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Vishad Srivastava, B.A. LL.B. (H)
Bail, the term which is money making for advocates and a important part of study for the law students who are interested in Criminal Law. A lawyer get the money because of his words and the case like bail are assurance to increase his demand and prestige in the court. In this article we will decode the terms for bail in Non Cognizable Offences and how to get bail in such offences
Offence the word which is defined in Indian Penal Code ‘as a thing punishable under this code or punishable under any special or local law.’
Now the type of offences are classified into 3 criterion which are:
- Cognizable and Non Cognizable Offence
- Bailable and Non Bailable offence
- Offences which will invoke Summon case and offences which will invoke warrant case.
Cognizable and Non Cognizable Offences
Cognizable offence which is defined in Code of Criminal Procedure as, ‘Cognizable offence means an offence for which, and Cognizable case means a case in which, a police officer may, in accordance with the first schedule or under any other law for the time being in force without warrant.’ And Non Cognizable offence which is defined in Cr.P.C. as non-cognizable offence’ means an offence for which, and `non-cognizable case’ means a case in which, a police officer has no authority to arrest without warrant”.
Now which acts comes under the category of cognizable offence and which acts come under Non cognizable offence is given in the First Schedule of Cr.P.C. The first schedule has classified all acts punishable under I.P.C. into cognizable and Non Cognizable offences and according to it all offences which have punishment of more than 3 years are cognizable and offences which have punishment of less than 3 years are non cognizable. In Cognizable offence police officer can arrest without warrant which means without the prior permission from the magistrate , whereas in Non Cognizable offence police officers necessarily needs the prior permission from the magistrate and investigation cannot be started without the permission of the magistrate.
Bail in Non Cognizable Offences
Non Cognizable offence bail is being mentioned only in section 42 and 43 of Cr.P.C. Non cognizable offences are considered to be the crime against private person. Let us see section 42 of Cr.P.C which states that
Arrest on refusal to give name and residence.
- When any person who, in the presence of a police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
- When the true name and residence of such person have been ascertained he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
- Should the true name and residence of such person not be ascertained within twenty- four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties. he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
Now section 43 also explains the non cognizable offence. In section 43 (1) and (3) which mentions that
Arrest by private person and procedure on such arrest.
- Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
3.If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Another section of Cr.P.C. which is section 71. This section gives bail with the bond and surities. Section 71 of Cr.P.C. is mentioned as Power to direct security to be taken.
(1) Any Court issuing a warrant for the arrest of any person may be in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state-
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;
(c) the time at which he is to attend before the Court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court
However section 169 of Cr.P.C. also gives the bail by bond if the accused is found of evidence deficient.
“Bail” remains an undefined term in the Code of Criminal Procedure 1973. Nowhere else the term has been statutorily defined conceptually, it continues to be understood as a right for assertion of freedom against state imposed restraints. Since the U.N. Declaration of Human rights of 1947, to which India is a signatory, the concept of bail has found a place within scope of human rights. It has also been mentioned in the section 436 and 437 but it includes Cognizable offences.