Bail in case of Non-bailable offences- A study on the application of

guidelines by the Supreme Court.

Date: 12/10/2023

Name: Susan Joshy

Roll No. 27
 Bail in non-bailable offences: A critical analysis on the application
of guidelines given by the Supreme Court

Abstract

The concept of bail, often misunderstood as an immediate escape from legal consequences, embodies the
legal procedure of releasing an accused from custody, ensuring their appearance in court. This paper
provides a comprehensive exploration of bail in non-bailable offences, dissecting its nuances and the
application of Supreme Court guidelines. While bailable offences mandate bail as a right, non-bailable
offences bestow discretion upon the courts. Section 437 of the Code of Criminal Procedure delineates the
criteria for bail, considering factors like the crime's nature, past records, and potential sentences.
The Supreme Court of India, emphasizing the right to liberty, has set pivotal guidelines. Notably, it
classified non-bailable offences into categories, prescribing specific conditions for bail, including non-
interruption with investigations. However, discrepancies persist in applying these guidelines, leading to
the unjust incarceration of undertrials, often from marginalized backgrounds.
This paper advocates a balanced approach, ensuring the accused's appearance in court while upholding
their presumption of innocence. Striking a delicate balance between justice and liberty, it underscores the
imperative need for uniform adherence to bail guidelines, fostering a fairer and more just legal system.
Introduction

Bail- the word has its origins from the Old French baillier "to control, to guard, deliver", from
Latin baiulare "to bear a burden," from baiulus "porter, carrier, one who bears burdens 1. A word
most heard in the corridors of courtrooms, and chambers and outside court chatter of legal
practitioners. What is this concept, and what does it have to do in the life of an ordinary man,
given it is a facet of the Criminal justice system. the term bail is often misassociated with being
set free from a crime. In its most common depiction A person who is sent to prison casually
agrees to his sentence, thereby threatening his opponent who caused him the punishment, that
he’ll be released on Bail, thus implying that the sentence for his arrest is short-lived and he is just
one document away from being the scot-free person he was, before his sentence. This is what is
understood by a common man when the term Bail is presented before him. It is also often joked
that any penalty involving imprisonment is just a formality, and the person so sentenced would
be free in a matter of few procedures, and there is no point raising a complaint against him. The
cycle of jail-bail is something that he can go through with utmost convenience and thus, there is

1
https://www.etymonline.com/word/bail
no point sentencing him to a punishment or even lodging a complaint against him in the first
place.

Bail- its meaning

This depiction, as mentioned is a layman’s to go imagination when presented the term Bail.
However, this could not be further from the truth. Like mentioned above, the term has its roots in
French and Latin words which roughly translate to pull someone out of something or release
burden from a person. Thus, the principle concept at the core of Bail is just like carrying a person
out of something. Thus, bail is a legal procedure whereby an ACCUSED (to be noted, not
convict) is relieved off his burden. But a burden of what? The answer is custody. Again, the
common belief is that a Bail is a defense against arrest, and that is completely misconceived. A
bail is a protection from Custody and not Arrest. Even if one has an order granting them bail, it
cannot bar a police officer empowered to carry out an arrest, if the person is suspected or accused
of a certain offence. A person can be released on bail only from lawful police custody.

Now again, coming to the question of what is Bail? It is to be noted that the technical and legal
definition of Bail is a lot more different than the simple concept of being released from police
custody. Although the term Bail is not defined in any legislation followed by the Indian Criminal
justice system, it is commonly defined as “In criminal law, bail is the process of releasing a
defendant from jail or other governmental custody with conditions set to reasonably assure
public safety and court appearance.”2
A Bail is technically a procedure, effected by the Bail bond or document which is signed by a
person, who deposits a sum of money on behalf of the arrested, as a guarantee that that such
person shall be produced before the court or any other officer lawfully authorized to conduct trial
or investigation, with regard to the crime he has been accused of. Thus, a Bail is not a free pass
or a release, it is just a release of a person from police custody with the assurance that such
person shall be presented any time the court demands, for investigation and trial. The legal
provisions of bail in non-bailable offences are enumerated in Section 437 and 439 of the Code of

2
https://www.courts.wa.gov/subsite/mjc/docs/GlossaryofTerms.pdf
Criminal Procedure (CrPC) while the anticipatory bail provisions are mentioned in Section 438
of the aforesaid Code.
This article aims to study the nature of bail, further, it shall shortly discuss the two types of Bail,
with emphasis given to Bail in cases of non-bailable offences, further, this article shall delve into
the varied facets of “non-bailable offences” and the consideration towards the conditionalities as
per Hon’ble Supreme Court of India’s guidelines when it comes to non-bailable offence.

Purpose or ideology of bail

Now that we have understood the meaning of the concept of Bail, lets delve into the purpose and
object and the legal provisions for Bail. Our criminal justice system revolves around the
principle that all men are innocent until they are proven guilty, and one is proven guilty not mere
assumption, irrespective of how heinous the crime for which he is accused, sounds. One is guilty
only after a fair trial conducted by the court, after proper consideration of facts and evidence.
Thus, the criminal system of our (and many other common world countries) believes that one
must not be punished by being deprived of his liberty and dignity before he is convicted by a
proper court. Our constitution considers sacrosanct ideals like liberty and freedom, and has made
it its endeavor that it shall afford every opportunity to a person to attain liberty and freedom. And
there is no greater threat to liberty than custody. A person’s body is detained against his will,
thus restricting not only his freedom of movement, but also autonomy, and liberty. And our legal
system believes that no man shall be bound to suffer such violation unless there is appropriate
reason for doing so. Thus, this is the object with which the provisions of Bail are enacted. A
person shall not be compelled to be under detention if he is made available for the conduct of
trial and investigation.

Provisions for bail

A bail is required in two types of cases, for a Bailable offence, and a Non-Bailable Offence. As it
can be seen, offences are segregated on the basis of availability of Bail. It is as simple as its term
suggests. In case of a bailable offence, a bail is a matter of course, something that needs to be
mandatorily followed. In case of a non-bailable offence, on the other hand, Bail is not a matter
which is an obvious course of action.
To put it more legally, in case of a Bailable offence, Bail is a matter of Right. And in case of a
non-bailable offence a Bail is not something an accused could claim as a matter of right. In short,
granting of Bail shall depend on the discretion of the Court. Bailable and Non-Bailable offences,
as such do not have a solid line of demarcation, as in, there is no specific criteria which
designates one offence as bailable and the other non-bailable. However, it could be argued that A
non-bailable offence is more like a public offence, i.e., a more heinous offence, like Murder,
Rape, Dacoity, etc. bailable ones on the other hand are comparatively less serious, like false
evidence, assault, defamation, bigamy, etc.
Now since, in one type of bail application, bail being a matter of right, there is not much open to
interpretation, and the rules laid down by the legislature need to be followed by the rule.
However, the question arises when it comes to the grant of bail in non-Bailable offence. First,
lets go through the statutory provision which talks about granting Bail in case of non-bailable
offences.
Section 437 of the CrPC lays down the criteria for the court while exercising its judicial
discretion for grant or refusal of bail in case of non-bailable offences. To give a broad overview,
some criteria are past record of crimes, nature and gravity of the offence, possibility of guilt,
consideration of age and gender, etc.

Ther court can refuse granting of bail If it has good reason to think that the defendant committed
a crime carrying a death or life sentence, it may refuse to grant bail. If the offence is cognizable
and the defendant has a prior conviction for a crime carrying a mandatory minimum sentence of
seven years in prison or death, or two or more prior convictions for a crime carrying a mandatory
minimum sentence of three years in prison, the court may also deny bail.
In addition, the court may issue bail if the defendant is a woman or a minor, there is insufficient
evidence to convict, warranting further investigation, the FIR has not been filed immediately,
and the defendant is very ill or infirm.
These are the basic statutory requirements to be kept in mind while granting of bail. However,
over the years the Indian courts have given considerable shape to the bail jurisprudence in the
country.
Supreme Court Guidelines

The Supreme Court of India, stated and clarified the philosophy guiding the fundamental
principles of bail in Vaman Narain Ghiya v. State of Rajasthan 3 that "Bail remains an undefined
term in CrPC." The term hasn't been given a legal definition anywhere else. It is still
conceptually considered as a right to assert freedom against the State's imposition of restrictions.
Bail is closely related to human rights legislation since it emphasizes an individual's freedom and
liberty in opposition to restrictions put in place by the state apparatus. Being a signatory to the
Universal Declaration of Human Rights, India has always been at the forefront of recognizing
that the bail provisions must be viewed in the context of Article 21 of the Constitution.
As demonstrated in the landmark decision of Supreme Court Legal Aid Committee Representing
Undertrial Prisoners, the right to legal aid is another aspect that must be given appropriate
consideration. In Moti Ram v. State of Madhya Pradesh 4, the Honorable Justice Krishna Iyer had
ruled that "Bail is the rule and jail is the exception."

In addition, in the recent case of Satender Kumar Antil vs the CBI 5, the supreme court
meticulously laid down guidelines in deciding whether bail should be granted or no. for the
application of the guidelines the court classified non-bailable offences into 4 categories as shown
below.
“
1. Offences punishable with imprisonment of 7 years or less not falling in category B & D.
2. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
3. Offences punishable under Special Acts containing stringent provisions for bail like NDPS
(S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
4. Economic offences not covered by Special Acts.”

The court went ahead to lay down pre-conditions required before granting of bail.

3
Vaman Narain Ghiya v. State of Rajasthan, CRIMINAL APPEAL NO. 406 OF 2008,
https://main.sci.gov.in/jonew/judis/33297.pdf
4
Moti Ram vs State of MP, (1978) 4 SCC 47
5
Satender Kumar Antil vs Central Bureau Of Investigation, Special Leave Petition (Crl) No. 5191 of 2021
“1) the person was not arrested during investigation.
2) and he Cooperated throughout in the investigation including appearing before Investigating
Officer whenever called.”

Apart from this the court went ahead and vehemently supported the ideals of liberty and
freedom, and reinstated that jail is an exception, it is not the obvious course of procedure, and
ours is a system valuing life and liberty above all, and thus bail should be the choice in most
cases, unless there is a serious exception.
Further, the court went ahead and suggested the center that a new Act for granting Bail.
It also held that Bail applications ought to be disposed of within a period of two weeks except if
the provisions mandate otherwise, with the exception being an intervening application.
Applications for anticipatory bail are expected to be disposed of within a period of six weeks
with the exception of any intervening application.

Application of guidelines while considering Bail applications.

These were the major guidelines given by the court when it comes to bail. However, the need to
reiterate a thousand times itself shows that the guidelines don’t receive strict adherence to, when
it comes to practice. It was observed that more than 2/3rd of the inmates of the prisons
constituting undertrial prisoners. Of this category of prisoners, majority may not even be
required to be arrested despite registration of a cognizable offense, being charged with offenses
punishable for seven years or less.6 Moreover, these numbers also include women and children
who helplessly are forced to stay in custody, which is clearly against the legal requirement.
Further, the decisions made on bail by the trial court and the High Courts tend to vary
significantly. In the vast majority of instances, it has been noted that when the trial court rejects
the bail plea, bail is by the High Court accepted. The bail petition is denied by the trial court. like
other petitions, without any reference to a judicial opinion. Each instance of despite the fact that
a crime is of a different nature, the bail order was dismissed petition is essentially the same type,

6
https://www.scconline.com/blog/post/2022/07/24/supreme-court-asks-centre-to-enact-bail-act-layes-down-
guidelines-for-disposal-of-bail-applications-legal-news-updates-research-criminal-law/
mechanically written that given the seriousness of the offense, it would not be appropriate to give
bail.
Research shows that bail at lower levels do not go through the elaborate guidelines laid down by
constitutional courts. It is often seen that trial courts are reluctant in granting bail, even in cases
where the offence is a bailable one under s.437.
The Law Commission of India in its 154th report reviewed the arrest method and supported the
conclusion drawn in the third report of the National Police Commission that the majority of the
arrests were related to large small prosecutions and, therefore, should not be considered
necessary in terms of crime prevention.7 When the trial court rejects the women's bail petition
like other applications without expressing any judicial opinion, the trial court's function appears
to be to deny the bail plea. Every criminal offense involves a different kind, but the decision to
reject the bail petition is nearly final.

A recent report further shows that nearly 77% of jail population consists of undertrial prisoners,
who are almost blindly denied bail. 8 A study of the bail trends in lower courts would show that
the lower judiciary has been a lot more insensitive to the issue of bail, while the higher courts
advocate for the opposite. This is easily and unquestionably done because of the fact that
majority of the population awaiting bail is illiterate and poverty-struct people, with not much
solution in their hands to manifest the liberty and freedom granted by the constitution.

Conclusion.

In the end, Bail is a provision influenced by the society’s requirement of ensuring that the liberty
of the accused is hampered and at the same time restoring his freedom without jeopardizing the
broader objectives of arrest. It brings twin objective of ensuring interest of justice is preserved at
the same time, the presumption of innocence till proven guilty is being adhered to at all times,
for ensuring freedom and liberty of the individual. In the case of Sukar Narayan Bakhia v.

7
Hans Kumar, A Critical study of bail trends in India, -Palarch’s Journal Of Archaeology Of Egypt/Egyptology
17(7),ISSN 1567-214x
8
Not Guilty But In Jail: The best hope for India’s undertrial prisoners – district-level undertrial review committees –
are failing
https://www.moneycontrol.com/news/opinion/not-guilty-but-in-jail-the-best-hope-for-indias-undertrial-prisoners-
district-level-undertrial-review-committees-are-failing-10609701.html
Rajnikanth Shah, it was decided that "while granting bail, it is seen whether there is a possibility
of the accused being able to appear for trial or whether there is a possibility of the accused
jumping the bail..." as a consequence of this, the idea of "bail not jail" has evolved. When
considering whether to issue bail or not, the conditionalities as they have developed over time
have taken on the fundamental rule that evading or obstructing the criminal justice system or
intervening with the effective functioning of justice is of utmost importance.