EVOLUTION OF BAIL LAW: FROM CrPC TO BNSS.

AUTHOR:  KAUSTUBH KUMBHALWAR, PES MODERN LAW COLLEGE, PUNE.

Bail serves as the foundation of the criminal justice system balancing the rights of an accused while encompassing interest of justice. It ensures that no person gets convicted unless he is proven guilty. Bail is one of the vital concepts of the criminal justice system in consonance with the fundamental principles enshrined in Part III and IV of the Constitution along with the protection of human rights.  

This article aims to examine and compare the bail provisions in the Code of Criminal Procedure and newly drafted The Bhartiya Nagrik Suraksha Sanhita, 2023. It seeks to signify and highlight the substantive changes that have been brought under the Criminal Procedure including the introduction of new definitions of Bail, bail bond and bond. It has also changed the provisions regarding the maximum period of detention of undertrial prisoners, and the provisions of Anticipatory Bail. The recent transition from the Code of Criminal Procedure to The Bhartiya Nagrik Suraksha Sanhita reflects an attempt to modernize legal processes and streamline the legal system. 

Bail, Anticipatory Bail, The Bhartiya Nagarik Suraksha Sanhita, Bail bond, Bailable. 

‘Bail’ is derived from the old French verb ‘baillier’ meaning ‘to give or deliver’. The dictionary meaning of ‘Bail’ is to set free a person or liberate a person on surety. According to Black’s Law Dictionary, bail is to “procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.” 

In ‘Shri Gurbaksh Singh Sibbia v. State of Punjab 1980’ Supreme Court observed that bail is basically release from restraint, more particularly, release from custody of the police. 

The concept of bail can be traced back to 399 B.C., when Plato tried to create a bond for Socrates’s release. The current Modern system of bail has evolved from England. 

In Medieval England, the sheriff’s possessed the supreme authority to release or arrest suspected criminals. Some sheriffs would exploit the bail for their own profit. Later, The Statute of Westminster limited the powers of sheriffs with respect to the arrest and bail. Although sheriffs would still have the powers to fix the amount for bail. 

DEFINITIONS OF BAIL UNDER THE BHARTIYA NAGARIK SURAKSHA SANHITA: 

The term Bail has been used multiple times in the Criminal Procedure Code but doesn’t define the term Bail, Bond and Bail bond. The Bhartiya Nagarik Suraksha Sanhita gives the definitions for these terms for the first time in Section 2 of the Sanhita. 

Bail is defined in Section 2 under sub-clause (b) as “release of a person accused of an offence from the custody of law upon certain conditions imposed by an officer or court including execution by such person of a bond or a bail bond.”

Bail bond is defined in Section 2 sub-clause (d) as “an undertaking for release with payment of surety.”

Bond is defined in Section 2 sub-clause (e) as “personal bond or an undertaking for release without payment of any surety.”

BAIL PROVISIONS UNDER CrPC; A HISTORICAL PERSPECTIVE:

The Criminal Procedure Code was enacted in 1973 and laid the provisions for Bail in India. It classified offenses and crimes into bailable and non-bailable offences, adjudicating whether the accused was entitled to bail. 

Key provisions under the Criminal Procedure Code included:

1. Section 436: Right to bail for bailable offenses.

2. Section 436A: Maximum period of detention for undertrial prisoners. 

3. Section 437: Bail for non-bailable offenses under judicial discretion.

4. Section 438: Anticipatory bail, enabling individuals to seek bail apprehending arrest. 

Understanding the loopholes and the limitations of the CrPC, the Bhartiya Nagarik Suraksha Sanhita was introduced in 2023 as a part to modernise the criminal procedure. BNSS aims to address previous loopholes, systemic inefficiencies and enhance access to justice. 

Key objectives driving the reform include: 

1. Simplifying and streamlining bail procedures.

2. Ensuring uniformity.

3. Addition of technology to fasten justice delivery. 

4. Addressing public concerns over delay and misuse of bail provisions. 

5. Accessibility to Justice.

MAXIMUM PERIOD OF DETENTION FOR UNDERTRIAL PRISONERS:

Section 436A of the Criminal Procedure Code was added through Criminal Law (Amendment) Act 2005. This provision states that where a person has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence he is under investigation, inquiry or trial for, he shall be released by the Court on bail (with or without surety). This provision envisages the right to fair and speedy trial for the accused undergoing detention as an undertrial prisoner. 

Section 479 of The Bhartiya Nagrik Suraksha Sanhita proposed key changes for the undertrial prisoners undergoing detention. These changes envisage a shift towards rehabilitation over punitive measures, especially for minor offenses. 

[A] Reduction of detention for First-time Offenders:

Section 479 of The Bhartiya Nagarik Suraksha Sanhita proposes addition of proviso clause which states that a person who is a first-time offender shall be released on bail by court if he underwent detention for a period up to one-third of the maximum period of imprisonment.

Earlier, in Criminal Procedure Code bail was granted for bailable offenses but did not explicitly prioritize first time offenders. In The Bhartiya Nagarik Suraksha Sanhita, it mandates granting of bail for the first time offenders for petty offenses ensuring they are not unnecessarily detained and have access to justice. 

[B] Denial of bail when multiple cases are pending: 

Sub-section (2) of section 479 of The Bhartiya Nagarik Suraksha Sanhita provides denial of bail if multiple investigation, inquiry, or trial pending on any person in more than one offence or in multiple offences pending against him. Previously, in Criminal Procedure Code the law did not have any exception that denied the bail to undertrial prisoners facing investigation, inquiry, or trial in multiple cases. 

The new law provides stricter actions against any person who has multiple cases pending against him. 

[C] Responsibilities of Jail Superintendent:

A notable insertion under the BNSS is section 479(3), which places the responsibility of applying for bail under this provision upon the Superintendent of the prison where the accused is lodged. This is especially relevant as often, due to lack of effective (or any) legal aid, prisoners are denied release despite meeting the requisite criteria.

Sub-section (3) of section 479 of The Bhartiya Nagarik Suraksha Sanhita provides a duty to Jail Superintendent to make an application in writing to the Court for the release of an under-trial prisoner who has completed one-half or one-third of the punishment awarded.

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under a non-bailable offence in India can apply for Anticipatory Bail to the Court of Sessions or to the High Court under the provision of section 482 of The Bhartiya Nagarik Suraksha Sanhita, 2023. The object of this section has been repeatedly explained by Supreme Court and High Courts to mean that a person should not be harassed or humiliated in order to satisfy grudge or personal vendetta of the complainant. The relevant consideration is: nature of seriousness of the proposed charges, a reasonable possibility of the applicant’s presence not being secured at the trial, reasonable apprehension that the witnesses will be tampered with and the larger interest of public or state.  

Brief History of Anticipatory Bail: 

41st Report of LCI, 1969 discusses the need for anticipatory bail. Code of Criminal Procedure, 1898 did not contain any express provision regarding anticipatory bail. Majority opinion of the Courts was that there was not any provision regarding anticipatory bail. So, the Law Commission of India in its 41st Report dated September 24, 1969, suggested introducing Section 497A regarding ―Direction to grant bail to persons apprehending arrest. 

ANTICIPATORY BAIL UNDER NAGARIK SURAKSHA SANHITA:

There is substantial change in Anticipatory Bail provided in Bhartiya Nagarik Suraksha Sanhita compared to the Criminal Procedure Code. Anticipatory Bail is given under section 482 of BNSS. It prohibits Anticipatory bail to any person who commits aggravated forms of Rape. Section 65 and Section 70 of BNSS provides punishment for aggravated forms of rape. Sub-section (4) of Section 482 prohibits bail for those persons who commits rape on a woman under sixteen years of age (given under Sec 65 of Bhartiya Nyay Sanhita, 2023). It also denies bail to any person or persons constituting a group or furtherance of a common intention commits rape on women under eighteen years of age (given under sub-section (2) of Section 70 of Bhartiya Nyay Sanhita, 2023). 

In Balchand Jain v. State of M.P., Hon’ble Justice P.N. Bhagwati observed, “This power of granting anticipatory bail‘ is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail that such power is to be exercised.”

Compared to the Criminal Procedure Code, Bhartiya Nagarik Suraksha Sanhita brought significant changes in the bail provisions. BNSS provided definitions for bail, bail bond and bond for clear and concise interpretation of the clause.  BNSS also brought prohibition of bail for persons accused of rape. Key changes especially for the first time offenders, additional powers to Jail Superintendent, and stricter provisions for persons facing multiple charges and investigations. Bhartiya Nagarik Suraksha Sanhita brought in minor changes in Anticipatory bail as compared to Criminal Procedure Code denying bail in cases involving rape and gang rape involving minors. 

Overall, Bhartiya Nagarik Suraksha Sanhita modernised the Bail provisions, brought in necessary changes, streamlined the legal system while maintaining accountability. 

1. The Bhartiya Nagarik Suraksha Sanhita, 2023. 

2. The Code of Criminal Procedure, 1973. 

3. Dr. Krishna Murari Yadav, The Code of Criminal Procedure, 1973. 

4. K.N. Chandrasekharan Pillai, R.V. Kelkar’s Lecture on Criminal Procedure, Sixth Edition, 2021. 

5. Anirudh Nikhare, Bail under The Bhartiya Nagarik Suraksha Sanhita, Finology Blog, (May 11, 2024) https://blog.finology.in/Legal-news/Bail-provisions-in-BNSS

6. Criminal Law Bills 2023 Decoded #22: Provisions Pertaining to Bail and Bonds, The P39A Criminal Blog, (Nov 15, 2023) https://p39ablog.com/2023/11/criminal-law-bills-2023-decoded-22-provisions-pertaining-to-bail-and-bonds/

7. Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 S.C.C. 565 (India).

8. Balchanda Jain v. State of Madhya Pradesh (1976) 4 S.C.C. 572 (India).