What Is Non-Bailable Offence?

In India’s criminal justice system, offences are broadly classified as bailable and non bailable offences, depending on the gravity of the crime and the legal rights of the accused. While bailable offences allow the accused to secure bail as a matter of right, non bailable offences are far more serious and involve crimes that pose a significant threat to individuals or society. In such cases, bail is not guaranteed and is granted only at the discretion of the court.

This comprehensive guide will help you understand what a non bailable offence is, the legal provisions governing such offences under the Code of Criminal Procedure (CrPC), the criteria courts consider before granting bail, the process for obtaining bail, and a list of common non bailable offences under the Indian Penal Code (IPC). Whether you are a law student, legal professional, or simply looking to understand the legal system better, this article offers clear, detailed insights into one of the most crucial aspects of criminal law in India.

What Is A Non-Bailable Offence?

Non-bailable offences are serious crimes, in bailable offences, granting bail is a matter of right, whereas in non-bailable offences, it is left to the discretion of the court after considering the aggravating factors of the offence, its effect on society, and the possibility of the person accused interfering with the investigation.

In cases of non-bailable offences, bail can neither be granted by the police nor be refused by the police. Only a judicial magistrate or a judge would pass an order in this regard. The Code of Criminal Procedure, 1973 does not define the term "bail" but uses it in the definition of Section 2(a) by classifying offences as bailable or non-bailable. Offences listed in the First Schedule falling under the CrPC and expressly mentioned as bailable under any other law will be termed bailable offences, whereas all other offences will be called non-bailable offences, mostly involving capital punishment or imprisonment for a very long time.

Characteristics Of Non-Bailable Offences

Non-bailable offences are grievous than bailable offences. They involve crimes that threaten an individual or society at large. Thus, Non-bailable offences have certain features distinguishing them from bailable offences as follows:

Seriousness of the Crime

Non-bailable offences are of serious misdeeds which inflict significant damage or potential damage against individuals and public safety. Murder, rape, dacoity, and kidnap are a few examples.

Court's Discretion in Granting Bail

In non-bailable offences, bail is a privilege which depends on the discretion of the court, unlike bailable offences where bail is a right. The court examines the following aspects:

• The gravity and nature of the offence
• Previous criminal records of the accused
• The possibility of tampering with evidence, intimidating witnesses, or flight.

Bail Cannot Be Granted By Police

Only in the courts are granted bail for non-bailable offences. The police do not enjoy the power to release the accused on bail. The matter is to be decided by the court, which will find merit in the case.

Cognizability Of Non-bailable Offences

Most non-bailable offences are cognizable, 'quo warranto' meaning the police can arrest the accused without a warrant and also commence an investigation without prior approval of a magistrate. This is because crimes are very serious and need immediate legal intervention.

Severe Penalties

Conviction for a non-bailable offence generally carries very severe punishments, such as long-term imprisonment, life imprisonment, or even the death penalty. This indicates the seriousness and effects of such crimes.

Different Procedure Of Arrest And Bail

Since they are serious, non-bailable offences come with specific legal procedures:

• The accused seeks bail by going to court to request bail.
• Again, the decision to grant bail is subjected to many legal considerations.
• Bail application processes are stringent to prevent misuse of bail provisions.

First Schedule Of The CrPC

The First Schedule of the Code of Criminal Procedure (CrPC), 1973, has classified all bailable and non-bailable offences in this schedule, which determines whether the offence will qualify as bailable or non-bailable depending on its severity and other legal implications.

These points bring clarity in understanding the rationale behind the differentiation of how non-bailable offences are viewed within the legal system and how justice is meted as well as any possible threats to society are prevented.

List Of Common Non-Bailable Offences In India

Bail in Non-Bailable Offences in India

Bail refers to the right of a criminal defendant to secure release from detention while taking steps to ensure that he or she will in fact appear for trial. An accused who commits a bailable offence is entitled under Code of Criminal Procedure (CPC), 1973, to get bail. Non-bailable offences do not give such a right, and such bail grant is not under the discretion of the court and requires application by the accused person. The aspects on which the court bases its decision include the extent of the offence and the conditions of the arrest.

Grounds for Bail in Non-Bailable Offences

According to Section 437 of the Code of Civil Procedure, granting bail to an accused in a non-bailable offence is subject to certain conditions. Whereas specific legal and factual considerations will weigh in on making such a decision:

Nature and Seriousness of the Crime

In the absence of grievous circumstances such as murder, terrorism, or drug trafficking, the courts will pile on a mountain of evidence to reject the bail application. Conditional bail may be granted for lesser offences.

Strength of Evidence Against the Accused

When strong evidence is presented, generally bail will be denied and when evidence is weak or circumstantial, bail can be granted.

Factors Relative to the Possibility of the Accused Evading Justice

Here, the Courts will look into the possibility of the accused fleeing from the country or evading justice. Depending on the case, bail may come with restrictions on travel or surrender of the passport.

Possibility of Tampering with Evidence or Influencing Witnesses

In case the accused can contact witnesses or tamper with evidence, usually bail is denied. If there is any prior history of the accused obstructing justice, then the Court will consider that too.

History of Convictions and Previous Behavior

A first offender has better chances of getting bail. Those who are repeat offenders or have a criminal history will be looked at very closely. Bail is also directly linked to public interest.

If the act begins disturbing public order or national security, it is less likely for bail to be granted. If a crime involves some harms done to women and children or economic fraud, then it is always looked at with more scrutiny.

Who Can Grant Bail in Non-Bailable Offences?

Since non-bailable offences are more serious in nature, the power to grant bail is limited to judicial authorities and follows a hierarchical structure:

If a Magistrate denies bail, the accused can apply to the Sessions Court. If rejected again, an appeal can be made to the High Court or Supreme Court.

How To Get Bail In A Non-Bailable Offence?

Bail cannot be approached through the police in cases of non-bailable offences but must be done through legal procedures in order to make bail available through the courts.

Step 1: Application For Bail

An accused person (or its attorney) files a petition for bail before the appropriate court. There shall be grounds for bail, proof to support the claims of the accused, and humanitarian considerations, such as health conditions.

Step 2: Examination Of Bail Petition By Court

Nature of the crime; strength of evidence; risk of absconding; possibility of witness tampering. Opportunity for prosecution to contest.

Step 3: Decision Of Court On Bail

The bail shall be granted subject to the following conditions:

• Surety bonds or monetary deposit.
• Police check-ins at regular intervals.
• Restrictions on travel or movement.
• Denial of bail will toss the accused into the judicial custody, with an option to approach a higher-level court.

Step 4: Anticipatory Bail

The applicant may prefer to file an anticipatory bail before issuance of an arrest warrant due to a non-bailable offence. Anticipatory bail is granted to the accused if he/she proves that the arrest was maliciously or politically motivated.

Difference Between Bailable And Non-bailable Offences

Bailable and non-bailable offences are distinguished based on the severity of the crime and the rights of the accused regarding bail. The key differences are as follows:

Examples Of Non-Bailable Offence

The examples are:

Murder: Section 302 IPC

Situation: Murder (Sec. 302, IPC):

"A quarrel over property turns violent. Rahul stabs Sanjay in public view. Caught red-handed at the site with the knife, motive and eyewitnesses put the chances of bail extremely low."

Rape: Section 376 IPC

Situation: Priya reports that her employer, Vikram, sexually assaulted her on his office premises after hours. Medical evidence corroborates her version, and CCTV footage does too. Given the gravity of the offense and the trauma suffered by the victim, bail is sure to be very highly contested.

Conclusion

Understanding the concept of a non bailable offence is essential, especially when dealing with serious criminal charges in India. These offences involve grave crimes such as murder, rape, kidnapping, and terrorism, where the right to bail is not automatic but subject to judicial discretion. The court evaluates several factors, including the severity of the crime, prior criminal history, and the risk of tampering with evidence, before granting bail.

Whether you are facing legal proceedings or seeking legal awareness, knowing the legal framework surrounding a non bailable offence can help you navigate the criminal justice system more effectively. Always consult a qualified criminal lawyer to understand your rights and the appropriate legal steps in such matters.

FAQs

A few FAQs are:

Q1. What is the difference between a bailable and a non-bailable offence?

A bailable offence is one in which the accused person can secure bail as a matter of right, while in the case of a non-bailable offence, bail is granted at the discretion of the court depending upon the nature and seriousness of the crime, available evidence against the accused and risk of the accused absconding or tampering with evidence regarding the investigation.

Q2. Is there a time limit for filing a bail application in non-bailable offences?

Bail applications are not time-barred in non-bailable offences; however, such applications can always be filed under the judicial proceedings without any restriction or at any stage during trial or investigation.

Q3. Can a person apply for bail if their bail plea is rejected?

Certainly, if the bail application is denied by a lower court, the accused can take up the matter to the Sessions Court or High Court or, if required, finally go to the Supreme Court.

Q4. Can the police grant bail in non-bailable offences?

No, a police officer is not empowered to grant bail in non-bailable offences. Only a judicial magistrate or higher court shall grant bail.

Q5. What is anticipatory bail, and can it be applied in non-bailable offences?

Anticipatory bail is the kind of bail that a person applies for in anticipation of an arrest under Section 438 of the Cr. P.C. and can it be granted even in case of non-bailable offences. Thus, according to that section, an accused may apply to the court for anticipatory bail where the offence has such provisions. It is then provided to the accused on the basis of the seriousness of the offence and possible mala fide intention in instituting the arrest, followed by an undue influence.

Q6. What is the punishment for committing a non-bailable offence?

Various kinds of punishment can be given for non-bailable offences but generally consist of imprisonment with punishment exceeding three years but may also include life imprisonment or even the death penalty in extreme cases.