Section 2 (a) of Code of Criminal Procedure 1973 provides that “Bailable offence” means an offence which is shown as bailable in the first schedule or which is made by any other law for the time being in force and “non-bailable offence” means any other offence.
By and large, offences punishable with imprisonment for not less than
three years are taken as serious offences and are made non-bailable.
Section 437 of the Criminal Procedure code 1973 provides when bail may be taken in case of non-bailable offence
Section 437 gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life.
But
(1) a person under the age of sixteen years
(2) a woman; or
(3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life.
Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry. The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is believed not to be guilty of a non- bailable offence
In State of Rajasthan Vs. Balchand, (AIR 1977 SC 2447) Supreme Court observed that " The basic rule may perhaps be tersely put as bail not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating utter troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be satisfied that the order to be passed is in the interest of justice."
Unlike a bailable offence where bail is a mater of right under S. 436 Cr.P.C., grant of bail for a non-bailable offence under S. 437 Cr. P.C. is a matter of discretion
Bail is a mater of right if the offence is bailable. In the case of a non- bailable offence, bail is a matter of judicial discretion. Bail shall not be granted by
the Magistrate if the offence is punishable with death or imprisonment for life if he is of the view that there appear reasonable grounds for believing that the person concerned accused of or suspected of the commission of the offence has been guilty of the offence, provided that he may, in his discretion that he may, in his discretion, grant bail to a woman or a minor under the age of sixteen years or a sick or infirm person. In a case involving a non-bailable offence, a Court may impose reasonable conditions besides fixing of the bail amount for the attendance of the accused.
However the court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a mater of course.
In Afsar Khan v. State, (1992 Cri LJ 1676) it was held that while the Court exercises its discretion, whether it is under S. 437 or 438 or 439, Cr. P.C., it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr.P.C. that does not mean the discretion shall be left to the whims of the Court.
(i) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(ii) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(iii) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.
(iv) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of thee being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
The basic question which must be present to the mind of the Court while considering the question of bail is whether the grant of bail would thwart the course of justice or would it further the course of justice. There cannot indeed by any inflexible rule governing the grant of bail. Each case has to be decided on its own facts. However, certain guidelines have been formulated by the Courts from time to time, which the Courts generally take into consideration while considering the question of grant of refusal of bail.
The basic question which must be present to the mind of the Court while considering the question of bail is whether the grant of bail would thwart the course of justice or would it further the course of justice. There cannot indeed by any inflexible rule governing the grant of bail. Each case has to be decided on its own facts. However, certain guidelines have been formulated by the Courts from time to time, which the Courts generally take into consideration while considering the question of grant of refusal of bail.
In Karan Dass v. State of H.P., (1995 Cri LJ 2995) it was held that while considering the question of grant or refusal of bail, the Courts generally take into consideration:
(a) the enormity of the charge;
(b) the nature of the accusation;
(c) the severity of the punishment which the conviction will entail;
(d) the nature of the evidence in support of the accusation;
(e) the danger of the applicant’s
absconding if he is released on bail;
(f) the danger of witnesses being tampered with;
(f) the danger of witnesses being tampered with;
(g) the protracted nature of the trail;
(h) opportunity to the applicant for
(h) opportunity to the applicant for
preparation of his defence and access to his counsel; and
(i) the health, age and sex of the accused.
The aforesaid list of circumstances is not exhaustive but there are other factors also which in peculiar circumstances of the case are to be considered by the Court
In Ram Kumar Tyagi v. State, (1995 Cri LJ 1877) it was observed that Out of several considerations which are to be weighed for the purpose of grant or refusal of bail two are uppermost.
First, whether the accused will be available for trail and not flee from justice.
Second, that he will not influence
witnesses and tamper with evidence.
In Sis Rani v. State, (1998 Cri LJ 1877) it was observed that the two paramount considerations would be very decisive factors in exercise the judicial discretion of granting or refusing bail; they being likelihood of accused fleeing from justice and his tampering with prosecution evidence, relating to ensuring fair trial of the case. It is essential that due and proper attention should be bestowed on these two factors.
References :-
https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%25205.pdf&ved=0ahUKEwi_4sLAbPXAhXCqI8KHe6qDYAQFggsMAE&usg=AOvVaw3OLGKMwYST6_CZrUoOUdCV
R.V.Kelkar,Lectures on Criminal Procedure, sixth edition
Ratanlal & Dhirajlal Criminal Procedure Code
(i) the health, age and sex of the accused.
The aforesaid list of circumstances is not exhaustive but there are other factors also which in peculiar circumstances of the case are to be considered by the Court
In Ram Kumar Tyagi v. State, (1995 Cri LJ 1877) it was observed that Out of several considerations which are to be weighed for the purpose of grant or refusal of bail two are uppermost.
First, whether the accused will be available for trail and not flee from justice.
Second, that he will not influence
witnesses and tamper with evidence.
In Sis Rani v. State, (1998 Cri LJ 1877) it was observed that the two paramount considerations would be very decisive factors in exercise the judicial discretion of granting or refusing bail; they being likelihood of accused fleeing from justice and his tampering with prosecution evidence, relating to ensuring fair trial of the case. It is essential that due and proper attention should be bestowed on these two factors.
References :-
https://www.google.co.in/url?sa=t&source=web&rct=j&url=http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/11/11_chapter%25205.pdf&ved=0ahUKEwi_4sLAbPXAhXCqI8KHe6qDYAQFggsMAE&usg=AOvVaw3OLGKMwYST6_CZrUoOUdCV
R.V.Kelkar,Lectures on Criminal Procedure, sixth edition
Ratanlal & Dhirajlal Criminal Procedure Code
