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Bail in Non-Bailable Offences



The world “bail” is derived from the French word bailier which means to give or decline. The basic concept of the word bail is the release of the person from the custody of police and delivery into the hands of sureties, who undertake to produce him in court whenever required.

Bail in non-bailable cases:

497 Cr.P.C has divided the non-bailable offence into two categories.

  1.  offences punishable with death, imprisonment for life or imprisonment not less than ten years.
  2. offences punishable for imprisonment less than ten years.

Offences falling within Prohibitory Clause:

Offences which fall within prohibitory clause are those which are punishable with death, imprisonment for life or imprisonment up to ten years. In such cases, refusal to bail is a rule and grant an exception . The bar contained in S. 497 would be attracted without regard to the power of the court trying the case. However bail is not to be withheld merely as punishment. Bail cannot be refused merely on the score that accused is charged with an offence punishable with death or imprisonment for life. In cases falling within the prohibitory clause an accused is entitled to the concession of bail if his case comes within the purview of “further inquiry”. Thus, there is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose their complicity.

Offences not falling within prohibitory clause:

In non-bailable offences not falling within prohibitory clause, grant of bail is a rule and refusal an exception. So the bail will be declined in exceptional and extra ordinary circumstances. For Example,

  1. Where there is likelihood of abscondence of accused.
  2. Where there is an apprehension of the accused tampering with the prosecution evidence.
  3. Where there is danger of the offence being repeated if the accused is released on bail
  4. Where the accused is a previous convict.

Further inquiry:

Main consideration for the grant of bail u/s 497 (2) Cr.P.C is that if court forms an opinion on the basis of tentative assessment of evidence that prima facie reasonable grounds are available to believe that accused has not committed the offence with which he is being charged, he would be allowed bail as of right by virtue of S. 497 (2) Cr.P.C.

Parameters for the grant of bail:

A court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exists or not, the court should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if unrebutted, may lead to the inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle accused from being bailed out.

Discretion of Court:

As held by supreme court in Tariq Bashir case, Bail in non-bailable cases is not a matter of right but a concession or grace. Where prohibitory clause of S. 497 (1) Cr.P.C is not attracted in non-bailable case, the accused thereby does not become entitle to be released on bail. Such offence remains non-bailable and the court has to exercise its discretion keeping in view the merits of the case based on the principles governing the bail matters. Accused would only be entitled to the discretionary relief of bail when on the tentative assessment of material brought before it, the court would reach the conclusion that no reasonable ground exist for believing that accused is guilty of non-bailable offence. In the absence of such finding, court is debarred to hold that the case was of further inquiry entitling the accused to bail within the meaning of S. 497 (2) Cr.P.C.

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