Bail in Non Bailable Cases

Author: Anushka Khatana, a student at UPES


Bail, a concept deeply ingrained in the Indian Judicial System, embodies a twofold abstraction encompassing both the ‘presumption of innocence until proven guilty’ on one hand and requirement of society to be shielded from potential hazard of being exposed to misadventure on the other. In its essence bail is temporary release of an accused individual pending a trial. The fundamental objective of bail is to secure the presence of accused at the time of trial so that he can receive sentence if found guilty. Another key objective is to safeguard liberty of individuals awaiting trial. Ergo if his presence can be ensured otherwise it would be unjust and unfair to deprive accused of his liberty. Within Indian Legal framework, the entitlement to bail is fortified by various constitutional provisions, with Article 21 of the Indian Constitution which guarantees right to life and personal liberty. Additionally, Article 22 reinforces this protection by ensuring individuals are informed of the ground of their arrest and are afforded to consult a legal counsel, highlighting the crucial role of bail in ensuring individual rights. Furthermore, the Criminal code of India (CrPC) particularly section 436 to 439 lays down procedural aspects of bail.

Concept of bail

India’s bail system has undergone significant historical evolution, influenced by various legal traditions over time. The concept of bail dates back to ancient Hindu law, where it was called “nantana,” meaning “taking security. The prevailing principle is to favour bail and not jail, as the law seeks to balance the individual’s right of liberty, given their presumption of innocence, with the state’s responsibility to safeguard society from potential risks. This approach ensures that while the accused’s freedom is respected, measures are also in place to protect the community from any potential threats posed by the accused. 

The objective of bail is multi-faceted, aiming to balance the rights of the accused with the interests of justice and public safety. Firstly, bail serves to ensure the accused appears at all scheduled court proceedings, including their trial. By requiring the accused to post bail, the court creates a financial incentive for the accused to return, as failing to do so would result in the forfeiture of the bail amount.

Secondly, bail is intended to prevent the accused from fleeing to evade legal consequences. By imposing bail conditions, the court mitigates the risk of the accused absconding and ensures they remain within the jurisdiction where they can be held accountable. Thirdly, bail aims to protect the integrity of the judicial process by avoiding tampering with evidence. By placing the accused under certain restrictions, the court reduces the likelihood of the accused interfering with evidence that is crucial to case. Fourthly, bail seeks to ensure the safety and security of the witnesses involved in the case. The court may impose certain conditions that prohibit the accused from contacting or threatening witnesses, thereby safeguarding their wellbeing and encouraging their cooperation in the process. Lastly, bail act as a deterrent against the accused committing further crimes while awaiting trial. BY setting conditions on the accused’s release, such as curfews, travel restrictions, or regular check-ins with law enforcement, the court aims to reduce the risk of the accused engaging in additional criminal activity.

There is no definition of bail in CrPC but schedule-1 classifies offences as bailable and non bailable. In Bailable offences bail is granted as a matter of right whereas in non bailable offences bail is a privilege to be granted at the discretion of competent authority.

Bail in Non Bailable Offences

An accused is not automatically entitled to be released after submission of sureties or bond in Non bailable cases. The scope of discretion varies inversely proportional to the gravity of crime The area of discretion depends on the following circumstances-

  • Enormity of charges
  • Nature of accusation
  • Nature and gravity of circumstances under which the crime took place
  • Punishment conviction will entail
  • Age, health and sex of the accused
  • Chances of absconding /tampering of evidence/ threatening witnesses
  • Nature of the evidence supported
  • Position and status of accused w.r.t the victim
  • Interest of the society
  • Protracted nature of trial
  • Opportunity that accused can avail to prepare defence
  • Probability of committing further crimes on release

The list is not exhaustive. However, magistrate cannot exercise this power in following cases-

  1. There is reasonable ground for believing the accused is guilty of the offence punishable by death or imprisonment for life.
  2. The offense is cognizable, and he has a prior conviction of an offense punishable by death, life imprisonment, or at least 7 years imprisonment.
  3. Additionally, if he has two or more convictions for a cognizable offense carrying a punishment of 3 to 7 years of imprisonment.

Since CrPC does not define bail law, at the service of life, must respond interpretively to the raw realities and make for the liberties. The court, under CrPC, can enlarge on his own bond without sureties, a person undergoing incarceration for a non bailable offence. In Moti Ram v State of M.P. it was held that magistrate to bear in mind monetary loss is not the only deterrent against flight. Other pertinent factors such as family ties, roots in community and membership in a stable organization must be considered which might influence their likelihood to remain in the area and attend further court proceedings. 

The Supreme Court’s judgement in Satender Kumar Antil vs CBI marks a significant move towards protecting individual liberties by advocating for the early grant of bail when arrests lack sufficient cause. The ruling underscores the detrimental impact of hasty arrests, obstacles to bail, and prolonged detention of under-trial individuals. This concern is a timely reminder for regimes that misuse police powers to suppress critics, activists, and political opponents, thus undermining democratic principles and the rule of law. However, there is an irony in the judiciary’s stance: while the Court champions personal liberty and condemns indiscriminate arrests, it also operates within a system where bail is frequently denied or hearings are postponed, perpetuating the very issues it seeks to rectify. Despite this contradiction, the judgement’s reiteration of principles favouring bail and its constructive guidelines for arrest remain invaluable.

In Gurucharan Singh v State (Delhi Administration), the SC asserted that keeping the accused in custody solely because the charges against him are serious would effectively serve as pre-trial punishment. Denying bail should not be used as a form of punishment before a person is convicted. This ruling serves as a reminder to lower courts to exercise caution and uphold the rights of the accused when considering bail application, ensuring that the justice system remains fair and just.

In the Arnesh Kumar case (2014), the Bench advocated for standing orders to ensure adherence to principles derived from Sections 41 and 41A of the Code of Criminal Procedure. These sections require a police officer to document the reasons for arresting an accused and to issue a notice of appearance for offenses carrying a prison term of less than seven years. While police can arrest without a warrant in non-bailable cases, there must be sufficient grounds for the arrest.

Today’s Scenario

The current state of bail in the criminal justice system is paradoxical. Originally intended to ensure the release of accused individuals, the system now frequently functions to deny them this opportunity. Wealthy and high-profile individuals often secure bail for non-bailable offenses with ease, frequently without proper consideration of the gravity of their crimes. This stands in stark contrast to the experiences of the poor and underprivileged, who struggle to obtain bail even after exhaustive efforts. It raises the troubling question of whether justice discriminates between the rich and the poor. Additionally, law enforcement agencies often act according to the whims of political figures, leading to the arbitrary and illegal detention of accused individuals, further highlighting the inequities and misuse of power within the system. Another reason bail is sometimes granted when it shouldn’t be is the reluctance of trial courts to approve bail applications. This hesitation has caused the higher judiciary to become overwhelmed with bail cases. The Chief Justice of India highlighted this issue, noting a “sense of fear” among district court judges when it comes to granting bail, particularly in cases involving serious crimes. This fear likely stems from the potential repercussions or backlash that might arise from such decisions, leading to a cautious and often overly stringent approach to bail at the trial court level. Consequently, many bail applications that should be addressed at the lower courts end up escalating to higher courts, contributing to judicial backlogs and delaying justice.


Non Bailable offences are a significant category under the CrPC, balancing personal freedom with public safety. Society has a crucial stake in deciding to grant or deny bail since every crime is considered an offense against the state. The decision to approve or deny bail must strike a precise balance between preserving individuals liberty and safeguarding societal interest.


Q. What are non-bailable offences?

A. Non bailable offences are offences where bail is a privilege granted at the discretion of the court.

Q. Can a person be released on bail in a non bailable offence?

A. Yes, but not as a matter of right. The accused has to convince court that his release would not affect the trial in any way and he would not abscond to evade legal consequences.

Q. Can a person be arrested without a warrant for non bailable cases?

A. Yes, the police has the power to arrest person without a warrant in such case but the police to have sufficient proof to effect that arrest.

Bail in Non Bailable Cases

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