Bailable Vs. Non-Bailable Offences
Bailable vs. Non-Bailable Offences
1. Bailable Offences
Definition: Offences where the accused has a right to be released on bail after arrest or detention. Bail is a matter of right.
Nature: Usually less serious crimes, where the accused is presumed innocent and there is less risk of fleeing or tampering with evidence.
Legal Provision: Sections of the Criminal Procedure Code (CrPC) such as Section 436 grant this right.
Example: Simple hurt, theft (minor cases), public nuisance, etc.
2. Non-Bailable Offences
Definition: Offences where bail is not a matter of right but is granted at the discretion of the court. The accused cannot claim bail automatically.
Nature: Usually serious crimes involving violence, threat to society, or where the accused may tamper with evidence or abscond.
Legal Provision: Sections such as 437 of CrPC empower courts to grant bail in such cases but not as a right.
Example: Murder, rape, kidnapping, dacoity, etc.
Key Differences at a Glance
| Aspect | Bailable Offence | Non-Bailable Offence |
|---|---|---|
| Bail is a right? | Yes | No (court’s discretion) |
| Severity | Usually minor offences | Usually serious offences |
| Arrest | Accused released on bail as a right | Bail granted only if court permits |
| Purpose | To secure attendance with minimum custody | To prevent misuse of liberty, protect society |
Case Laws Explaining Bailable vs. Non-Bailable Offences
1. Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980) AIR 1632
Facts: The case dealt with the interpretation of bail provisions and the principle of presumption of innocence.
Issue: Whether bail should be granted as a matter of right in certain offences.
Judgment: The Supreme Court emphasized that bail is the rule and jail the exception. Even in non-bailable offences, bail can be granted unless there are compelling reasons not to.
Significance: Established the liberal approach toward bail and emphasized safeguarding personal liberty.
2. State of Rajasthan v. Balchand alias Baliay (1977) AIR 2447
Facts: The accused was charged with a non-bailable offence under the Rajasthan Excise Act.
Issue: Whether bail should be granted in cases involving serious offences.
Judgment: The Supreme Court held that in serious offences, bail should not be granted lightly but should be considered on facts and merits of each case.
Significance: Reiterated that non-bailable offence means court’s discretion and bail can be denied when public interest or investigation is at risk.
3. Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar (1979) AIR 1369
Facts: This case dealt with thousands of prisoners languishing without trial and bail.
Issue: Whether the accused in bailable offences or undertrial prisoners should be detained indefinitely.
Judgment: The Supreme Court ordered immediate release of all undertrial prisoners who had been in jail beyond the maximum period prescribed for their offences, emphasizing the right to bail in bailable offences.
Significance: Upheld the right to personal liberty and timely bail in bailable offences.
4. Moti Ram v. State of Madhya Pradesh (1956) AIR 740
Facts: The accused was charged with non-bailable offences.
Issue: Whether bail can be granted when the accused has a good chance of tampering with evidence.
Judgment: The Court held that bail in non-bailable offences is discretionary and should be denied if there is a risk of tampering or absconding.
Significance: Clarified discretionary nature of bail in non-bailable offences.
5. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
Facts: The case involved frequent arrests under Section 498A (cruelty to wife) which is a non-bailable offence.
Issue: Whether arrest should be automatic in non-bailable offences or can be avoided by the police.
Judgment: The Supreme Court issued guidelines that arrest should be made only after due verification to avoid unnecessary deprivation of liberty.
Significance: Highlighted that non-bailable does not mean automatic arrest or denial of bail; liberty must be protected.
6. Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281
Facts: The accused was charged with offences under the Prevention of Corruption Act (non-bailable offences).
Issue: Whether bail can be denied indefinitely in serious economic offences.
Judgment: The Court held bail cannot be denied forever; courts must balance public interest and individual liberty.
Significance: Confirmed that bail decisions require a balance and the nature of offence is one factor among others.
Summary
Bailable offences: Accused gets bail as a matter of right; courts have no discretion to refuse.
Non-bailable offences: Courts have discretion to grant or deny bail; no absolute right exists.
Courts adopt a liberal approach toward bail, emphasizing personal liberty but balancing it against societal interest.
Courts consider factors like severity of offence, evidence tampering risk, likelihood of absconding, and impact on investigation before granting bail in non-bailable offences.
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