February 14, 2018
At the very outset, it is clarified that yes a bail can be granted even in cases of Non-Bailable offences under the Code of Criminal Procedure (CrPC). The difference being that bail is a matter of right if the offence is bailable and is a matter of discretion if the offence is non-bailable. In the case of Talab Haji Hussain v. Madhukar Purshottam Mondkar, the Supreme Court held that grant of bail in non-bailable cases is generally a matter in the discretion of the authorities in question.
The essence of bail was succinctly explained by the Supreme Court in the case of State Of Rajasthan, Jaipur vs Balchand @ Baliay, wherein the Court remarked that the basic rule is bail, not jail, except-where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. When considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court.
Section 473 of CrPC governs the law relating to grant of bail for non-bailable offences.
Essential elements of Section 473 of CrPC
The statutory provision under Section 473 of CrPC confers a discretionary power on the Court or concerned Police Officer the power to release the accused on bail, accused of non-bailable offence. Exception being that the accused shall not be guilty of offence punishable with death or with imprisonment for life. However, the following categories of persons may be released on bail even if charged for a non-bailable offence:
- Person under the age of 16 years
- A woman
- A sick or infirm person
Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry.
Section 473 of CrPC also provides for review of the order by the Court which has released the person on bail. The power of the Magistrate under this section cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439 of CrPC (Special powers of High Court or Court of Session regarding bail).
Bail matters to be decided judiciously
In plethora of judgments the judiciary has indicated that bail matters shall be decided judiciously. In a recent case Dataram Singh v. State of Uttar Pradesh & Anr., the Supreme Court emphasized on deciding bail matters judiciously and in human manner. The Apex Court observed that fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. It was also observed that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.
 AIR 1958 SC 376
 1978 CrLJ 195