Bail under Bharatiya Nagarik Suraksha Sanhita

When we hear about someone getting arrested, one of the first questions that often comes to our minds is,
"Will they get bail?" This question becomes even more important when we consider the recent changes in
the new procedural code i.e., the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), replacing the
Criminal Procedure Code 1973 (Cr.P.C.).

BNSS has not only made major tweaks to bail provisions compared to the CrPC but has also introduced
new definitions such as bail, bail bond, and bond. It has also changed how long someone can be kept in
jail before their trial and adjusted the rules for anticipatory bail.

In this blog, we will understand bail provisions under the BNSS and examine how these bail provisions
differ from CrPC. Let's move ahead!

What is Bail?
The word "bail" comes from the old French word "Baillier," which means to deliver or hand
over. The Law Lexicon defines bail as 'security for the appearance of the accused person, on giving which
he is released pending trial or investigation'. Black's Law Dictionary describes it as a security like money
or bond, often required by a court to release a prisoner who must appear later.

In Gurbaksh Singh v. State of Punjab 1980, the SC held that grant of bail means to set at liberty a
person arrested or imprisoned on security being taken off his appearance in the court on a
particular day. The word 'bail' covers release on one's own bond.

You must read the article about Bail and Arrest.

Objective of Bail

The object of arrest and detention of the accused person is primarily to secure his appearance at the time
of trial & to ensure that, in case he is found guilty, he is available to receive the sentence. But if
his presence at trial can be assured without arresting him, it's unfair to detain him while the case is
ongoing.

Understand that personal liberty is one of the most valuable Fundamental Rights given under the
Constitution. The principle underlying the release on the bail is that the accused is presumed innocent
until proven guilty. A person released on bail is considered to be in constructive custody of the Court.
(Sunil Fulchand v. UOI 2000)

What is 'Jamin' in Court?

You might not have heard of 'Jamin' before. It is a 'bail bond' or 'surety bond.' When someone gets bail,
this bond guarantees they'll attend all court dates. It's a promise between the accused, the court, and a
surety (someone vouching for the accused). If the accused doesn't follow the bail rules, this bond (which is
a refundable amount) can be taken away.

Definition of Bail under Bharatiya Nagarik Suraksha Sanhita

The Criminal Procedure Code 1973 doesn't define the terms bail, bail bond, and bond, but the BNSS has
introduced these terms. According to the definition clause under Section 2(1) of BNSS:

'(b) "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;'

'(d) "bail bond" means an undertaking for release with surety;'

'(e) "bond" means a personal bond or an undertaking for release without surety;'

Know the difference between Old CrPC and New CrPC.

Bail to Undertrial Prisoners
Old Cr.P.C. - Section 436A of the Criminal Procedure Code (Cr.P.C.), added through the 2005
Amendment, allows an under-trial prisoner to get bail if they have been in jail for half of the maximum
punishment for their crime (except for crimes punishable by death). This provision was added to recognise
the right to a fair and speedy trial for the accused undergoing detention as an undertrial prisoner.

New Cr.P.C. - Section 479 of BNSS, which is like Section 436A of the Cr.P.C., has made important
changes to how bail is given to undertrial prisoners, such as:

1. Reducing detention time for First-Time Offenders: Previously, the law did not allow early
release for first-time offenders who hadn't been convicted before, even if they had spent a
significant amount of time in jail awaiting trial. However, the new law allows early release for such
first-time offenders if they have served up to one-third of the sentence for the offence as an
undertrial prisoner.

Proviso 1 of Section 479 of BNSS says that "Provided that where such person is a first-time offender
(who has never been convicted of any offence in the past), he shall be released on bond by the Court if he
has undergone detention for the period extending up to one-third of the maximum period of imprisonment
specified for such offence under that law."

2. Bail can't be granted if multiple cases are pending: Previously, the law did not have a rule that
stopped an under-trial prisoner from getting bail if they were facing investigation, inquiry, or trial in
multiple cases. But now, the new law has become stricter by not allowing bail if someone has
multiple cases pending against them.

Sub-clause 2 of Section 479 of BNSS says, "Notwithstanding anything in sub-section (1), and subject to
the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple
cases are pending against a person, he shall not be released on bail by the Court."

3. Obligation of Jail Superintendent: The new law requires the Jail Superintendent to submit a
written application to the court for releasing under-trial prisoners on bail after serving either one-
third or one-half of the sentence, depending on the case.

Sub-clause 3 of Section 479 of BNSS says, "The Superintendent of jail, where the accused person is
detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case
may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the
release of such person on bail."

Anticipatory Bail under Bharatiya Nagarik Suraksha Sanhita

When someone expects to be arrested for a crime, they can apply for anticipatory bail before court to
avoid detention.

In the BNSS, there's little change in anticipatory bail compared to the Cr.P.C., except for a specific
exclusion. The law now prohibits anticipatory bail for those accused of gang rape involving women under
18 years old, expanding on the Cr.P.C. provision that disallows anticipatory bail for those accused of gang
rape involving women under 16 years old (Section 376DA) or 12 years old (Section 376DB) under Section
438(4) of the Cr.P.C.

This change broadens the scope by denying anticipatory bail to those accused of gang rape on women
under 18, whereas the Cr.P.C. sets this limit at 16 years.

As sub-section 4 of Section 482 of BNSS says, "Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having committed an offence under section 65 and sub-section
(2) of section 70 of the Bharatiya Nyaya Sanhita, 2023."

Also, sub-section (2) of section 70 of BNSS reads, "Where a woman under eighteen years of age is
raped by one or more persons constituting a group or acting in furtherance of a common intention, each of
those persons shall be deemed to have committed the offence of rape and shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and
with fine, or with death."

Extended Police Custody Beyond Initial 15 Days, Not a Reason to Refuse Bail
Old Cr.P.C.- During hearings for the accused's regular bail application, the prosecution often argues
against bail by stating that the accused's custody is needed to help investigative agencies identify
witnesses.

You must go through this article- Rights in Police Custody.

Proviso 3 to Section 437 of Cr.P.C. talks about the release of the accused on regular bail by stating
that "Provided also that the mere fact that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall comply with such directions as may
be given by the Court."

New Cr.P.C.- The new law slightly changed the existing rule by stating that if the court sees the accused
needs to be in custody for more than fifteen days to identify witnesses during the investigation, they can
still get regular bail.

Proviso 3 of Section 482 of BNSS talks about When bail may be taken in case of non-bailable offence
as "Provided also that the mere fact that an accused person may be required for being identified by
witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall comply with such directions as may
be given by the Court."

Conclusion
Overall, Bharatiya Nagarik Suraksha Sanhita brings significant changes to bail provisions compared to the
Criminal Procedure Code. Key changes include expanded eligibility for bail, especially for first-time
offenders, and stricter conditions for those facing multiple charges. Anticipatory bail under the BNSS
mirrors the Cr.P.C. but excludes gang rape cases involving minors.