Author: Vrinda Vohra, Amity Law School, Amity University, Noida
Introduction
The Code of Criminal Procedure has classified offences in two categories:-
Bailable offences
Non-bailable offences
The classification was created for the obvious reason that the seriousness and gravity of the charge and the severity of the punishment that could be meted out are very likely factors that are likely to tempt an accused person to either tamper with the prosecution’s evidence or to flee to avoid punishment. In cases of bailable offences, bail is matter of right of the accused. However, in cases of non bailable offences, bail is not a matter of right of the accused but is at the discretion of the court and must be given with ‘due caution’.
According to Section 2(a) of The Code of Criminal Procedure, 1973 (henceforth referred to as the CrPC), an offense that is listed as bailable in the First Schedule or that is made so by any other currently enacted law is considered a “bailable offence,” while any other offense is considered a “non-bailable offence.”
The various bail provisions are outlined in detail in Sections 436 to 450 of the 1973 Code of Criminal Procedure. The twin objectives of bail, as articulated in statutory provisions as well as through a chain of judgements over time, include first and foremost the “presumption of innocence,” and secondly, shielding the accused until the trial process concludes, which either convicts or acquits him of the purposed accusations of commission of the crime. The present article, makes an effort to examine how bail can be granted in non bailable offences and the various provisions relating to it.
Consideration for grant of bail in non bailable offences
In the event of a non-bailable offence, the Court has the discretion to grant bail; therefore, an accused individual is not necessarily entitled to be released on bail following the submission of sureties and a bond. The decision to grant them bail is at the court’s and the police officer’s discretion.
It is important to note that the granting of bail in non-bailable offences is at the discretion of the court and depends on the specific facts and circumstances of the case. The court may also impose certain conditions while granting bail to ensure that the accused appears for the trial and does not interfere with the investigation.
In the case of Gurcharan Singh v. state (Delhi Admn.), the court held that the court held that the following factors are common when granting bail: the nature and gravity of the circumstances surrounding the offense; the accused’s position and status in relation to the victim and witnesses; the likelihood that the accused will flee from justice, repeat the offense, jeopardize his own life, or tamper with witnesses; the case’s history and investigation; and other pertinent grounds that cannot be fully listed due to the large number of variables.
Section. 437 of the Criminal Procedure Code states that when a person is charged with a non-bailable offence and there are reasonable reasons to suspect that he has committed a crime carrying a death or life sentence, additional factors must be taken into account. The matter has been left up to the court’s judgement with regard to all other offences. It is not appropriate to deny bail as a form of punishment. No matter how heinous the alleged offence, the accused individual must be presumed innocent until proven guilty.
Considerations in which bail can be granted in non-bailable offences are as follows
Nature and seriousness of the accusation
Severity of the offence
Nature of the evidence collected and the character and nature of the accused
Chances of the accused absconding and not being available during the trail
Possibility of the repetition of such crime
Chances of accused of tampering with evidence or witness
Larger interest of the people or state
CIRCUMSTANCES UNDER WHICH BAIL CAN BE GRANTED IN NON-BAILABLE OFFENCES
As per section 437(1), any person who is detained without a warrant by a police officer in charge of a police station or who appears in a court other than the High Court or Court of Session on an accusation or suspicion of committing a non-bailable crime may be released on bail. However, bail may not be granted if
In cases there is reasonable ground to believe that he has committed an offence bearing death penalty or life imprisonment .
If the offence committed by him is cognizable but he has been previously convicted of offence bearing death penalty or life imprisonment or imprisonment for 7 years or they have been convicted for a non bailable offence for more than two occasions.
However, in case the person involved is under the age of sixteen, a woman, ill or infirm, the court may provide an order to grant bail. In the case of Nethra v. State of Karnataka (2022), the Karnataka High Court held that bail can be granted to a woman in a non-bailable offence, even the offence is punishable with death penalty or life imprisonment.
According to section 437(2), the accused shall be released on bail at the discretion of an officer or court at any stage of inquiry, investigation, or trail, if it appears to the said officer or court that there are no sufficient grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt. In the case Mara Manohar v. State of Andhra Pradesh (2022), it was held by the High Court that once there has been considerable progress in the investigation of a case, a bail with conditions may be granted.
Section 437(3) states that the court may impose any condition it deems necessary when releasing an accused or suspected individual on bail under subsection (1) for a crime punishable by imprisonment for seven years or more, a crime under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, or for aiding and abetting in the commission of a crime, conspiring to commit a crime, or attempting to commit a crime. It is necessary to ensure that the person will comply with the conditions of the bond set forth in this Chapter, or that the person won’t commit an offense similar to the one of which he is accused or suspected, or any other requirement required for the person to appear in court.
According to section 437(4), an officer or court providing bail under subsection (1) or subsection (2) must document the reason for granting the bail, including any special circumstances.
According to section 437(5), a person released on bail under subsection section 437(1) or 437(2), may be arrested again on the orders of court if it deems it appropriate.
According to section 437(6), if the trial of a person accused of any non-bailable offense is not concluded within the first 60 days of the first date set for taking evidence in the case, such person shall be released on bail if it considers suitable to the magistrate.
Section 437(7) states that if, at any point after the conclusion of a person’s trial for a non-bailable offense and before a verdict is issued, the court determines that there are good reasons to believe the accused is innocent, it will release the accused, if they are in custody, provided they execute a bond without sureties for the appearance to hear the verdict.
AUTHORITIES EMPOWERED TO GRANT BAIL IN NON BAILABLE CASES
Section 437 of CrPC empowers the courts and the police officer in charge who arrested or detained the person accused or suspected of committing a non-bailable offence, the authority to decide whether to grant bail to the said person or not. However, it also establishes certain limitations on the police officer’s authority to grant bail, as well as certain rights of the accused when he is being tried by the magistrate.
According to Section 437 of the Criminal Procedure Code, the trial court and the magistrate have the authority to grant or refuse bail to a suspect or person who has been charged with a crime for which there is no way to escape on bond.
An individual accused of a non-bailable offense may only be released on bail by one class of police officers, namely the officer-in-charge of the police station, in accordance with Section 437 subsection (1). Before taking any action, a station officer should be sure that it won’t prevent the prosecution from establishing the accused’s culpability. The officer-in-charge is required to keep the bail bonds until the accused is released, either by the accused showing up in court or by a court order, and must record the special circumstances or grounds for the release of the accused in the case diary.
A person cannot be released on bond if a station officer has good cause to believe they have done a crime that bears a death or life sentence as a result. These issues can only be taken into account by a court. The officer in charge of the police station may only issue bail when there are no reasonable grounds to believe that the accused has committed a non-bailable offense or when the non-bailable offense is not punishable by death or life in prison.
POWER TO CANCEL BAIL
According to section 437(5), any person who has been released on bail in a non-bailable offence, under section 437(1) and section 437(2), can be arrested again, if the magistrate considers it necessary. Similarly, section 439 of CrPC empowers the High Court and court of sessions the authority to revoke bail.
Following circumstances may warrant using the power to revoke bail:
On the merits of a case, mainly on the grounds that the order granting bail was perverse, or given without sufficient consideration, in violation of any substantive or procedural law; and
Due to abuse of freedom following the issuance of bail or other intervening circumstances.
According to Section 437, bail may be revoked by a judge other than the High judge or a Sessions Court. In other words, it grants the magistrate court the power to revoke. It states that if a court other than the High Court or Sessions Court considers it essential, it may order the arrest and commitment of a person released on bail to custody. The courts have interpreted this Section to imply that after a defendant has been released on bail, any court that has given bail has the power to order their arrest and commit them to custody if the circumstances call for it. Bail should not, however, be automatically revoked after it has been given without considering whether any new developments have occurred.
VIOLATIVE OF ARTICLE 20(3) OF THE INDIAN CONSTITUTION
It is true that the Magistrate, the Sessions Court, or the High Court may set any conditions when admitting an accused to bail for a non-bailable offense. However, testimonial coercion is prohibited by Article 20(3) of the Indian Constitution. It states that no one may be forced to testify against themselves. Therefore, a defendant cannot be forced to present any documents. Thus, Article 20 (3) of the Indian Constitution also applies to coercing an accused into making a statement that results in the finding of evidence against them. Therefore, the court cannot enforce as a condition of granting bail that the defendant would permit a discovery under section 27 of the Evidence Act. However, the accused may be ordered by the court to honestly respond to all the inquiries made by the investigating agency. But cannot tell him to reveal the location where the police can find some incriminating materials.
According to Section 27 of the Indian Evidence Act of 1872, if a fact is deposed as having been discovered as a result of information obtained from a person who is being held by a police officer and is accused of a crime, then as much of that information—whether or not it constitutes a confession—that is directly related to the fact that has been discovered can be proven. This Section states that during the course of the investigation, an accused person’s confession may be used to prove a fact or uncover new information. That might be presented as proof in court. A confession acquired under stress or compulsion that demonstrates the truth would nonetheless be accepted.
However, the police do not have no recourse if they wish to obtain discovery evidence from the accused, as stated by the Supreme Court, when extending a person’s anticipatory bail, conditions can be applied. The individual released on bail may even be subject to arrest for facilitating the discovery if the authorities establish a case of likely discovery under Section 27 of the Evidence Act.
As a result of this observation, the Rajasthan High Court ruled that even when a bailed out suspect makes a statement that results in the discovery of an incriminating fact or object during police questioning, it would come under the jurisdiction of Article 27 of the Evidence Act. Remember that the statement must originate from the individual who is in police custody. That is the first requirement of Section 27 of the Evidence Act. However, it does not necessarily imply official custody but rather any situation in which the accused can be said to be subject to monitoring or restraint. Therefore, the possibility that an accused may provide a discovery statement is not a reason to deny them bond.
CONCLUSION
The courts have the discretion to award bail in cases of offenses that are not subject to it. The judges are cautious in how they use this discretion. Before granting bail, a number of relevant elements and circumstances must be taken into account. The bail system may be abused and the accused on bail may represent a threat to society or even commit the same crime again if caution is not taken. In this respect, the Supreme Court has established a number of principles. The lower judiciary must adhere to these principles in full so that the courts’ honour can be appropriately maintained. The judges must take into account all relevant circumstances when revoking the bail. The facts and circumstances should be of such a nature, which justify the cancellation of bail.
FAQS
1. Can bail be granted in non-bailable offences?
Yes, bail can be granted in non-bailable offences, but it is at the discretion of the court. The court considers various factors such as the seriousness of the offence, the likelihood of the accused absconding, and the potential for tampering with evidence before making a decision.
2. Who has the authority to grant bail in non-bailable offences?
Under Section 437 of the Criminal Procedure Code (CrPC), both the magistrate and the officer-in-charge of the police station have the authority to grant bail in non-bailable offences. However, their powers are limited, and in certain cases, only a court can decide on bail.
3. Under what circumstances can bail be denied in a non-bailable offence?
Bail may be denied if there is reasonable ground to believe that the accused has committed an offence punishable by death or life imprisonment, or if the accused has a history of previous convictions for serious offences.
4. Can bail be revoked once granted?
Yes, under Section 437(5) and Section 439 of CrPC, bail can be revoked if the court finds it necessary. This can happen if the accused misuses the liberty granted, interferes with the investigation, or violates bail conditions.
