If it is a non-bailable offence, then what is the possibility of getting bail? And if it is allowed, who can grant bail in non-bailable offence? There is confusion, and a lot of misinformation regarding grant of bail in a non-bailable case. The blog here through various provisions throws light upon the authorities who are empowered by law to allow bail for accused in non-bailable crimes. Let us go one step at a time to understand non-bailable offences, and authorities who can grant bail.
Who can grant bail?
Bail is the release of a person from custody. There are two kinds of offenses from the perspective of bail. There are bailable offenses, and there are non-bailable offenses. The authorities who can grant bail are Police, Magistrate Courts, Sessions Courts and High Courts. The Supreme Court cannot be approached directly for seeking bail in a regular course. It is either an appeal or an alleged violation of fundamental rights that a bail application reaches the Apex Court.
What is a non-bailable offence?
If we go by the terminology, it seems like the offence where there is no scope for bail. However, things are a bit deviated from that. A non-bailable offence is one where bail does not come as a matter of right. Allowing bail in non-bailable offences or clear denial rests upon the Court. Serious offences are labeled as non-bailable. However, even then, since it is a matter of accusation, Courts run on the principle of “Bail is the rule and jail is an exception”. Therefore, unless everything points at the accused’s guilt, or there is doubt on the accused being present during trial, bail is granted in non-bailable offences.
Who can grant bail in non-bailable offence?
As laid under various provisions of the Bharatiya Nagarik Suraksha Sanhita, bail in non-bailable offences can be granted by the Courts only. Which Court can it be, depends upon the specific circumstances. The same have been squarely covered under the various provisions of BNSS 2023, as discussed below:
Section 480 of BNSS
Circumstances when bail may be taken in case of non-bailable offence have been laid under Section 480 of the BNSS. The provision allows grant of bail by a Court other than the High Court or Court of Sessions. So may be the case if a person has been arrested by the Police without warrant, or appears/presented before the Court. In this case, it can be a Magistrate as well.
Bail under Section 480 is also not a matter of right but subject to certain conditions. Here again, it is the discretion of the Court to, or not to release the accused/suspected person on bail. The Court has to look into various factors including antecedents of the accused for nature of offence, chances of guilt, whether the offence accused of is cognizable, punishable with death or life imprisonment, etc. The simple answer to who can grant bail under BNSS Section 480 in non-bailable offence is a Judicial Magistrate.
Section 482 of BNSS
While we talked about bail in case of arrest, there is another scenario when arrest has not been made. Who can grant bail in non-bailable offence when no arrest has been made? The Bharatiya Nagarik Suraksha Sanhita Section 482 lays directions for grant of bail to person apprehending arrest. Anyone who apprehends arrest for a non-bailable offence has to approach the Sessions Court or High Court for bail in on arrest. The Sessions Court or High Court shall assess whether the person should be granted bail or is it a flight risk. The Court is also empowered to impose conditions for bail to ensure presence during trial.
Section 483 of BNSS
Special powers are embraced upon the High Court or Court of Session regarding bail under Section 483. It empowers the High Courts or Sessions Courts to impose bail conditions. The special powers pertain to Section 480(3) of BNSS. The said provision discusses bail in non-bailable offence when the accused or suspect is involved for an offence punishable with imprisonment of 7 years or more.
In fact, the High Courts or Sessions Courts are also empowered to order the arrest of a person released on bail. For those accused of offence of rape or gang rape, the provision requires the High Court or Sessions Court to ensure notice to the Public Prosecutor and presence of informant during hearing.
FAQs around Bail in Non-Bailable Offences
Q. Can Police grant bail in non-bailable offence?
A. No, a Police Officer, even the Officer-in-Charge of the Police Station, is not empowered to grant bail in a non-bailable offence. The Bharatiya Nagarik Suraksha Sanhita authorizes the Court to grant bail in non-bailable offences.
Q. Can Magistrate grant bail in non-bailable offence?
A. The answer to “Who can grant bail in non-bailable offence?”, the regular answer is the Court. So, Yes! A Magistrate can grant bail in a non-bailable offence. However, there are specific circumstances/offences when only the High Courts or Sessions Courts are authorized to allow bail.
Q. What happens after rejection of bail in non-bailable offense?
A. If application for bail in non-bailable case is rejected, the accused person has the option to approach the High Court with appeal. They can also file a fresh bail application before a Higher Court.
Q. In what cases can bail not be granted?
A. The provisions for bail under BNSS specify the circumstances when bail can be rejected by the Court. There are other serious offences governed under other special laws like the NDPS Act, POCSO Act, etc. Even for such offences bail is still granted. So the general rule is somewhat reversed to jail being the rule and bail an exception. However, even in such serious offences, there is scope for bail.
