“The bail is rule, jail is exception.” This rule was laid down by the Supreme Court in Moti Ram & Ors. v. State of M.P. (August 24, 1978) by Hon’ble Justice V.R. Krishnaiyer.
Both have been defined in same section.
Basis of classification of both is release of accused or suspected person.
Offences under IPC
Both have been shown First Schedule, First Part and Column 5.
Offences other than under IPC
Both have been shown First Schedule, Second Part and Column 3.
Section 2 (a) –“Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force.
Section 2 (a) “non- bailable offence” means any other offence. “Non- bailable offence” means offence other than bailable offence. It is residuary.
Offences other than IPC
Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with imprisonment for less than 3 years or with fine only that offence shall be treated bailable offences.
Second part of the First Schedule of the Code deals with offences other than that of IPC and provides that if the offence is punishable with death, imprisonment for life or imprisonment for 3 years or more that offence shall be treated non-bailable offences.
Right v. Discretion
In case of bailable offence, accused can claim bail as a matter of right. If he is fulfilling all other conditions, Court or Officer in Charge of Police Station cannot deny bail.
In case of non- bailable offence, accused cannot claim bail as a matter of right. Court or Officer in Charge of Police Station may grant bail. It is discretion of Court or Officer in Charge of Police Station to grant bail. There are certain exceptional cases when granting of bail is mandatory in non- bailable cases for example section 167, section 437(2), section 437(6), and section 437(7) etc.
In case of Bailable offence, there is no provision for anticipatory bail.
In case of Non-bailable offence, there is provision for anticipatory bail (Section 438).