“Bail is the Rule, Jail is the Exception”

 “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that developed jurisprudence of bail is integral to a socially sensitized judicial process.”

– Justice V R Krishna Iyer

Bail – Meaning

Bail as defined under Section 2(1)(b) of Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023 is “release of a person accused of or suspected of commission of an offence, from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond.”

Section 2(1)(d) defines “Bail Bond” as “an undertaking for release with surety.”

Section 2(1)(e) defines “Bond” as “a personal bond or an undertaking for release without surety.”

Bail is one of the vital concepts under the criminal justice system in consonance with the fundamental principles enshrined in the Constitution along with the protection of human rights as prescribed under international treaties. The literal meaning of bail thus means that releasing a person temporarily with a security of money or bond with conditions that he will appear before the authority as and when necessary.

Bail derived from the French word “Baillier” meaning ‘to give’ or ‘to deliver’. In the practical sense there is a person guaranteeing that the accused will appear before the authority as and when required.

OBJECTIVES OF BAIL

In simple words, the purpose of the bail can be 

1. Assurance of the appearance of the accused as and when called before the court.
2. Prevention of suffering unnecessary imprisonment of the accused who are not yet convicted. 

TYPES OF BAIL

The Bharatiya Nagarik Surksha Sanhita, 2023 (Previously Code of Criminal Procedure, 1973) has given provisions related to bail. Accordingly these are the types of bails;

• Bail (Regular Bail) in bailable offences BNSS 478 (Cr PC 436) 

The bailable offences are listed in the Bhartiya Nyaya Sanhita, 2023 as well as mentioned in the specific criminal laws concerning the offence. When a person accused of committing such an offence is arrested or detained by the police without warrant or appears/ brought before the court, such person will be released on bail after furnishing bail bond or bond. 

In these cases, the bail is considered to be the matter of right provided the accused complies with the conditions of bail bond or bond. 

Further section 479 (BNSS)/ 436A (CrPC) prescribes the maximum period for which an undertrial prisoner can be detained. For the offences where the punishment is not death or life imprisonment, the under trial if undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under applicable law, the person shall be released on bail by the Court. 

There are some changes made to this section under BNSS to include a provision to release first time offenders on completion of one-third of the maximum period of imprisonment specified for such offence under the applicable law. Further if multiple cases are pending against that person, he shall not be released on bail. The Superintendent of the Jail where the accused person is detained shall make an application in writing to the Court on completion of one-half or one-third period of the punishment. 

• Bail (Regular Bail) in non bailable offences BNSS 480 (CrPC 437)

The non-bailable offences are as mentioned in the Bhartiya Nyaya Sanhita, 2023 or any other applicable criminal laws. When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant, the person may be released on bail except in 

1. Cases where there are reasonable grounds for believing that the person has been guilty of an offence punishable with death of imprisonment for life
2. Cases where it is a cognizable offence and the person had been previously convicted of an offence punishable with death, life imprisonment for seven years or more OR the person had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years. 

In case of the accused is a child or a woman or a sick or an infirm, such person be released on bail without considering the above mentioned exceptions. 

Court has the discretionary powers to release the person on bail even if the above mentioned exceptions are applicable to the person in question, if it is satisfied that it is just and proper to do so for any other special reason. 

Whatever the case be, the Public Prosecutor is given an opportunity to file the objections to such release. 

On release of such person court shall impose the following conditions:

1. That such person shall attend in accordance with the conditions of the bond executed 
2. That such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and
3. That such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. 

And also can impose other conditions in the interests of justice. 

• Anticipatory Bail BNSS 482(CrPC 438)

When a person has reasonable apprehension that he/ she may be arrested on an accusation of having committed a non-bailable offence, such person can apply for anticipatory bail, he/ she can apply to the court and the court may grant bail, if it thinks fit. 

The conditions of anticipatory bail would include;

1. i) the person shall make himself available for interrogation by a police officer as and when required
2. ii) the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer;

iii) the person shall not leave India without the previous permission of the Court;

1. iv) such other condition as may be imposed as if the regular bail was granted for a non-bailable offence

Granting of anticipatory bail is at the discretion of the Court. 

Anticipatory bail is not granted for the offences of rape of a woman under the age of 16 years (BNS u/s 65) and gang rape of a woman under 18 years of age (BNS u/s 70 (2)). 

• Ad Interim Bail

When the application for Anticipatory or Regular Bail is pending in the court, the accused can apply for an interim bail for a shorter period. The courts have discretionary powers to grant or deny interim bail. If granted, the conditions of the regular or anticipatory bail shall apply, additional conditions as necessary may also be imposed in the interests of justice. 

• Bail after Conviction BNSS 430 (CrPC 389)

A convicted person may also be released on bail, if he wishes to appeal the order of conviction. First the appellate Court may order the execution of the sentence or order appealed against be suspended. If the accused is imprisoned, he is released on bail or on his own bond or bail bond. The Public prosecutor is given an opportunity to oppose such release by showing cause in writing in cases of conviction is for an offence punishable with death or imprisonment for life or imprisonment for a term not less than 8 years. 

If the accused is already on bail and the sentence is for imprisonment for a term not exceeding three years or the offence committed by the convicted is a bailable one, and he/ she is intending to appeal the order, such person shall be released on bail unless there are special reasons for refusing bail. 

• Bail on default BNSS 187 (2) (CrPC 167(2))

This type of bail is also called Statutory bail. When an accused is in detention for a period more than 60 or 90 days (Depending on the offense) and the investigation agency has failed to file a charge sheet within that period, the Magistrate has power to release the accused on bail. 

PROCEDURE TO APPLY FOR BAIL

Who can file:

The accused or a close relative of the accused through a lawyer can apply for the Regular or Anticipatory bail.

Where to file:

The bail application is filed with the court that has jurisdiction. 

Contents of the Application:

The Bail Application must be very specific to the offence which the accused is accused of. Where FIR is registered, FIR number is must. The reasons why the accused needs to be on bail and an affidavit that details the facts of the case to be available. 

Stages of Bail procedure

1. Bail application is filed in the court having jurisdiction along with the supporting documents.
2. The court will give hearing dates, the defense argues the matter as to give reasons why the accused should be released on bail. 
3. The court gives time for the prosecution to file objections 
4. Based on both the parties arguments, facts of the case & documents provided, the court decides on granting or not granting bail. 
5. When the bail is granted, it accompanies certain conditions such as to appear in the court whenever called for, not to tamper with evidence, not to leave the jurisdiction without permission and most importantly the bail bond. 
6. The bail bond can be a sum of money deposited or personal surety, where 2 or more personnel with permanent address within the jurisdiction give assurance that the accused will appear for the trial. 
7. If the bail is rejected by the court, the accused can go for an appeal in the higher court. 
8. Cancellation of bail – can be done by the court, when the terms and conditions of bail are not adhered to. The Prosecution can bring this to the court’s attention. 

How many days does it take to get bail?

It depends on the facts of the case, after the application it may take a week’s time or may take a few weeks’ time to get the order from the court. 

BNSS provisions for Bail

Chapter 35, Sections 478 to 496 – of Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the Bail & Bail bonds.