Bailable Offences and Non-Bailable Offences

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The classification of offences into bailable and non-bailable offences is a fundamental aspect of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It determines the circumstances under which an accused person may be released on bail and reflects the balance between an individual’s right to personal liberty and the need to ensure the proper administration of justice. The distinction is primarily based on the seriousness and gravity of the offence, with the law providing different procedures and safeguards for each category. This article examines the meaning, legal provisions, differences, and judicial approach relating to bailable and non-bailable offences, highlighting their importance in the administration of criminal justice.

According to section 2(1)(q) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), an “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle- Trespass Act, 1871 (1 of 1871 )

It is a basic principle of criminal law that an individual is innocent until proven guilty. While the criminal justice system wants to ensure that accused persons will attend trials and be present to receive any punishment instituted if found guilty of the crime for which she/he is charged, the presumption of innocence should place significant restrictions on the measures the government can take to ensure the presence of the accused for such purposes. Bail and bail procedures attempt to address some of the issues that arise from this question of what to do with defendants who have been accused of committing an offence but who are awaiting trial and thus still legally innocent.

Types of Criminal Offences:

Bailable offence and Non-Bailable offences
Cognizable and Non-Cognizable offences
Compoundable and non-compoundable offence

The ordinary dictionary meaning of the word “Bail” is “Security for prisoner’s appearance”. According to Wharton’s Law Lexicon, it means “to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day at a certain place, which security is called bail because the person arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from prison, to which if they have, if they fear his escape etc; the legal power to deliver him.”

The object of “Bail” in civil cases is whether directly or indirectly to secure payment of a debt or performance of other civil duties, while in criminal cases object is to secure the appearance of the accused before the Court when his presence is needed. Bail may thus be regarded as a mechanism whereby the state devaluates upon the community the function of securing the presence of the prisoner, and at the same time involves the participation of the community in the administration of justice.

According to section 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond.

Bailable Offences:

The BNSS classifies offences into two categories: bailable and non-bailable. The classification is done mainly on the basis of the gravity of the offence and the punishment provided for such offence. Generally speaking, a bailable offence is considered to be less grave and serious than a non-bailable offence.

According to section 2(1)(c) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.

The first schedule of the BNSS is divided into two parts. It is pertinent to point out that individual offences under BNS have been specifically declared as bailable or non-bailable in the first part of the First Schedule to BNSS to find out whether that offence is bailable or non-bailable; however, in the absence of any such declaration under such parent Act, the general rules mentioned in the second part of the First Schedule to BNSS have to be referred to, for deciding whether that offence is bailable or non-bailable. As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence that is punishable with imprisonment for less than three years or with a fine only.

Characteristics of Bailable Offences:

Bailable offences are considered less serious in nature.
As a general rule bailable offence are those in which punishment is less than 3 years or fine or both. But there are some exceptions to this rule.
In a bailable offence, bail can be claimed as a right.
The right of bail is under Section 478 of BNSS
Any Magistrate is empowered to try the cases of bailable offences.

Examples of Bailable Offences:

Being a member of an unlawful assembly, rioting, bribery, simple hurt are examples of bailable offences under the Bharatiya Nyaya Sanhita, 2023.

In order to apply for bail in the case of a bailable offence, the person needs to fill a form of bail i.e. Form No. 47 of the BNSS which is given in the first schedule and apply for bail and the Court will have to grant bail.

In Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 case, the Court observed that the first Schedule of CrPC (BNSS) consists of two parts, the first part is regarding the offences under the I.P.C. (BNS) and the second part is regarding offences under other law. The second part provides that if the offence is punishable with imprisonment for less than three years of fine only it shall be bailable and can be tried by any Magistrate.

In Talab Haji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 case, the Court observed that it cannot be disputed that S. 436 of CrPC (S. 478 BNSS) recognizes that a person accused of a bailable offence has a right to be enlarged on bail.

In Sanjay Chandra vs CBI, 3 (2012) 1 SCC 40 case, the Supreme Court opined that: “The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”

Right to be Released on Bail:

According to Section 47(2) BNSS, where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Under this Section, whenever a person is arrested without a warrant, it is the duty of the police officer to communicate the full detail of the offence for which the person is arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety.

As per Section 478 BNSS, whenever a person accused of a bailable offence is arrested without a warrant and is prepared to give bail, such person shall be released on bail. The discretion to decide the bail amount is with the Court or with the officer, as the case may be. Section 478 BNSS is meant for any person who is arrested or brought before the court except a person accused of a non-bailable offence.

Refusing of Bail:

The court may generally refuse the Bail, if:

“Bail Bond” has not been duly executed, or
if the offence committed is one, which imposes a punishment of death or Life imprisonment, such as “Murder ” or “Rape” or
The accused has attempted to abscond, and his credentials are doubtful.

Bail Bond:

The accused may be released on bail, on executing a bond, known as “bail bond”, with or without furnishing sureties.

According to section 2(1)(d) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a “bail bond” means an undertaking for release with surety.

A bail bond is the undertaking executed by an accused person (and usually one or more sureties) to secure release from custody and ensure appearance before the court when required. BNSS distinguishes between a bond (personal undertaking without surety) and a bail bond (undertaking with surety). The accused is released only after executing the bail bond and fulfilling the conditions. Failure to comply may result in cancellation of bail and forfeiture proceedings against the sureties.

If bail conditions are imposed, those conditions must be included in the bond or bail bond. The court may verify whether proposed sureties are fit and sufficient. The “bail Bond” may contain certain terms and conditions, such as:

The accused will not leave the territorial jurisdiction of the state without permission of the court or police officer;
The Accused shall give his presence before police officer every time, he is required to do so;
The Accused will not tamper with any evidence whatsoever, considered by police in the investigation.

Bond:

According to section 2(1)(e) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a “bond” means a personal bond or an undertaking for release without surety.

The accused must execute a bond for an amount considered sufficient by the court or police officer. The bond requires the accused to appear at the specified time and place and continue to appear as directed.

The “Bail Bond” may contain certain terms and conditions, such as:

The accused will not leave the territorial jurisdiction of the state without permission of the court or police officer;
The Accused shall give his presence before police officer every time, he is required to do so;
The Accused will not tamper with any evidence whatsoever, considered by police in the investigation.

The court is empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond.

Application for Bail:

The application for bail shall be filed before the Judge/Magistrate, who is conducting the trial. The application for Bail shall be made in the form, prescribed and the designation of judge / Magistrate, should be clearly mentioned. The application shall also contain an undertaking, that the accused, shall fulfil all the conditions as contained in the Bail- Bond.

The application after being filed is usually listed the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit. If the bail is granted, the accused will have to execute a “Bail Bond”.

On execution of bail-bond, the accused is out of prison only on such terms and conditions, as contained in the “Bail-Bond”. The amount of every bond, i.e. the security shall be reasonable, and no excessive ( Section 484 BNSS). If at any point in time, the terms and conditions of bail are not fulfilled, the “Bond” shall be forfeited.

Bail in Bailable Offences:

Section 478 BNSS, lays down that a person accused of bailable offence under the Bharatiya Nyaya Sanhita, 2023 (BNS) can be granted bail. According to Section 478(1) bNSS, when any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
According to Section 478(2) BNSS, notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 491 BNSS.

Bail Under Section 479 BNSS (Statutory or Mandatory Bail):

There had been instances where under trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. Section 479 BNSS provides that where an under-trial prisoner other than the offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It is also provided that in no case the under trial be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.

Non Bailable Offences:

A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused will have to apply to the court, and it will be the discretion of the court to grant bail or not. The court may require the accused to execute a “Bail-Bond with some stringent conditions. Section 437 of the Code of Criminal Procedure deals with the aspect ofNon-Bailable Offences.

It is important to mention here that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful. But legal and regular. The discretion to grant bail in cases of non-bailable offences has to be exercised according to certain rules and principles as laid down by the Code and Judicial decisions.

Characteristics of Non-Bailable Offences:

Non-Bailable offences are considered more serious in nature.
The quantum of punishment is high in non-bailable offences. It is imprisonment of more than three years and fine which may extend to life imprisonment and even death.
In the case of a non-bailable offences, bail can’t be claimed as a right and the court or the police officer has the discretion to grant bail after considering facts and circumstances as per each case.
Provision for Non-Bailable offences is given u/s 437 of CrPC.
In case of non-bailable offences an anticipatory bail under CrPC can be granted by the Court of Session or by the High Court.

Examples of Non-Bailable Offences:

Murder, attempt to murder, dowry death, voluntary causing grievous hurt, kidnapping are examples of non-bailable offences under IPC.

Differences between Bailable and Non-Bailable Offences:

Bailable Offence	Non-Bailable Offence
It is defined u/s 2(1)(c) of BNSS, as an offence that is shown as bailable in the 1st schedule, or which is made bailable by any other law for the time being in force.	It is also defined u/s 2(1)(c) BNSS, as any other offence than bailable.
Bailable offence are considered less serious in nature.	Non-Bailable offence are considered more serious in nature.
As a general rule bailable offence are those in which punishment is for or less than 3 years. But there are some exceptions to this rule.	The quantum of punishment is high in non-bailable offence which may extend to life imprisonment.
In a bailable offence, bail can be claimed as a right.	In the case of a non-bailable offence, bail can’t be claimed as a right and the court or the police officer has the discretion to grant bail after considering facts and circumstances as per each case.
The right of bail is under Section 478 of BNSS	Provision for Non-Bailable offense is given u/s 479 of BNSS.
Being a member of an unlawful assembly, rioting, bribery, simple hurt are examples of bailable offences under BNS.	Murder, attempt to murder, dowry death, voluntary causing grievous hurt, kidnapping are examples of non-bailable offences under BNS.

Bail in Non-Bailable Offences:

Section 480 BNSS deals with the aspect of Non-Bailable Offences. The provisions of section 480 BNSS empower two authorities to consider the question of bail, namely (1) a court and (2) 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.

Section 480 BNSS deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to person accused of, or suspected of the commission of any non-bailable offence.
For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable.

In case of an offence punishable with death or imprisonment for life a station officer cannot enlarge a person on bail, if there appear reasonable grounds for believing that he has been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officer- in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a nonbailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment

Bail to Require Accused to Appear before Next Appellate Court:

A bail condition requiring the accused to appear before the next appellate court generally means that if the case proceeds to an appeal, the accused must present themselves before the appellate court when directed. This type of condition is intended to ensure the accused remains available for further judicial proceedings. In practice, it typically means:

The accused is released on bail subject to complying with all bail conditions.
If an appeal is filed (by the prosecution or the accused), the accused must appear before the appellate court on the date specified in a notice or court order.
Failure to appear without a valid reason may result in cancellation of bail, forfeiture of the bail bond, and issuance of a warrant for arrest.

According to Section 481 BNSS, before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. Under Section 481(2) BNSS, if such accused fails to appear, the bond stand forfeited and the procedure under section 491 BNSS shall apply.

Anticipatory Bail:

Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. A non-bailable offence is an offence in which an accused cannot file an application for grant of bail. The court may grant bail to the accused on its own discretion. Anticipatory bail can be granted by a High Court or a Session Court under Section 482 BNSS. The court shall provide anticipatory bail after taking into consideration the following factors:

the nature and gravity of the accusation.
the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

Mandatory Bail:

Section 187(2) of BNSS empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him. Restrictions imposed on the powers of the magistrate with regard to grant of regular bail under section 480 BNSS would not be applicable when magistrate exercises power under section 187(2) .

In Natabar Parinda v. State of Orissa, AIR 1975 SC 1465 case, the Supreme Court noted that the accused has a right to be released on bail under this provision even in serious and ghastly types of crimes.

Considerations During Grant of Bail:

Generally while making a decision regarding grant of bail, the following circumstances are taken into considerations:

The enormity of charge;
The nature of the accusation;
The severity of the punishment which the conviction will entail;
The nature of the evidence in support of the accusation;
The nature and gravity of the circumstances in which the offence is committed;
The position and status of the accused with reference to the victim and the witnesses;
The danger of witness being transferred with;
The livelihood of accused fleeing from justice;
Probability of the accused committing more offences;
The protracted nature of the trial;
Opportunity to the applicant for preparation of his defence and access to his counsel.
The health, age and sex of the accused person etc. The law gives special consideration in favour of granting bail where the accused is under sixteen, a woman, sick or inﬁrm, or if the court is satisfied that it is just and proper for any other special reason to give rather than refuse bail.

Powers of the High Court or Court of Session in Granting Bail:

Section 483 BNSS provides that the High Court or Court of Session may grant bail to a person accused of an offence and in custody. It may impose any condition it considers necessary when granting bail. It may modify or set aside conditions imposed by a Magistrate while granting bail if they are unnecessary or excessively onerous. It may cancel bail by directing that a person already released on bail be arrested and committed to custody if circumstances justify cancellation.

The powers under Section 483 BNSS are broader than those of a Magistrate under Section 480 BNSS. The High Court and Court of Session have greater discretion, particularly in cases involving serious or non-bailable offences, although they must exercise that discretion judiciously.

However, the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public prosecutor unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such notice.

In Sundeep Kumar Bafna vs. State of Maharashtra, AIR 2014 SC 1745 case, the Supreme Court has held that there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided, accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the Sessions Court or High Court for bail.

Cancellation of Bail:

The BNSS makes clear provisions for cancellation of bail and taking accused back in custody. Section 480(5) BNSS states that any court which has released a person on bail under sub-section (1) or Section 480(2) BNSS, may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. Similarly, Section 483 BNSS confers on the High Court and the Court of Session power to cancel bail.

The power of cancellation of bail can be resorted to broadly in the following two situations:

On merits of a case mainly on the ground of the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law; and
On the ground of misuse of liberty after the grant of bail or other supervening circumstances.

Bail in the first type of cases can be cancelled by superior courts only, whereas in the second category of cases bail can be cancelled by the very court which may have granted bail.

Grounds for Cancellation of Bail:

If the person released on bail

misuses his liberty by indulging in similar criminal activity,
interferes with the course of investigation,
attempts to tamper with evidence of witnesses,
threatens witnesses or indulges in similar activities which would hamper smooth investigation,
attempts to flee to another country,
attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive.

Section 483(2) BNSS confers powers on the High Court and the Sessions Court to direct re-arrest of the accused who might have been released on bail by any court and commit him to custody.

In Rasiklal v. Kishore Khanchand Wadhwani, AIR 2009 SC 1341 case, the Supreme Court held that as soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him.

Conclusion:

The provisions relating to bailable offences, non-bailable offences, and bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seek to strike a balance between safeguarding individual liberty and ensuring the effective administration of criminal justice. While bail in bailable offences remains a statutory right, the grant of bail in non-bailable offences is subject to judicial discretion exercised on well-established legal principles.

The grant or refusal of bail is not intended to serve as a punishment before conviction but to secure the presence of the accused during investigation and trial while protecting the interests of society and the administration of justice. Courts are expected to consider factors such as the nature and gravity of the offence, the likelihood of the accused absconding, the possibility of tampering with evidence or influencing witnesses, and the overall interests of justice before exercising their discretion.

Thus, the law of bail under the BNSS reinforces the constitutional values of personal liberty, the presumption of innocence, and fair procedure, while ensuring that the criminal justice system remains effective in maintaining public order and protecting the rights of victims. Its proper implementation by courts and investigating agencies is essential to achieving a fair, balanced, and just legal process.

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