helps in protecting society and protecting rights of the person or individual. As we know, society is not static in nature; the demands and needs of the people change along with society. So, it is essential that we make sure that the law we are applying also matches the needs and demands of society and the people.

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