BAIL UNDER BNSS: WHAT YOU NEED TO KNOW

BAIL UNDER BNSS: WHAT YOU NEED TO KNOW

“Arrested! But what next? Can they walk free on bail?”

The concept of bail is one of the most crucial aspects of criminal law, determining whether an accused person can secure temporary freedom while awaiting trial. With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—which replaces the long-standing Criminal Procedure Code, 1973 (CrPC)—the legal framework surrounding bail has undergone significant transformation.

From redefining bail, bail bond, and bond to revising the rules on custody duration and anticipatory bail, BNSS has reshaped how bail is granted in India. So, how do these changes impact the right to bail? Let’s dive into the key provisions and compare them with the old CrPC!

WHAT IS BAIL?

The word “bail” is derived from the old French term “Baillier,” which means to deliver or hand over. According to the Law Lexicon, bail is “security for the accused person’s appearance, on giving which he is released pending trial or investigation.” According to Black’s Law Dictionary, it is a security, such as cash or a bond, that a court frequently requires in order to release a prisoner who has to make an appearance later.

In Gurbaksh Singh v. State of Punjab 1980, the SC held that grant of bail means to set at liberty a person arrested or imprisoned on security being taken off his appearance in the court on a particular day. The word ‘bail’ covers release on one’s own bond.

The Supreme Court, in Kamlapati v. State of West Bengal (1978), defined bail as a mechanism aiming to harmonize the right to personal freedom for the accused with the public interest, conditional on the accused appearing in court for trial.

DEFINITION OF BAIL UNDER BNSS

The Criminal Procedure Code has not defined bail, bail bond and bond but BNSS has introduced this term. According to the definition clause under Section 2 of BNSS:

• Clause (b) defines “bail” as “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain condition imposed by an officer or court on execution by such person of a bond or a bail bond.
• Clause (d) defines “bail bond” as, “bail bond” means an undertaking for release with surety.
• Clause (e) defines “bond” as “bond”, which means a personal bond or an undertaking for release without surety.

HOW TO INVOKE BAIL UNDER BNSS

Step 1: File an Application for Bail

• The first step in invoking bail is to file a formal application with the appropriate court.
  • For bailable offenses, you can apply directly to the police officer or Magistrate.
  • For non-bailable offenses, the application is made before a Sessions Court or the High Court.

Step 2: Provide Surety (For Bailable Offenses)

• For bailable offenses, the accused must provide a surety bond (a guarantee that the accused will appear in court when required).
• If the accused cannot afford surety, they may be granted bail based on their indigence after seven days in custody (Section 478).

Step 3: Submit Evidence and Arguments (For Non-Bailable Offenses)

• For non-bailable offenses, the defense lawyer will present evidence showing that the accused is not a flight risk, has strong ties to the community, and will appear for hearings.
• The court will consider factors like:
  • Whether the accused has prior convictions or a history of absconding.
  • If there is a risk of tampering with evidence or interfering with witnesses.
  • The seriousness of the crime and its potential impact on society.

Step 4: Attend the Bail Hearing

• The court will set a date for a bail hearing where both the prosecution and defense can present their arguments.
• The judge will assess the merits of the case, including the reasons for seeking bail and the accused’s criminal history (if any).

Step 5: Court’s Decision

• The judge will either grant or deny bail based on the evidence and arguments presented.
• If bail is granted, the accused may be released on the condition that they meet specific requirements (e.g., surety, regular police reporting, no tampering with evidence, etc.).

OBJECTIVE OF BNSS

When someone is arrested or detained, it’s to make sure they’re available to receive their sentence if they are proven guilty of the allegations.  However, what if the defendant occasionally pledges to show up for the trial?  In that case, there is no justification for denying the individual their freedom.

 This is when the bail provision enters the picture.  The major purpose of granting bail to an accused in arrest is to ensure that while the trial is ongoing, if the accused is not a danger to society or going to tamper with the evidence and compel the witnesses, he should not be deprived of his freedom..

BAILABLE AND NON-BAILABLE OFFENCES

“Bail is the rule, and jail is an exception” is the general rule in Criminal Law. However, that doesn’t mean each individual will get bail. To understand the complexity of bail provisions in BNSS, we need to see the type of offences.

Under BNSS, there are two types of offences-Bailable and Non-Bailable. Bailable offences mean where bail is a matter of right. Whereas, in non-bailable offences, the accused person can’t claim bail as a matter of right. Rather, it is upon the discretion of the court to grant or not to grant.

Section 2(c) defines Bailable and Non Bailable offences as “Bailable offence” which means an offence which is shown as bailable in the first schedule, or which is made bailable by any other law for time being in force; and “non-bailable offence” means any other offence.

There are no tests provided in the Code to determine whether any particular offence is bailable or not. It all depends upon whether it has been shown as bailable or non-bailable in its first schedule.

TYPES OF BAIL

Depending on the stage of the criminal proceeding, a person may ask for one of four types of bail in India:

1. Regular Bail: Regular bail ensures that an accused person, who has been arrested for a non-bailable offense, can remain free until the trial is concluded, allowing them to prepare their defense and participate in the legal proceedings. The accused has the right to be freed from such confinement under Section 480 and Section 483 of the BNSS. So, a regular bail is simply the release of an accused from jail to ensure his attendance at the trial.

2. Interim Bail: Interim bail is a type of temporary release that gives people a brief reprieve from custody while their application for anticipatory or regular bail is pending. That enables the accused to be released for a limited period of time as they prepares for bail hearing. It is, nevertheless, subject to the court’s discretion and is conditional, with the potential for an extension depending on the situation. If the interim bail expires and the arrested person fails to adhere to the terms or pay the prescribed sum, their freedom is forfeited, and they may be detained again. This type of bail preserves justice and flexibility in the court system while reducing needless confinement.

3. Anticipatory Bail: If a person suspects that he may be arrested for a non-bailable offence, he may petition for anticipatory bail. In recent years, this has become an important problem because corporate competitors and other prominent persons sometimes seek to frame their opponents with fake charges. 

The Supreme Court, in the case of Sushila Agarwal and others v. State (NCT of Delhi) and others, clarified that anticipatory bail remains in effect until the end of the trial and is not limited to a fixed duration.

4. 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 charge sheet 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.

DIFFERENT LAWS/PROVISIONS OF BAIL IN INDIA

Bail laws in India are governed by various Acts and Sections. Some of the important laws related to bail are:

1. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

The BNSS retains most of the provision of the CrPC. Key changes proposed include: –

Medical Examination: – In certain cases, such as rape trials, the CrPC allows the accused to be medically examined. At the very least, a police officer at the sub-inspector level asks a licensed medical professional to perform such an assessment. According to the BNSS, any police officer may request such an investigation.

Reduction detention time for the first-time offender: – Previously, the law did not allow for early release, even when a first-time criminal had been imprisoned for a long time pending trial. However, the new statute allows early release if the first-time offender has completed up to one-third of their sentence as an undertrial prisoner.

Forensic investigation: – The BNSS mandates forensic investigations for crimes that entail a minimum penalty of seven years in jail. In these circumstances, forensic experts will visit crime scenes to collect evidence and record the events with a cell phone or other electronics device. If a state does not have its own forensics facilities, it must use those in another state.

Signature and finger impression: – Under the CrPC, a magistrate has the authority to demand that someone provide samples of their handwriting or signatures. The BNSS extends this to include finger impressions and voice samples. It makes it possible to get these samples from someone who has not been arrested.

Bail can’t be granted if multiple cases are pending: – Previously, there was no law that prohibited an inmate who was the focus of many investigations, enquiries, or trials from being released on bond while they were awaiting trial or inquiry. The new law, however, is stricter and will not grant bail when a person has many cases against them pending.

2. The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

• Section 37: Bail is granted only under exceptional circumstances for offenses involving commercial quantities of drugs.

3. The Prevention of Money Laundering Act, 2002 (PMLA)

• Section 45: It delineates the conditions under which bail can be granted to individuals accused of money laundering offenses. Bail is difficult to obtain unless the accused proves their innocence prima facie.

4. The Unlawful Activities (Prevention) Act, 1967 (UAPA)

• Section 43D (5): It deals with the grant of bail to the accused persons under the act. Bail is restricted for those accused of terrorist activities unless they can prove that the allegations are baseless.

5. The Protection of Children from Sexual Offenses Act, 2012 (POCSO Act)

• Bail is granted sparingly, especially in cases of aggravated sexual assault against minors.

Each law provides different grounds and conditions for bail, ensuring that it balances individual liberty with public safety.

ENFORCEMENT OF BAIL

Once bail has been granted by a court in India, it becomes legally enforceable. The accused is required to comply with the conditions set by the court, such as appearing for hearings, not tampering with evidence, and adhering to any travel restrictions imposed.

If the accused fails to comply with the conditions of bail, the prosecution or the complainant can file an application for the cancellation of bail in the same court that granted it. The court may then take appropriate action, such as issuing a non-bailable warrant for the arrest of the accused or directing the forfeiture of bail bonds and sureties.

It is important to note that the enforcement of bail conditions is a legal process that requires the assistance of a qualified lawyer. A lawyer can help in filing applications for bail enforcement, responding to violations, and ensuring that legal rights are upheld.

LIMITATIONS OF BAIL

· Overburdened Judicial System:

Delays in bail hearings and trials due to an overloaded court system, which can lead to prolonged detention or uncertain outcomes for the accused.

· Potential for Arbitrary Decisions:

Court discretion in granting bail, especially for non-bailable offenses, could lead to inconsistent or biased decisions, affecting fairness in the process.

· Limited Focus on Victims’ Rights:

While focusing on the accused’s rights, the law may not emphasize victim protection and compensation as much, potentially leaving gaps in victim justice.

CONCLUSION

The BNSS aims to create a more structured and predictable bail process while balancing individual rights with public safety. It retains fundamental principles from previous laws but introduces stricter scrutiny for non-bailable offences and anticipatory bail applications, ensuring that both justice and personal liberty are adequately protected.