Section 2(a) of the Code of Criminal Procedure, 1973 defines bailable offence and non bailable offence as :-
"bailable offence" means an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non bailable offence" means any other offence;
So essentially the Cr.P.C defines bailable offence; and thus by inference non bailable offence includes any other offence other than the one which is specified as bailable. Thus in essence non-bailable offence is the norm and bailable offence is an exception in terms of the definition. Hence when in doubt the Court may and should consider the offence as non-bailable.
However it does not mean that bail cannot be granted in non-bailable offences. Just the consideration for grant of bail in a non-bailable offence is more stringent as compared to bailable offences, more so in case of grievious offences. Section 437 of the CrPC lays down conditions in which bail may be taken in case of non-bailable offence.
In The State v Captain Jagjit Singh 1962 AIR 253: 1962 SCR (3) 622 the respondent who was a Captain in the Indian Army was charged along with two others under section 3 and 5 of the Official Secrets Act, 1923 for passing official secrets to a Foreign Agency.
His bail application was rejected by the Sessions judge but was allowed by the High Court on the grounds that the offence under section 5 was bailable and under section 3 was non-bailable and it was likely that his offence only falls under section 5 which is bailable.
The Supreme Court reversing the order of the High Court cancelled the bail of the Respondent and observed inter alia (among other things) -
"...Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under s. 498 of the Code of Criminal Procedure."
(*the section 498 of the Code refers to the CrPC 1898 nevertheless the observation of the court stands with respect to non-bailable offences).
Thus where a person is charged under a bailable and a non-bailable offence the Court while granting bail has to consider primarily the charge under the non-bailable offence and not under the bailable one. Logically it makes sense as a bailable offence is not a benefit one can undertake in order to take bail in a non-bailable offence. Thus it is absurd to assume that a person who has committed an offence under a Non-Bailable Offence say Section 121 of the IPC (abetting war against the state) gets bail on the ground that he also committed a related offence under Section 120B (any other criminal conspiracy) which is bailable.
Also when an offence is a bailable offence under one act and non bailable under another, the Court will consider the offence as a non-bailable offence as when in doubt as it can be inferred from the Judgment of the Supreme Court in State v Captain Jagjit Singh (Supra).
"bailable offence" means an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non bailable offence" means any other offence;
So essentially the Cr.P.C defines bailable offence; and thus by inference non bailable offence includes any other offence other than the one which is specified as bailable. Thus in essence non-bailable offence is the norm and bailable offence is an exception in terms of the definition. Hence when in doubt the Court may and should consider the offence as non-bailable.
However it does not mean that bail cannot be granted in non-bailable offences. Just the consideration for grant of bail in a non-bailable offence is more stringent as compared to bailable offences, more so in case of grievious offences. Section 437 of the CrPC lays down conditions in which bail may be taken in case of non-bailable offence.
In The State v Captain Jagjit Singh 1962 AIR 253: 1962 SCR (3) 622 the respondent who was a Captain in the Indian Army was charged along with two others under section 3 and 5 of the Official Secrets Act, 1923 for passing official secrets to a Foreign Agency.
His bail application was rejected by the Sessions judge but was allowed by the High Court on the grounds that the offence under section 5 was bailable and under section 3 was non-bailable and it was likely that his offence only falls under section 5 which is bailable.
The Supreme Court reversing the order of the High Court cancelled the bail of the Respondent and observed inter alia (among other things) -
"...Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under s. 498 of the Code of Criminal Procedure."
(*the section 498 of the Code refers to the CrPC 1898 nevertheless the observation of the court stands with respect to non-bailable offences).
Thus where a person is charged under a bailable and a non-bailable offence the Court while granting bail has to consider primarily the charge under the non-bailable offence and not under the bailable one. Logically it makes sense as a bailable offence is not a benefit one can undertake in order to take bail in a non-bailable offence. Thus it is absurd to assume that a person who has committed an offence under a Non-Bailable Offence say Section 121 of the IPC (abetting war against the state) gets bail on the ground that he also committed a related offence under Section 120B (any other criminal conspiracy) which is bailable.
Also when an offence is a bailable offence under one act and non bailable under another, the Court will consider the offence as a non-bailable offence as when in doubt as it can be inferred from the Judgment of the Supreme Court in State v Captain Jagjit Singh (Supra).
