News Excerpt:
The Supreme Court has affirmed that an accused's right to bail cannot be denied as a form of punishment, regardless of the crime's severity.
More about the News: A Bench of two Judges emphasised that refusal to grant bail unjustly punishes the accused, leading to their "prisonization," despite their innocence until proven guilty.
- The court stated that if the state, prosecution agencies, or courts are unable to ensure an accused's right to a speedy trial, they should not oppose bail based on the crime's seriousness.
- Article 21 of the Constitution, which guarantees the right to a speedy trial, applies regardless of the crime's nature.
- This order stemmed from an appeal by Javed Gulam Nabi Shaikh against the Bombay High Court's denial of his bail in a case under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
- The Supreme Court rejected the National Investigation Agency's (NIA) request to adjourn the matter and granted Shaikh his liberty.
What Is Bail?
The term ‘bail’ originates from the Old French verb ‘bailer,’ meaning ‘to give’ or ‘to deliver.’ Bail refers to the provisional release of an accused person in a criminal case before the court has announced its judgment. It involves depositing a security deposit to ensure the accused's release from custody.
Types of Bail In India
Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
- Regular Bail: Regular bail is granted to a person who has been arrested or is in police custody. An application for regular bail can be filed under Sections 437 and 439 of the CrPC.
- Interim Bail: Interim bail is granted for a short period of time before the hearing for regular bail or anticipatory bail.
- Anticipatory Bail: Anticipatory bail is granted under Section 438 of the CrPC by a session court or High Court. It can be applied for by a person who anticipates arrest by the police for a non-bailable offense.
Conditions For Grant of Bail In Bailable Offences
Section 436 of Code of Criminal Procedure, 1973, lays down that a person accused of bailable offense under IPC can be granted bail under following circumstances:
- There are sufficient reasons to believe that the accused has not committed the offense.
- There is sufficient reason to conduct further enquiry in the matter.
- The person is not accused of any offense punishable with death, life imprisonment or imprisonment up to 10 years.
Conditions For Grant of Bail In Non-Bailable Offenses
Section 437 of Code of Criminal Procedure,1973 lays down that the accused does not have the right to apply for bail in non-bailable offenses. It is discretion of the court to grant bail in case of non-bailable offenses.
- If the accused is a woman or a child, bail can be granted in a non-bailable offense.
- If there is lack of evidence then bail in non-Bailable offenses can be granted.
- If there is delay in lodging FIR by the complainant, bail may be granted.
- If the accused is gravely sick.
Cancellation of Bail
- Court has the power to cancel the bail even at a later stage.
- This power is laid upon the court under section 437(5) and 439(2) of the CrPC.
- The court can cancel the bail granted by it and give directions to the police officer to arrest the person and keep in police custody.
Bail Provisions in Bharatiya Nagrik Suraksha Sanhita (BNSS)
- The Bharatiya Nagarik Suraksha Sanhita (BNSS) has introduced substantive changes to the bail provisions, differing significantly from the existing Code of Criminal Procedure (Cr.P.C.).
- While many provisions in BNSS remain identical to those in Cr.P.C., notable changes include the introduction of definitions for bail, bail bond, and bond, along with modifications to the maximum period of detention for undertrial prisoners and anticipatory bail provisions.
- The BNSS has provided clear definitions for terms that were previously undefined in the Cr.P.C.:
- Bail: "Bail means the release of a person accused of or suspected of the 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."
- Bail Bond: "Bail bond means an undertaking for release with surety."
- Bond: "Bond means a personal bond or an undertaking for release without surety."
- Changes for Undertrial Prisoners:
- Early Release of First-Time Offenders:Previously there was no provision for the early release of first-time offenders.BNSS Allows early release if a first-time offender has spent one-third of the maximum prescribed sentence in detention.
- Multiple Pending Cases: Earlier there was no provision denying bail if multiple cases are pending. Under BNSS there is provision to deny Bail if the accused has pending investigations, inquiries, or trials in more than one case.
- Superintendent of Jail's Report: BNSS mandates the Superintendent of Jail to submit a written application for the release of undertrial prisoners who have completed one-third or one-half of the prescribed sentence.
- Changes in Regular Bail Provisions
- Police Custody Beyond Fifteen Days: Earlier accused could not be denied bail solely because they might be needed for witness identification.
- BNSS adds that bail cannot be denied if the accused is needed for police custody beyond the first fifteen days.The Court can decide on the condition of such bail.
Changes in Anticipatory Bail Provisions
- Broader Restriction on Anticipatory Bail:
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- Previously Anticipatory bail was disallowed for individuals accused of gang rape on women under sixteen years, BNSS has extended this restriction to women under eighteen years in such cases.
The Supreme Court order reinforces that bail should not be used as punishment, emphasizing the right to a speedy trial. The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces key reforms, including clearer definitions, early release for first-time offenders, and new conditions for bail in multiple cases. These changes aim to ensure fair treatment of the accused and a more efficient criminal justice system.
