What is the role of judicial discretion in granting bail for non-bailable offences?

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Judicial Discretion in Bail for Non-Bailable Offences

Judicial discretion allows courts to grant bail for non-bailable offences, potentially with conditions, whereas bail for bailable offences is a right without such conditions. In cases involving non-bailable offences, courts possess the authority to decide whether to grant bail, a power that implies the ability to attach specific terms to the release. This contrasts with bailable offences, where an accused person is entitled to bail as a matter of right once they provide the required security.
Bail for Non-Bailable Offences Under Section 388

Section 388 of the Criminal Procedure Code outlines the framework within which a police officer or the court can exercise discretion to release an individual accused of a non-bailable offence on bail. This provision grants judicial officers the latitude to assess the circumstances of each case and determine if bail is appropriate. Unlike bailable offences, where the law mandates release upon provision of bail, non-bailable offences require a more nuanced judicial evaluation.
Implied Power to Impose Conditions

Drawing from Indian legal interpretations, the existence of judicial discretion to grant or refuse bail for non-bailable offences inherently suggests a discretion to impose conditions. The Supreme Court case of PP v Dato’ Mat Safuan [1991] affirmed that while Section 387 of the Criminal Procedure Code, dealing with bailable offences, provides no power to impose conditions, Section 388 allows for conditions to be included in a bail bond. This means that when bail is granted under discretionary powers, it can be subject to stipulations designed to ensure the accused's appearance in court and prevent potential interference.
Contrast with Bailable Offences

The legal framework distinguishes sharply between bailable and non-bailable offences regarding bail. For bailable offences, as stipulated in Section 387 of the Criminal Procedure Code, an accused person has an absolute right to bail once they are prepared to furnish it. In such instances, courts lack the discretion to refuse bail or to impose any conditions on the bail order. The case of Tamim Dahri, charged under Section 295 of the Penal Code (a bailable offence), highlighted this principle, even though the court ultimately imposed conditions, which, according to legal interpretation, should not occur for bailable offences.

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What is the role of judicial discretion in granting bail for non-bailable offences?

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