This article on ‘Bailable and Non-bailable Offences: Provisions and Comparative Analysis’ by Shashi Yadav, an intern at Legal Upanishad.
Any accused person is innocent until proven guilty. This article elaborates on offenses. Offenses are of two types: Bailable and non-bailable. It explains what is bail and how bail is granted in other countries like The US and UK.
Section 2(A) of Crpc states “bailable offense means an offense which is shown as bailable in the first schedule or which is made by any other law for the time being in force, and non-bailable offense means any other offense”. Our records do not define bail but mention all the bailable and non-bailable offenses.
What is bail?
A temporary release of a person who is accused till or during the trial. The outcome of a trial could be either conviction or acquittal. It is said that granting bail is considered the rule and jail is an exception. Bailable offenses are the offenses where bail is a matter of right where the court is bound to grant bail as it is also considered a fundamental right under article 21 of the Indian constitution, whereas nonbailable offenses are those offenses where bail is not a matter of right it is the discretion of the court. If an offense is non-bailable then it’s on the decision of the court which will be decided by looking at the:
- a) Nature and gravity of the offense.
- b) Criminal antecedents; refers to the records of the accused.
- c) likelihood of absconding
- d) tampering of evidence.
How to search whether the offense is bailable or non-bailable?
Schedule 1 part 1 of the CRPC is applied to the IPC. 109 to 511 are the sections of the IPC stating whether the offense is bailable or non-bailable.
Schedule 1 part 2 of CRPC applies to other criminal laws: Here to check whether an offense is bailable or non-bailable depends on the number of years of punishment.
- a) If a person is punishable with death, imprisonment for life, or imprisonment for more than 7 years then no bail can be granted.
- b) If a person is punishable with imprisonment for 3 years and upwards but not more than 7 years then also bail won’t be granted.
- c) If punishable with imprisonment for less than 3 heads or with a fine only then it is possible to get the bail by the magistrate.
There are several criminal laws such as The Information Technology Act, 2000, The Prevention of Corruption Act, 1988, The Sexual harassment of women in the workplace (Prevention, prohibition, and redressal) Act,2013, The Prevention of Money Laundering Act, 2002, etc.
The bail system in the US
Setting bail is the responsibility of the judge. Most jails offer standard bail schedules that outline bond amounts for common offenses since many inmates want to leave jail right away rather than wait a day or more to see a judge. By posting the bond amount outlined in the stationhouse bail schedule, an accused individual is frequently able to leave jail promptly.
If a suspect wishes to post bail but is unable to do so due to financial constraints, he or she may petition the judge to reduce the sum. A request for lesser bail may be submitted during a special bail hearing or when the defendant makes their initial court appearance, depending on the state’s processes (usually called the arraignment).
The U.S. Constitution’s Eighth Amendment mandates that bail must not be exorbitant. This means that bail shouldn’t be utilized primarily to fund the government or to penalize someone for being accused of committing a crime. Remember: The basic goal of bail is to guarantee the detained person’s return to court while also allowing them to stay free until they are found guilty of a crime.
The bail system in the UK
Bail is given at the police station itself
After being charged, the accused might receive bail at the police station. As a result, the accused will be allowed to leave detention until their initial court appearance. If granted bail, one might need to consent to terms like:
- Living in the area which will be specified by the court itself.
- Staying away from particular people
- Giving the cops the passport so the accused can’t leave the UK
- Reporting to a police station at predetermined intervals, such as once per week
If the accused will not follow these rules, then there will be a risk of being detained again while waiting for the court date.
Bail set by a judge
One can be granted bail once again until the start of their trial when they appear for their hearing at a magistrates’ court.
Bail is not likely to be granted if:
- The person has been accused of a major crime, like armed robbery.
- The person has already been found guilty of a major crime.
- One has received bail before and failed to abide by the conditions, and the court fears that they won’t show up for their upcoming hearing.
- The court believes that while the accused are out on bail, they could commit a crime.
It is difficult to criticize the Bail system of India which is a developing nation when developed nations like The US are struggling as their numbers of people convicted of crimes is steady but the average number of people in the prison is still rising due to the poor bail system. The bail system is also known as the cash bail system where money is given to the court for the bail and if the accused attends all the court proceedings, then the money is given back but discrimination has also been witnessed in low-income community people and people of color.
It gets difficult to ask for bail for people who hardly can earn with the low employment rate and poverty it is difficult to have a system that runs on equity and now equality.
- Dr. Pankaj Choudhury, Ms. Nimisha Sinha, “Concept Of Bailable And Non-Bailable Offences Under The Criminal Procedure Code, 1973”, Ilkogretim Online – Elementary Education Online, 2021, 2022, available at https://www.ilkogretim-online.org/fulltext/218-1639740993.pdf
- Vikram Dodd, “Police bail reforms left crime victims feeling unsafe, finds report”, The Guardian, 8 Dec 2020, available at https://www.theguardian.com/uk-news/2020/dec/08/police-bail-reforms-left-victims-feeling-unsafe-finds-report
- “Custody and bail”, NiDirect, available at https://www.nidirect.gov.uk/articles/custody-and-bail
- Micah Schwartzbach, “Bail: Getting Out of Jail After an Arrest”, NOLO, available at https://www.nolo.com/legal-encyclopedia/bail-getting-out-of-jail-30225.html