Quick answer
No. "Non-bailable" does not mean that bail is impossible. In a bailable offence, a person who is ready to give bail is entitled to be released (Section 478 B.N.S.S.). In a non-bailable offence, bail is not a right but a matter of judicial discretion: the police officer in charge or a Magistrate may grant it under Section 480, and the High Court or Court of Session may grant it under Section 483.
The law
- Section 2(1)(c) B.N.S.S.: a bailable offence is one shown as bailable in the First Schedule or made bailable by any other law; every other offence is non-bailable (old law: Section 2(a) CrPC).
- Section 478: bail in bailable offences (old law: Section 436 CrPC).
- Section 480: when bail may be taken in a non-bailable offence (old law: Section 437 CrPC).
- Section 482: direction for bail to a person apprehending arrest, commonly called anticipatory bail (old law: Section 438 CrPC).
- Section 483: special powers of the High Court and Court of Session regarding bail (old law: Section 439 CrPC).
Comparison
| Point | Bailable offence | Non-bailable offence |
|---|---|---|
| Nature of bail | A right: the person "shall be released on bail" | Discretion: the person "may be released on bail" |
| Who grants | Officer in charge of the police station or the court | Officer in charge or court under Section 480; High Court or Court of Session under Section 483 |
| Limits | Bail may be refused later if the person broke earlier bond conditions on attendance (Section 478(2)) | Section 480(1) bars release by the officer or a court below the High Court and Court of Session if there are reasonable grounds to believe the person is guilty of an offence punishable with death or life imprisonment, subject to provisos |
| Poor accused and conditions | If indigent (too poor to furnish surety), must be discharged on a bond without surety; inability to give a bail bond within a week of arrest is a sufficient ground to presume indigence (proviso to Section 478(1)) | Release is discretionary; for serious offences the court must impose conditions under Section 480(3) |
Points to remember under Section 480
- The bar on release for offences punishable with death or life imprisonment does not apply absolutely: the court may still grant bail if the person is a child, a woman, or sick or infirm.
- Where the offence is punishable with death, life imprisonment or seven years or more, the court must give the Public Prosecutor an opportunity of hearing before granting bail.
- For offences punishable with seven years or more, and offences under Chapters VI, VII and XVII of the B.N.S., a person released under Section 480(1) must be bound by conditions: attending as required, not committing a similar offence, and not threatening or inducing witnesses or tampering with evidence. The court may add other conditions in the interests of justice (Section 480(3)).
- Reasons for granting bail must be recorded in writing (Section 480(4)).
Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, Supreme Court of India, 29 October 2010 (D.K. Jain and H.L. Dattu, JJ.). The Court listed the factors for deciding bail: a prima facie case (a case that appears sound at first sight) against the accused, the nature and gravity of the accusation, the severity of punishment, the danger of absconding, the character and standing of the accused, the likelihood of repetition, the risk of witnesses being influenced, and the danger of justice being thwarted. A bail order passed without considering these factors suffers from non-application of mind. The case was decided under the CrPC, but these factors continue to guide bail under Sections 480 and 483 B.N.S.S.
Example
Armaan is arrested for theft under Section 303(2) B.N.S., which the First Schedule lists as non-bailable. He has no automatic right to bail. The Magistrate looks at the evidence, the seriousness of the charge, whether Armaan may run away and whether he may pressure the shopkeeper who saw the theft. Since the offence is not punishable with death or life imprisonment, Section 480(1) does not bar his release, and the Magistrate may grant bail, recording the reasons in writing.
Bail is one of many procedure topics covered in B.N.S.S.: Complete Notes.
Exam point
Bailable offence: bail is a right (Section 478 B.N.S.S.). Non-bailable offence: bail is discretionary, not barred (Sections 480 and 483 B.N.S.S.).
