In this article we shall discuss about bail, bail bonds, bail, bail in bailable offences, bail in non-bailable offences, anticipatory bail, bail in default and interim bails.

List of Sub-Topics:

• Introduction
• Objectives of Bail
• When Bail can be Granted
• Kinds of Bail
• Right to be Released on Bail
• Bail Bond and Bond
• Provisions as to Bail and Bonds
• Bailable Offences
• Non-Bailable Offences
• Bail in Bailable Offences
• Bail in Non-Bailable Offences
• Anticipatory Bail
• Mandatory Bail or Default Bail
• Bail After Conviction
• Power of Sessions Court and High Court Regarding the Bail
• Other Provisions Related to Bail
• Refusing of Bail
• Cancellation of Bail
• Conclusion

It is a basic principle of criminal law that an individual is innocent until proven guilty. While the criminal justice system wants to ensure that accused persons will attend trials and be present to receive any punishment instituted if found guilty of the crime for which she/he is charged, the presumption of innocence should place significant restrictions on the measures the government can take to ensure the presence of the accused for such purposes. Bail and bail procedures attempt to address some of the issues that arise from this question of what to do with defendants who have been accused of committing an offence but who are awaiting trial and thus still legally innocent.

Bail:

‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. The literal meaning of the word “bail” is surety. Bail, therefore, refers to release from custody, either on personal bond or with sureties.

• Black’s Law Dictionary (4th ed.) defines bail as “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.”
• Webster’s Third New International Dictionary defines ‘Bail’ as “the process by which a person is released from custody.”
• Wharton’s Lexicon and Stroud’s Judicial Dictionary defines bail as “the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.”

Definition of Bail under the Bharatiya Nagarik Suraksha Sanhita, 2023:

According to Section 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 “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.

Chapter-XXXV (Ss. 478 to 496) of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with various provisions as to bail and bonds. It lays down as to when bail is the right of the accused, when bail is the discretion of the Court, in what circumstances said discretion can be exercised, what are the terms and conditions which would be required to be observed by the accused, who has been released on bail and what powers are vested in the Court in the event of accused committing default of bail order.

Besides Chapter XXXV BNSS, another provision, which deals with the concept of bail is Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is generally termed as “Default Bail”. While considering the aspect of bail, both these provisions are to be studied in the context of each other.

Objectives of Bail:

The right to personal liberty is a basic fundamental right of every person as recognised under Article 21, Constitution of India. But this right is not absolute; it can be curtailed to maintain a balance between individual interest and interest of society at large.

Bail serves several purposes:

• Presumption of Innocence: It upholds the principle that a person is innocent until proven guilty. Granting bail allows individuals to maintain their freedom while awaiting trial.
• Ensuring Appearance in Court: Bail provides an incentive for the accused to return to court for their trial, as forfeiting bail can result in severe consequences.
• Protecting the Public: Bail conditions may be imposed to protect the public from potential harm, such as restraining orders or monitoring requirements.
• Preventing Flight Risk: Bail may be denied or set at a high amount if there’s a risk that the accused might flee the jurisdiction to avoid trial

In Sanjay Chandra v. CBI, (2012) 1 SCC 40 case, the Supreme Court defined the objective of bail as follows: “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

When Bail can be Granted:

As per the provision of BNSS bail can be granted in following cases:

• Bail in bailable offence (Section 478)
• Bail in Non bailable offene (Section 480)
• Anticipatory bail (Section 482)
• Bail after conviction (Section 430)
• Bail on default (Section 187(2))
• Interim Bail

Who can grant Bail?

• In case of a Bailable Offence: Officer in charge of Police Station/ Court as per Section 478(1) of BNSS.
• In case of Non Bailable Offence: Court (of any level) as per Section 480(1) of BNSS.
• Anticipatory Bail: Anticipatory Bail can be granted by Session Court or High Court according to Section 482(1) of BNSS.

Different Types of Bail:

Regular Bail:

Regular bail refers to a legal mechanism through which a court can order the release of a person in custody on suspicion of committing an offense, with the condition that they do not obstruct the course of justice. This kinds of bail may involve executing a bond with sureties.

• When a person is arrested for a bailable offense, they have the right to be released as outlined in Section 478 BNSS. The court imposes a statutory duty on the police officer to grant bail upon request.
• Additionally, the maximum period of detention for an undertrial prisoner is defined, stating that if the accused has been detained for a duration equivalent to 50% of the maximum imprisonment term for the offense during the investigation, they shall be released by the court upon executing a bond, with or without sureties under Section 479 BNSS.
• For a person detained on suspicion of committing a non-bailable offense, the grant of bail is discretionary, and it can be availed only if a strong case is presented. However, bail for non-bailable offenses can be granted based on specific grounds under Section 480 BNSS. This Section applies to bail petitions submitted in magistrate’s courts. The decision to grant or reject regular bail is based on judicial discretion governed by the regulations outlined in the Section 437 BNSS. Section 489 BNSS applies to bail applications submitted in Courts of Sessions or High Courts.

Anticipatory Bail:

A person under apprehension of arrest for a non-bailable offence may apply for anticipatory bail to the High Court or the Court of Session under Section 482 of BNSS. The application for anticipatory bail should be filed in the High Court or Sessions Court having jurisdiction over the alleged crime. Anticipatory bail is sought prior to arrest, and if granted by the court, it prevents the police from arresting the individual.

Interim Bail:

An interim bail is a temporary form of bail granted during the pendency of an application for anticipatory or regular bail. It provides a brief respite to the accused, temporarily releasing them from custody. However, it is conditional and can be extended based on the circumstances. If the interim bail expires and the accused fails to meet the requirements for its continuation or pay the necessary amount, their right to freedom is revoked, and they may be retaken into custody. Interim bail serves as an interim measure until a final decision is made on the bail application, preventing unnecessary detention of the accused during this period.

Default Bail or Statutory Bail or Mandatory Bail:

According to Section 187 BNSS, when a person is arrested and the investigation cannot be completed within 24 hours, they must be presented before a Magistrate. The Magistrate can then authorize their detention for a maximum period of 15 days. Typically, this detention period is extended by an additional 15 days to allow the police or investigating agency to complete their investigation. However, Section 187(2) BNSS specifies that in cases involving offenses punishable by death, life imprisonment, or imprisonment of at least 10 years, the detention period cannot exceed 90 days. For other offenses, the limit is 60 days. If the police or investigating agency fails to file a charge sheet or complaint within the specified period, the accused is entitled to default bail. This right is absolute and not at the discretion of the Court. If the accused can demonstrate that the required 60 or 90 days have passed since their arrest without any charge sheet or complaint being filed, the Court is obligated to grant them default bail.

Medical Bail:

Medical Bail are kinds of bail granted to individuals based solely on medical grounds. It is primarily considered in cases where the person’s health condition requires immediate medical attention or specialized treatment. When medical bail is granted, the Courts typically do not delve into the merits of the case or assess whether the usual criteria for bail are fulfilled. The focus is primarily on the individual’s medical needs and ensuring their well-being.

Right to be Released on Bail:

“Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” The Bharatiya Nagarik Suraksha Sanhita, 2023, Chapter V (Ss. 35 to 62) talks about Arrest of a Person but it does not define arrest anywhere.

The term “Detention” can be defined as, “When the Police Officer or any other Authority or any individual hold or detain an individual or group of persons under the suspicion of an illegal act but does not charge them with the crime is known as the Detention.”

Article 21 of the Constitution ensures the right to liberty of every person until and unless he proven guilty. Article 22(2) of the Indian Constitution also states that the arrested person must be informed the grounds of his arrest. It also gives right to the arrested person to inform to his family members, any relative, or his friend about his arrest. Moreover, it is right of arrested person to know that even in a non-bailable offences he may be granted bail, if a bail is granted by the court after taking into consideration the nature or heinousness of the offence.

As per Section 47 BNSS, whenever a person is arrested without a warrant, it is the duty of the police officer to communicate the full detail of the offence for which the person is arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty of the police to inform that he is entitled to be released on bail after giving surety.

In Joginder Kumar v. State of U.P., 1994 SCC (4) 260 case, the Supreme Court held that a person arrested has the right to inform any of his friend or relative or family member of his choice, about his detainment. The police officer shall also inform the arrested person about his rights when he is being brought to the police station.

Section 167 also provide right to the accused to be released on bail if investigation relating to his offence has not been completed within sixty days or ninety days from the date of his detention. This is also known default bail.

In Uday Mohanlal Acharya Vs State of Maharashtra 2001 (5) SCC 453 the court granted default bail to the accused as the police officers fail to aquire evidence against him within the time limit of investigation as mentioned in the Code of Criminal Procedure, Section 167.

As per Section 478 BNSS, whenever a person accused of a bailable offence is arrested without a warrant and is prepared to give bail, such person shall be released on bail. The discretion to decide the bail amount is with the Court or with the officer, as the case may be. Section 478 BNSS is meant for any person who is arrested or brought before the court except a person accused of a non-bailable offence.

In State of Rajasthan v. Balchand, AIR 1977 SC 2447 case, Justice Krishna Iyer for the first time raised the issue of unfair bail system in India and suggested rethinking over the issue

In Shaik Layak v. The State of A. P., 1981 CriLJ 954 case, the Andhra Pradesh High Court held that while granting bail on conditions, any condition which is in derogation of an accused’s fundamental rights cannot be imposed.

In Moti Ram v. State of M.P., AIR 1978 SC 1594 case, Justice Iyer laid down that judges should be more inclined towards bail and not towards jail.

In Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756 case, the Supreme Court held that all such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine; police officers shall not arrest the accused unnecessarily and Magistrate shall not authorise detention casually and mechanically. Failure to comply with these directions, shall, apart from rendering police officers concerned liable for departmental action, also make them liable to be punished for contempt of court. Judicial Magistrate authorising detention without recording reasons shall be liable for departmental action by appropriate High Court.

Bail Bond and Bond:

Bail Bond:

According to Section 2(1)(d) of the Bharatiya Nagarik Suraksha sanhita, 2023, “bail bond” means an undertaking for release with surety.

Characteristics of Bail Bond:

Bail bonds have several characteristics that distinguish them within the legal system:

• Financial Guarantee: A bail bond serves as a financial guarantee to ensure the appearance of the accused in court. It is typically issued by a bail bondsman on behalf of the defendant.
• Third-Party Involvement: Bail bonds involve a third party, the bail bondsman who agrees to pay the full bail amount if the defendant fails to appear in court as required.
• Collateral Requirement: In some cases, the bail bondsman may require collateral, such as property or assets, to secure the bond. If the defendant fails to appear in court, the bondsman can seize the collateral to cover the bail amount.
• Responsibility for Defendant: The bail bondsman assumes responsibility for ensuring that the defendant appears in court as required.
• Forfeiture Risk: If the defendant fails to appear in court, the court may issue a forfeiture of the bail bond, meaning the bail amount becomes due and payable. The bondsman then has a certain amount of time to locate the defendant or surrender them to the authorities before the bond is forfeited.

Understanding these characteristics is crucial for defendants and their families when navigating the bail process and working with bail bondsmen.

The “Bail Bond/Bond” may contain certain terms and conditions, such as:

• The accused will not leave the territorial jurisdiction of the state without permission of the court or police officer;
• The Accused shall give his presence before police officer every time, he is required to do so;
• The Accused will not tamper with any evidence whatsoever, considered by police in the investigation.
• The court is empowered to refuse bail to an accused person even if the offence is bailable, where the person granted bail fails to comply with the conditions of the bail bond/bond.

Bond:

According to Section 2(1)(e) of the Bharatiya Nagarik Suraksha sanhita, 2023, “bond” means a personal bond or an undertaking for release without surety. Bond is also called Personal Bond.

Recognizing that the requirement that an accused person post a monetary sum to be released on bail creates an unjust and unequal situation for many impoverished accused who languish in prison pending the outcome of their cases, the Supreme Court and subsequently the CrPC provided that those unable to pay such amounts could still be released on personal bonds without sureties.

In Hussainara Khatoon and others v. Home Sec, State of Bihar, AIR 1979 SC 1369 case, the Supreme Court found that a court should release an accused who is unable to pay on a personal bond if that individual has “roots in the community and is not likely to abscond.”  In its ruling, the Court laid out the following considerations, which ought to be evaluated in making bail decisions:

1. The length of [an accused’s] residence in the community;
2. His employment status, history and his financial condition;
3. His family ties and relationships;
4. His reputation, character and monetary condition;
5. His prior criminal record;
6. Identity of responsible members of the community [to] vouch for his reliability;
7. The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non- appearance; and
8. Any other factors indicating the ties of the accused to the community or bearing on the risk of willful failure to appear.

Difference between Bail Bond and Bond:

Bail Bond	Bond
According to Section 2(1)(d) of the Bharatiya Nagarik Suraksha sanhita, 2023, “bail bond” means an undertaking for release with surety.	According to Section 2(1)(e) of the Bharatiya Nagarik Suraksha sanhita, 2023, “bond” means a personal bond or an undertaking for release without surety.
A bail bond involves a third party, the bondsman.	Bond is the full amount set by the court, and it can be paid directly to the court in various forms.
With a bail bond, the bondsman assumes the risk and guarantees the defendant’s appearance in court.	When paying bond directly to the court, the defendant or their family is responsible for the full amount.
Bail bond involve a third party, such as a bail bondsman, who provides a financial guarantee on behalf of the defendant.	Bond allows defendants to secure their release by paying the court directly.

Provisions as to Bail and Bonds:

• S. 478 BNSS (S. 436 CrPC): In what cases bail to be taken
• S. 479 BNSS (S. 436A CrPC): Maximum period for which an undertrial prisoner can be detained
• S. 480 BNSS (S. 437 CrPC): When bail may taken in case of non-bailable offence
• S. 481 BNSS (S. 437A CrPC): Bail to require accused to appear before the next appellate court
• S. 482 BNSS (S. 438 CrPC): Directions for grant of bail to person apprehending bail
• S. 483 BNSS (S. 439 CrPC): Special powers or high court and court of session regarding bail
• S. 484 BNSS (S. 440 CrPC): Amount of bond and reduction thereof
• S. 485 BNSS (S. 441 CrPC): Bond of accused and sureties
• S. 486 BNSS (S. 441A CrPC): Declaration by sureties
• S. 487 BNSS (S. 442 CrPC): Discharge from custody
• S. 488 BNSS (S. 443 CrPC): Power to order sufficient bail when that first taken is insufficient.
• S. 489 BNSS (S. 444 CrPC): Discharge of sureties
• S. 490 BNSS (S. 445 CrPC): Deposit instead of recognizance
• S. 491 BNSS (S. 446 CrPC): Procedure when bond has been forfeited
• S. 492 BNSS (S. 446A CrPC): Cancellation of bail and bail bond
• S. 493 BNSS (S. 447 CrPC): Procedure in case of insolvency or death of surety or when a bond is forfeited
• S. 494 BNSS (S. 448 CrPC): Bond required from minor
• S. 495 BNSS (S. 449 CrPC): Appeal from orders under section 446
• S. 496 BNSS (S. 450 CrPC): Power to direct levy of amount due on certain recognizance

Bailable Offence:

According to Section 2(1)(c) of the Bharatiya Nagarik Suraksha sanhita, 2023 “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.

Bailable offences are specified in the first schedule of the Sanhita. In such offences, the suspect (accused) may pledge some property with the Court and be released from jail on the condition that he will appear for the trial. Any offence that has not been classified as bailable is a non-bailable offence.

The first schedule of the Sanhita is divided into two parts. It is pertinent to point out that individual offences under the Bharatiya Nyaya Sanhita, 2023 have been specifically declared as bailable or non-bailable in the first part of the First Schedule to Sanhita. However, in the absence of any such declaration under such parent Act, the general rules mentioned in the second part of the First Schedule to Sanhita have to be referred to, for deciding whether that offence is bailable or non-bailable. As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence that is punishable with imprisonment for less than three years or with a fine only.

In the case of a bailable offence, the grant of bail is a matter of right of the Accused. It may be either given by a police officer who is having the custody of Accused or by the court.

Characteristics of Bailable Offences:

• Bailable offences are considered less serious in nature.
• As a general rule bailable offence are those in which punishment is less than 3 years or fine or both. But there are some exceptions to this rule.
• In a bailable offence, bail can be claimed as a right.
• The right of bail is under Section 478 of BNSS
• In the case of a bailable offence, the grant of bail is a matter of right of the Accused.
• In the case of a bailable offence, the grant of bail may be either given by a police officer who is having the custody of Accused or by the court.
• Any Magistrate is empowered to try the cases of bailable offences.
• The accused may be released on bail, on executing a bond, known as “bail bond”, with or without furnishing sureties.

Examples of Bailable Offences:

Being a member of an unlawful assembly, rioting, bribery, simple hurt are examples of bailable offences under the Bharatiya Nyaya Sanhita, 2023.

In order to apply for bail in the case of a bailable offence, the person needs to fill a form of bail i.e. Form No. 47 which is given in the first schedule and apply for bail and the Court will have to grant bail.

In Abdul Aziz v. State of U.P.¸2002 Cri LJ 2913 case, the Court observed that the first Schedule of CrPC (The Bharatiya Nagarik Suraksha Sanhita, 2023) consists of two parts, the first part is regarding the offences under the I.P.C. (The Bharatiya Nyaya Sanhita, 2023) and the second part is regarding offences against other law. The second part provides that if the offence is punishable with imprisonment for less than three years of fine only it shall be bailable and can be tried by any Magistrate.

In Talab Haji Hussain v. Madhukar Pushottam Mondkar, AIR 1958 SC 376 case, the Court observed that it cannot be disputed that S. 436 of CrPC (S. 478 BNSS) recognizes that a person accused of a bailable offence has a right to be enlarged on bail.

Non-Bailable Offences:

According to Section 2(1)(c) of the Bharatiya Nagarik Suraksha sanhita, 2023 “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.

A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused will have to apply to the court, and it will be the discretion of the court to grant bail or not. The court may require the accused to execute a “Bail-Bond with some stringent conditions. Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the aspect of Non-Bailable Offences.

It is important to mention here that discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful. But legal and regular. The discretion to grant bail in cases of non-bailable offences has to be exercised according to certain rules and principles as laid down by the Code and Judicial decisions.

Characteristics of Non-Bailable Offences:

• Non-Bailable offences are considered more serious in nature.
• The quantum of punishment is high in non-bailable offences. It is imprisonment of more than three years and fine which may extend to life imprisonment and even death.
• In the case of a non-bailable offences, bail can’t be claimed as a right and the court or the police officer has the discretion to grant bail after considering facts and circumstances as per each case.
• Provision for bail in case of non-bailable offences is given u/s 480 BNSS (S. 437 of CrPC).
• In case of non-bailable offences an anticipatory bail under BNSS can be granted by the Court of Session or by the High Court.

Examples of Non-Bailable Offences:

Murder, attempt to murder, dowry death, voluntary causing grievous hurt, kidnapping are examples of non-bailable offences under the Bharatiya Nyaya Sanhita, 2023.

Distinguishing Between Bailable and Non-Bailable Offences:

Bailable Offence	Non-Bailable Offence
According to Section 2(1)(c) of the Bharatiya Nagarik Suraksha sanhita, 2023 “bailable offence” means an offence which is shown as bailable in the First Schedule of BNSS, or which is made bailable by any other law for the time being in force.	“non-bailable offence” means offence which is not bailable offence as mentioned in in the First Schedule of BNSS, or which is not made bailable by any other law for the time being in force
Bailable offences are considered less serious in nature.	Non-Bailable offences are considered more serious in nature.
As a general rule bailable offence are those in which punishment is less than 3 years or fine or both. But there are some exceptions to this rule.	The quantum of punishment is high in non-bailable offences. It is imprisonment of more than three years and fine which may extend to life imprisonment and even death.
In the case of a bailable offence, the grant of bail is a matter of right of the Accused.	In the case of a non-bailable offences, bail can’t be claimed as a right and the court or the police officer has the discretion to grant bail after considering facts and circumstances as per each case.
In the case of a bailable offence, the grant of bail may be either given by a police officer who is having the custody of Accused or by the court.	Only a court of law has the authority to issue bail. An anticipatory bail under BNSS can be granted by the Court of Session or by the High Court.
Provision for bail in case of bailable offences is given u/s 478 BNSS	Provision for bail in case of non-bailable offences is given u/s 480 BNSS
In case of bailable offenses punishments are lighter	In case of non-bailable offenses punishments are harsher
For crimes for which a warrant is not required, police may make an arrest.	To make an arrest, police often need a warrant for non-bailable offenses.

Bail in Bailable Offences under S. 478 BNSS (S. 436 CrPC)/Regular Bail:

Under section 478 BNSS, bail can be granted provided following conditions are fulfilled:

• When the person asking for bail is a person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or
• Appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail.

Section 478 BNSS provides for the release on bail of a person accused of a bailable offense. This Section is mandatory in nature and the court or the police has no discretion in the matter. Any accused person arrested for a bailable offence willing to provide bail must be released. The only discretion available with the police is to release the accused either on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must produce the accused person before the Magistrate within 24 hours of arrest as specified under s. 58 BNSS. Subsequently, when the person accused of an offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate must release the accused person and the only discretion available is to release either on personal bond or a bond with sureties. The Magistrate cannot authorize detention of a person who is willing to furnish bail with or without sureties even for the purposes of aiding the investigation.

When a person is arrested on the suspicion of committing non-bailable offence but later on at any stage of investigation, enquiry or trial it is found that there are no reasonable ground for commission of non-bailable offence by him but there are grounds for conducting further enquiry then such person can be released on bail as per section 480(2) by both police officer and magistrate.

In Rasiklal v. Kishore s/o Khanchand Wadhwani, AIR 2009 SC 1341 case, the Supreme Court held that the right to bail for bailable offences is an absolute and in-defeasible right and no discretion can be exercised as the words of s. 436 CrPC (S. 478 BNSS) are imperative and the person accused of an offence is bound to be released as soon as the bail is furnished. The Court further observed that there is no need for the complainant or the public prosecutor to be heard in cases where a person is charged with a bailable offence. Moreover, the court has no discretion to impose any conditions except to demand security.

In Amar Nath Singh v The State of Jharkhand, 26 October, 2021 case, where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may by virtue of section 436 (2) CrPC (478(2) BNSS) refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court.

In Maneka Gandhi v. Union of India, AIR 1978 SC 597 case, Justice Bhagwati and Justice Krishna Iyer highlighted the faulty bail system which needs reconsideration. In this case attention was brought to the impact of indigence of an accused on his right of bail.

In R.D. Upadhyay v. Sate of A.P., AIR 2006 SC 1946 case, it was brought to the notice of court that there are many undertrials languishing in jail for non-furnishing of surety despite bail order granted in favour of them. It was held by court barriers certain categories of cases, court can consider release of such prisoners on personal bond.

In Lambert Kroger v. Enforcement Directorate, 2000 CriLJ 2125 case, the Delhi High Court laid down that no person can be denied bail just because of the reason of his being a foreign national. Court can’t discriminate on the ground of nationality for granting bail. To secure his presence before the courts as and when required till the completion of trial, he can be released conditionally. Such condition can be impounding of Passport to restrain him from fleeing from trial.

Bail Under Section 479 BNSS (S. 436A CrPC)/ Bail to Under-Trial Prisoners:

There had been instances where under trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. According to Section 479 BNSS, where an under-trial prisoner other than the offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It is also provided that in no case the under trial be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.

In Hussainara Khatoon and others v. Home Sec, State of Bihar, AIR 1979 SC 1369 case, the Supreme Court directed the release of prisoners who had undergone more than half of the imprisonment which could have been granted if they were convicted.

In Bhim Singh v. Union of India, W.P. (Criminal.) No. 310/2005  case, the Supreme Court directed the jurisdictional magistrate/ chief judicial magistrate/Session Judge to conduct a setting in jail once in a week for identifying the prisoners entitled for release as per the provision of section 436 A CrPC (479 BNSS) and release such prisoners then and there itself. Such visits were directed to be conducted for two months commencing from 1 October 2014 for effective implementation of Section 436 A CrPC (479 BNSS).

In Dipak Shubhashchandra Mehta vs. C.B.I., AIR 2012 SC 949 case, the Supreme Court laid down that when the undertrial prisoners are detained in jail custody to an indefinite period then its a violation of Article 21 of the Constitution of India but the court granting bail should exercise its discretion in a judicious manner and not as a matter of course.

Bail Under Section 187 BNSS (S. 167 CrPC)/ Default Bail/Statutory Bail/Mandatory Bail:

When officer in charge of police station or the police officer making an investigation fails to complete investigation within 24 hours of arrest of a person then as per section 187 BNSS, he needs to be produced before the nearest magistrate who can extend the police custody upto 15 days. If further detention is required then an accused can be detained only in judicial custody for total period not exceeding—

• ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
• sixty days, where the investigation relates to any other offence.

On the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail.

In Dinesh Dalmia vs. C.B.I., 18 September 2007 case, the Supreme Court laid down that investigating agency is required to complete investigation within reasonable time. If the investigation is not completed within stipulated period the same would not be detrimental to right of accused to bail. On expiry of stipulated period he would be entitled for bail, but Right to bail does not revive only because a further investigation remains pending. When a charge sheet is not filed and investigation is kept pending, the accused will have right to bail u/s 167(2) CrPC (S. 187(2) BNSS). Once, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 CrPC (S. 193 BNSS).

Bail in Case of Non-Bailable Offences:

Provision, as to bail in case of non-bailable offence, is laid down in Section 480 of the Sanhita. This section gives discretionary power to the Court (other than High court or Court of Session) to release an accused on bail in a non-bailable case. It list down circumstances when bail will not be granted or when shall bail be granted with specific condition etc.

Following are certain exceptional cases where bail is not granted in non-bailable cases

• If there appear reasonable grounds for believing that accused has been guilty of an offence punishable with death or imprisonment for life
• If offence is a cognizable offence
• Accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more
• Accused had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less then seven years,

In the above stated exceptional cases if accused happens to be a person under the age of sixteen years or a woman or sick or infirm, then his bail application can be considered by the magistrate.

For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable.

In case of an offence punishable with death or imprisonment for life a station officer cannot enlarge a person on bail, if there appear reasonable grounds for believing that he has been guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officer- in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.

If the trial by the magistrate of a person accused of any non-bailable offence could not be concluded within a period of sixty days from the first date fixed for taking evidence, then accused shall be released on bail if he is in custody during the whole of the said period. The High Court and Court of Session can also release an accused person in custody on bail.

If the Court is of opinion time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered that there are reasonable grounds for believing that the accused is not guilty of any such offence, then accused shall be released on bail if he is in custody. In such case court also asks him to execute a bond without sureties for his appearance to hear judgment when delivered.

In Shakuntala Devi v State of UP, 1986 CriLJ 365 case, the court explained that word “may” has been used in Section 437 (S. 480 BNSS) which should not be read as mandatory rather it confer discretionary power on Court.

In State of Rajasthan v. Balchand, (1977) 4 SCC 308 case, the Supreme Court opined “the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.”

In Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 case, V.R. Krishna Iyer, J., enunciated the principles of bail thus: What, then, is “judicial discretion” in this bail context In the elegant words of Benjamin Cardozo: The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life”. Wide enough in all conscience is the field of discretion that remains.

In Sanjay Chandra Vs CBI, 2012 (1) SCC 40 case, the Supreme Court laid down that while considering an application for bail under S. 437 CrPC (S. 480 BNSS) and S. 439 CrPC (S. 483 BNSS), severity of punishment and gravity of alleged offence both needs to be taken into consideration. Court is required to maintain a balance between right to liberty and securing presence of an accused at trial. Bail is not a rule but an exception so bail must be refused only in extra-ordinary circumstances.

Anticipatory Bail S. 482 BNSS (S. 438 CrPC):

Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. A non-bailable offence is an offence in which an accused cannot file an application for grant of bail. The court may grant bail to the accused on its own discretion. Anticipatory bail can be granted by a High Court or a Session Court under Section 482 BNSS (S. 438 CrPC). The court shall provide anticipatory bail after taking into consideration the following factors:

• the nature and gravity of the accusation.
• the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

In Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312 case, the Supreme Court discussed the scope and ambit of anticipatory bail and said that principles regarding it has been laid down in the Sibbia’s case should be followed by the court.

• Section438 (1) CrPC (S. 482(1) BNSS) is to be interpreted in light of Article 21 of the Constitution of India.
• Filing of FIR is not a condition precedent to exercise of power under Section 438 CrPC (S. 482 BNSS).
• Order under Section 438 CrPC (S. 482 BNSS) would not affect the right of police to conduct investigation.
• Conditions mentioned in Section 437 CrPC (S. 482 BNSS) cannot be read into Section 438 (S. 483 BNSS).
• Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
• Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant

In Balchand Jain v. State of M.P., AIR 1977 SC 2447 case, the Supreme Court has characterized anticipatory bail to mean ‘a bail in anticipation of arrest’. The expression is a misnomer as it represents a futility that bail may be granted by the court in apprehension of an arrest. When a competent court grants “anticipatory bail”, it issues an order that in case of an arrest, the person shall be released on bail.

In Gurbaksh Singh Sibbia v. The state of Punjab, AIR 1980 SC 1632 case, 5 judge constitution bench of the Supreme Court held that Section 438(1) of CrPC (482(1) BNSS) is to be interpreted in the light of Article 21 of the Constitution of India.

In State of M.P. v. Ramkishan Balothia, (1995) 3 SCC 221 case, the Supreme Court observed that exclusion of Section 438 CrPC (S. 482 BNSS) in connection with offences under the Act (sanhita) had to be viewed in the context of prevailing social conditions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail.

In Lalita Kumari v State of U.P., (2014) 2 SCC 1 case, the Supreme Court observed : “While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law, and there are several safeguards available against arrest. Moreover, it is also pertinent to mention that an accused person also has a right to apply for “anticipatory bail” under the provisions of Section 438 CrPC (S. 482 BNSS), if the conditions mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an order from the court.”

In Dhiren Prafulbhai Shah v State of Gujarat, 2016 CriLJ 2217 case, the Gujarat High Court dealt with section 438 of CrPC (S. 482 BNSS) in the context of Section 18 of atrocities act where court held that “If a person is accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail under Section438 of the CrPC (S. 482 BNSS) on the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act.”

In Dr Subhash Kashinath Mahajan v The State Of Maharashtra, AIR 2018 SC 1498 case, the Court observed that the exercise of jurisdiction under Section 438 CrPC (S. 482 BNSS) is an extremely important judicial function of a Judge and must be entrusted to judicial officers with some experience and good track record. Both the individual and society have vital interest in orders passed by the courts in anticipatory bail applications.

Mandatory bail or Bail in Default S. 187(2) BNSS (S. 167(2) CrPC):

Section 187(2) empowers judicial magistrates to authorize custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody that can be authorized. It further contains a mandate that if the investigation is not completed within the stipulated maximum period, the accused is to be released on bail whatever may be the nature of accusation against him. Restrictions imposed on the powers of the magistrate with regard to grant of regular bail under section S. 480 BNSS (437 CrPC) would not be applicable when magistrate exercises power under section 187(2) BNSS.

Persons who are detained for committing an offence and undergoing investigation are statutorily eligible for bail under Section 187(2) of the Sanhita after ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for not less than ten years; and sixty days where the investigation is relating to any other offence, if the investigating authorities fail to complete their investigation and file a charge-sheet within this period.

In Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 case, the Court held that the object of this provision manifests the legislative anxiety that once a person’s liberty has been interfered with, the arrest made without a warrant or a court order, the investigation must be conducted with utmost urgency.

In Moti Ram v. State of M.P., (1978) 4 SCC 47 case, the Supreme Court, while discussing pre-trial detention, held: The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted Defendants. The jailed Defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family, therefore it becomes important that a person may be granted bail on default under section 167(2) (S. 187(2) BNSS).

In State of U.P. v. Laxmi Brahman, AIR 1983 SC 439 case, the Supreme Court observed that Section 167(2) CrPC (S. 187(2) BNSS) deals with powers of the magistrate to detain the accused in custody and release him on bail on expiry of the statutory period. It is quite clear that power is conferred on the magistrate to release the accused on bail under the proviso.

In Sanjay Dutt v. State, Through CBI, (1994) 5 SCC 410 case, the Supreme Court held that this indefeasible right of the person accused of an offence to be released on bail under S. 167(2) of CrPC (S. 187(2) BNSS) would not apply if the accused person does not file an application to “avail” the right before filing of charge sheet. The Court held that if the charge-sheet is filed after the period specified in S. 167 (2) of CrPC (S. 187(2) BNSS) but before the application for bail is considered, then the right to bail under S. 167(2) of CrPC (S. 187(2) BNSS) would not be available and the application for bail will then be considered only on merits. Although the right to avail bail for failure to complete investigation is ‘indefeasible’, it is not automatic. The person accused of an offence should avail the right at an appropriate stage and enforce it prior to the filing of the challan. Further, such accused person continues to remain in custody until he furnishes bail.

In Suresh Jain v. State of Maharashtra, (2013) 3 SCC 77 case, the Supreme Court clarified that a person accused of an offence acquires an “indefeasible right” to be granted bail on meeting the bail conditions if investigation is not completed within the periods mentioned in s. 167(2) of CrPC (S. 187(2) BNSS), and the Magistrate is mandatorily required to release the accused person. Any detention beyond the prescribed period would be illegal.

In Natabar Parinda v. State of Orissa, AIR 1975 SC 1465 case, the Supreme Court noted that the accused has a right to be released on bail under this provision even in serious and ghastly types of crimes.

Bail After Conviction:

Section430(1) and (2) BNSS (S. 389 (1) and (2) of CrPC) deals with a situation where convicted person can get a Bail from appellate court after filing the criminal appeal. Section 389 (3) deals with a situation where the trial court itself can grant a bail to convicted accused enabling him to prefer an appeal.

The words ‘convicted persons’ include any person who is punished for any offence and is kept in prisons. When a Special Leave to Appeal is filed in the Supreme Court against the acquittal by Sessions Court, the Highest Court in such a situation is given the power to release the person on bail. However, words like ‘may’ used in the section shows discretion. 

In Anurag Baitha v. State of Bihar, AIR 1987 PAT 274, the Patna High Court held that if the High Court is not able to hear the appeal within a reasonable time limit due to any reason, it must release the accused on bail if the appeal is a substantial appeal and the charges are still pending.

In Suddu kumar vs. State of Bihar, 9 March, 2017 case, The Patna High Court observed that if a prayer for suspension of sentence and release of an appellant on bail, convicted of a capital crime and sentenced to undergo imprisonment for life, it is to be considered favourably and he is ordinarily allowed bail if he has completed seven years of incarceration in connection with such case before conviction and after conviction, taken together when his appeal is not likely to be heard on merits in near future, on the ground of possible delay in the disposal of the appeal.

In Navjot Singh Sidhu v. State of Punjab AIR 2007 SC 1003 case, where the appellant was convicted for an offence. The Supreme Court suspended his conviction during his appeal, considering the irreparable injury to him that would have taken place if his conviction had not been suspended. The court also observed that it is the obligation of the appellant to draw the attention of the court to the consequences that he may face if his conviction is not suspended. It was held that such a power of suspension must be exercised in rare cases, considering the facts of the case. It is not mandatory to order a suspension of conviction in every case of appeal. 

In  Atul Tripathi V. State of UP, 2014 (9) SCC 177 case, discussed the scope and ambit of Section 389 of Cr.P.C and issued the following Guidelines regarding the suspension of Sentence during the pendency of Criminal Appeal.

• The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release.
• On such opportunity being given, the State is required to file its objections, if any, in writing.
• In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court.
• The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release

In Ashish Widhwani v. State (NCT of Delhi) 12 October, 2022 Case, the appellant was convicted under Section 376 of the Indian Penal Code, 1860, and sentenced to 10 years of rigorous imprisonment. The Delhi High Court, after taking into consideration the appellant’s submissions, held that the sexual intercourse between them was voluntary and that there was a need to deeply scrutinise the facts and evidence of the case. All the evidence must be reassessed and the execution of the sentence must be reconsidered at this stage. The court also ordered the suspension of the appellant’s sentence on a personal bond of Rs. 25,000/- with two sureties and certain conditions till the time appeal is disposed of.   

Power of Sessions Court and High Court Regarding the Bail:

Section 483 BNSS (S. 439 CrPC) gives Special powers to High Court or Court of Session regarding bail. It may direct that any person accused of an offence and in custody be released on bail. It may impose any condition which it considers necessary for the purposes mentioned in that sub-section. It may impose or set aside any condition imposed by a Magistrate when releasing or set aside or modified. When the offence is triable exclusively by the Court of Session, give notice of the application to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. It may also direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Other Provisions Related to Bail:

Bail on Arrest by Magistrate S. 41(1) BNSS (S. 44 CrPC):

Under Section 41(1) BNSS, a magistrate has power to arrest any person who in his presence and local jurisdiction commits any offence. He can authorise any private person as well for such arrest. This magistrate can be judicial or executive magistrate. After arrest he can also grant him bail as per the provisions of bail under the code.

Bail to Appear Before Next Appellate Court S. 481 BNSS (S. 437A CrPC):

Under Section 481 BNSS, the trial court and appellate court before the conclusion of trial and disposal of appeal requires the accused to execute bail bond with surety to appear before the higher court. Such bail bond remains in force for six months.

Bail by Court Not Having Jurisdiction to Take Cognizance S. 83 BNSS (S. 81 CrPC):

When on a warrant issued by a court of other district, a police officer arrests a person for non-bailable offence, then the Chief Judicial Magistrate (subject to the provisions of section 480 BNSS (S. 437 CrPC), or the Sessions Judge, of the district in which the arrest is made can release a person on bail.

Bail on Execution of Bond for Appearance S. 91 BNSS (S. 88 CrPC):

When a presiding officer finds any person present in court for whose appearance or arrest, he is empowered to issue a summons or warrant, then such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial. If such person executes a bond then he shall be released otherwise he will be arrested and send to custody.

Bail on Security for Keeping the Peace on Conviction S. 125 BNSS (S. 106 CrPC):

When in the opinion of a Court of Session or Court of a Magistrate of the first class it is necessary to take security from a person for keeping the peace, and then at the time of passing sentence on such person, such court can order him to execute a bond, with or without sureties, for keeping the peace. This bond can’t be for more than three years. If such person executes a bond then he is released otherwise he is send to custody.

Bail on Receiving Security for Keeping the Peace in Other Cases S. 126 BNSS (S. 107 CrPC):

When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity which in his opinion sufficient to proceed against such person then he may, require such person to execute a bond with or without sureties for keeping the peace. The bond can’t be for more than a period of one year. If such person executes a bond then he is released otherwise send to custody.

Bail on Receiving Security for Good Behaviour from Persons Disseminating Seditious Matters S. 127 BNSS (S. 108 CrPC):

When an Executive Magistrate receives information that there is a person within his local jurisdiction who inside or outside his jurisdiction disseminating seditious matters, and he is of opinion that there is sufficient ground for proceeding against such person, then magistrate may, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year. If such person executes a bond then he is released otherwise send to custody.

Bail on Security for Good Behaviour from Suspected Persons S. 128 BNSS (S. 109 CrPC):

When an Executive Magistrate receives information that there is a person within his local jurisdiction who is taking precautions to conceal his presence and that there is a reason to believe that he is doing so with a view to committing a cognizable offence and then the Magistrate can, require such person to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year. If such person executes a bond then he is released otherwise send to custody.

Bail on Receiving Security for Good Behaviour from Habitual Offenders S. 129 BNSS (S. 110 CrPC):

When an Executive Magistrate receives information that there is a person within his local jurisdiction who is a habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate can, require such person to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years. If such person executes a bond then he shall be send to custody.

Bail During Inquiry as to Truth of Information S. 135 BNSS  (S. 116 CrPC):

When magistrate conducts an inquiry as to the truth of information received against a person which requires him to execute a bond for maintaining peace or good behaviour and he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the Commission of any offence or for the public safety then he may direct such person to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry. Such person can be detained in custody until such bond is executed.

Bail on Order to Give Security S. 136 BNSS (S. 117 CrPC):

On the conclusion of inquiry against a person for possessing a threat to peace and public tranquillity if it is proved that it is necessary for keeping the peace or maintaining good behaviour to execute a bond, then magistrate can require that the person in respect of whom the inquiry is made should execute a bond, with or without sureties. If he fails to execute a bond then he is send to jail otherwise released.

Bail of Person of Unsound Mind S. 369 BNSS (S. 330 CrPC):

When an accused person is a person of unsound mind then irrespective of his being accused of bailable or non-bailable offence, if it appear to court that he is incapable of making defence because of his insanity then court releases such accused on bail on sufficient security being given for compliance of following conditions:

• He shall be properly taken care of
• He shall be prevented from doing injury to himself or to any other person
• He shall be produced when required before the court as and when required.

Bail in Cases for Contempt of Lawful Authority of Public Servant Ss. 379 & 384 BNSS (Ss. 340&345 CrPC):

When any Court comes to a conclusion of conducting an enquiry for contempt of lawful authority of public servant which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, then such court release the accused on bail during the pendency of enquiry. On the other hand if court comes to a conclusion that the case should not be disposed of as contempt of court case then such Court can release the accused on bail with a direction to appear before the magistrate having jurisdiction to try such other offence appears to have committed from facts recorded and statement of accused.

Bail on Probation of Good Conduct or After Admonition S. 401 BNSS (S. 360 CrPC):

When it appears to court that it is necessary to release the offender on probation of good conduct, then it can instead of sentencing him to any punishment, release him on bail and direct him to appear for receiving sentence later. The period of postponement of sentence cannot be more than three years and meanwhile accused is directed to maintain keep and good behaviour. The accused can be released on probation of good conduct only in following type of cases:

Bail During Calling for Record to Exercise Power of Appeal, Reference and Revision Ss. 430, 436 & 438 BNSS  (Ss. 389, 395 & 397 CrPC):

The court of appeal can during the pendency of appeal before it can release the accused person on bail and suspend the sentence or order. Similarly when any court refer to the High Court under section 395 then pending the decision of High Court it can released the accused person on bail. On the same line, the High Court or any Sessions Judge while exercising the power of revision, to check the correctness, legality or propriety of any finding of any inferior court within its jurisdiction, can suspend the proceedings and release an accused person on bail.

Bail on Non Requirement of Arrest in Cognizable Offence S. 421A CrPC:

Police is authorised to arrest a person without warrant of a court in cognizable cases as per section 41 of CrPC but if arrest of a person is not required under the provisions of sub-section (1) of section 41 then he shall issue a notice directing the following person accused of committing a cognizable offence to appear before him or at such other place as may be specified in the notice:

• A person against whom a reasonable complaint has been made
• A person against whom credible information has been received
• A person against whom reasonable suspicion exists.

Bail on Assertion of Name and Address S. 39 BNSS (S. 42 CrPC):

On assertion of name and address of a person accused of committing a non-cognizable offence, the police officer can release him on bail on his executing a bond, with or without sureties, to appear before a Magistrate when required.

Bail on Assertion of Name and Address When Arrested by Private Person S. 40 BNSS (S. 43 CrPC):

When police does not find sufficient reason to believe that a person arrested by a private person, has committed a non-cognizable offence and he also discloses his true name and address on demand, then he can be released by the police officer in whose custody he is detained.

When Arrest Made Under Warrant Bearing Endorsement for Bail S. 73 BNSS (S. 71 CrPC):

When any court issues a warrant bearing an endorsement for bail, then the officer to whom the warrant is directed shall grant bail on executing a bond by such accused person with sufficient sureties for his attendance before the Court.

Bail on Deficient Evidence S. 189 BNSS (S. 169 CrPC):

When it appears to officer in charge of police station after conducting an investigation that there is no sufficient evidence for the production of accused before the court then he shall release him on bail with a condition to appear before the magistrate as and when required.

Bail in Cases to be Sent to Magistrate When Evidence is Sufficient S. 190 BNSS (S. 170 CrPC):

When it appears to officer in charge of police station after conducting an investigation that there are sufficient evidence for the production of accused before the court and the alleged offence is a bailable offence then he shall release him on bail with a condition to appear before the magistrate as and when required.

Refusing of Bail:

The court may generally refuse the Bail, if:

• “Bail Bond” has not been duly executed, or
• if the offence committed is one, which imposes a punishment of death or Life imprisonment, such as “Murder ” or “Rape” or
• The accused has attempted to abscond, and his credentials are doubtful.

Cancellation of Bail:

The settled doctrine by the Supreme Court of India is that ‘Bail is the rule and jail is an exception’ but if cogent grounds are established, the courts are enshrined with powers to cancel the bail of a person.

The Lower Courts, including those of Magistrates, have the authority to cancel bail under Section 480(5) BNSS (S. 437(5) of CrPC), whereas the High Court and Court of Session have the authority under Section 483(2) BNSS (S. 439(2) CrPC).

The court needs to consider following circumstances before cancellation of bail:

• The nature of the accusation (gravity and severity of offence).
• The severity of punishment.
• Taking into consideration the position or status of the accused, i.e., whether the accused can exercise influence on the victim and the witnesses or not.
• Capacity of the accused to obstruct the due course of justice.
• Possibility of repetition of offence when on bail.
• The prima facie satisfaction of the court in support of the charge.
• The different and distinct facts of each case and nature of substantive and corroborative evidence.
• Likelihood of accused to approach the victims/witnesses.
• Likelihood of accused absconding from proceedings.
• Possibility of accused to tamper with evidence.

In Ram Govind Upadhya Vs. Sudarshan Singh, 2002 Cr.L.J 1849 (SC) case, the Supreme Court held that the power of the Court under the section to cancel bail can be invoked either by the state itself or by any aggrieved party or even suo motu as held in the case of Puran vs. Ramvilas. AIR 2001 SC 2013.

In R.J Sharma Vs. R.P. Patankar, 1993 CRILJ 1550, the Bombay High Court held that Magistrate ought to pursue the application for cancellation of bail and afford an opportunity to accused to be heard.

In Dolat Ram v. State of Haryana, (1955) 1 SCC 349 The Hon’ble Supreme Court has held that once bail has been granted, it can only be cancelled based on cogent and overwhelming circumstances. Proceedings for the cancellation of bail are not in the nature of an appeal from the grant of bail, and therefore, a court must look for circumstances that warrant cancellation of bail, such as interference or attempt to interfere with the due course of justice, or abuse of concession of bail granted to the accused in any manner. Bail granted to an accused with reference to bailable offence can be cancelled only if the accused

• misuses his liberty by indulging in similar criminal activity;
• interferes with the course of investigation;
• attempts to tamper with evidence of witnesses;
• threatens witnesses or indulges in similar activities which would hamper smooth investigation;
• attempts to flee to another country;
• attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;
• attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive.

However, a bail granted to a person accused of bailable offence cannot be cancelled on the ground that the complainant was not heard.

Conclusion:

The meaning of “bail” is to set an accused person free after depositing some money with the court before he is tried, often on condition that a sum of money would be forfeited if he does not attend the trial. The Bharatiya Nagarik Suraksha Sanhita, 2023 classifies offences into two categories – bailable and non-bailable. The classification is done mainly based on the gravity of the offence and the punishment provided for such offence. A bailable offence is considered to be less grave and serious than a non-bailable offence. Bailable offences are specified in the first schedule of the Code. In such offences. Section 478 BNSS gives provision for bail in case of bailable offences. In Bailable offences, bail is a right. A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the Accused will have to apply to the court, and it will be the discretion of the court to grant bail or not. The court may require the accused to execute a “Bail-Bond with some stringent conditions. Section 480 BNSS deals with the aspect of Non-Bailable Offences.