Bailable or Non-Bailable? Know This Before the Police Arrest You
- Raj Saraf
- Apr 21
- 4 min read
Police Station Gaye? Bail Ka Sawal Aaya? Pehle Ye Samjho!
Churchgate Station. Two Friends. One Legal Panic.
Ramesh, stirring his chai near Churchgate, leans in:“Bro, mera cousin ko kal raat police le gaye. Officer ne bola—non-bailable offence. Matlab kya? Seedha jail?”
Ganesh stares blankly: “Bailable, non-bailable... TV pe suna hai. Par actual mein kaun samjhta hai?”
This isn’t fiction. This is Bharat.And this confusion — between two chai-sipping friends — is the very reason people lose their way inside the criminal justice system.
What Is Bail — In Legal and Constitutional Terms?
Before we break down the types, understand what bail truly is.
Bail is not charity. It's not police favour. It’s a constitutional mechanism to balance two things: the power of the State to arrest, and the citizen’s right to liberty.
As guaranteed under Article 21 of the Constitution of India:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In my years as a criminal lawyer, I’ve seen this line tested in police stations across Maharashtra. And let me tell you—when used properly, bail is the shield that protects ordinary people from extraordinary injustice.
✅ Bailable Offence: When Bail Is Your Legal Right
Let’s say a young delivery agent, Santosh, gets into an argument with a shopkeeper. In the heat of the moment, he throws a stone and breaks a glass window. Police arrive, an FIR is registered, Santosh panics — expecting jail.
But the officer checks the schedule and says, “This is a bailable offence. Fill the bond. Go home.”
Under Section 2(1)(c) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a bailable offence is one shown as bailable in the First Schedule or made bailable by law.
Section 478(1) of BNSS goes further:
“If the accused is prepared to give bail, such person shall be released on bail.”
Even if Santosh can't furnish a surety, the court may allow a personal bond—especially if he is indigent.
📌 Note: All of this applies only when:
The offence is clearly bailable
Documents and identity are verified
There is no pending warrant or previous conviction
❌ Non-Bailable Offence: When Bail Is Not Guaranteed
Now imagine a different case.
Imran, a college student, stabs someone during a campus fight. He's charged with attempt to murder. This time, the police arrest him and produce him before the magistrate. His family pleads for bail—but this is not up to them. Or even the police.
This is a non-bailable offence, where bail is not a right—it's a request that the court can accept or reject.
According to the First Schedule of the Bharatiya Nyaya Sanhita, 2023 (BNS), non-bailable offences include:
S. 101 – Murder
S. 64 – Rape
S. 140 – Kidnapping
Acid attacks, terrorism-related charges, and more
Note: The classification (bailable/non-bailable) comes from the BNS (which defines offences), while BNSS governs how bail is applied.
Under Sections 479–491 of BNSS, courts weigh:
The gravity of the offence
Risk of absconding
Likelihood of evidence tampering
Past record and socio-economic background
Bailable vs. Non-Bailable — Real Difference?
Police cannot deny bail in bailable cases if everything is in order.In non-bailable cases, even the best lawyer must convince the judge.
Common Myths – Busted
❌ Myth 1: “Serious crime = non-bailable”✅ Truth: Some serious-sounding offences (like defamation or criminal trespass) are still bailable, depending on the BNS classification.
❌ Myth 2: “You always need a lawyer to get bail”✅ Truth: In bailable offences, police can grant bail directly at the station if bond and ID proof are in place.
❌ Myth 3: “Non-bailable = No bail at all”✅ Truth: It simply means bail is not automatic. You need a good application and a stronger case.
What the Supreme Court Has Said About Bail
The courts have made one thing clear again and again:Liberty is the rule. Jail is the exception.
🧾 Arnesh Kumar v. State of Bihar (2014) 8 SCC 273:Police must justify arrest for offences punishable with less than 7 years. Detention is not mandatory.
🧾 Sanjay Chandra v. CBI (2012) 1 SCC 40:Pre-trial detention should not become punishment. If someone isn’t a flight risk, bail should be considered.
🧾 Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240:
“Bail is the rule, jail is the exception.”A line still quoted in every courtroom worth its salt.
Special Acts? Special Conditions
Some laws override normal bail provisions and impose stricter standards:
NDPS Act – Section 37: Bail only if court is satisfied the accused is not guilty and won’t reoffend.
POCSO Act: Extra caution when the victim is a minor.
SC/ST Atrocities Act – Section 18: Anticipatory bail barred unless complaint is clearly false (Prathvi Raj Chauhan v. Union of India, 2020).
These are not loopholes. These are safeguards designed for justice.
In Real Life: What Should You Do?
If you're told the offence is bailable:
Ask for release on bond at the police station
Don’t wait for a court appearance if not needed
If you're told it's non-bailable:
Don’t argue at the station
Call your lawyer immediately
Prepare to file a bail application in Sessions or High Court
Also: If you’re granted bail and miss court, it can be cancelled.Justice doesn’t favour the lazy. Show up. Speak truth. Stay sharp.
Justice Is Not Optional. It’s Constitutional.
Bail is not a loophole for criminals.It’s a legal checkpoint that stops the State from swallowing liberty.
In a civilisational nation like Bharat, where our Constitution breathes through Article 21, we don’t arrest first and ask later.We protect liberty first — and punish only through lawful procedure.
If you or someone you know is caught in a legal web, remember:The first question isn't “Will I go to jail?”The first question is “Is this offence bailable?”Because that one answer can change everything about what happens next.
“In Bharat, law is not just a rulebook. It’s a vow. Bail is not a favour to the accused — it’s a test of the system’s soul. And that’s why, wherever liberty is threatened, we must respond not with fear — but with clarity, courage, and constitutional conviction.”— Adv. Raj Saraf
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