Introduction of Bail

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, bail refers to the conditional release of an accused person from custody while ensuring their presence for trial. Section 479 classifies offenses as bailable and non-bailable; for bailable offenses, bail is granted as a right, while for non-bailable offenses, it is at the discretion of the court. Section 480 empowers Magistrates to grant bail, while Section 483 allows High Courts and Sessions Courts to modify or set aside bail conditions. Bail conditions may include sureties, restrictions on movement, and regular reporting to authorities to ensure judicial integrity and prevent absconding.

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Section 2(c) of the BNSS defines bailable and non-bailable offenses the criminal laws in India are introduced to make many vital changes as per the evolving society and it needs but the fundamental principle remains the same which is also seen in the case of bail. 

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, bail refers to the conditional release of an accused person from custody while ensuring their presence for legal proceedings. Sections 479 to 487 govern bail provisions.

• Section 479 defines bailable and non-bailable offenses.
• Section 480 allows bail for bailable offenses as a right.
• Section 481 provides judicial discretion for non-bailable offenses.
• Section 483 grants High Courts and Sessions Courts special powers for bail.
• Section 486 ensures bail for indigent persons unable to furnish surety.

The BNSS aims to balance individual liberty with legal accountability.

What is an ‘Arrest/ bail’? 

Arrest means the taking, seizing, or detaining of the person of another, either by touching, or putting hands on him, or by any act which indicates an intention to take him into custody, and subjects the person arrested to the actual control and will of the person making the arrest. Chapter V and Sections 35 to 62 of BNSS 2024, deal with the Arrest of Persons. As per section 35 (1) of BNSS, any police officer may, without an order from a Magistrate and a warrant, arrest any person, 

• who has been concerned in any cognizable offense, or a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists; or 
• who has in his possession any implement of house breaking; or 
• who has been proclaimed as an offender or 
• in whose possession anything is found which may reasonably be suspected to be stolen property; or 
• who obstructs a police officer while in the execution of his lawful duty, or Who has escaped, or attempts to escape, from lawful custody. 
• Reasonably suspected of being a deserter from any of the Armed Forces.
• As per Section 39 of BNSS., any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offense, refuses on demand of such officer to give his name and residence, can be arrested. 
• As per Section 47 of BNSS, the person arrested without a warrant has to be informed about the grounds of his arrest and his entitlement regarding bail. 
• As per Section 51 of BNSS, when a person is arrested and if there are reasonable grounds  for believing that an examination of his person will afford evidence as to the commission of  an offense, it shall be lawful for a registered medical practitioner, acting at the request of a  police officer not below the rank of sub-Inspector (and for any person acting in good faith in  
• his aid and his direction), to make such an examination of a person arrested as is reasonably necessary, and to use such force as is reasonably necessary for that purpose. 
• When a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. 
• As per Section 57 of BNSS, A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in-charge of a police station. 
• As per Section 58 of BNSS, No police officer shall detain in custody a person arrested  without warrant for a longer period than under all the circumstances of the case is  reasonable, and such period shall not, in the absence of a special order of a Magistrate  under section 187 of BNSS, exceed 24 hours exclusive of the time necessary for the journey  from the place of arrest to the Magistrate’s court. 
• As per Section 170 of BNSS., a person can also be arrested to prevent commission of cognizable offences. 

Types of Offences

Bailable offence

An offense for which an individual can be granted bail as a right is known as a bailable offense. These offenses are generally not considered very severe or harmful to others.  When the police assess that an offense is not of a serious nature, they have the authority to grant bail to the accused. Bailable offenses are typically punishable by imprisonment of  less than three years or a fine. Examples of offenses for which bail can be granted include defamation, stalking, theft, bribery, public nuisance, and others.

Non bailable offences  

An offense for which bail cannot be granted is referred to as a non-bailable offense. When a  person is accused of committing an offense categorized as non-bailable, they cannot claim  bail as a right. Section 2© of the BNSS defines non-bailable offenses as those which do not  qualify for bail. Previously, non-bailable offenses were outlined under Section 2(a) of the  

Criminal Procedure Code (CrPC) of 1973. This section specifies that any offense not  eligible for bail is considered a non-bailable offense. On the other hand, bailable offenses are listed in the First Schedule of the CrPC. 

Who can grant of bail in non bailable offence?  

In the case of non-bailable offenses, bail can only be granted by the police officer in charge or the magistrate if they believe it is warranted, and this decision must be documented in writing. However, if the offense is particularly severe, bail will not be granted. Bail for non bailable offenses can also be granted by the High Court or the Sessions Court. Subsection  7 of Section 480 of the BNSS states that if a person is on trial for a non-bailable offense,  and the trial is complete but the judgment has not yet been delivered, the court may order  the release of the accused if it has reasonable grounds to believe that the accused is not  guilty. Such a release comes with specific conditions, including the signing of a bond to ensure the accused will appear in court when the judgment is delivered.

Types of bail under BNSS 2023

Regular bail

Bail in non-bailable cases is referred to as “regular bail.” It stipulates that when a person is accused or suspected of committing a non-bailable offense and is arrested or detained by a police officer without a warrant, and subsequently brought before a court other than the High Court or a Sessions Court, they may be granted bail at the court’s discretion, except in the following situations: 

• When there are reasonable grounds to believe that the person is guilty of an offense punishable with life imprisonment or the death penalty.  
• When the offense is cognizable in nature and the individual has a prior conviction for an offense punishable by death, life imprisonment, or a term of imprisonment of seven years or more. Additionally, bail will be denied if the individual has been convicted on two or more occasions of a cognizable and non-bailable offense. 

Anticipatory bail

Section 482 Anticipatory bail under Bhartiya Nagrikta Surshakha Sahitya (bnns) 

Section 482 of BNSS provides the direction for grant of bail to person apprehending arrest.  This Section provides for a provision of pre arrest bail.This provision was earlier found  under Section 438 of CrPC. 

Step 1: Understanding Anticipatory Bail

• It is a pre-arrest legal remedy available to a person who anticipates being arrested.
• The person must apply to a competent court for protection against arrest.
• This provision is aimed at preventing harassment and wrongful detention.

Example:

A businessman falsely accused of financial fraud anticipates arrest. To avoid unnecessary detention, he applies for anticipatory bail under BNSS, 2023.

Step 2: Who Can Apply for Anticipatory Bail?

• Any person who has a reasonable apprehension of arrest in a non-bailable offense.
• The applicant must approach either the Sessions Court or the High Court.
• The burden is on the applicant to prove why anticipatory bail should be granted.

Example:

A journalist writes an article exposing corruption. A complaint is filed against them with the police. Fearing wrongful arrest, they seek anticipatory bail in court.

Step 3: Factors Considered by the Court

Before granting anticipatory bail, the court considers:

1. Nature and gravity of the offense – Whether the offense is serious or trivial.
2. Criminal history of the applicant – If the person has prior convictions.
3. Possibility of absconding – Whether the applicant may flee justice.
4. Influence on witnesses or evidence – If the person may interfere with the investigation.
5. Public interest and justice – Ensuring that granting bail does not harm society.

Example:

A person accused of cyber fraud seeks anticipatory bail. The court examines their past record and ensures they will cooperate with the investigation before deciding.

Step 4: Conditions Imposed on Anticipatory Bail

If the court grants anticipatory bail, it may impose conditions such as:

• The applicant must appear before the police for investigation.
• They cannot leave the country without permission.
• They must not influence witnesses or tamper with evidence.
• The court may require a security bond or sureties.

Example:

A politician accused of inciting violence is granted anticipatory bail with the condition that they will not make inflammatory speeches.

Step 5: Duration and Cancellation of Anticipatory Bail

• The court specifies the duration for which anticipatory bail is valid.
• If the applicant violates conditions, the bail can be revoked.
• If new evidence emerges, the court may cancel the anticipatory bail and allow the police to arrest the person.

Example:

A businessman is granted anticipatory bail for three months but violates a condition by threatening a witness. The court cancels his bail, and he is arrested.

Conclusion

Anticipatory bail under BNSS, 2023, protects individuals from wrongful or unnecessary arrest while ensuring that they do not misuse the relief. The court carefully balances personal liberty with the interests of justice when granting anticipatory bail.

Interim bail Under BNSS, 2023

The term “interim” literally means “for an interval,” and in the context of interim bail, it refers to bail granted by the court for a specific period. This period can range from 15 days  to even a month. During this time, the accused is released from prison, and once the  granted period expires, the accused is required to return to prison. To request interim bail,  the accused must file an application with the relevant court and request the temporary  release. After considering the facts of the case and the nature of the charges, the court will  issue its order. Interim bail can only be granted in the case of a non-bailable offense, as bail  is a right in the case of bailable offenses. It is important to note that the concerned court has the discretion to extend the period of interim bail if it deems appropriate. 

Interim bail is a temporary form of bail granted for a short period, usually before a final decision on regular bail is made. Under the Bail and Bond Services System (BNSS), 2023, interim bail serves as a protective measure to ensure that an accused person is not unnecessarily detained while their formal bail application is under consideration.

Key Features of Interim Bail Under BNSS, 2023

1. Temporary in Nature
   • Interim bail is granted for a limited period, typically until the court hears and decides on the main bail application.
2. Granted in Urgent Situations
   • It is usually provided when there is an immediate need for relief, such as when an accused is arrested suddenly and requires time to arrange for a proper bail application.
3. Subject to Conditions
   • The court may impose specific conditions on the accused, such as restrictions on travel, regular police reporting, or not tampering with evidence.
4. Revocation if Conditions Are Violated
   • If the accused fails to comply with the conditions set for interim bail, the court can cancel it and order their immediate arrest.
5. Bridges the Gap Until Final Bail Decision
   • It ensures that the accused does not remain in custody unnecessarily while the court evaluates their main bail plea.

Illustration of Interim Bail under BNSS

Example 1: Sudden Arrest for a Minor Offense
Suppose Amit is arrested late at night on allegations of a minor financial fraud. His lawyer applies for regular bail, but since the court will hear the case only after two days, the lawyer requests interim bail. The court grants interim bail for 48 hours, allowing Amit to stay out of jail until the bail hearing.

Example 2: Accused Needs Time to Arrange Sureties
Sara is arrested in a criminal case where bail requires two sureties. However, her family needs time to arrange them. The court grants her interim bail for one week, ensuring that she is not detained while arranging for the required sureties.

Example 3: Medical Emergency
If Rahul, an accused in a bailable offense, falls seriously ill while in custody, the court may grant him interim bail on medical grounds. He must return to custody if he does not secure regular bail within the given time.

Default bail under section 187 of BNSS

Default Bail is also called mandatory Bail. The provisions regarding default Bail are given under section 167 (2) where it is stated that if the investigation officer does not file the 

charge sheet within a specific prescribe time which is 90 days for a cases of an offence  punishable by death, imprisonment for a life for or imprisonment for a term of not less than  10 years. And 60 days in the case of any other offence except the former ones then the  accused shall be released on bail if he is prepared to take it. And investigation can be  defined as a procedures or a process that and investigate and officer goes through in order  to collect the incidence the sole purpose of investigating an offence is to collect piece of  evidence against the accused a person after completing the investigation the investigating  officer files are final report under section 173 of the code and if he fails to file the report  within the above mention period the accuses free on default Bail.

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, default bail serves as a crucial safeguard for the accused, ensuring that individuals are not subjected to indefinite detention without formal charges. This provision is enshrined in Section 187(3) of the BNSS, which delineates specific time frames within which investigative agencies must complete their inquiries.

Key Provisions of Section 187(3):

1. Time Limits for Investigation:
   • Ninety Days: For offenses punishable by death, life imprisonment, or imprisonment for a minimum of ten years, the investigation must be concluded within 90 days from the date of the accused’s arrest.
   • Sixty Days: For all other offenses, the investigation must be completed within 60 days from the date of arrest.
2. Right to Default Bail:
   • If the investigation is not completed within the stipulated period (60 or 90 days), the accused becomes entitled to default bail, provided they are prepared to furnish the required bail.

Illustration:

Consider an individual arrested for an offense carrying a minimum sentence of ten years. According to Section 187(3) of the BNSS, the investigating agency is obligated to complete its investigation and file the charge sheet within 90 days of the arrest. If the agency fails to do so, the accused gains the right to apply for default bail. Upon application, the court is mandated to release the individual on bail, assuming they are ready to comply with the bail conditions.

This mechanism underscores the importance of timely investigations and upholds the accused’s right to liberty, preventing prolonged detention without formal charges.

Special bail under section 483 of BNSS

Special bail is bail that is granted by responsible individual, rather than just as a formality. It can also refer to bail granted under special enactment of legislation. The court may grant bail if the accused is a woman under the age of 16 or is sick or inform. 

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, Section 483 delineates the special powers vested in the High Courts and Courts of Session concerning bail matters. This provision empowers these higher courts to make determinations on bail applications, especially in complex or serious cases.

Key Provisions of Section 483:

1. Authority to Grant Bail:
   • The High Court or Court of Session can direct that an individual accused of an offense and held in custody be released on bail.
   • For offenses specified under sub-section (3) of Section 480, the court may impose conditions deemed necessary to ensure the accused’s compliance and the integrity of the judicial process.
2. Modification of Bail Conditions:
   • These courts hold the power to set aside or modify any bail conditions imposed by a Magistrate, ensuring that bail terms are just and appropriate to the circumstances of the case.
3. Mandatory Notice to the Public Prosecutor:
   • Before granting bail for offenses exclusively triable by the Court of Session or those punishable with life imprisonment, the court must notify the Public Prosecutor.
   • Exceptions are made if the court records reasons stating that providing such notice is impracticable.
4. Specific Offenses Requiring Notice:
   • For offenses under Section 65 or sub-section (2) of Section 70 of the Bharatiya Nyaya Sanhita, 2023, the court is obligated to give notice of the bail application to the Public Prosecutor within fifteen days from the receipt of the application notice.
   • Additionally, the presence of the informant or an authorized representative is mandatory during the bail hearing for these offenses.

Illustration:

Consider an individual accused of an offense punishable by life imprisonment, which is exclusively triable by the Court of Session. If this individual seeks bail, the Court of Session must first issue a notice to the Public Prosecutor regarding the bail application. The court may also impose specific conditions to ensure the accused’s appearance at trial and to prevent any potential tampering with evidence or influence over witnesses. This process underscores the balance between safeguarding the rights of the accused and upholding the interests of justice.

In essence, Section 483 of the BNSS, 2023, provides the High Courts and Courts of Session with enhanced authority to oversee bail proceedings, ensuring that decisions are made judiciously, especially in serious offenses. This framework aims to maintain judicial integrity while protecting individual rights.

Condition of the bail  

The Bail Provisions under the Bail and Bond Services System (BNSS), 2023 outline specific conditions that must be adhered to by an accused person granted bail. These conditions are intended to ensure that the accused appears in court when required and does not interfere with the judicial process. Below is a step-by-step explanation of the conditions of bail under BNSS, 2023:

1. Personal Bond or Surety
   • The accused may be required to provide a personal bond, with or without sureties, guaranteeing their appearance in court.
   • Sureties must be individuals who undertake responsibility for ensuring the accused complies with bail conditions.
2. Regular Court Appearances
   • The accused must attend all court proceedings as required.
   • Failure to appear without reasonable cause may lead to bail revocation and potential re-arrest.
3. Restrictions on Movement
   • The court may impose geographical restrictions, preventing the accused from leaving a specific jurisdiction without permission.
   • In some cases, surrendering a passport may be necessary to prevent flight risk.
4. No Interference with Witnesses or Evidence
   • The accused must not contact, threaten, or influence witnesses or tamper with evidence.
   • Violating this condition may result in the cancellation of bail and additional charges.
5. Reporting to Authorities
   • The court may direct the accused to report regularly to a police station or another designated authority.
   • The frequency and location of reporting are determined based on the nature of the case.
6. Prohibition from Committing Further Offenses
   • The accused must not engage in any criminal activities while on bail.
   • Any subsequent offense could lead to bail revocation and stricter legal consequences.
7. Other Court-Imposed Conditions
   • The court may set additional conditions based on the nature of the offense, the accused’s background, and other relevant factors.
   • For example, in financial fraud cases, restrictions on financial transactions might be imposed.

Failure to comply with any of these conditions can result in bail revocation, re-arrest, or stricter legal actions. The objective of these conditions is to maintain justice, prevent absconding, and protect the integrity of the judicial process.