Bail can be granted in Non-bailable offence by the courts. Personal liberty of accused is also important for the law that’s why the Supreme Court laid down the rule of Bail, not jail. When it comes to Non-bailable offences, this rule is not generally followed, as in this case bail is not the matter of right of the accused but it is a matter of discretion of the competent authority like Court or police officer whether to grant bail or not and it’s grant depends upon certain circumstances. This article will discuss all the situations and possibilities in which bail can be granted in Non-Bailable Offence.
Circumstances in which Bail can be granted in Non-bailable offence:
Bail is a matter of discretion of Court in case of non-bailable offence that is, an accused person is not automatically entitled to get released on bail after submission of sureties and bond. It is a matter of discretion of court and police officer to release them. The area of this discretion depends upon the following points of consideration or circumstances:
- Seriousness of the Crime, as an example, if the offence is severe i.e. punishable with death or life imprisonment then the chances of getting bail are less;
- Nature of the accusation that is, whether the accusation is severe, reliable or mild;
- Severity of the punishment; short term, long term imprisonment; death sentence.
- Nature of evidence; reliable or untrustworthy;
- Risk of accused absconding or fleeing if released;
- Risk of witnesses being tampered with;
- Protracted nature of Trial e. prolonged trials beyond necessity;
- Opportunity to the applicant to prepare his defense;
- Health, age and sex of the accused e. a person may be released if he is under the age of 16years, is a woman, a sick or infirm.
- Nature and gravity of the circumstances under which the offence is committed.
- Position and status of the accused with respect to witnesses i.e. whether he is in position to dominate them on release.
- Interest of society and possibility of commitment of more offences on release.
Who can grant bail in Non-bailable offence?
- Magistrate or Police officer: When an accused person is arrested by the police, without a warrant, in a non-bailable offence, then the officer-in-charge of the police station or the magistrate, if brought before him, can release the accused under Section 437.
- But, if the offence is of severe nature i.e. punishable with death or life imprisonment; or if the accused is a former, habitual or repetitive criminal then the accused must not be released except if he is under age of 16 years, is a woman, a sick or infirm or it appears to the Court that there are reasonable grounds to believe that accused have not committed non- bailable offence.
- Session or High Court: High Court and Court of Session can grant bail even in the offences in which magistrate cannot grant bail, on certain conditions which it deems fit in social interest and interest of justice under Section 438. The Court of Session and High court enjoy immense power regarding the bail.
Judicial decision on bail for Convicts of Non-bailable offence
In Surinder Singh @ Shingara Singh vs State Of Punjab on 6 September, 2005, Supreme Court held that “life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the Courts Martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors, with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law.”
So, in case an appeal is pending before higher authority, even a convict in Non- bailable offence should get bail if he has completed the above said term.
Anticipatory bail in Non-Bailable Offence
A person can get the anticipatory bail under Section 438 from the High Court or Court of Session, to avoid the arrest, if he believes that he can get arrested in a Non-bailable offence or an F.I.R. get filed against him in a Non-Bailable case. Recent judgment of the Supreme Court in Sushila Aggarwal vs State (Nct Of Delhi) on 29 January 2020 increased the value of Anticipatory Bail by clearing the doubt regarding its duration that it can continue till the end of the trial, need not to be limited for a fixed period.
So, in conclusion, we can say that a Non-bailable offence is also bailable in certain circumstances and as per the will of the courts. Though the chances of getting bail in these offences are less if you have a good advocate, a good position, and have circumstances in your favor then, “no need to worry, you can get the bail”.