There seems to exist confusion among the public about the bailable offence and an offence where there exists an opportunity to pay Thrimthue. One would notice that a moment a person is arrested, the first question seems to prevail now among the public is whether it is a bailable offence or not. However, there is no relation between bail and Thrimthue.

Bail is an interim and conditional release from detention by the court during the prosecution period, during the trial. In other words, bail is a “right to release a detainee before the trial conditioned upon accused’s giving adequate assurance that he will stand trial.”  This is also to allow the accused to provide freedom to prepare “unhampered preparation of defense” and to “prevent the infliction of punishment prior to conviction.” Under Article 7(16) of the Constitution, any person arrested for suspected or accused of a crime has the “right to be presumed innocent until proven guilty in accordance with the law” and therefore guilt is not yet proven.

Under the Bhutanese criminal justice system, every criminal offence is divided into two types, bailable and non-bailable offences. Section 74 of the Penal Code of Bhutan (PCB) states that right to bail is admitted as per the Civil and Criminal Procedure Code (CCPC). Section 186.1 of CCPC (Amendment) provides discretion to the court to admit bail in lieu of detention “depending on the nature of the crime.” However, Section 199.8A of CCPC (Amendment), prohibits the courts from granting bail if the accused has been charged “with an offence against the security and sovereignty of the country or an offence of or above felony of the second degree” (minimum of nine years imprisonment).   

Unlike Bhutan, many legal scholars and legal systems such as India, bailable offence means absolute right to bail and non-bailable means conditional right where the court decides to admit the bail or not. This means right to bail remains in every offence.  The Supreme Court of Bhutan in the case of OAG v. Lhab & others, struck down S. 199.8A as violative of Article 7(16) of the Constitution and declared null and void. Thus, though the Supreme Court decision is debatable in terms of separation of power, have made every offence  bailable in Bhutan as well.  

 Contrary to the right to bail, Thrimthue is an inherently Bhutanese concept (similar concepts exists in other legal system). Thrimthue applies only upon conviction of the accused. Under Section 28 and 73 of PCB, the accused can exercise the right to Thrimthue if the sentence is less than three years  (not a felony) subject to “severity of the charges, defendant’s past criminal record, the potential threat posed to society and defendant’s age and physical or mental health condition.”

Therefore, while the right to bail exists during the pendency of the trial, the right to Thrimthue exists only upon conviction.  With the Supreme Court Judgment, right to bail is both absolute and conditional but the right to Thrimthue is always conditional.  The only relation between these two rights is right to bail can be exercised during the pendency of the trial and right to Thrimthue can be exercised after conviction. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.