Concept of Bail | Bailable and Non – Bailable Offences
The offences and their punishments have been given under Indian Penal Code, 1860 and the procedure for the same has been given in the Code of Criminal Procedure, 1973. Under Cr.P.C, the offences have been classified under two heads : bailable and non-bailable offences.
CONCEPT OF BAIL IN CASE OF BAILABLE AND NON-BAILABLE OFFENCES.
The Law Commission of India in its 78th Report, has stated that the law on bail is broadly established on the following norms:
I. In bailable offences, bail is a matter of right.
II. Bail is discretionary if the offence is non-bailable,
III. Bail shall not be granted by the Magistrate if the alleged offence punishable by death or imprisonment for life and
IV. Court of Sessions and High Courts have wider discretion in granting bail even when the alleged offence is one that is punishable by death or imprisonment for life.
The arrested person has the right to be informed of the nature of the offence and the ground of his arrest. In addition the discretion of granting bail is not mechanical and must be based on preliminary enquiry. Reasonable period is justified for conducting interrogation and concluding other procedural requirements such as recording of statements, recording fingerprints, etc.
Section 437 of the Code of Criminal Procedure, 1973 empowers two authorities to consider the question of bail, namely a court and an officer in charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non bailable offence. Since the power to grant bail is permissive and not obligatory, it has to be exercised with great caution because of the risk and stakes involved.
For the purpose of bail in non bailable offence, the legislature had classified them under two heads :
(1) those which are punishable with death or imprisonment for life
(2) those which are not so punishable.
The difference between the bailable and non-bailable offence is based on the gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person.
BAILABLE OFFENCE
Ø Section 2(a) of Cr.P.C defines, “bailable offence” as offence which is shown as bailable in the first schedule or which is made available by any other law for the time being in force.
Example: Rioting, Bribery, Simple hurt, Attempt to commit suicide, etc.
- Section 436 of Cr.P.C is applicable for granting the bail.
- Under bailable offences the police officer itself can grant a bail. One need to just follow the procedure prescribed in the law.
- In the case of a bailable, if the accused produces proper surety after his arrest. And fulfills other conditions, it is binding upon the investigating officer to release him.
- Generally the judicial first class magistrate is empowered to try the cases of bailable and non bailable offences.
- Punishment for bailable offences is smaller than the punishment for non bailable offences. Generally imprisonment less than 3 years or fine or both.
NON – BAILABLE OFFENCES
Ø Section 2(a) of Cr.P.C defines “Non-Bailable offence” as any other offence.
Example: Murder, Dowry Death, Rape, etc.
Ø Section 437 of Cr.P.C is applicable for granting the bail.
Ø In non bailable offence the police officer is not in a position to grant a bail one need to go to the court which is having jurisdiction over the police station. here the court will decide whether to confer the bail or not.
Ø In case of a non bailable offence, the investigating officer must present the accused before the judicial magistrate concerned within the 24 hours of the arrest. In the meantime the accused has a right to apply for bail himself or through his representatives or lawyer.
Ø Generally the additional sessions judge or sessions judge is empowered to try the cases.
Ø Punishment for non bailable offences is Severe than the punishment for bailable offences. Generally imprisonment more than 3 years and fine even death or life imprisonment.
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