1. What is Bail?

Bail is the temporary release of an accused person from custody, typically given with the condition that the person will appear for trial or any other required hearings in court. Bail is generally granted in the form of a surety bond or security deposit, where the accused or their representative provides a guarantee for their appearance before the court.

The concept of bail is rooted in the presumption of innocence, which dictates that a person accused of a crime is considered innocent until proven guilty. Bail serves as a mechanism to protect an individual’s liberty while ensuring that they remain available for trial.

1. The Concept of Bail under the BNSS, 2023

Bail is a fundamental right provided under Article 21 of the Indian Constitution, which guarantees protection of life and personal liberty. However, the BNSS, 2023 introduces a more structured approach towards bail applications, the criteria for granting bail, and the protection of citizens’ rights while ensuring the safety of the public.

Under the BNSS, 2023, bail provisions are now carefully defined to ensure that:

• Individuals who have been wrongfully accused or are held without sufficient evidence are not kept in detention without trial.
• The interest of justice is maintained, while ensuring that individuals who may be a threat to public security or may tamper with evidence do not benefit unduly from bail.
• It provides specific guidelines to determine whether the accused can be released on bail or should remain in custody.

2. Types of Bail under the BNSS, 2023

The BNSS, 2023 differentiates between types of bail, specifying how they should be granted in different situations:

2.1 Regular Bail (Post-Arrest Bail)

• Regular Bail refers to the release of an individual who has been arrested but is not yet convicted of the alleged crime.
• Under the BNSS, 2023, Section 437 (similar to the Criminal Procedure Code, 1973) outlines the conditions under which regular bail may be granted.
• The court will assess the seriousness of the offence, whether there is enough prima facie evidence, and the likelihood of the accused fleeing.

2.2 Anticipatory Bail

• Section 438 of the BNSS, 2023 deals with anticipatory bail, which allows an individual to seek bail in advance if they have a genuine apprehension of arrest.
• Anticipatory bail may be granted by the High Court or Sessions Court if the accused can show that there is no likelihood of absconding or tampering with evidence.
• The courts will assess if the accusation is made in good faith or if the individual may face harassment by an unjustified arrest.

2.3 Interim Bail

• Interim Bail is a temporary release granted by the court when it is not immediately clear whether the accused should be granted regular bail.
• This bail type is particularly useful when the court requires more time to assess the evidence and decide whether regular bail should be granted.

3. Criteria for Granting Bail under the BNSS, 2023

The BNSS, 2023 defines specific criteria that the courts must consider when deciding whether to grant bail, which are:

3.1 Nature and Seriousness of the Offence

• The court must assess whether the offence alleged is bailable or non-bailable.
• Grave offences like terrorism, murder, or rape typically have stricter bail conditions, whereas less serious crimes such as theft or fraud may allow more leniency in granting bail.
• The public interest and the protection of society are paramount in the case of serious crimes.

3.2 Likelihood of the Accused Fleeing

• Bail may be denied if the court believes that there is a high likelihood of the accused fleeing the jurisdiction, leaving the country, or tampering with evidence.
• Courts examine flight risk factors, such as whether the individual has strong ties to the community, owns property, or has a fixed address.

3.3 Likelihood of Influencing Witnesses or Tampering with Evidence

• If the accused has the ability or intent to influence witnesses or tamper with evidence, bail can be denied under the BNSS law.
• In cases where such risk exists, the court may impose stringent conditions like restricted movement or electronic surveillance.

3.4 Criminal History of the Accused

• The criminal antecedents of the accused are a key factor.
• Repeat offenders or those involved in organised criminal activity are less likely to be granted bail under the BNSS, 2023.

3.5 Health Condition of the Accused

• Health considerations can be a legitimate reason to grant bail if the accused is seriously ill or in need of urgent medical treatment.
• However, such decisions are made based on the medical reports and the severity of the condition.

3.6 Cooperation with Investigation

• The accused’s willingness to cooperate with the investigation is crucial. If they are likely to cooperate, the court may be inclined to grant bail.
• The court may also require the accused to report periodically to the police station as a condition of bail.

4. Procedural Aspects of Applying for Bail under BNSS, 2023

The BNSS, 2023 follows a structured process for granting bail to the accused, ensuring that the process is fair and just. Here are the key steps in the bail application process:

4.1 Filing a Bail Application

• An individual who is arrested or anticipates arrest can file a bail application with the relevant court—either the Magistrate’s Court, Sessions Court, or High Court.
• For anticipatory bail, the application is filed before the Sessions Court or High Court, depending on the seriousness of the case.
• A bail application must include:
  • Personal details of the accused.
  • Details of the offence and the evidence provided.
  • Any previous criminal history (if applicable).
  • Any health conditions or other mitigating circumstances.

4.2 Hearing of Bail Application

• After the application is filed, the court will set a date for a hearing.
• During the hearing, both the prosecution and defence present their arguments and any supporting evidence.
• The court considers all relevant factors, including the nature of the offence, criminal antecedents, and cooperation with the investigation.

4.3 Bail Decision

• After hearing both sides and evaluating the available facts, the judge may either:
  • Grant bail with or without conditions (like surety, travel restrictions, periodic police reporting, etc.)
  • Deny bail if the risks outweigh the rights of liberty.

If bail is granted, the accused will need to:

• Execute a bail bond.
• Provide surety (someone to guarantee compliance with bail conditions).
• Follow any court-imposed restrictions.

If bail is rejected, the accused can appeal to a higher court (e.g., Sessions Court or High Court) under revised procedural rules of the BNSS.

5. Bail in Bailable vs Non-Bailable Offences under BNSS, 2023

The BNSS retains the CrPC-like distinction between bailable and non-bailable offences:

5.1 Bailable Offences

• The accused has the statutory right to be released on bail.
• Police officers are obligated to grant bail at the police station itself (subject to basic bond execution).
• The court can impose conditions but cannot deny bail outright in bailable cases.

5.2 Non-Bailable Offences

• Bail is not a matter of right, but subject to judicial discretion.
• Courts consider various factors such as gravity of the offence, flight risk, criminal record, etc.
• For serious offences (e.g., under UAPA, PMLA), courts are more cautious and may impose strict bail conditions or reject bail altogether.

6. Special Provisions Related to Bail under BNSS, 2023

6.1 Bail for Women, Children, and Sick Persons

• BNSS continues the protective provisions from CrPC:
  • Women and children (below 16 years) are generally eligible for lenient bail conditions.
  • Accused with serious illnesses or disabilities may also be granted bail on humanitarian grounds.

6.2 Time-Bound Investigations and Bail

• BNSS, 2023 emphasizes time-bound investigations and early filing of charge sheets.
• If the police fail to file a charge sheet within the statutory period (generally 60 or 90 days), the accused becomes eligible for “default bail”.

7. Default Bail under BNSS, 2023

Default Bail (Statutory Bail)

• If the investigation is not completed within:
  • 60 days (for offences punishable with imprisonment less than 10 years),
  • 90 days (for offences punishable with death, life imprisonment, or over 10 years),

Then the accused is entitled to default bail, provided they apply before the charge sheet is filed.

This principle safeguards the right to personal liberty and ensures that people are not kept in jail without prosecution being initiated.

8. Appeal and Reapplication for Bail

If bail is denied:

• The accused may reapply for bail on the basis of new facts, change in circumstances, or delay in trial.
• Alternatively, the accused may appeal to a higher court (Sessions or High Court), depending on which court denied the bail.

9. Conclusion

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) brings a structured, citizen-centric, and rights-based approach to criminal justice and bail law in India. It maintains essential principles from the CrPC while strengthening time-bound justice, fair treatment of the accused, and protection of public interest.

Key Takeaways:

• Bail is a crucial safeguard of liberty, but subject to judicial discretion.
• BNSS enhances transparency, promotes victim and witness protection, and aims to curb unwarranted arrests and detention.
• Courts under BNSS are expected to deliver bail-related decisions promptly, ensuring that no accused is kept in custody longer than legally justified.

Author: Nyaya Setu Legal Association
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. For specific legal assistance regarding child custody, please consult us for more option.