Introduction
In criminal law under the Code of Criminal Procedure, 1973 (CrPC), offences are classified in various ways—such as cognizable/non-cognizable, compoundable/non-compoundable, and bailable/non-bailable. Among these, the distinction between bailable and non-bailable offences is crucial, as it directly affects an accused’s right to seek release on bail.
The classification is provided under Section 2(a) of the CrPC. It determines whether a person has a statutory right to bail or whether bail is purely at the discretion of the court. Understanding this difference is important for lawyers, law students, and the general public alike.
Definition
Bailable Offence
According to Section 2(a) of the CrPC, a bailable offence is one which is shown as bailable in the First Schedule of the CrPC, or which is made bailable by any other law for the time being in force.
In simple words, bailable offences are those where the accused has the legal right to be released on bail after furnishing the required bail bond.
Non-Bailable Offence
A non-bailable offence, as per Section 2(a) of the CrPC, is any offence that is not bailable. These offences are more serious in nature, and granting bail is not a matter of right but is left to the discretion of the court.
Legal Provisions
| Provision | Bailable Offences | Non-Bailable Offences |
|---|---|---|
| Definition | Section 2(a) CrPC | Section 2(a) CrPC |
| Right to Bail | Yes, bail must be granted if proper sureties are provided | No absolute right; court may grant or refuse bail |
| Relevant Sections | Sections 436, 436A CrPC | Sections 437, 439 CrPC |
| Schedule | First Schedule, Part II (CrPC) | First Schedule, Part II (CrPC) |
Examples of Offences
Examples of Bailable Offences (less serious)
- Public nuisance (Section 290 IPC)
- Simple hurt (Section 323 IPC)
- Mischief causing damage below ₹50 (Section 426 IPC)
- Bribery in elections (Section 171E IPC)
- Causing death by negligence (Section 304A IPC)
Examples of Non-Bailable Offences (more serious)
- Murder (Section 302 IPC)
- Dowry death (Section 304B IPC)
- Rape (Section 376 IPC)
- Kidnapping for ransom (Section 364A IPC)
- Criminal breach of trust by a public servant (Section 409 IPC)
Key Differences Between Bailable and Non-Bailable Offences
| Aspect | Bailable Offence | Non-Bailable Offence |
|---|---|---|
| Right to Bail | Statutory right under Section 436 CrPC | No statutory right; court’s discretion under Sections 437 & 439 CrPC |
| Nature of Offence | Less serious | More serious |
| Grant of Bail by Police | Police can grant bail at the police station itself | Bail generally requires court order |
| Bail Bond | Must be accepted if conditions are fulfilled | Court may impose stricter conditions or refuse bail |
| Punishment | Usually up to 3 years imprisonment | Usually more than 3 years imprisonment, life imprisonment, or death penalty |
| Example | Simple hurt (Section 323 IPC) | Murder (Section 302 IPC) |
Bail Procedure in Both Cases
In Bailable Offence
- Accused is arrested by police.
- Police inform accused of their right to bail.
- Accused furnishes bail bond and sureties.
- Police release accused without needing a court order.
Relevant Law: Section 436 CrPC – Bail in bailable offences is a matter of right.
In Non-Bailable Offence
- Accused is arrested by police.
- Bail application is filed before a Magistrate or Sessions Court.
- Court considers:
- Nature and seriousness of offence
- Possibility of accused absconding
- Previous criminal record
- Court may grant bail with conditions or reject it.
Relevant Law: Sections 437 & 439 CrPC – Bail in non-bailable offences is at the discretion of the court.
Factors Considered by Court in Non-Bailable Offences
- Gravity of the offence
- Evidence against the accused
- Likelihood of tampering with evidence or influencing witnesses
- Previous criminal antecedents
- Health, age, and circumstances of the accused
Case Laws
- State of Rajasthan v. Balchand alias Baliay (AIR 1977 SC 2447)
- The Supreme Court held that the basic rule is “bail, not jail”, especially when the offence is not grave.
- Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (AIR 1978 SC 429)
- Court emphasized balancing individual liberty with societal interest.
- Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
- Laid guidelines to prevent unnecessary arrests in less serious offences.
Importance of Classification
- Protects individual liberty in minor cases.
- Ensures public safety in serious crimes.
- Provides clear guidance to police, courts, and accused persons.
- Helps in judicial efficiency by avoiding unnecessary bail applications in minor offences.
FAQs on Bailable and Non-Bailable Offences
Q1. Who decides whether an offence is bailable or non-bailable?
The classification is provided in the First Schedule of the CrPC and by specific provisions of the IPC or special laws.
Q2. Can a non-bailable offence ever become bailable?
Yes, sometimes the court may treat a non-bailable offence as bailable depending on the facts, gravity, and stage of investigation.
Q3. Can police grant bail in non-bailable offences?
Generally no. Bail in non-bailable offences is granted by the court. However, in some less serious non-bailable cases, police may release the accused under special directions.
Q4. Is anticipatory bail available in both types of offences?
Yes, under Section 438 CrPC, anticipatory bail can be sought in both, but courts are more cautious in serious non-bailable offences.
Q5. What happens if bail is refused in a non-bailable offence?
The accused remains in custody but can approach a higher court (Sessions Court or High Court) for bail under Section 439 CrPC.
Q6. Is surety mandatory in bailable offences?
Yes, unless the court/police allow release on personal bond without surety.
Q7. Can conditions be imposed in bailable offences?
Yes, but they must be reasonable and not defeat the statutory right to bail.
Q8. Does “non-bailable” mean “no bail at all”?
No. It means bail is not a matter of right and is at the court’s discretion.
Q9. Are bailable offences always compoundable?
Not necessarily. Some bailable offences are non-compoundable.
Q10. Can bail once granted be cancelled?
Yes, under Section 437(5) and Section 439(2) CrPC, the court can cancel bail if the accused misuses liberty.
Conclusion
The distinction between bailable and non-bailable offences under Indian law is essential for safeguarding both personal liberty and public safety.
- Bailable offences give the accused a legal right to bail and are less severe in nature.
- Non-bailable offences involve serious crimes where bail is subject to judicial discretion.
For anyone facing criminal charges, knowing this difference—and the relevant legal provisions—can make a significant difference in how quickly they regain their freedom.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304