What is a Bailable and Non-Bailable offence in India?

What is an offence?

Any act which is deemed as an offence by any law is an offence. Any act which causes a violation of the rights of others or causes harm to others and is so dangerous that also affects the society at large is designated as offence.  Section 2(n) of CrPC defines an offence as: "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.

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What is Bail?

Bail is an instrument which is used to ensure the presence of an accused whenever required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written undertaking to the court to appear before it whenever required and comply with any conditions set out in the agreement. He/she also assures to forfeit a specified sum of money if the person fails to comply with any terms and conditions of the agreement.

Difference between bailable and non-bailable offence

In case of bailable offence, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of Accused or by the court. However, A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused will have to apply to the court, and it will be the discretion of the court to grant Bail or not.

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Bailable Offences

Bailable offences are those offences or crimes that are not very serious in nature. In such cases bail is a right and the arrested person must be released after depositing the bail with the police. The police have the power to grant bail in these types of cases. The accused may be released on bail, on executing a “bail bond", with or without furnishing sureties.

The "Bail Bond" may contain certain terms and conditions, such as:
The accused will not leave the territorial jurisdiction of the state without the permission of the court or police officer. The Accused shall give his presence before police officer every time, he is required to do so. The Accused will not tamper with any evidence whatsoever, considered by police in the investigation.

The court is empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond.
 

 Examples of Bailable Offence

The following are some examples from Bailable Offences under the Indian Penal Code. 

• Being a member of an unlawful Assembly

• Rioting, armed with a deadly weapon

• Public servant disobeying a direction of the law with intent to cause injury to any person.

• Wearing Garb or carrying token used by public servant with fraudulent intents.

• Bribery in relation to elections

• False statement in connection with elections

• Refusing oath when duly required to take an oath by a public servant

• Obstructing public Servant in discharge of his public functions

• Giving or fabricating false evidence in a judicial proceeding

• Selling any food or drink as food and drink, knowing the same to be noxious

• Causing a disturbance to an assembly engaged in religious worship
   

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Non-Bailable Offences

Non-bailable offences are serious offences where bail is a privilege and only the courts can grant it. On being arrested and taken into custody for a serious or non-bailable crime, a person cannot ask to be released on bail as a matter of right.

The court may generally refuse the Bail, if:
"Bail Bond" has not been duly executed, or if the offence committed is one, which imposes punishment of death or Life imprisonment, such as "Murder " or "Rape" or the accused has attempted to abscond, and his credentials are doubtful.

The application for bail shall be filed before the Magistrate with the help of a criminal lawyer, who is conducting the trial. The application after being filed is usually listed on the next day. On such day, the application will be heard, and the police shall also present the accused in court. The magistrate may pass such orders, as he thinks fit.
 

Examples of Non-Bailable Offence

The following are some examples from Non-bailable Offences under the Indian Penal Code. 

• Murder (S.302) IPC

• Dowry Death (S.304-B) IPC

• Attempt to murder (S.307) IPC

• Voluntary causing grievous hurt. (S.326) IPC

• Kidnapping (S. 363) IPC

• Rape (S. 376) etc.

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List of Bailable Offences

Following is the list of bailable offences under the Indian Penal Code:

1. Section 140- Wearing soldier’s garb, sailor, airman

2. Section 144- Punishment for unlawful assembly

3. Section 154- Owner or occupier of land on which unlawful assembly is held

4. Section 158- Owner or occupier land on which unlawful assembly is held

5. Section 166- Public Servant disobeying direction under law

6. Section 167- Public servant framing incorrect document

7. Section 177- Furnishing false information

8. Section 181- False statement on oath to public servants

9. Section 186- Disobedience to order duty promulgated by public servant

10. Section 189- Threat of injury to public servant

11. Section 191- Giving false evidence

12. Section 195A- Threatening any person to give false evidence

13. Section 203- Giving false information with respect to an offence

14. Section 210- Fraudulently making false claim in court

15. Section 223- Escape from confinement or custody negligently suffered by public servant

16. Section 213- Taking gift, to screen an offender from punishment

17. Section 228- Intentionally insult or interruption to public servant sitting in judicial proceedings

18. Section 264- Fraudulent use or false instrument for weighing

19. Section 269- Negligent act likely to spread infectious disease dangerous to life

20. Section 279- Rash driving or driving on a public vehicle

21. Section 283- Danger or obstruction in public way or line of navigation

22. Section 292- Sale of obscene book

23. Section 297- Trespassing on burial places

24. Section 304A- Punishment for causing death by negligence

25. Section 309- Attempt to commit suicide

26. Section 318- Concealment of birth by secret disposal of body

27. Section 323- Causing hurt

28. Section 349- Using force

29. Section 354D- Stalking

30. Section 363- Punishment for Kidnapping

31. Section 417- Punishment for Cheating

32. Section 426- Punishment for Mischief

33. Section 447- Punishment for Criminal trespass

34. Section 465- Forgery

35. Section 477A- Falsification of accounts

36. Section 489C- Possession of forged currency notes or banknotes

37. Section 494- Marrying again during lifetime of husband or wife

38. Section 496- Marriage ceremony fraudulently gone through without lawful marriage

39. Section 498- Enticing or taking away or detaining with criminal intent

40. Section 500- Punishment for Defamation

41. Section 506- Criminal intimidation

42. Section 509- Word, gesture or act intended to insult the modesty of a woman

43. Section 510- Misconduct in public by drunken person

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List of Non-Bailable Offences

Following is the list of non-bailable offences under the Indian Penal Code:

1. Section 121- Waging or attempting to wage war, or abetting the waging of war, against the Government of India

2. Section 124A- Sedition

3. Section 131- Abetting mutiny or attempting to seduce a soldier, sailor or airman

4. Section 172 Absconding to avoid service of summons

5. Section 232- Counterfeiting Indian coin

6. Section 238- Import or export of counterfeiting Indian coin

7. Section 246- Fraudulently diminishing weight of coin

8. Section 255- Counterfeiting of government stamp

9. Section 274- Adulteration of drug

10. Section 295A- Deliberate and ,malicious act intended to outrage religious feelings of any class, by insulting religious beliefs

11. Section 302- Punishment for murder

12. Section 304- Punishment for Culpable homicide not amounting to murder

13. Section 304B- Dowry death

14. Section 306- Abetment of suicide

15. Section 307- Attempt to murder

16. Section 308- Attempt to commit culpable homicide

17. Section 369- Abduction of child under the age of 10 years

18. Section 370- Trafficking of person

19. Section 376- Punishment for Rape

20. Section 376D- Gang rape

21. Section 377- Unnatural offence

22. Section 379- Punishment for theft

23. Section 384- Punishment for extortion

24. Section 392- Punishment for robbery

25. Section 395- Punishment for dacoity

26. Section 406- Punishment for criminal breach of trust

27. Section 411- Dishonestly receiving stolen property

28. Section 420- cheating and dishonestly inducing delivery of property

29. Section 489A- Counterfeiting currency notes or bank notes

30. Section 498A- Husband or relatives of husband of a woman subjecting her to cruelty

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Why do you need a Lawyer?

Obtaining a bail is an extremely important step for an accused in the criminal justice system and has to be approached with utmost care. Upon arrest, the first step for any person should be to hire the services of an expert criminal lawyer  who can help advise and guide the accused through the process of obtaining a bail. Only a trained legal mind can advise the best, based upon the exact nature of the offence and the special circumstances of each case that might affect the arrested person's chances of being granted bail. Since a lawyer has the knowledge of the law related to each offence, the precedents operating in the field, and an understanding of surrounding circumstances of the case, hiring a lawyer becomes essential to the process of obaining bail.