Law and You >Procedural Laws > BNSS > Bailable Offences and Non-Bailable Offences
List of Sub-Topics:
- Introduction
- Bailable Offences
- Characteristics of Bailable Offences
- Bail in Bailable Offences
- Non Bailable Offences
- Characteristics of Non-Bailable Offences
- Differences between Bailable and Non-Bailable Offences
- Bail in Non-Bailable Offences
- Conclusion
- Related Topics
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.”
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”
Bail in Bailable Offence:
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:
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:
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 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
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.