Bailable and Non Bailable Offences Compared

Section 2(1)(c), BNSS 2023

“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.

📖 Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281

Facts: The Court was required to consider the nature and object of bail, and the significance of the distinction between bailable and non-bailable offences in deciding an application.

Held: The Supreme Court explained that the object of bail is neither punitive nor preventative: it is to secure the appearance of the accused at his trial. Detention in custody pending completion of the trial could be a cause of great hardship, and the object of bail is to secure attendance while at the same time keeping the accused out of prison where his presence can be secured otherwise. The Court held that the distinction between bailable and non-bailable offences turns on the First Schedule and is a legislative classification; and that in a bailable offence bail is a matter of right, whereas in a non-bailable offence it is a matter of discretion, to be exercised judicially on the material and not arbitrarily. It observed that the phrase “bail is the rule and jail the exception” captures the approach where the offence is non-bailable, but that in a bailable offence the question does not arise at all, since there is nothing to weigh.

Ratio: The object of bail is neither punitive nor preventative but to secure the appearance of the accused. In a bailable offence bail is a matter of right; in a non-bailable offence it is a matter of judicial discretion.

📖 Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376

Facts: A person released on bail in a bailable offence, in which release is a matter of right, was alleged thereafter to have tampered with the prosecution evidence. The question was whether his bail could be cancelled, the statute conferring no express power of cancellation in a bailable case.

Held: The Supreme Court held that although bail in a bailable offence is a matter of right and cannot be refused at the outset, the right is not a licence to defeat the trial. Where a person released in a bailable case abuses his liberty — by tampering with the prosecution evidence, threatening or influencing witnesses, or otherwise interfering with the course of justice — the High Court, in exercise of its inherent power, may cancel the bail and commit him to custody. The Court reasoned that the primary object of the criminal law is a fair trial, that the right to bail exists to secure the accused’s attendance and not to enable him to obstruct the proceeding, and that a court is not powerless in the face of such conduct merely because the statute contains no express provision for a bailable case. It emphasised that the power is to be used sparingly and only on clear material.

Ratio: Bail in a bailable offence is a matter of right but is not a licence to defeat the trial. Where the accused abuses his liberty by tampering with evidence or interfering with the course of justice, the High Court may cancel the bail in exercise of its inherent power.

⚠ The right, and what qualifies it

At the point of release, the right is absolute. Neither the station officer nor the Magistrate may weigh the gravity of the allegation, the strength of the case or the character of the accused. The Schedule has decided the matter.

After release, the right is not a licence. A person who abuses his liberty may have his bail cancelled — not by the ordinary power in section 483(2), which speaks of a person released in a non-bailable case, but by the High Court’s inherent power.

The grounds are conduct-based. Tampering with evidence, threatening or influencing witnesses, absconding, or otherwise interfering with the course of justice. They concern what the accused has done since his release, not what the material against him shows.

And the power is used sparingly. It exists so that a statutory right does not become a means of defeating the trial the right was never meant to obstruct.

The position stated shortly

1. A bailable offence is one shown as bailable in the First Schedule or made bailable by another law. A non-bailable offence is any other offence — the category is defined negatively.

2. The First Schedule classifies each offence as cognizable or non-cognizable and bailable or non-bailable, and the two classifications are independent of each other.

3. The classification is legislative. The gravity of the particular case does not convert a bailable offence into a non-bailable one.

4. In a bailable offence, section 478 makes bail a right: the person shall be released, and the police officer in whose custody he is may and must release him.

5. Where a person is unable to give bail within a week of arrest, he shall be presumed indigent and released on a bond without sureties.

6. In a non-bailable offence, section 480 confers a structured discretion, with conditions available under sub-section (3) and a proviso permitting release of a person under sixteen, a woman, or one sick or infirm.

7. The object of bail is neither punitive nor preventative but to secure the appearance of the accused at his trial: Vaman Narain Ghiya.

8. Anticipatory bail under section 482 is available only on an accusation of a non-bailable offence. Where the offence is bailable, none is needed.

9. Bail in a bailable offence is a right but not a licence to defeat the trial. Where the accused abuses his liberty, the High Court may cancel it in exercise of its inherent power: Talab Haji Hussain.

10. The grounds for cancellation are conduct-based — tampering, threatening witnesses, absconding, interference — and concern what the accused has done since his release.