Getting arrested is scary. But what makes a real difference in that moment is whether the offence is bailable or non-bailable.
Most people don’t understand the difference until it’s too late. This blog will break it down in plain English—no legal jargon, just practical info that can help you or someone you care about.
Let’s start with a basic question: What is bail?
Bail is the legal process through which an accused person is temporarily released from custody, usually by furnishing a surety or bond, while awaiting trial.
Whether you can demand bail as a right, or request it as a favour, depends on the type of offence. That’s where the distinction between bailable and non-bailable comes in.
Here’s a simple comparison:
| Feature | Bailable Offence | Non-Bailable Offence |
| Bail is a Right? | Yes | No |
| Who Grants Bail? | Police or Magistrate | Only Magistrate or Sessions/High Court |
| Arrest Procedure | Bail usually granted at police station | Must apply through lawyer in court |
| Nature of Crime | Less serious | More serious |
| Examples | Simple hurt, public nuisance, defamation | Murder, rape, dowry death |
Under Section 2(a) of the Code of Criminal Procedure (CrPC), a bailable offence is one where bail must be granted if the person is willing to give surety or bond. The police officer cannot refuse it. For example, if someone is arrested for causing death by negligence (Section 304A IPC), and it’s a first-time offence, they’re likely to get bail easily.
In contrast, a non-bailable offence does not give you an automatic right to bail. The court has discretion to grant or deny bail depending on the seriousness of the charge, prior criminal history, chances of fleeing justice, and tampering with evidence.
This includes offences like murder (Section 302 IPC), rape (Section 376 IPC), or dowry death (Section 304B IPC). These are considered grave and require the court to assess the risk involved before deciding.
If you’ve just been arrested and don’t know what to expect next, read our guide on What to Do If You’re Arrested – A Basic Guide. It covers your basic rights and what steps your family or lawyer can take immediately.
For non-bailable offences, the first step is usually applying for bail before a Magistrate. If denied, you can escalate to the Sessions Court or High Court under Section 439 CrPC.
The decision depends on case facts, such as whether the accused is a threat to society or has a record of absconding.
Police officers also play a key role here. In a bailable case, they can release you immediately after arrest. But in a non-bailable offence, they have no such power—you must approach the court. However, sometimes, police may misuse their discretion even in bailable offences by delaying or denying bail unlawfully.
In such cases, you should understand your options under How to Get Police Help When They Refuse to File Your Complaint. This blog explains what to do when police fail in their duty.
Some people wrongly believe “non-bailable” means “no bail at all.” That’s not true. It only means the bail isn’t automatic and requires court approval.
Also, if you fear arrest in a non-bailable offence, there’s something called Anticipatory Bail under Section 438 CrPC. This allows you to apply for bail before arrest if you believe you are being falsely implicated. We’ll talk more about that in Part 2.
For more information on what happens once you’ve filed a complaint, read What Happens After You File an FIR? Step-by-Step.
When a person is arrested for a non-bailable offence, the court becomes the key decision-maker. Bail in such cases is not a right but depends on the discretion of the Magistrate or Sessions Court, guided by Section 437 and Section 439 of the CrPC.
Here’s what courts typically consider:
- Nature and seriousness of the offence
- Whether the accused has any prior criminal history
- Likelihood of the accused fleeing or tampering with evidence
- Victim’s safety and public interest
If a Magistrate denies bail under Section 437, you can escalate the matter to the Sessions Court or High Court under Section 439 CrPC, which have wider discretion.
Now, if you think there’s a chance you’ll be arrested for a non-bailable offence, you can apply for Anticipatory Bail under Section 438 CrPC—even before arrest. This is useful in cases of false accusations or politically motivated complaints. Courts will grant anticipatory bail if they believe the arrest is unnecessary or unjustified.
You’ll need a lawyer to draft and file the bail application. It should clearly state the circumstances, include reasons why custody isn’t needed, and show that you’re cooperating with the investigation.
The court may also impose conditions—like not leaving the city or not contacting the complainant.
Now, in certain cases, the Supreme Court has stressed that bail, not jail, should be the rule—especially when there’s no serious threat or the investigation is complete.
But remember, not all offences are black and white. Some offences, like Section 498A IPC (cruelty by husband or relatives), can be non-bailable but compoundable—meaning parties can settle. So, whether bail is easy or difficult also depends on the specific facts and charges.
If someone close to you has been arrested and you want to help, read How to Help a Friend or Family Member Who’s Been Arrested. It walks you through the exact steps you can take.
FAQs
1. Can I get bail in a non-bailable offence?
Yes, but only by applying to the court. It is not automatic.
2. What is the difference between regular and anticipatory bail?
Regular bail is after arrest; anticipatory bail is applied for before arrest under Section 438 CrPC.
3. Can the police give bail in a non-bailable offence?
No. Only a Magistrate or higher court can grant bail in such cases.
4. What if bail is denied by the Magistrate?
You can approach the Sessions Court or High Court under Section 439 CrPC.
5. Is it possible to be jailed without strong evidence?
Only temporarily, but courts will examine evidence before granting or denying bail. Learn more here.
