Bail**

Bailable Offences

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) distinguishes between bailable and non-bailable offences, with significant implications for the right to liberty and the process of obtaining release from custody.

Right to Bail

For offences classified as 'bailable' in the First Schedule of the BNSS or by any other law, the accused has a fundamental right to be released on bail.

• Definition: A "bailable offence" is an offence shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force (Section 2(1)(c) BNSS).

• Mandatory Release: Section 436 BNSS states that when any person, having been arrested or detained without warrant for a bailable offence, or appears or is brought before a court, and is prepared at any time while in the custody of the police or before the court to give bail, such person shall be released on bail.

• Discretionary Nature: The release on bail for bailable offences is not discretionary but a matter of right for the accused. The police officer or the court is bound to release the person upon furnishing a bail bond, with or without sureties.

• Purpose: This provision ensures that individuals accused of less serious offences are not unnecessarily detained, upholding the principle that bail is the rule and jail is the exception.

Execution of Bond for Appearance

Upon release on bail for a bailable offence, the accused is required to furnish a bond.

• Section 436(1) BNSS: This section mandates that the person shall be released on bail after executing a bond, with or without sureties, for such sum as may be deemed requisite to ensure his appearance before the appropriate Court.

• Purpose of Bond: The bond serves as a guarantee that the accused will appear before the court whenever required for the investigation, inquiry, or trial of the case.

• Conditions: The conditions on the bond are generally limited to ensuring attendance. If the accused fails to appear, the bond may be forfeited.

Non-Bailable Offences

Non-bailable offences are generally more serious crimes, and the grant of bail in such cases is subject to the discretion of the court and specific conditions.

Grant of Bail by Courts

In cases of non-bailable offences, the power to grant bail rests with the courts (Magistrate, Sessions Court, High Court).

• Section 437 BNSS: This section deals with the general power of the Magistrate, Court of Session, or High Court to grant bail in non-bailable offences.

• Discretionary Power: Unlike bailable offences, bail in non-bailable offences is not a right. It is granted at the discretion of the court, which must exercise this discretion judicially.

• Conditions for Bail: The court may release an accused person on bail, with or without sureties, but it must impose conditions to ensure the accused's presence at trial and to prevent obstruction of justice. These conditions can include reporting to the police station, not leaving the country, not tampering with evidence, etc.

Factors to be considered for granting bail

When deciding whether to grant bail in a non-bailable offence, courts consider various factors, including:

• Nature and gravity of the offence: More serious offences generally make bail less likely.

• Severity of the punishment: Offences with severe penalties (like life imprisonment or death) may lead to denial of bail.

• Evidence against the accused: The strength of the evidence linking the accused to the crime is a crucial factor.

• Possibility of absconding: The court assesses whether the accused is likely to flee from justice.

• Possibility of tampering with evidence or influencing witnesses: The court considers if the accused might interfere with the investigation or trial.

• Previous criminal record of the accused: A history of offences can weigh against granting bail.

• Health, age, and sex of the accused: Special considerations may be given to women, children, sick, or old persons.

• Stage of investigation: Whether the investigation is complete or ongoing.

Anticipatory Bail (Section 55 BNSS)

Anticipatory bail is a pre-arrest bail granted by a court, allowing a person to obtain a bail order in anticipation of an accusation of having committed a non-bailable offence.

• Provision: Section 55 BNSS, similar to Section 438 CrPC, provides for anticipatory bail.

• When Granted: It can be sought by a person who apprehends arrest on an accusation of having committed a non-bailable offence.

• Powers: The Court of Session or the High Court may, before any arrest is made, direct that in the event of such arrest, the person shall be released on bail.

• Purpose: This provision aims to protect innocent persons from being implicated in false cases or from harassment through malicious prosecution. It allows a person to avoid the indignity and potential prejudice of arrest.

• Conditions: The court may impose conditions for granting anticipatory bail, similar to regular bail, to ensure appearance and prevent misuse.

Cancellation of Bail

Bail, once granted, can be cancelled under certain circumstances. This power is primarily exercised by the courts.

• Grounds for Cancellation: Bail can generally be cancelled if the court finds that:

  • The accused has misused the liberty granted by bail (e.g., by tampering with evidence, influencing witnesses, committing further offences).

  • The accused has failed to appear before the court as required.

  • The bail was obtained by fraud or misrepresentation.

  • There are supervening circumstances that make the continued release of the accused prejudicial to a fair investigation or trial.

• Procedure: An application for cancellation of bail can be made by the prosecution. The court, after hearing both sides, can cancel the bail and order the arrest of the accused.

• BNSS Provisions: While a specific section solely for cancellation of bail is not explicitly enumerated as a distinct heading in BNSS, the general powers of the court to ensure attendance and prevent misuse of liberty (Section 437(5) and 439(2) BNSS, mirroring CrPC provisions) implicitly cover the power to cancel bail.

Bond for Appearance

Bonds are a crucial part of the bail process, ensuring the accused's appearance in court.

Execution of Bond with or without sureties

Both for bailable and non-bailable offences, when bail is granted, the accused is required to execute a bond.

• Section 436 BNSS (Bailable Offences): Requires the person to be released on bail after executing a bond, with or without sureties, for such sum as may be deemed requisite to ensure his appearance before the appropriate Court.

• Section 437 & 439 BNSS (Non-Bailable Offences): Granting bail is discretionary and may be subject to conditions. The court will require the execution of a bail bond, often with one or more sureties, for a specified amount. The sureties also bind themselves to produce the accused in court if the accused fails to do so.

• Purpose of Sureties: Sureties act as a guarantee that the accused will appear in court. If the accused absconds, the sureties can be asked to pay the forfeited bond amount, and they may also be responsible for producing the accused.

• Discharge of Bond: Once the case is disposed of, or the accused is discharged or acquitted, the bond executed by the accused and his sureties stands discharged.

The BNSS aims to ensure that the bond and surety requirements are proportionate to the gravity of the offence and the financial capacity of the accused, to prevent the bail system from becoming inaccessible.