BAIL IN NON-BAILABLE OFFENCES: A CRITICAL ANALYSIS

INTRODUCTION

As per Black’s Law Dictionary, the word bail is contemplated as, “to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court”. 

The term ‘bail’ has not been defined in CrPC, 1973, however the provisions of bail have been defined under chapter XXXIII of CrPC, 1973 from Section 436 to 450. Bail is derived from the old French verb ‘baillier’ meaning to give or deliver. Indian Constitution under article21 provides everyone the right to life and personal liberty. Therefore, unless proven guilty a person shall deem innocent and as a result the accused may not be deprived of his or her liberty unless a fair and equitable procedure is initiated.

The concept of bail can be traced back to 399 B.C., when Plato tried to create a bond for the release of Socrates. The modern system of bail evolved from England. According to Wharton’s Lexicon, bail is defined 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 the case of Moti Ram v. State of Madhya Pradesh, Supreme Court reiterated the definition of bail as – the release from custody, either on personal bond or with sureties. The 78th report of the law commissioner has provided that the law of bail has been established on the following provided standard – 

• The bail can be considered as the right of the person in the cases of bailable offences,

• In the cases of non-bailable cases, the right is on the discretion of the Magistrate,

• In the cases of the offence committed is punished with death or life imprisonment the bail cannot be granted, and

• The appellant court is vested with an enormous power to grant bail even on the cases in which the offence committed is punished for death or life imprisonment.

The section 50, 56 and 57 of CrPC should be read cordially for the bailable offences. When read tighter there raises a question of constitutional validity of Article 22 of the constitution, where it is assured that the accused person would be informed of the grounds and the nature for the arrest so made.

NATURE OF OFFENCES ACCORDING TO BAIL – 

There are two types of offences :

1. Bailable Offences – Offences defined under section 2(a) of CrPC. These offences are considered as less serious in nature and for which punishment is imprisonment of 3 years or less than 3 years.

In the case of bailable offence, police have the power to grant bail to the accused person at the time of arrest with or without sureties.

1. Non-bailable Offences – Section 2(a) defines non-bailable offences as any other offences. These are serious in nature and the punishment is imprisonment of 3 or more years.

In cases of non-bailable offences bail cannot be granted by police. The competent courts have the authority to release the accused on bail or not in case of non-bailable offences.

OBJECT OF BAIL –  

The objectives of bail are explained in detail by the Court in the case of Sanjay Chandra v. CBI by stating that the accused has committed economic offences affecting the economy of the country, yet their presence was not necessary for further investigation and the Supreme Court viewed that bail shall be granted on stringent conditions. The Supreme Court has said that the nature of accusations, the severity of punishment in case of conviction, nature of evidence, prima facie satisfaction of the court in support of charge shall be considered before granting bail.

The other objectives of granting bail as put forth by various scholars are :-

1. Helps assure reappearance of the accused;

2. Prevents the unconvicted individuals from suffering unnecessary imprisonment.

SCOPE – 

Bail is a rule and Jail is an exception is an established rule. However, it’s scope has been widened in a recent judgment of Supreme Court dated 13-08-2024, held that “when there is a case for grant of bail the court should not hesitate to grant bail. Allegations of the prosecution may be very serious, but the court’s duty is to consider the case for bail in accordance with law. Now we have said that bail is the rule and jail is the exception is applied even to special statutes. If courts start denying bail in deserving cases, it will be a violation of rights guaranteed under Article 21,” Justice Oka said pronouncing the verdict.

The Hon’ble Supreme Court of India further clarifying and widening the term bail observed that “Bail remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints…”

DISCRETION IN GRANTING BAIL IN CASES OF NON-BAILABLE OFFENCES – 

Bail is a matter of right if the offence is bailable, but except in special circumstances bail can only be a matter of discretion if the offence is non-bailable. The scope of discretion varies and depends upon various considerations. In the case of Mansab Ali v. Irsan (2002), the Hon’ble Apex Court held that “since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interests of society at large.” 

In the words of Benjamin Cardozo in G. Narasimhulu v. Public Prosecutor (1977), “The judge is never free as he is always occupied with the questions related to the personal freedom and liberty of a person facing a criminal trial, he is expected to adjudicate the matter at hand in accordance and agreement with the already existing laws and provisions, he is to exercise his sole discretion along with clear justification, logical reasoning and mature mindset, looking at the facts and circumstances of the case, he is never to be influenced by the sentiments of either of the party because he must only look at the facts and question of law.

As per Section 437(1), “when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court, other than the High Court or Court of Session, he may be released on bail, but – 

• Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

• Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offense punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but less than seven years]. 

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm :

Provided further that the Court may also direct a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason :

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court :

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public-Prosecutor.”

Section 437 of the Code of Criminal Procedure lays down the procedure for bail in non-bailable offences. Through the general reading of the said section, one may find that the word “may” is used more than twice, this use of the word ‘may’ indicates that the police officer and the courts has got discretion in granting bail. The same was also held in the case of Pramod Kumar Manglik v. Sadhna Rani (1989), that “the term ‘may’ denotes the discretion of the court.” However, there are certain principles which should guide the police officers and the courts in the exercise of this discretion.

1. Gravity of the offence committed;

2. The nature of the accusation;

3. The nature of the evidence in support of the conviction;

4. The length(duration) of the trial; 

5. The danger of witnesses being tampered with;

6. The nature and gravity of the circumstances in which the offence is committed;

7. The health, age, and sex of the accused;

8. The danger of the accused person’s absconding if he is released on bail;

9. The probability of accused committing more offences if released on bail, etc.

Sub-section (2) of Section 437 states that : “if it appears to such officer or court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to provisions of Section 446-A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided. ”

Sub-section (3) of Section 437 states that : “When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-Section (1) the Court shall impose the conditions,— 

1. that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

2. that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

3. that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,
   and may also impose, in the interests of justice, such other conditions as it considers necessary.

Sub-section (4) of Section 437, states that : “An officer or a Court releasing any person on bail under Sub-Section (1), or Sub-Section (2), shall record in writing his or its reasons or special reasons for so doing”.

Sub-section (5) of Section 437, states that : “Any Court which has released a person on bail under Sub-Section (1), or Sub-Section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody”.

Sub-section (6) of Section 437, states that : “If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs”.

Sub-section (7) of Section 437, states that : “If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that  there  are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered”.

CONCLUSION 

This article has dealt with the basic concepts of Bail and the discretionary powers of the court in granting bail in non-bailable offences. The issue of bail in non-bailable offences has always been a matter of discussions in the legal system. The motive of bail is not to set free an accused but rather to set him free from custody either on his personal bond or after having the assurance given by his sureties that the accused would not escape from the law and they are bound to present him before the court. The Hon’ble Supreme Court has issued several guidelines through landmark judgments, but the problem lies in the implementation of law.

However, the problem with the changing times can only be resolved if while granting bail the guidelines provided by the Courts and the conditions provided in the Code are kept in mind.