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) of 1973. Here's a breakdown of the key aspects:
- Bail: Similar to the CrPC, the BNSS classifies offences as bailable or non-bailable. Bail allows temporary release of an accused person before or during trial. Offences are categorised into two types:
- Bailable Offences: Bail is granted as a right (almost always granted). It is considered to be an absolute and indefeasible right of the accused. Even, the police can grant bail in such offences and there is no need to approach the magistrate. Refusal to grant bail in cases of bailable offences amounts to wrongful confinement. Bailable offences are considered to be less serious in nature. Generally, bailable offences are those in which punishment is for less than three years of imprisonment.
- Non-Bailable Offences: Bail is granted at the court's discretion based on factors like severity of the offence, 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-baliable offences are considered to be more serious or heinous in nature. The quantum of punishment is usually higher than three years imprisonment in non-baliable offences.
Types of Bails
- Regular Bail (Section-480 BNSS, Section-437 CrPc): Regular bail can be sought by a person who is in judicial custody for offences which are non-bailable in nature. If any person accused of a bailable offence 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 the above mentioned provision.
- Bail under Section 480 for non-baliable offences (Section 437 CrPc)- A person who has been arrested or held without a warrant for any non-bailable offence may apply for the 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. A person accused of the offence 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. Furthermore, when a person accused of the aforesaid offences is applying for bail, their presence, or that of any other person authorized by them, is also required at the time of hearing the bail application.
- Anticipatory Bail (Section-482BNSS, Section-438CrPc): A person apprehending arrest can be granted bail under Section 482 by the High Court and Court of Sessions. Corresponding Section 438 CrPc. Only for offences that are non-baliable in nature can anticipatory bail be granted. In giving such instructions, the court in question may impose conditions on the individual based on the particulars 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 and 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 past, the likelihood of escaping justice, etc. The strict requirements that were previously in place for anticipatory bail have been loosened by this clause.
- 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, Proviso 1 of 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 other offences. 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. 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 impose conditions like submitting a surety with personal bond.
- Sometimes, it might also impose other conditions like surrendering passport, appearance before court during the trial or other conditions as it deems fit and appropriate.
- Condition of not influencing witnesses, or as deemed fit by the court in the interest of the justice as such the case of the prosecution should not be hampered.
Changes Introduced by 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 is not allowed if someone has multiple cases pending against him.
- It is now the responsibility of the Jail Superintendent to submit an application for release of under-trial prisoner on completion of one-third of their sentence.
International Framework
There's no singular international framework specifically for bail. However, international human rights instruments emphasise the right to liberty and a fair trial, which can be indirectly relevant:
- Universal Declaration of Human Rights: Article 9 states everyone has the right to liberty and security of person.
- International Covenant on Civil and Political Rights (ICCPR): International human rights standards, such as those outlined in the International Covenant on Civil and Political Rights (ICCPR), emphasise the right to liberty and fair trial. These principles guide interpretations of bail provisions to ensure they adhere to international norms of due process and proportionality.
Penalties for Violating Bail Conditions
Violating bail conditions can result in serious consequences, including:
- 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?
Reporting a violation of bail conditions involves:
- 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?
Seasoned advocates specialising in criminal law and bail matters can assist in several ways:
- Bail Application and Representation: Advocates can prepare and argue bail applications effectively, presenting compelling arguments for the grant of bail based on legal grounds and precedents.
Negotiating Bail Conditions: They can negotiate favourable bail conditions on behalf of the accused, ensuring they comply with legal requirements while safeguarding their rights and interests.
- Monitoring Compliance: Advocates can 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 defences to protect their liberty.
- Petitions and Remedies: They can handle petitions against bail denials or revocations, seeking appropriate remedies and relief from higher courts if necessary.
- Legal Advice and Strategy: Advocates provide strategic advice throughout the bail process, guiding clients on the best course of action and ensuring they understand their rights and options.
Conclusion
In conclusion, seasoned advocates play a crucial role in navigating the complexities of bail matters in India. Their expertise, advocacy skills, and knowledge of legal procedures are essential in securing bail, ensuring compliance with bail conditions, and protecting the rights of individuals accused of crimes. To know more, contact us.