By Law’s Own Word, Liberty is Heard

The concept of bail plays a crucial role in balancing the rights of an accused person with the interests of justice. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023), which has replaced the Code of Criminal Procedure, 1973 (CrPC), the provisions related to bail and bonds have been structured to ensure a fair and efficient judicial process. These provisions outline the circumstances under which bail can be granted, the conditions imposed on the accused, and the procedures to be followed. The reforms aim to expedite bail proceedings, reduce unnecessary incarceration, and enhance the accessibility of bail, especially for undertrial prisoners. This article delves into the important provisions of bail and bonds under the BNSS, 2023.

In what cases is bail to be taken?

Any person, except one accused of a non-bailable offence, who is arrested or detained without a warrant, or appears before a court, is entitled to be released on bail if they provide the required bail.

Can an indigent person be discharged without furnishing surety?

Yes, if the person is indigent and unable to furnish surety, the officer or court may discharge them on executing a bond for their appearance.

What is presumed if a person is unable to give a bail bond within a week of arrest?

It is presumed that the person is indigent.

Can bail be refused if a person fails to comply with bond conditions?

Yes, if a person fails to comply with bond conditions, the court may refuse bail on a subsequent occasion.

What is the maximum period for which an undertrial prisoner can be detained?

If an undertrial prisoner has been detained for half the maximum sentence prescribed for the offence, they must be released on bail, unless the court orders otherwise.

When is a first-time offender eligible for release on bond?

If a first-time offender has been detained for one-third of the maximum sentence, they shall be released on bond.

Can the court extend the detention of an undertrial prisoner beyond half of the maximum sentence?

Yes, but only after hearing the Public Prosecutor and recording reasons in writing.

Is a person allowed to be detained beyond the maximum sentence of the offence?

No, under no circumstances can a person be detained for more than the maximum period of imprisonment provided for the offence.

When may bail be taken in case of a non-bailable offence?

A person accused of a non-bailable offence may be granted bail unless:

• There are reasonable grounds to believe they committed an offence punishable by death or life imprisonment.
• They have prior convictions for serious offences.

Can women, children, or infirm persons be granted bail even in serious cases?

Yes, the court may release them on bail despite the seriousness of the offence.

Can an accused person be denied bail solely for the purpose of being identified by witnesses?

No, identification alone is not a sufficient ground to deny bail if the accused undertakes to comply with court directions.

Is hearing the Public Prosecutor mandatory before granting bail in serious cases?

Yes, if the offence is punishable with death, life imprisonment, or seven years or more, the court must give an opportunity of hearing to the Public Prosecutor.

What conditions can be imposed on a person released on bail for serious offences?

The accused must:

• Appear in court as required.
• Not commit a similar offence.
• Not tamper with evidence or influence witnesses.

Must the court record reasons for granting bail in non-bailable offences?

Yes, the court must record reasons in writing for granting bail in such cases.

Can the court cancel bail after granting it?

Yes, if necessary, the court may direct the re-arrest of a person released on bail.

When must a Magistrate release a person on bail during a trial?

If the trial of a non-bailable offence is not concluded within 60 days from the first date of evidence, the accused must be released on bail unless the Magistrate records reasons otherwise.

When must an accused person be released on bail after the trial has concluded but before judgment?

If the court believes there are reasonable grounds that the accused is not guilty, they must be released on a bond.

What requirement does an accused person have before an appeal is concluded?

Before the conclusion of the trial and disposal of an appeal, the accused must execute a bond or bail bond to appear before a higher court if required.

What happens if the accused fails to appear before the appellate court?

The bond stands forfeited, and proceedings under the BNSS shall apply.

Can a person apply for bail in anticipation of arrest?

Yes, a person fearing arrest for a non-bailable offence may apply to the High Court or Sessions Court for anticipatory bail.

What conditions can the court impose while granting anticipatory bail?

The accused may be required to:

• Be available for police interrogation.
• Not threaten or influence witnesses.
• Not leave India without permission.

Does anticipatory bail apply to all offences?

No, it does not apply to offences under specific sections of the Bharatiya Nyaya Sanhita, 2023.

What special powers do the High Court or Sessions Court have regarding bail?

They may:

• Release any accused on bail.
• Modify or set aside bail conditions imposed by a Magistrate.

Is notice to the Public Prosecutor mandatory before granting bail in serious cases?

Yes, unless impracticable, notice must be given to the Public Prosecutor before granting bail in serious offences.

What considerations are taken while fixing the bail amount?

The amount should be reasonable and not excessive, considering the circumstances of the case.

Can the High Court or Sessions Court reduce the bail amount set by a police officer or Magistrate?

Yes, they have the power to reduce the bail amount.

What must an accused person do before being released on bail?

The accused must execute a bond for a specified amount, which may also require sureties.

Can a bond contain additional conditions?

Yes, any conditions imposed for bail must be included in the bond.

What declaration must sureties provide?

Sureties must declare how many other persons they have stood as surety for, including the accused.

When is an accused person released after executing a bail bond?

Immediately upon execution of the bond, unless they are liable for detention on another matter.

What happens if insufficient sureties are accepted?

The court may re-arrest the person and require new sureties.

Can a surety withdraw from a bail bond?

Yes, a surety may apply to a Magistrate to be discharged from the bond, upon which the accused must furnish fresh sureties or face custody.

Can a deposit be made instead of executing a bond?

Yes, except for good behaviour bonds, a deposit may be made in lieu of a bond.

What happens if a bond is forfeited?

The court may require the penalty to be paid, and if unpaid, recover it as a fine or order imprisonment for up to six months.

Does a surety’s death discharge their liability?

Yes, if a surety dies before the bond is forfeited, their estate is discharged from liability.

What happens if a bond is cancelled due to breach of conditions?

The accused cannot be released on their own bond but may be granted bail upon executing a fresh bond with sureties.

What happens if a surety becomes insolvent or dies?

The accused must furnish fresh sureties, failing which they may be taken into custody.

What provision is made for children required to execute a bond?

A child may be allowed to furnish a bond through a surety instead of executing it personally.

Can an order under bond forfeiture provisions be appealed?

Yes, all orders passed under these provisions may be appealed.

Therefore, the provisions on bail and bonds under the Bharatiya Nagarik Suraksha Sanhita, 2023, mark a significant step toward modernizing India’s criminal justice system. By refining the bail process, ensuring time-bound decision-making, and incorporating provisions for electronic bonds, the law aims to strike a balance between individual liberty and societal security. These changes not only streamline judicial proceedings but also prevent unnecessary detentions, aligning with the principles of justice and human rights. As the legal fraternity and law enforcement agencies adapt to these new provisions, their effective implementation will be key to realizing the intended reforms in India’s criminal justice system.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.