Note on bailable and non bailable

offences:
Introduction
Under the Code of Criminal Procedure (CrPC), based on bail, offences can be classified in two ways;
bailable offences and non-bailable offences, the former relates to those offences that are less severe
and a bail is granted to an accused whereas nonbailable offences are more severe offences wherein a
bail cannot be granted, subject to some exceptions which shall be listed and explained further down in
this piece.
Bail is the legal process where by a person accused of a crime may be released from custody upon the
deposit of a bail bond. bond is a financial instrument that is provided as surety or a guarantee that the
person will fulfill their obligations and responsibilities. In the context of bail, a bail bond; sometimes
referred to as a surety bond is a legal agreement between the court, the accused person, and a third
party called a bondsman or a bail bonds agent. The purpose of a bail bond is to secure the release of
an accused person from custody while they await trial, guaranteeing their appearance in court for
subsequent proceedings. A bail bond operates on the principle that an accused is innocent of a crime
until proven guilty. In simpler terms, when an accused is granted freedom from custody it is called a
bail.
an offence is an act or an omission that has been prohibited by law of the jurisdiction. It involves
conducts or lack of conduct which is deemed as harmful and prohibited by the law either because it
because it violates the established rules and norms governing the functioning of a community or
society or because it directly harms an individual or a community.
Offenses can range from relatively minor infractions, such as traffic violations, to more serious
crimes, such as theft, assault, fraud, or murder. The severity of the offense is typically categorized
based on the potential harm caused, the intent or mental state of the offender, and the prescribed
punishment under the law.

Legislation and case law

Bailable offences:
The phrase "bailable offence" in the context of the Code of Criminal Procedure refers to an offence
that is designated as bailable in the Code's second schedule or under any other currently in force law.
A "non-bailable offence" on the other hand includes all other offences that do not fall within the
umbrella of bailable offences. Cases involving bailable offences are covered under a496-489.
Section 496 provides that If a person is accused of a bailable offence and is in the custody of the
police without a warrant shall be released/ discharged on a bond as per the provisions of s.107(4) or
s.117(3).
A bail is granted to an accused for a bailable offence as a matter of right and the power to grant the
bail is with the investigating officer or with the chief of police. Furthermore it is the duty of the
arresting officer to make sure it is communicated to the accused that it is his right to be released on
bail, provided that he supplies sufficient surety bond.
s.498 stipulates that the amount of the bond shall be fixed and not excessive. The session court or the
high court has been given the power to direct admission of bail or to reduce it. Under s. 502 (1) the
magistrate is given the power to discharge a bond at any time for all or some of the sureties. By virtue
of S502(2) the magistrate may issue a warrant against an accused that has discharged one or more of
their sureties and as per 502(3) shall direct the bail bond to be discharched wholly or as far as it
relates to the applicant. The magistrate may direct the accused to provide surety or to face detention
upon failure of provision.

Non bailable offences:

According to Section 2(a) of the Code of Criminal Procedure (CrPC) in Pakistan, non-bailable
offenses encompass all those offences that do not fall within the category of bailable offences as per
the first schedule of the code. According to the Second part of the First Schedule of the Code of
Criminal Procedure (CrPC) in Pakistan, non-bailable offenses are defined as offenses that carry severe
punishments such as death penalty, life imprisonment, or imprisonment for more than seven years.
In simpler terms, non-bailable offenses are those for which the accused person does not have an
automatic right to bail. These offenses are considered serious and are associated with harsh penalties
such as the death penalty, life imprisonment, or imprisonment for more than seven years.
s.497 CrPC 1898 relates to non bailable offences. When a person is accused of non bailable offences
and arrested without a warrant, bail is not the absolute right of the accused and thus there are certain
stringent conditions under which bail may be granted, though it should be noted that it is ultimately up
to the courts to decide on case by case bases after reviewing the facts of the case if it merits a grant of
bail.
When a person is accused of a non bailable offence, the investigating officer is given 24 hours to
produce the accused in front of a magistrate or a judge, at this time in the procedure the accused has
the opportunity make an application of bail to the magistrate either him/herself or through their
lawyer.
Section 497 of the Code of Criminal Procedure (CrPC) of Pakistan provides the courts with the
discretion to grant bail in non-bailable offences. It states that when any person accused of a non-
bailable offence is arrested or detained without a warrant by an officer in charge of a police station, or
appears or is brought before a court, he may be released on bail, but he shall not be so released if there
appear reasonable grounds for believing that he has been guilty of an offence punishable with death or
imprisonment for life.
The Court has consistently demonstrated various instances or behaviors of the accused individuals in
cases like Tariq Bashir, Zafar Iqbal, and Muhammad Tanveer that may qualify for exceptions to the
general rule of granting bail. In determining whether bail should be granted or not the following
factors are taken into account.

 Nature and gravity of the offence

 Evidence against the accused
 Likelihood of the accused tampering with evidence or absconding justice
 Potential threa the accused may pose to society at large or to the victim.
If reasonable grounds are found that the accused has committed a serious crime such as the charge of
terrorism or is a hardened criminal (s497(1)(b)) which may tamper with evidence, may pose a threat
to society or the victim or has committed a grave offence such as in the case of Zahir Jaffer.
Exceptional cases in which bail shall be granted. We shall further explore the relevant sections of the
CrPC 1898 and any relevant cases in which it was granted.
According to the first proviso to Section 497(1) of the Code of Criminal Procedure (CrPC) in
Pakistan, the court has the discretion to grant bail to certain specific categories of individuals accused
of an offense. These categories include:

1. Persons under the age of sixteen years: If the accused person is below the age of sixteen, the
court may direct their release on bail. This provision recognizes that young individuals may
require special consideration due to their age and level of maturity.

2. Women: The court may also grant bail to women who are accused of an offense. This
provision takes into account the specific circumstances and potential vulnerabilities of women
in the criminal justice system. In a judgment written by Justice Syed Mansoor Ali Shah, it was
highlighted that the court has the power to grant bail to accused individuals, regardless of the
category of offense they are charged with. This includes offenses that are covered by the
prohibitory clause mentioned in S497(1) of the Code of Criminal Procedure (CrPC). The
judgment emphasized that the general principle is to grant bail to the accused, considering it
as the norm, while refusing bail should be the exception. The proviso S497(1)(b) stipulate that
any woman accused of an offence punishable by life imprisonment or death and has been
detained for a year or over a year (2 years or over for men) and whose trial has not concluded
yet may be eligible for bail.

3. Sick or infirm persons: If the accused person is sick or infirm, the court has the authority to
release them on bail. This provision acknowledges that individuals who are physically or
mentally unwell may require appropriate medical care and support outside of custody.

4. Provisions of s497(2) state that if during an investigation, sufficient grounds are found that
the offence may not have been committed by the accused but there are grounds for further
inquiry into guilt then he may be released on bail.
In these cases, the court has the discretion to consider the specific circumstances and needs of these
individuals and determine whether their release on bail is appropriate. The purpose of this proviso is
to ensure that certain vulnerable individuals are not unnecessarily detained and are provided with
suitable conditions for their well-being and fair treatment.
It should also be noted that under s. 500 (1) as soon as the bail is discharged and the prison officer is
informed, the accused shall be released immediately as per the order. S.500 (2) bonds for release of
the accused only apply to the specific matter for which It was issued and nothing more.

Conclusion
In conclusion under the Criminal Procedure Code (CrPC), offences are either classified as bailable or
non-bailable without any in-depth justification. Instead of expressly articulating the grounds for the
classification, the CrPC largely concentrates on the procedures to be followed throughout the
investigation, arrest, and prosecution of criminal offences.
As a result, it is frequently left up to the judiciary to decide whether a crime qualifies for bail or not,
taking into account things like the gravity of the crime, the potential harm to society, the accused's
risk of fleeing, and the possibility of tampering with the evidence or swaying witnesses. Judges are
given the freedom to consider each case on its own merits and reach a well-informed conclusion in
light of the relevant facts.
Heinous and more serious crimes typically fall under the group of offences for which bail is not an
option. These can be crimes like homicide, rape, terrorism, kidnapping, or any other offence that
seriously jeopardizes the public's safety or the fairness of the legal system. It can be more difficult for
the accused to obtain release during the trial process for non-bailable offences because their bail
requirements are often stiffer.
Bailable offences, on the other hand, can include crimes like theft, simple assault, or minor property
offences and are typically less serious in nature. These crimes are thought to be less detrimental to
society and give the accused the opportunity to be released on bail while their case is being tried,
typically in exchange for posting a modest surety or bond.