When a person commits a crime, the first question that comes to mind is whether he will be immediately arrested and sent to jail ? This is where the subject of bail begins. The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 is applicable in India from 1 July 2024. Bail is now governed by the BNSS . In this article, we will read what bail is and the types of bail in an easy and detailed manner.
Under BNSS 2023, the provisions related to bail and bonds are covered in Chapter 35, spanning Sections 478 to 496.
What is bail?
General meaning –
“Bail is the temporary release of an accused person from custody on the condition that they will appear in court on a specified date”
According to Black’s Law Dictionary –
‘The procurement of the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.’
According to Section 2(1)(b) of The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 –
“bail” means 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.”
According to this definition, understand what is bail like this –
Who gets Bail?
To a person accused or suspected of a crime.
Who gives it?
An officer or a court.
How is it granted?
With certain conditions.
On what basis?
On execution of a bond (in which a person himself promises that he will follow the conditions) or a bail bond (in which another person takes security/responsibility).
What is the effect?
That person is released from legal custody, but his trial continues.
Example:
Lalua is accused of committing the crime of defamation. The police arrest Lalua and bring him before the court. Then the court found that the crime is a bailable offence. When Lalua applies for bail, the court tells him that he has to furnish a bond of Rs. 5000 or a surety from another person, i.e., the person has to take the responsibility that whenever Lalua is summoned to the court, he will appear and cooperate in the trial of the case. Thus, on accepting the conditions imposed by the court and furnishing the required surety, Lalua is released from custody (jail), but the proceedings of the case continue.
Types of Bail
There are 5 types of bail mentioned in The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023. These can be understood in the following manner with the help of basic provisions.
1.Regular Bail
The first type of bail is regular bail. This means that when a person is arrested, he can apply for bail from the court and get it.
According to Section 478 in bailable offenses –
The provisions of bail in bailable offenses under Section 478 can be understood in simple language as follows.
Eligibility for Bail
Persons who are not accused of a non-bailable offence, that is, he has committed a bailable offence. If he is arrested without a warrant, is brought before an officer or court, or is in custody, the court may, at any time, at any stage of the proceedings, release the accused on bail on an application made by him. In bailable offences the accused has a right to seek bail. The accused is released on fulfilling all the requirements of bail.
Indigent person:
If the person is indigent (unable to furnish bail), the officer or the court may release him on furnishing a bond to appear. (Provided that)
If bail is not granted within one week of the arrest, the person is presumed to be indigent. (Explanation)
Exception:
This section does not affect the provisions of sub-section (3) of section 135 or section 492.
Non-compliance with bail conditions:
- If a person fails to comply with the conditions of bail, the court may refuse to grant bail on subsequent occasions.
- The court has power to impose punishment for non-compliance under section 491.
Bail In Non-Bailable offences U/S 480
The provisions of bail in non-bailable offences under section 480 can be understood in simple language as follows:
Eligibility for bail in non-bailable offences
When a person who is accused of a non-bailable offence or is suspected of committing a non-bailable offence is arrested without a warrant or brought before the court, he may be released on bail. (Sub-section 1)
Will not be released in the following conditions:
It is the discretion of the court to release on bail in a non-bailable offence. The court may refuse bail on the following grounds:
- The accused has committed an offence punishable with death or life imprisonment.
- If the accused has been previously convicted of serious offences (punishment for death, life imprisonment or imprisonment for 7 years or more),
- If the accused has been convicted twice or more previously for cognisable offences punishable with imprisonment for a term of 3 years or more or up to 7 years.
In both the above circumstances the court will not grant bail in a non-bailable offence but if such person is a child or is a woman or is a sick or infirm person (but 3)
Bail cannot be refused:
The court cannot refuse bail in a non-bailable offence only on the following grounds –
- When the accused is required only for investigation or for police custody for more than 15 days, and he is otherwise entitled to bail. (Proviso 4)
- If there are reasonable grounds to believe that the accused has not committed the non-bailable offence but there are sufficient grounds for his being guilty and investigation – he shall be released on bail. (Sub-section 2)
Public Prosecutor’s Hearing
- In non-bailable offences punishable with a death sentence, life imprisonment or imprisonment for 7 years or more, the court is required to give an opportunity of hearing to the public prosecutor before granting bail. If this is not done, it is considered a legal error, and the bail can be cancelled later on appeal, etc. (Proviso – 5)
Conditional bail
When the court grants bail, it imposes certain conditions along with it. Thus, bail granted with conditions is called conditional bail. Section 480(3) of The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 imposes the responsibility on the court to impose conditions on the accused while granting bail.
If the crime is punishable with 7 years or more or there is an allegation or suspicion of an offence, abetment, attempt, conspiracy under BNS Chapter 6, 7 and 17, then bail will be granted with conditions, i.e.,.
- The accused will appear in court as per the bond.
- The accused will not commit any other crime.
- The accused will not prevent any person having knowledge of the facts of the case from revealing it to the court or officer.
- Will not tamper with evidence or intimidate witnesses.
- Any other condition which is necessary in the interest of justice may be imposed. That is, the court may impose such conditions as are appropriate and necessary in the facts and circumstances of the case. (Section 480(3))
Writing the reasons and ordering arrest
The court or officer will write the reasons or special reasons for granting bail. If the accused does not comply with the bail conditions, the court can cancel the bail and order the arrest of the accused if necessary. (Section 480(4 & 5)
Anticipatory Bail
When a person has reason to believe that he may be arrested for a non-bailable offence, then that person can apply for bail before the High Court or Sessions Court under Section 482 of The Bharatiya Nagarik Suraksha Sanhita (BNSS)2023. In other words, when bail is granted before arrest, it is called anticipatory bail.
If the court approves, it directs that the person be released on bail upon arrest. That is, when the court accepts the application for anticipatory bail, it issues a direction in the form of an order. According to this direction, the arrested person is released immediately as per the order.
Conditions for Anticipatory Bail
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- The court can impose the following conditions while accepting anticipatory bail.
- Will present himself for interrogation by the police whenever required.
- Will not give any inducement, threat or promise to the witnesses of the case.
- Shall not leave India without permission of the Court.
- The accused shall appear before the Court as per the bond.
- The accused shall not commit any other offence.
- The accused shall not prevent any person having knowledge of the facts of the case from disclosing the same to the Court or the officer.
- Any other necessary conditions. [Section 482(2)]
Note: This provision does not apply to offences under Sections 65 and 70(2) of the BNS, 2023.
3. Default bail
When the investigation by the police or other investigating agency is not completed within 90 or 60 days, the accused becomes entitled to be released on bail under section 187(3) due to the default. This is called default bail.
Period of 90 or 60 days:
Ninety days: For offences punishable with a death sentence, imprisonment for life or imprisonment for a term of ten years or more.
Sixty days: For all other offences.
A person released on bail under this provision is deemed to be released under Chapter XXXV for all legal purposes. In case of default bail, the accused shall be released only if he is willing to furnish bail.
4. Interim bail
There is no provision in the Indian Civil Security Code 2023 (BNSS) regarding interim bail. It is a type prevalent in other legal and judicial practices.
What is interim bail ?
Temporary release of the accused and convict for a short period until a decision is taken on regular bail or suspension of sentences is called interim bail.
Object and grounds
- Provides temporary release on exceptional or humanitarian grounds.
- It is used when regular bail is not appropriate but immediate relief is required.
Example: serious illness, family emergency, or other urgent personal circumstances.
5. Bail after conviction
When a person is convicted of a crime, the appellate court or the trial court releases him on bail during the appeal period. This is called bail after conviction. Provision in this regard has been made in Section 430 of the The Bharatiya Nagarik Suraksha Sanhita (BNSS)2023.
By Appellate court
When a person is convicted, if he appeals against that sentence, then if he is imprisoned, he will be released on bail till the appeal is pending.
By Trial court
The trial court can also release him on bail to present the appeal and till the order of the appellate court is received, if the convicted person –
- Has been sentenced to imprisonment up to 3 years while on bail,
- The crime for which he has been convicted is bailable and he is on bail.
Conclusion
Bail has a very important place in the Indian criminal system. It works as a balance between the personal freedom of a person and the criminal law. This prevents an innocent person from unnecessarily staying in jail among dangerous criminals and if found guilty, he will be punished with appropriate punishment after the trial is over. In this way, whether it is regular bail, anticipatory bail, interim bail, default bail or bail after conviction, all these make the law and justice system in India just.
