Bail Matters

Legal Framework of Bail Matters in India

The legal framework for bail matters in India has undergone a recent change with the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC), 1973. Here's a breakdown of the key aspects.

• Bail: Similar to the CrPC, the BNSS classifies offenses as bailable or non-bailable. Bail allows the temporary release of an accused person before or during the trial. Offenses are categorized into two types.
  • Bailable Offences: Bail is granted as a right (almost always given). It is considered an absolute and indefeasible right for the accused. Though you may have to furnish a bail bond before the concerned magistrate, even the police can grant bail in such offenses. Refusal to grant bail in cases of bailable offenses amounts to wrongful confinement. Bailable offenses are considered less severe. Generally, bailable offenses are those in which punishment is for up to or less than three years of imprisonment. Still, in certain offenses, such as those under sections 211, 193 IPC/sections 248, 229 BNS, the punishment is more than three years, categorized as bailable.
  • Non-Bailable Offences: Bail is granted at the court's discretion based on factors like the severity of the offense, flight risk, and tampering with evidence. Only the magistrate can grant bail in such cases. There is no illegality committed if the Presiding Officer or the court does not grant bail to the accused. Non-bailable offenses are considered to be more serious or heinous. The quantum of punishment is usually higher than three years' imprisonment for non-bailable offenses. 

Types of Bail

• Regular Bail (Section 478 BNSS/Section 436 CrPC): Regular bail can be sought by a person in judicial custody for bailable offenses. If an accused of a bailable offense is arrested or detained by a police officer without a warrant or is produced before a court, then such an officer or court can grant bail to such a person under this provision.
• Bail in Non-Bailable Offenses (Section 480 BNSS/Section 437 CrPC): A person arrested or held without a warrant for any non-bailable offense may apply for bail in any court other than a High Court or Court of Sessions. Any court issuing bail under Section 480 of the BNSS has the authority to revoke it and order the subject's arrest and incarceration.
• Bail by High Court and Court of Sessions (Section 483 BNSS/Section 439 CrPC): Section 483 of the BNSS (Section 439 CrPC) gives High Courts and Courts of Sessions the authority to issue bail to an accused person who is being held in custody on conditions that the court determines appropriate. An accused of the offense of rape of a juvenile or gang rape of a female under 18 may not be granted bail by a High Court or Court of Sessions without first notifying the Public Prosecutor of the bail application within 15 days. Furthermore, when an accused of the offenses above is applying for bail, their presence, or that of any other person authorized by them, is also required at the hearing of the bail application.
• Anticipatory Bail (Section 482 BNSS/Section 438 CrPC): A person apprehending an arrest can be granted bail under section 482, BNSS, by the High Court and the Court of Sessions, corresponding to section 438, CrPC. Anticipatory bail can only be granted for non-bailable offenses. It can also be sought as transit bail. In giving such instructions, the court may impose conditions on the individual based on the facts of the case, such as the requirement that the individual make himself available for questioning by a police officer upon request or the requirement not to tamper with evidence, among other things.
  
  • Section 438 of the CrPC/Section 482 of the BNSS differ significantly in that the former has eliminated criteria that courts had to evaluate before granting anticipatory bail. These factors include the type and seriousness of the charge, the applicant's record, and the likelihood of escaping justice, among others. This clause has loosened requirements that were previously in place for anticipatory bail. 
  • It is crucial to remember that anticipatory bail is not granted for offenses listed under BNS sections 65 and 70(2), which include, respectively, rape of a juvenile (under 16) and gang rape of a female (under 18).
• Default Bail (Section 187(3) BNSS/Section 167(2) CrPC): Default bail under the Bharatiya Nagarik Suraksha Sanhita (BNSS) operates as a safeguard against prolonged detention without trial. According to Section 187(3) of the BNSS, a Magistrate cannot detain an accused in custody under this provision for a total period exceeding ninety days for offenses punishable by death, life imprisonment, or imprisonment for ten years or more, and sixty days for others. If investigative agencies fail to complete their investigation and file a charge sheet within the stipulated timeframe, the accused becomes eligible for default bail. The court is legally obligated to grant bail if the accused is willing to furnish the required bail bonds. The default bail ensures that individuals are not detained indefinitely without a formal trial, protecting individual liberty and ensuring a timely and fair legal process.

Bail Conditions

• The court imposes conditions of submitting a surety with a personal bond. If the accused is incompetent to furnish the surety as ordered by the court, they can present an application seeking exemption from the surety requirement, and upon being satisfied, the court can release them on personal bond as well. 
• Sometimes, it may impose conditions such as surrendering a passport, presenting oneself before the SHO of the concerned police station at regular intervals, appearing on the dates of hearings before the court during the trial or proceedings, or other conditions as it deems fit and appropriate. 
• Condition of not influencing witnesses, not tempering the evidence, or as deemed fit by the court, in the interest of justice, so that the prosecution's case should not be hampered. 

Changes Introduced by the BNSS

• Early release of first-time offenders is allowed under the BNSS if they have served one-third of their sentence in jail as an under-trial.
• Under the new law, bail may be denied if someone has multiple cases pending against them.
• It is now the responsibility of the Jail Superintendent to apply for the release of under-trial prisoners on completion of one-third of their sentence.

Penalties for Violating Bail Conditions

• Forfeiture of Bail Bond: The court may forfeit the bail bond furnished by the accused if bail conditions are violated. This, in effect, would imply losing the money or property deposited as security for bail.
• Revocation of Bail: If the violation is serious or repeated, the court may revoke the bail and order the accused to be taken into custody pending trial or further proceedings.
• Additional Charges: Violating bail conditions may also lead to additional charges or penalties related to obstruction of justice or contempt of court, depending on the nature of the violation.

How to Report a Violation of Bail Conditions?

• Informing the Court: Notify the court that granted bail immediately if the accused violates any conditions, providing specific details of the violation.
• Police Complaint: File a complaint with the local police station if the violation involves criminal conduct or poses a threat to public safety. The police will investigate and take appropriate action based on the circumstances.

How Can Seasoned Advocates Help You?

• Legal Advice and Strategy: Provide strategic advice throughout the bail process, guiding clients on the best course of action and ensuring they understand their rights and options.
• Legal Representation: Prepare and argue bail applications effectively, presenting compelling arguments for the grant of bail based on legal grounds and precedents.
• Negotiating Bail Conditions: Negotiate favorable bail conditions on behalf of the accused, ensuring they comply with legal requirements while safeguarding their rights and interests.
• Monitoring Compliance: Advise on and monitor compliance with bail conditions to prevent inadvertent violations and mitigate risks of adverse consequences.
• Defending Against Allegations: If allegations of bail condition violations arise, advocates can defend the accused in court, challenging the allegations and presenting defenses to protect their liberty.
• Petitions and Remedies: Handle petitions against bail denials or revocations, seeking appropriate remedies and relief from higher courts if necessary.

Conclusion

In conclusion, if the accused is under judicial custody, getting bail may be complex, especially when they are facing heinous allegations or have pending cases against them. There are provisions for anticipatory bail, interim bail, and other types of bail. The court can release an accused if it is satisfied that the release is not harmful and other conditions are fulfilled. Expert guidance can help. To know more, contact us.