Question: Is it legally permissible for the police to grant bail to an accused person who has been arrested in a non-bailable offence?
Answer: The officer-in-charge of a police station (i.e., SHO) has certain powers under the Criminal Procedure Code (Cr.P.C.) to grant bail to an accused person who has been arrested in a non-bailable offence. It is clear from the language of Section 437, Cr.P.C., in particular from sub-sections (2) and (4) thereof, that even officer in charge of a police station has been given the power to grant bail in a non-bailable offence under this section in certain situations. It is a different matter that in practice, this power is rarely, if at all, used by police officers for granting bail in a non-bailable offence.
The relevant extracts from Section 437 Cr.P.C. are reproduced below:
“437. When bail may be taken in case of non-bailable 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 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, but—
(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 cognizable offence punishable with imprisonment for three years or more but not less than seven years:
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:
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 reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:]
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
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(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
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[Emphasis and underlining has been supplied by me.]
It is clear from the above provisions, specifically the provisions of sub-section (4), that an officer-in-charge of a police station (i.e., SHO or the Station House Officer) has the power to grant bail in certain situations even in a case involving a non-bailable offence.
In the case of Jodha Ram v. State of Rajasthan, 1994 Cri LJ 1962 at p. 1969 (Raj), it has been held by the Rajasthan High Court that the Code of Criminal Procedure contemplates grant of bail, both by a police officer conducting investigation as also by a Magistrate/Court, having jurisdiction over the matter, and that the power to grant bail is thus incidental to the power to conduct investigation as also to the power to try and convict an offender.
The decision of the Allahabad High Court in the case of Haji Mohd. Wasim v. State of U.P., 1992 Cri LJ 1299 at p. 1302 (All), can also be seen in this regard.
[Note: Some of the contents mentioned above have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]