Contrary to popular misconception – that only a Court can grant bail in a non-bailable offence – the reality is that : The Police can also grant bail in non-bailable offences.
A perusal of Section 437, Sub-sections (2) and (4), CrPC reveals that the architects of CrPC, in fact, vested a police officer with the power to grant bail even in a non-bailable offence.
This is clear from the phraseology employed in these sub-sections : “it appears to such officer” “or “at the discretion of such officer” [Section 437(2) CrPC] and “An officer or a court releasing a person on bail…” [Section 437(4) CrPC].
Form No.45 attached to Second Schedule of CrPC further reinforces this.
- An Article titled ‘Role of Police and the Law of Bail in Common Law Jurisdictions’ by Anurag Deep (Associate Professor, ILI, New Delhi) featured in ‘Taking bail Seriously’ published by LexisNexis.
- Select Committee’s observations – discussed in Sohoni’s commentaries on The Code of Criminal Procedure of 1931 and other commentators on the subject.
- Section 437 of the CrPC
- Form No. 45 appended to Second Schedule.
PS : This post does not examine or opine on the propriety/desirability of giving such a power to the police and its consequences/practical implications; We leave that for another post – another day.