Understanding Bail and Cancellation Under Bharatiya Nagarik Suraksha Sanhita, 2024
Category: Criminal Law
「 ✦ Content ✦ 」
Melius est abundare nocentibus quam innocentem damnare."/ "Better that ten guilty persons escape than that one innocent suffer.
Bail is the legal process through which a judge or magistrate grants liberty to an individual who has been arrested or imprisoned, upon receiving security to ensure the person's appearance in court for further proceedings. Typically, release from custody is achieved by posting a sum of money or a bond. Historically, bail could involve other forms of property, such as real estate titles. In modern legal systems, bail primarily aims to secure the temporary freedom of individuals accused of criminal offenses pending their trial. It may also be utilized in some cases to secure release pending an appeal of a conviction
Purpose:-
Bail pending trial in criminal cases serves two main purposes: -
1) to prevent unjust punishment of an innocent person who may be acquitted later, and
2) to facilitate the unhindered preparation of their defense.
This succinctly encapsulates the principle that, where possible, individuals should be granted bail rather than being detained in custody pending trial, emphasizing the preference for liberty unless there are compelling reasons for detention.
Though there was no definition provided in CrPC for terms such as bail or bail bond etc. Under the new regime of BNSS, the definitions for key terms are as follows:-
Sec 2 (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.
Sec 2 (d) "bail bond" means an undertaking for release with surety;
Sec 2 (e) "bond" means a personal bond or an undertaking for release without surety;
Kinds of Bail:-
1) Regular Bail ( Bail in bailable and non – Bailable offenses)
2) Anticipatory or Pre-arrest Bail
3) Mandatory Bail
4) Bail granted on Medical grounds.
Person arrested to be informed regarding grounds of arrest and provision of bail:-
Sec 47 is a new provision found in the BNSS which states that a Police officer arresting a person without a warrant for offenses other than non-bailable offense he shall be dutybound to inform the accused that he is entitled to be released on bail and may arrange for sureties on his behalf.
1) Regular Bail –
Regular bail is the bail taken by the Accused in bailable and non- bailable offences after arrest has happened. Under CrPC the said form of bail was applied for by the Accused under 436 and 437 of the Cr.P.C.
Sections 478 of BNSS and 436 of the CrPC are identical in their provisions and intent, ensuring that individuals accused of bailable offenses are granted bail as a matter of right. Both sections provide mechanisms to accommodate economically disadvantaged individuals by allowing for release on bond without sureties. This alignment ensures consistency in the legal framework governing bail for bailable offenses, regardless of whether the jurisdiction operates under BNSS or CrPC.
Sec 480 of BNSS deals with bail for non-bailable offences, for such cases the an application/ petition for bail should be filed before the same court where he is produced after the arrest.
Similar to Section 437 CrPC, it allows a court to grant bail in non-bailable offenses, with the same exception for offenses punishable with death or life imprisonment. The section includes conditions for granting bail, such as ensuring the accused does not tamper with evidence or threaten witnesses. It also provides for special consideration for minors, women, and those who are sick or infirm. Courts can impose conditions to ensure the accused's presence during trial and the integrity of the judicial process.
2) Anticipatory Bail
Section 482 of BNSS deals with anticipatory bail, which is granted to a person apprehending arrest in anticipation of being accused of a non-bailable offense. This provision allows an individual to apply for bail before being arrested, ensuring their freedom while awaiting legal proceedings. An application for anticipatory or pre-arrest bail can be made before the High Court of Court of Sessions.
The court granting anticipatory bail can impose conditions tailored to the case's facts. These conditions may include:-
i) Making Accused available for police interrogation as required.
ii) Not tampering with evidence.
iii) Not threatening witnesses or obstructing justice in any way.
iv) Restricting movement, such as requiring the person to remain within a particular jurisdiction.
Anticipatory bail is not available for certain offenses. For example, under Sections 65 and 70(2) of BNSS, anticipatory bail is explicitly excluded for offenses such as: i) Rape of a minor (below 16 years of age).
ii) Gang rape of a female (below 18 years of age).
Under Section 438 of CrPC, courts must consider factors like the nature and gravity of the accusation, the applicant’s antecedents, and the possibility of fleeing justice. Section 482 of BNSS, however, has deleted these specific factors, providing courts more flexibility and less stringent criteria when deciding on anticipatory bail applications.
3) Mandatory Bail
"Mandatory bail" typically refers to situations where the law requires that bail be granted to a person under certain conditions or circumstances, regardless of other considerations. These conditions could include:
1. Statutory Provisions:- Some laws mandate that bail must be granted for certain offenses or under specific conditions. For example, certain non-bailable offenses may become bailable under certain circumstances.
2. Time Limits:- If the investigation or trial does not proceed within a certain period, as prescribed under the law (e.g., 60 or 90 days depending on the offense), the accused may become entitled to bail as a matter of right.
3. Other Legal Mandates: There could be other legal provisions such as health concerns, age, or other humanitarian grounds that mandate the granting of bail.
4) Bail on Medical Grounds:-
The CrPC allows for bail to be granted on medical grounds if the accused is suffering from a serious illness or medical condition that requires specialized treatment that is not available in prison.
Courts consider medical reports, opinions of doctors, and the severity of the illness when deciding whether to grant bail on medical grounds. Bail may be granted temporarily or subject to conditions that ensure the accused receives medical treatment while complying with the legal requirements.
Following are the examples of cases when bail was granted to the Accused on medical grounds:-
1) Sudha Bharadwaj's Case (2019): - Sudha Bharadwaj, an activist and lawyer, was granted interim bail by the Bombay High Court on medical grounds. She had sought bail citing health concerns, including a deteriorating medical condition that required specialized treatment.
2) Stan Swamy's Case (2021):
Stan Swamy was arrested in October 2020 under the Unlawful Activities (Prevention) Act (UAPA) for his alleged involvement in the Bhima Koregaon violence case. During his detention, concerns were raised about his health, particularly his advanced age and medical conditions. The Bombay High Court granted interim bail to Stan Swamy primarily due to his deteriorating health condition. The court noted that he was suffering from Parkinson's disease, which required regular medical attention and care that was difficult to provide adequately in prison.
Another recent important case where the Accused was denied interim bail.
3) V Senthil Balaji v The Deputy Director
Balaji, the Minister of Electricity, Prohibition, and Excise, was arrested by the Enforcement Directorate (ED) on June 15 in connection with a cash-for-jobs scandal dating back to his tenure as Transport Minister during the 2011-16 AIADMK government. This arrest followed a Supreme Court order in May that overturned a Madras High Court decision to stay proceedings in a money laundering case against him. On the same day as his arrest, Balaji's wife filed a habeas corpus petition in the High Court, arguing that his detention was unlawful. While the High Court denied him interim bail, it permitted him to be transferred to Cauvery Hospital, a private facility, after he complained of chest pain. He subsequently underwent heart surgery while in judicial custody at the hospital.
Under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA), bail can be granted to a person accused of an offense under this Act, subject to two twin conditions:-
1) Nature of Offense: The court must be satisfied that the offense alleged is a "predicate offense" under the PMLA. Predicate offenses are specified offenses listed in the Schedule to the PMLA, such as terrorism, narcotics trafficking, arms smuggling, and certain financial crimes.
2) Conditions for Grant of Bail: In addition to the nature of the offense being a predicate offense under the PMLA, the court must also be satisfied that the person is not guilty of the offense and that they are unlikely to commit any offense while on bail.
These twin conditions are crucial in determining whether bail can be granted under the PMLA, considering the serious nature of the offenses and the concerns related to money laundering and its impact on the financial system.
Written By :ADVOCATE AYANTIKA MONDOL
