In the Bhartiya Nagarik Suraksha Sanhita, 2023 (from hereon referred as BNSS, 2023) the term bail has been defined in Section 2(b). According to section 2(b), “ Bail is the release of the person accused of or suspected of a crime on the basis of a bond or bail bond which is executed providing certain conditions and restrictions, and the failure to conform by them can lead to cancellation.” This is the first time that a comprehensive definition of bail has been provided by the Indian Law.
Introduction: – Bail is a fundamental concept in the criminal justice system that allows the temporary release of an accused person awaiting trial, balancing the presumption of innocence with the necessity of ensuring justice. Historically, Indian bail law has been governed by the CrPC, 1973. However, the BNSS, 2023, brings sweeping changes aimed at addressing contemporary challenges in criminal justice, such as reducing frivolous bail applications and preventing misuse by both the accused and prosecution
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), introduces a new legal framework for bail, revising the processes of granting and canceling bail to address modern criminal justice concerns.
BNSS lays down specific grounds that courts must consider while granting bail. These include:
1. Nature of the Accusation: The seriousness of the crime plays a significant role in determining bail. Heinous crimes are less likely to result in bail.2. Evidence Against the Accused: Courts assess the prima facie evidence available against the accused. Weak evidence may favor the granting of bail
3. Previous Criminal Record: An accused with a clean record may be more favorably considered for bail compared to a habitual offender.
4. Possibility of Tampering with Evidence: If the court believes that the accused may interfere with the investigation or intimidate witnesses, bail may be denied.
5. Risk of Flight: If the accused poses a flight risk, bail may be denied to ensure their presence during the trial. 6. modified :BNSS, 2023, specifies the conditions under which bail may be granted, especially in non-bailable offenses.
Offenses are classified for bail purposes into:
1. Bailable Offense: Defined by Section 2(c) of the BNSS, these offenses allow for bail as a matter of right under Section 478 BNSS when specified conditions are met. The police may grant bail to the offender at the time of arrest or detention.
2. Non-Bailable Offense: These offenses, where bail cannot be granted as a matter of right, are governed by Sections 480 and 483 of the BNSS. Judicial discretion plays a crucial role in deciding bail for non-bailable offenses, which are typically more severe, carrying a penalty of three years or more.
Bail in India encompasses four types based on the stage of criminal proceedings, namely Regular Bail, Interim Bail, Anticipatory Bail, and Statutory Bail.
Regular bail is granted after arrest, ensuring attendance at trial.
Interim bail is short-term and precedes regular or anticipatory bail hearings.
Anticipatory bail
Anticipatory bail is a pre-arrest legal provision that allows an individual to seek bail in anticipation of being arrested for an alleged offense.
Key Sections
Anticipatory Bail:
Section 482 (1): When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
Section 482 (4): This section broadens the criteria under which anticipatory bail is not permissible. Specifically, it disallows anticipatory bail for individuals accused of gang rape of women under eighteen years of age.
- The applicant must satisfy the court that –
- There is no prima facie case of involvement in the offense.
- The apprehension of arrest is genuine and not merely speculative.
- There is no likelihood of the accused fleeing or tampering with evidence .
Statutory bail or default bail is provided under Section 187 BNSS when the police fail to file a report within a specified timeframe.
Section 480 BNSS empowers the magistrate’s court to grant regular bail for non-bailable offenses, and Section 483 BNSS extends this to the High Court or Sessions Court. Factors influencing bail decisions include the nature of the crime, evidence reliability, accused’s character, and public interest.
Statutory bail, also known as default bail, arises when the police fail to file a report within a specified time under Section 187(2) of the BNSS. It is an inherent right of the accused if chargesheet isn’t filed in the specified time, applicable regardless of the offense’s nature, and can be granted by Magistrates of the First or Second Class.
Regular Bail:
Section 479 (1): This section introduces the possibility of early release for first-time offenders who have served up to one-third of their maximum sentence as undertrial prisoners. This aims to reduce unnecessary detention for individuals without prior convictions.
Section 479 (2): Bail is restricted for individuals facing investigation, inquiry, or trial in multiple cases, thereby preventing habitual offenders from exploiting bail provisions.
Section 479 (3): The jail superintendent is required to submit a written application to the court for the release of undertrial prisoners who have served either one-third or one-half of their sentence. This ensures that eligible prisoners are not overlooked for bail.
Section 480 (2): If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 494 and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond for his appearance as hereinafter provided.
Section 480 (5) & 483: These sections give the High Court and the Sessions Court the authority to cancel bail, maintaining judicial discretion over the revocation of bail under specific conditions.