Report on

Bailable or Non Bailable Offences &

Cognizable and Non Cognizable Offences

BBM LLB

Submitted to:
Subject teacher
Law of Crimes

Submitted by: Roll No.: 15011

Introduction:

Bail is money or some form of property that is deposited or pledged to a court in order to
persuade it to release suspect from custody or jail, with the understanding that the
suspect will return for trial and required court appearances. In most cases, bail money
may be returned at the end of the trial, if all court appearances are made, regardless of
whether the person is found guilty or not guilty of the crime accused. Bail proceeding
starts after the registration of the charge sheet which is immediately followed by the act
of recording the suspect's deposition. Bailment can be bonds, securities and equitable
money.

Depending on the nature of gravity of offence and their impact on society and the
harmfulness to victim, offences have generally been classified as Bailable or Non-
Bailable and Cognizable or Non Cognizable as per their severity and punishment
prescribed for them.

Bailable Offence:

In case of a bailable offence, Bail is a matter of right. It may be either given by a police
officer who is having the custody of accused or by the court. In bailable offence, if the
accused produces proper surety after his arrest, and fulfils other conditions, it is binding
upon the Investigating officer to release him. However, the court is empowered to refuse
bail to an accused person even if the offence is bailable, where the person granted bail
fails to comply with the conditions of the bail bond.

The accused may be released on bail, on executing a bond, known as “bail bond”, with
or without furnishing sureties and the “bail Bond” may contain certain terms and
conditions.

It is usually the presiding judge who has to ascertain, according to the dictation of
his/her reason, whether there is a reasonable ground established to show the
involvement of the accused in the crime. Thus, the order of presiding judges in the
matter of bail is largely subjective. Study shows that, in bailable Offences, in 95% cases
bail is guaranteed by the police themselves and in 5% cases by a magistrate.

Non-bailable Offence:

A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the
accused will have to apply to the court, and it will be the discretion of the court to grant
bail or not. The application for bail shall be led before the Magistrate, who is conducting
the trial and the magistrate may pass such orders, as he thinks fit.

Again, the court may require the accused to execute a "Bail-Bond” with some stringent
conditions. On execution of bail-bond the accused is out of prison only on such terms
and conditions, as contained in the "Bail-Bond". The amount of every bond, i.e. the
security shall be reasonable, and no excessive. If, at any point of time, the terms and
conditions of bail are not fulfilled, the "Bond" shall be forfeited.

In the case of a non-bailable offence, the Investigating Officer must produce the
accused before the Judicial Magistrate/Judge concerned within 24 hours of the arrest.
The first stage is the consideration whether to release the accused on bail or to put in
detention until the case is determined. At that time, the accused has a right to apply for
bail himself or through his representative lawyer.

Provisions regarding Bail in Nepalese Law:

The Section on Court Management of the Muluki Ain is the main legal instruments
governing procedures relating to the matter of bail. There is no definition of bail in the
Code, although the provisions for “bailable offences” and “non-bailable offences” are
mentioned. Clause 118 of the Section on Court Management of the Muluki Ain has the
following provisions regarding matter of bail:

Except for offences punishable with imprisonment for life and offences instituted on
being the Government of Nepal as plaintiff and punishable with imprisonment for a term
of three years or more, the court should grant bail to the suspect with regard to the
following conditions:

i) Circumstances at the time of the commission of the crime,

ii) Age of the accused,
iii) Physical and mental condition, and
iv) Previous record and conduct.

If the court deems it appropriate to grant bail, then the amount of bail or surety is fixed
having regard to the following matters:

i) Nature of the crime,

ii) Economic and family condition of the accused or the offender,
iii) Age of the accused or the offender, and whether he or she was previously
convicted of any offence and sentenced for the same or not , and
iv) Quantum of compensation to be borne by the accused.

Clause 118 of the Section on Court Management of the Muluki Ain is both the
substantive and procedural law governing the matter of bail. In Nepal, the offences with
punishment of less than 3 years of imprisonment is said to bailable while the offences
with punishment of more than less than 3 years of imprisonment is non bailable.
However, in the following cases, the courts or judicial institutions may deny the grant of
bail as a privilege, even if the punishment on conviction is less than 3 years of
imprisonment:

1) Cases relating to the Prevention of Corruption Act, 2017, black marketing or

cases relating to the creation of artificial scarcity of commodities by illegal
storage.
2) Cases relating to export/import.
 3) Cases relating to necessary service, materials.
4) Cases relating to coins, foreign exchange and measurement.
5) Cases relating to ancient monuments, statues or objects of archaeological
importance, paintings, books or other artistic works.
6) Cases relating to narcotics and drugs.
7) Cases relating to government claim.
8) Cases relating to the forgery of government documents, decisions or orders of
courts, passports, insurance, cheques, drafts or cases relating to theft.

Similarly, the foreign national who is charged with an offence for which the punishment
is imprisonment for a term of 6 months or more is not eligible for bail under the laws of
Nepal due to the possibility of fleeing.

The accused can challenge the order of the lower court/ judicial authority refusing bail to
the Court of Appeal. For example, if the District Court refuses bail, accused may
challenge the order of the District Court before the Appellate Court. The Court of Appeal
may sustain or cancel the previous order passed by the trial court. It may also direct the
trial court to reconsider the bail proceedings. If the trial court's order is quashed by the
Appellate Court, the accused is released on bail.

Cognizable Offence:

Generally, cognizable offence is one where a police officer has the authority to make an
arrest without a warrant and to start an investigation without the permission of a court.

In such kind of offences, once the accused is arrested, he/she will be produced before
the magistrate, in the stipulated time. They are generally offences of serious nature like
murder, kidnapping, and offences of waging or attempting to wage war, or abetting the
waging of war against the government, rioting armed with deadly weapon and other
heinous offences wherein immediate police intervention is warranted. However,
cognizable offences being serious in nature can be investigated without any such order
and a suspect may be arrested without warrant. But within specific period of time he
must be taken to a nearest magistrate excluding the time of travel to such magistrate.

The first information report (FIR) is lodged only in case of cognizable crimes. The Police
Officer is bound to register an FIR immediately and can take up investigation and initiate
actions such as arrest etc. Depending on the severity of the crime, cognizable offences
are either bailable or non-bailable in nature.

Non Cognizable Offence:

In contrast with the cognizable offence, in a non-cognizable offence, a police officer
does not have the authority to make an arrest without a warrant and an investigation
cannot be initiated without a court order. It includes crimes like forgery, assault,
cheating, defamation, public nuisance, hurt, mischief etc.

For a cognizable offence, one can file FIR or make a complaint to the magistrate.
Unlike, in case of non-cognizable offence one can only make a complaint to the
magistrate, who then orders the concerned police station to investigate the crime
accordingly, after which a charge sheet is filed with the court, which is followed by the
trial. After the trial, the court will pass orders regarding the issue of a warrant to arrest
the accused.

Non- cognizable offences are bailable offences and are usually in the nature of private
wrongs (crimes related to marriage or an individual's reputation) or other crimes in
which police interference is not desirable.

Since cognizable offence is of serious nature and non-cognizable offence is of less

serious nature, in broad sense we can categorize cognizable and non-cognizable
offence as felonies and misdemeanor (felonies and misdemeanor are classifications of
crime used in the legal system of US).

Cognizable offence and non-cognizable offence are classifications of crime used in the
legal system of India, Sri Lanka, Bangladesh, and Pakistan. In Nepal there is no any law
regarding the cognizable and non-cognizable offences.

CASE LAW
HMG V.Rajeshwor Duwe:

In this case a group of 20-22 people entered into Indrajit house where upon, Indrajit
knocked unconscious by a knife was. The group then escaped with Rs.13732.75 in
cash. The looters were captured on the same night where upon the public prosecutor
demanded punishment as per prevailing law. The offenders pleaded guilty to the crime.
Upon hearing the case Supreme Court on the basis of the evidences and witness
provided a full bench upheld the previous decision and release them on bail.

Scholarly Observation:

In Prahlad Singh case the judge of Supreme Court of India stated that when any person
is accused of a bail able offences is arrested or detained without warrant by an officer in
police station, or at any stage of the proceedings before such court to give bail, such
person shall be released on bail.
Observations and Recommendations:

After having a clear picture about bail in context of Nepal, I proposed the following
recommendations in regard to matter of bail in the Nepalese law:

i) For 94% of accused, bail was granted by the trial courts on the condition of a
property bond. The Bail system prevalent in our country is oppressive and
discriminatory against the poor, since the poor would not be able to furnish
bail on account of their poverty. This is a failure of the system. Thus, in
making wealth the determinant of liberty, individuals of limited means are
subject to discrimination and injustice.
ii) Those who are not liable to be taken into judicial custody as per clause 118(3)
should be released on the condition of appearing regularly at court on a given
date. No kind of monetary security for bail should be required from an
accused not liable to be taken into judicial custody. If the court needs to be
assured of the accused person's attendance at court, a personal bond from a
guardian can be asked for.
iii) In context of Nepal, out of ten cases, an order for judicial custody is the result
in 50% of cases, whereas bail is granted with a wealth bond in 4 cases. In
only one case the bail is granted without any form of security. This findings
shows that judges prefer for judicial custody and are not prepared to set
persons free until the case has been disposed. But, in general, the intention
of the justice system is to give bail and not jail before the accused is
convicted. Since the accused is presumed innocence, he must be released so
that he can fight for his defense.
iv) The courts of Nepal do not grant bail for foreign nationals who are charged for
any criminal offences in practice even the charge against them is subject to
bail. In my view, bail is a matter of right of right and should not denied on the
ground of Nationality. What can be done is that, considering the facts and
circumstances of each case, the court can impose different conditions which
are necessary to ensure that the accused will be available for facing the trial.
But person should not be deprived of the benefits of bail merely because he is
a foreign national.
Constitution of Nepal, which guarantees equality before law or the equal
protection of laws is applicable to "person" which would also include the
"citizen" of the country and "non-citizen".