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Can Police grant bail for Non-bailable offence: a discussion by Rakesh Kumar Singh ********
Normally, it is believed that only in a bailable offence, an accused can ask the police official to release him from the custody on furnishing bail and for a non-bailable offence no such such faci facili lity ty is avai availa labl ble. e. The The syst system em appa appare rent ntly ly has has not not been been able able to disp dispel el this this misconception either from the mind of general public or of the police officials. Result is that Magisterial courts are burdened unnecessarily with the production of accused and dealing with their remand application and bail application. n a proper appreciation and training, much !udicial time can be saved which can be utili"ed on other more serious things.
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$ecti ection on-% -%&' &' (r)( (r)( deal dealss with with the the conc concep eptt of bail bail in nonnon-ba bail ilab able le case casess and to the the
relevant relevant etent reads as +437. When bail may be taken in case of non bailable offence.offence.- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in chare of a police station or appears or is brouht before a court other than the !ih "ourt or "ourt of #ession, he may be released on bail, but-. but-.
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This subub-section ion clearly appli plies to a person who who is acc accused sed of or susp suspeected of
commission of a non-bailable offence. urther condition appearing in the provision is in two parts i.e. firstly, when the person is arrested or detained without warrant and secondly, when he appears or brought before the court. n any of the situations, the concerned person may be released on bail. There is clear time gap between arrest/detention on the one hand and his being brought before the court on the other hand.
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$ection ion-%&'0#1 '0#1 ma may als also be no noted whi which rea reads as2 as2 + $f it appears to such officer or
"ourt at any stae of the in%estiation, in&uiry or trial, as the case may be, that there are no reasonable rounds for belie%in that the accused has committed a non-bailable offence, but that there there are sufficien sufficientt round roundss for further further in&uiry in&uiry into his uilt, uilt, the accused shall, shall , sub'ect to the pro%isions of section 44 and pendin such in&uiry, be released on bail, bail , or, at the discretion of such officer or "ourt, on the e*ecution by him of a bond without sureties for his appearance as hereinafter pro%ided. pro%ided.
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No doub doubt, t, the the afor afores esai aid d indic indicat ates es towa toward rdss a situa situati tion on wher wheree there there is is a reas reason onab able le
belief that the person has not committed a non-bailable offence. 4ut the sub-section will help in understanding the concept of +officer regularly appearing in $ection-%&'. urther, it also contemplates a subse5uent change of situation. Meaning thereby that even if initially the accused is arrested arrested for a non-bailable non-bailable offence, offence, he still may be released subse5uently subse5uently by the officer in certain situation.
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$ecti ection on-% -%&' &'00%1 (r) (r)( ( is of sinc sincer eree sign signif ific ican ance ce whi which ch rea reads ds as2 as2 + n officer or a
"ourt releasing any releasing any person on bail under bail under sub-section (1) or sub-section (+), shall record in writin his or its reasons or special reasons for so doin. doin.
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This This subsub-se sect ction ion-0 -031 31 in in clea clearr term termss conte contemp mpla lates tes tha thatt even even an an offi office cerr can can rele releas asee the the
person on bail under sub-section-071 by recording his reasons in writing. t contemplates an +officer releasing the accused even under sub-section-071. Naturally, if an officer cannot release an accused on bail in a non-bailable case, there could not have been any re5uirement for the draftsman to provide for a situation warranting recording of reason by such officer.
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9ho 9ho is tha thatt +off +offic icer er: : f f we read read sub sub-se -sect ctio ion-7 n-7,, #, 3 toge togethe therr, we will will come come to to a clea clearr
conclusion that the +officer mentioned is the +officer in charge of the police station in all these sub-sections.
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Thoug Though h an off offic icer er in in char charge ge of of the the polic policee stat station ion may may rele releas asee the the accu accuse sed d arre arreste sted d or
detained without a warrant for any non-bailable offence, the eception provided thereto also applies to him. The eceptions are2 0i1 $uch 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< 0ii1 $uch person shall not be so released if such offence is a cogni"able 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 cogni"able offence punishable with imprisonment for three years or more but not less than seven years.
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t is now now at this this stage stage that that we hav havee to take take note note a deve develo lopm pmen entt intro introdu duce ced d by the
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)arliament in the year #==6 which reads as + ro%ided also that no person shall, if the offence allee to ha%e been committed by him is punishable with death, imprisonment for life, or imprisonment for se%en years or more be released on bail by the "ourt under this subsection without i%in an opportunity of hearin to the ublic rosecutor. rosecutor.
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The The afore aforesa said id provi proviso so casts casts an an obliga obligatio tion n on the the court court to giv givee an oppo opport rtuni unity ty to the the
public prosecutor in cases of certain offences having specific punishments. >owever, it nowhere impose any such prohibition for officer in charge. ne may argue that it would be unthinkable that though a court cannot grant bail without giving opportunity to public prosecutor but the officer in charge can do so. consider that there is no such dichotomy. Reason is obvious. )rosecution agency works in the court and is not available for police stations and therefore no such provision could have been provided at all. $econd reason is that a proviso cannot be stretched to an etent of assuming to curtail a right which has been provided by the substantive section.
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?for ?fores esai aid d analy analysi siss forma formall lly y conclu conclude dess that even even if a perso person n is arreste arrested d or detain detained ed
without warrant for an offence of non-bailable nature, the officer in charge of the police station may grant bail to him for reasons to be recorded. >owever, this can only be done until until the the accu accuse sed d is produ produce ced d befo before re the the cour courtt afte afterr arre arrest st.. nce nce the the cour courtt assum assumes es !urisdiction, the officer in charge will have no authority to grant bail. **************
