Bail in Case of Non-Bailable Offence

One of the Judicial myths is that bail cannot be obtained in case of commission of a non-bailable offence. This myth is ignited by the recent Aryan Khan case. To clarify the point, bail can be obtained as a matter of right in case of bailable offence, however,  in case of non-bailable offence bail can be obtained but this is at the discretion of the Court.

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In the former case, bail is granted under Section 436 of the Code of Criminal Procedure, 1973 and the latter case is dealt with under section 437 of the Code of Criminal Procedure 1973. The classification of offence can be seen under the First Schedule of the Code of 1973.

On this point, Section 2(a) of the Code defines bailable offence as ‘an offence 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’. Let’s see the legal provisions on the grant of bail in both cases and analyze Aryan Khan’s case in light of these provisions.

Aryan khan and two others were arrested by the Narcotics Control Bureau in a raid on a cruise ship off the Mumbai Coast. An Additional Metropolitan Magistrate refused to entertain bail application on the ground of lack of jurisdiction as offences under Narcotics Drug and Psychotropic Substances Act, 1985, generally known as NDPS Act are exclusively triable by the Court of Session. When the matter was placed before Special Court, it refused bail on two grounds:-

  1. Aryan Khan made a voluntary statement to NCB officials that possession of the drug was for self-consumption and enjoyment. NCB contended that it proves conscious possession. This was however condemned because NCB officials are police officers and any statement to them is barred by Section 25 of the Indian Evidence Act 1872.
  2. The second ground was the WhatsApp chat of Aryan Khan with the foreigners and unknowns who were suspected of being part of a drug racket. This was also condemned as the chat was electronic evidence and as per Section 65B of the Evidence Act, 1872, a certificate must be attached with such pieces of evidence.

 The matter of bail applications was then filed before the High Court. Bail applications were allowed and the Court also imposed certain conditions on them failing to which NCB can apply for cancellation of bail. Further, let us look at how bail is granted in case of non-bailable offences and which conditions can be imposed.

Granting of Bail in Non Bailable Offences – Conditions

Section 436(1) of the Code of Criminal Procedure 1973 provides that ‘when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail’.

On getting bail in a non-bailable offence, Section 437(1) of the Code of Criminal Procedure 1973 provides that ‘when any person accused of or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail’.

The difference can be seen on bare reading that in the latter case, the grant of bail is dependent upon the discretion of the Magistrate or Police officer. How this discretion shall be used is guided by Section 437 of the Code of Criminal Procedure 1973 and the case laws. Arbitrary use of discretion violates Article 14 of The Constitution of India which guarantees a fundamental right to equality of the Constitution as Arbitrariness is the antithesis to equality.

However, section 436 of the Code of Criminal Procedure 1973 is imperative and generally, no conditions are imposed in a bail bond in a bailable case except the implied condition of complying with the date of appearance and time of appearance of the accused. In the case of a non-bailable offence, the discretion is guided by statutory provisions and judicial guidelines given by the Supreme Court. Section 437(1) of the Code of Criminal Procedure 1973 provides for statutory guidelines which are as follows:

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.

It is further provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm, and it is also provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reasons.

It has to be noticed that section 436 is concerned only with the Court of Magistrate, and Court of Session and High Court is expressly excluded. They are given special wide powers under section 439 of the Code of Criminal Procedure 1973. Section 439 of the Code of Criminal Procedure 1973 provides that ‘A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437 of the Code of Criminal Procedure 1973, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing a person on bail be set aside or modified.’

It is further provided under the provision that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

The Magistrate under section 437 of the Code of Criminal Procedure 1973 may grant or refuse bail after considering facts and circumstances of the case, nature of the offence, the possibility of absconding or tampering with evidence or threatening witnesses, the influence of the accused, his age, etc.

On the point of conditions to be imposed to the grant of bail, section 437(3) provides that ‘when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.’

These conditions are not exhaustive and any condition may be imposed under section 437(3) of the Code of Criminal Procedure 1973 if it is reasonable and judicious.

Judiciary has given guidelines through various case laws and held that ‘Bail is the Rule and Jail is an exception’. The Supreme Court has repeatedly said that refusal of bail is not for punitive purposes but for the societal interest.

The court has weighed the individual interest and Fundamental Right to not to be deprived of Life and Liberty except under the procedure established by law as guaranteed under Article 21 of the Constitution with the interest of society that it should be protected. A harmonious construction should be made respecting the individual interest and also giving priority to the interest of society.

Guruchanran Singh vs. State, AIR 1978 SC 179

Imposing conditions is one of such measures. The Apex Court has observed in the case of Guruchanran Singh vs. State, AIR 1978 SC 179 that the likelihood of the accused fleeing from justice and tampering with prosecution evidence should be considered apart from considering the seriousness of offence while granting or refusing bail in case of a non-bailable offence.

Sanjay Chandra vs. CBI, Criminal Appeal No 2178 of 2011

In the case of Sanjay Chandra vs. CBI, Criminal Appeal No 2178 of 2011, Supreme Court observed that though the accused has committed economic offences affecting the economy of the country, yet their presence was not necessary for further investigation and the Supreme Court viewed that bail shall be granted on stringent conditions. The Supreme Court has said that the nature of accusations, the severity of punishment in case of conviction, nature of evidence, prima facie satisfaction of the court in support of charge shall be considered before granting bail.

Aryan Shahrukh Khan vs. Union of India, Criminal Bail Application No. 3624 of 2021

In the recent case of Aryan Shahrukh Khan vs. Union of India, Criminal Bail Application No. 3624 of 2021, Mumbai High Court was approached under Section 439 of the Code for grant of regular bail and Court allowed bail applications of Aryan Khan and two others, and imposed following conditions:

  1. Execution of personal bond of rupees one lakh with one or more surety in the same amount.
  2. Applicants shall not indulge in similar activities.
  3. No communication with co-accused or any persons involved, directly or indirectly, shall be made by the applicants.
  4. Applicants shall not undertake any activity prejudicial to the proceedings in the Special Court.
  5. Applicants shall not attempt to influence witnesses or tamper with evidence.
  6. Applicants shall surrender their passports before the Special Court.
  7. No statements shall be made before any form of the Media regarding proceedings in the Special Court.
  8. Applicants shall not leave the country without prior permission of the Special Judge for NDPS at Greater Mumbai.
  9. Applicants should mark their presence before the Mumbai NCB office every Friday.
  10. Applicants shall attend on all the dates unless prevented by reasonable causes.
  11. Applicants shall join investigation by NCB authorities when called upon to do so.
  12. Applicants shall not delay the trial after it begins.

The High Court further provided that If any of the conditions are violated, NCB may apply to a special Court for the cancellation of bail. 

On the point of cancellation of bail, section 437(5) of the Code of Criminal Procedure 1973 provides that ‘Any Court which has released a person on bail may, if it considers it necessary to do so, direct that such person be arrested and commit him to custody‘.

Conclusion

Concluding this, bail is a kind of restriction on the absolute use of personal liberty by an accused person. In view of Article 21 of The Constitution of India and the basic principle of Criminal law that everyone is presumed innocent till proven guilty, the person cannot be deprived of the liberty on accusations of a non-bailable offence but in the interest of society, it is necessary to impose restrictions on absolute liberty.

The liberty of the accused is handed over to the responsibility of surety. In case of bailable offences, bail has to be granted as a matter of right if the accused is prepared to give the bail. However, in the case of a non-bailable offence, a grant of bail involves an exercise of discretionary power of the Court as it has to be done judiciously to maintain the balance between the rights of the accused and the interests of society. It has to be kept in mind that bail is a rule and jail is an exception.  Judicial discretion must be exercised judiciously after considering the merits of each case.