Bailable and Non Bailable Offences Consequences

⚠ The classification is legislative, not judicial

It is made offence by offence in the First Schedule and is fixed by the legislature.

The gravity of the particular case does not convert a bailable offence into a non-bailable one. A court cannot refuse bail in a bailable offence because it thinks the facts serious, and a police officer cannot decline to release for the same reason.

Nor does the number of offences alter it. Where a person is accused of several offences, the classification applies to each, and he is entitled to release as of right on those which are bailable.

And a special statute may classify an offence differently from the Schedule. Where it does, the special statute prevails, and the Schedule is displaced to that extent.

📖 Om Prakash v. Union of India, (2011) 14 SCC 1

Facts: Persons arrested for offences under fiscal statutes contended that those offences were non-cognizable and bailable, and that the arrests and the refusal of bail proceeded on a wrong view of the classification. The question required the Court to work out how the classification operates where the offence is under a law other than the general penal law.

Held: The Supreme Court held that where an offence is created by a law other than the general penal law, its classification as cognizable or non-cognizable and as bailable or non-bailable is to be determined by reference to the Second Schedule of the Code — the corresponding provision being the First Schedule of the Sanhita — unless the special law itself provides otherwise. Examining the statutes before it, the Court found that they contained no provision making the offences cognizable, and held that they were accordingly non-cognizable and bailable. It held that the consequence is immediate and practical: where an offence is bailable, a person arrested must be released on bail, and the authority has no discretion in the matter; and where it is non-cognizable, there is no power to arrest without a warrant at all. The Court emphasised that these classifications are not matters of administrative convenience but determine the lawfulness of the arrest itself.

Ratio: Where an offence is created by a special law, its classification is determined by the Schedule unless the special law provides otherwise. The classification is not a matter of convenience: it determines the lawfulness of the arrest and whether release on bail is a right.

📖 Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22

Facts: An application for bail having been refused below, the Supreme Court took the occasion to restate the approach a court should bring to such an application and the premises on which the law of bail rests.

Held: The Supreme Court held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, and that a person is believed to be innocent until found guilty. It held that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception, and that a court should be liberal in considering an application, the object of bail being to secure the attendance of the accused and not to punish him in advance. The Court observed that each case must be decided on its own facts, and that the seriousness of the offence, the conduct of the accused, the likelihood of his fleeing or influencing witnesses, and the period already undergone are all to be weighed; but that a court should not proceed on the footing that detention is the norm. It emphasised that the historical background of the law of bail is one of progressive liberalisation, and that a court should approach the question humanely and practically, keeping in mind that an undertrial is not a convict.

Ratio: The presumption of innocence is a fundamental postulate, and the grant of bail is the general rule while imprisonment is the exception. Each case turns on its facts, but a court should not proceed on the footing that detention is the norm.

The position stated shortly

1. At the police station: in a bailable offence the officer must release under section 478 and has no discretion; in a non-bailable offence the person is ordinarily produced before a Magistrate.

2. Before the court: in a bailable offence there is nothing to weigh — only the bond; in a non-bailable offence section 480 confers a structured discretion.

3. Anticipatory bail under section 482 applies only to a non-bailable offence. Where the offence is bailable, none is needed.

4. Conditions: ordinarily none in a bailable offence, and a bond without sureties where the person cannot furnish bail within a week; section 480(3) requires conditions in the non-bailable cases it specifies.

5. Cancellation under section 483(2) applies to a person released in a non-bailable case; in a bailable offence the remedy is the High Court’s inherent power.

6. The classification is legislative, made offence by offence in the First Schedule, and gravity in the particular case does not alter it.

7. Where an offence is created by a special law, the Schedule governs its classification unless the special law provides otherwise: Om Prakash.

8. The classification is not administrative convenience: it determines the lawfulness of the arrest and whether release is a right.

9. The presumption of innocence is a fundamental postulate, and bail is the general rule while imprisonment is the exception: Dataram Singh.

10. Bailability and cognizability are independent. All four combinations exist, and neither classification follows from the other.