Criminal Law

Bail

The Bail is a fundamental right of an accused person to secure their liberty while ensuring their presence for trial proceedings.

The concept of  is rooted in the principle of “innocent until proven guilty.” The Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure, 1973, brings significant changes to bail provisions to ensure a fair and speedy justice system.

This article discusses the legal framework, types, procedures, and recent amendments regarding surety under the new law.

Meaning and Purpose of Bail

Bail refers to the temporary release of an accused person from custody, ensuring their presence in court when required. The primary objectives of release on bond include:

(a) Preventing unnecessary detention before trial.

(b) Upholding the fundamental right to personal liberty.

(c) Ensuring the accused’s cooperation with judicial proceedings.

(d) Reducing the burden on prisons.

Categories of Offences and Bail Provisions

The Bhartiya Nagrik Suraksha Sanhita, 2023 classifies offences into three categories:

Bailable Offences – Where release on bond is a matter of right.

Non-Bailable Offences – Where release on bond is discretionary and depends on judicial assessment.

Cognizable and Non-Cognizable Offences – These determine police authority to arrest without a warrant.

The classification significantly impacts the release on bond granting process, with stricter conditions imposed on serious offences.

Types of Bail under BNSS, 2023

There are three type of bail which are as follows :-

Regular Bail

Regular surety is granted to a person who has been arrested and is in police custody. Under BNSS, 2023, the procedure for regular release on bond remains similar to the previous law:

For bailable offences, the accused can claim freedom as a right.

For non-bailable offences, the court considers factors like the severity of the crime, the possibility of fleeing, and the accused’s past conduct before granting release.

Anticipatory Bail

Anticipatory bail is granted to a person who anticipates arrest in a non-bailable offence. The provisions for anticipatory bail under BNSS, 2023, are outlined as:

The accused must approach the Sessions Court or High Court for relief.

The court may impose conditions to ensure the accused does not abscond or tamper with evidence.

This provision is essential to prevent misuse of law through arbitrary arrests.

Interim Bail

Interim bail is a temporary relief granted until the final decision on the application is made. This ensures that an individual does not face undue hardship during the legal process.

Bail Procedure under BNSS, 2023

The release on bond procedure under BNSS, 2023, follows a structured approach:

Filing of Application: The accused or their legal representative files a petition before the appropriate court.

Hearing of Application: The prosecution presents its objections, if any, while the defense argues for the release.

After rejection of application for bail by High Court, accused can file Special Leave Petition (Criminal) under Article 136 of Constitution of India.

Judicial Considerations

Nature and gravity of the offence.

Prima facie evidence against the accused.

Possibility of tampering with evidence or influencing witnesses.

Previous criminal record and likelihood of re-offending.

Grant or Rejection of Bail: The court, after evaluating all aspects, either grants or denies release on bond.

Reforms in Bail Provisions under BNSS, 2023

BNSS, 2023, introduces several reforms to make the bail system more efficient and just

Stricter Provisions for Repeat Offenders: Courts can impose stricter conditions for habitual offenders.

Use of Technology in Proceedings: Virtual hearings are encouraged to expedite the process.

Mandatory Recording of Proceedings: This ensures transparency and accountability in granting release.

Protection of Victims and Witnesses: Special provisions exist to protect victims from undue pressure.

Judicial Interpretation and Landmark Cases

The judiciary plays a crucial role in interpreting provisions to uphold justice. Some landmark judgments that continue to influence decisions include:

Sanjay Chandra v. CBI (2012) – Emphasized that bail should be granted unless there is a valid reason to deny it.

Arnesh Kumar v. State of Bihar (2014) – Directed that arrests should not be made casually and emphasized due process.

Satender Kumar Antil v. CBI (2022) – Highlighted the importance of granting bail to prevent unnecessary incarceration.

Conclusion

The Bhartiya Nagrik Suraksha Sanhita, 2023, brings much-needed reforms to liberty provisions, balancing individual liberty and the interests of justice. With stricter guidelines, technological integration, and safeguards against arbitrary arrests, the new legal framework ensures a more transparent and efficient criminal system.

However, the effective implementation of these provisions will depend on judicial discretion and law enforcement efficiency.