The new procedural code (“BNSS”) has made substantive changes with respect to the bail provisions in comparison to the existing code (“Cr.P.C.”). While the text of most of the provisions in BNSS remains identical to the existing code, BNSS include definitions of bail, bail bond, and bond. Further, changes have been made in the provision regarding the maximum period of detention of an undertrial, and the provision on anticipatory bail.
This piece explores the changes made in the BNSS2 regarding the bail provisions.
Introduction of Definition of Bail, Bail Bond, and Bond
While the Cr.P.C. doesn’t define the terms bail, bail bond and bond, the BNSS has provided clarity by defining these terms. According to the definition clause under Section 2 of BNSS:
Clause (b) defines “bail” as:
“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.
Clause (d) defines “bail bond” as:
“bail bond” means an undertaking for release with surety.
Clause (e) defines “bond” as:
“bond” means a personal bond or an undertaking for release without surety.
Changes brought with respect to Undertrial Prisoners
It is worthwhile to mention that Section 436A Cr.P.C. inserted vide the Criminal Law (Amendment) Act, 2005 (‘2005 Amendment’) states that where an under-trial offender has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence(not being an offence punishable with death), he shall be released on bail by the Court (with or without surety). The provision was added as a recognition of the right to fair and speed trial of the accused who is undergoing detention as an undertrial prisoner.
However, Section 479 of BNSS, which is the counter-part of Section 436A Cr.P.C., has brought some crucial changes in the provision granting bail to the undertrial prisoners, such as:
Early Release of First-Time Offender: In the existing law there’s no provision for the early release of the first-time offender i.e., who has never been convicted of any offence in the past, if it has spent certain amount of period in the prison as an undertrial prisoner. However, the new law has made a provision for the early release of such first-time offender if they have spent a period up to one-third of the sentence, prescribed for the offence, as an undertrial prisoner. Proviso 1 to Section 479 of BNSS2 states as follows:
“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.”
Bail Note to be Granted If Multiple Cases are Pending: The existing law doesn’t contain the provision denying bail to the under-trial prisoner where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person. However, the new law has added a stricter provision by denying bail to the under-trial prisoner if an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person. Sub-clause 2 of Section 479 of BNSS2 provides that:
“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.”
Bail can be granted on the report of Superintendent of Jail: The new law has made a provision mandating the Superintendent of Jail to submit an application in writing to the court to proceed to release the under-trial prisoner on bail who have completed one-third or the one-half of the sentence as the case may be, prescribed for the offence in the ‘Sanhita’. Sub-clause 3 of Section 479 of BNSS2 provides that:
“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.”
Changes brought in Regular Bail Provision : Need for police custody beyond first fifteen days not a ground to deny bail
It is worthwhile to mention that during the hearings on regular bail application of the accused, one of the prominent grounds taken by the prosecution to oppose the bail plea of the accused is that the accused custody is required by the investigative agencies to identify the witnesses during the investigation. The existing code in Proviso 3 to Section 437 provides for the release of 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.”
However, the new law made a slight departure from the existing provision by adding a caveat that the accused shall be entitled to a regular bail if the court finds that the custody of the accused required for identifying the witnesses during the investigation is more than first fifteen days. Proviso 3 of Section 480 of BNSS, which deals with when bail can be taken in case of non-bailable offence, states that:
“Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation or for police custody beyond the first fifteen days 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.”
Changes Brought in Anticipatory Bail Provision
When the person-accused of committing an offence apprehends arrest against the commission of a crime then an anticipatory bail application can be filed before the court in an anticipation of arrest. There is no major change made regarding anticipatory bail in the BNSS when compared to the Cr.P.C. except the change that the existing law disallows granting of anticipatory bail accused of committing a gang-rape on woman under sixteen (Section 376DA) and twelve years (Section 376 DB) of age as specified in sub-section 4 of Section 438 Cr.P.C., however the new law has made a provision that a person accused of committing a gang rape to all woman who are under eighteen years of age can not seek the anticipatory bail. Thus, the new provision has enlarged the applicability of the provision by not allowing anticipatory bail to individuals who are accused of committing gang rape on a woman under eighteen years of age, which is sixteen years under the existing law.
Sub-section 4 of Section 482 of BNSS2 reads as:
“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.”
Whereas sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, reads as follows:
“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.
Written by Adv Rohit Yadav