Evolution of provision of Bail in Indian Law: A comparison of BNSS 2023 with CrPC 1973 and CrPC 1898

Somya Chhabra

Law Centre-2, Faculty of Law, University of Delhi.

It has been written by Somya Chhabra, a second-year law student of Law Centre-2, Faculty of Law, University of Delhi.

In the Bhartiya Nagarik Suraksha Sanhita, 2023 (from hereon referred as BNSS, 2023) the term bail has been defined in Section 2(b). According to section 2(b), “ Bail is the release of the person accused of or suspected of a crime on the basis of a bond or bail bond which is executed providing certain conditions and restrictions, and the failure to conform by them can lead to cancellation.” This is the first time that a comprehensive definition of bail has been provided by the Indian Law.

Bail has been defined in Law Lexicon as ‘the amount of money provided as a security to the authorities on giving which he is released pending trial or investigation’. Therefore, it can be said that bail is a process by which a person is released from custody.

Etymology of Bail

Etymologically, the term bail is said to be derived from an old French verb ‘bailer’ meaning ‘to give’ or ‘to deliver’. It is also believed to have been derived from a Latin term ‘baiulare’ which means to ‘bear a burden’.

The concept of Bail emerged from the American and English Common Law system. The need for this custom grew to free undertrial prisoners out of disease-ridden jails while waiting for delayed trials. Prisoners were bailed or delivered to a third party of their own choosing who accepted responsibility for ensuring their appearance at the trial. This led to the emergence of the current system of bail through a money bond also known as the bail bond.

Indian Law and Necessity of Provision of Bail-

The Indian justice system follows the principles of liberty, fraternity, and justice and this is enriched in the Constitution of India as well. The accused is ‘presumed innocent until proven guilty’.

Pre-trial detention leads to severe psychological and physical deprivations for the defendants presumed innocent. The jailed defendant is prevented from preparing for his defence and the innocent family members suffer equally due to this detention. Therefore, the provision of Bail serves as a backbone of the Indian Legal System and a means to protect life and liberty of the citizens as per Article 21 of the Constitution.

The BNSS 2023 has been implemented to reform the criminal justice system in India and to leave behind the colonial mindset. ‘Code of Criminal Procedure’ has been replaced by the new law known as ‘Bhartiya Nagarik Suraksha Sanhita’. The terms ‘Nagarik Suraksha’ can be translated as Citizen Protection, which means that this reformed law aims to establish a procedure for protection and liberty of its citizens and is ultimately inclined towards the values of justice and reformation of the criminal instead of merely penalising and punishing them for their crime.

Comparison of BNSS 2023 with CrPC 1973 and CrPC 1898:

CrPC was created for the first time ever in the year 1882 and then amended in 1898. Its aim was to establish a uniform procedure for punishment of offences in the statutory law i.e. Indian Penal Code 1860. It laid down a detailed procedure for investigation of crime, apprehension of criminals, determination of guilt, etc.

CrPC 1898 was enacted during the British period and therefore provided limited scope of liberty to an Indian citizen. There was no provision of Anticipatory bail in the old Code. Section 496, 497 and 498 of the old code were in pari materia with Section 436, 437, and 439 of CrPC 1973.

The code of 1898 laid down the foundation of the Indian Justice System, however, at the same time the laws laid down were too rigid and favoured towards the Britishers. The post-Independence era saw the need to enact a new code which was supposed to be in line with the fundamental rights of the citizens of India thereby protecting their freedom. Thus, the new CrPC 1973 provided a wider and far better structured approach than the law of 1898 did. The introduction of BNSS 2023 aims to provide procedural efficiency along with statutory and judicial uniformity and consistency. It also provides definitions for terms which were not defined before such as:

Bail ( Section 2(b))

Bond ( Section 2(e))

Bail Bond (Section 2(d))

Section 438 of the Code introduced a provision for Anticipatory Bail in the case of Non-Bailable offences that empowers court of session along with High Court to allow Anticipatory Bail ( ‘A direction to be released on Bail in the event of their arrest’). It provides that when there is a reasonable belief or ground to believe that a person can be arrested for a non-bailable offence, they can apply for such bail.

It also provides the factors that are to be considered by the court in granting the application of anticipatory bail. The object of this provision is to see that the liberty of a person is not put in jeopardy on frivolous charges. Hence, this provision has been retained in BNSS as well. However, BNSS fails to provide any express criteria for the grant of anticipatory bail and has therefore, increased the discretionary powers of court, providing them absolute freedom with the use of words like “and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail…” which can lead to severe inconsistency and misuse of power along with an increased chance of capricious judgements.

Another change in the provision of anticipatory bail in BNSS includes the removal of the notice period of not less than 7 days to the Public Prosecutor or Superintendent of the Police which was added in the CrPC to give them a reasonable opportunity of being heard. The clause making the presence of the applicant mandatory at the trial for application of anticipatory bail has also been removed from Sanhita.

The law says ‘No Jail but Bail’. In the case of Sanjay Chandra v CBI , the court held that an accused cannot be detained in custody with the object of punishing him on the presumption of guilt. Bail is a matter of right of the accused in bailable offences, security proceedings.

Other mandatory bail provisions in the code which have been retained in the BNSS includes:

  1. Provision of Default/ Statutory Bail which provided statutory right of bail that was raised in the favour of the accused due to the default of the investigating agency in filing charges within a period of 60/90 days as the case may be.

  2. When there are no reasonable grounds to believe that the accused has committed a non-bailable offence and there is need for further enquiry.

  3. Bail shall also be granted when the trial of a person is not concluded within a period of sixty days.

  4. Before the delivery of the judgement, when the court is of the opinion that there are no reasonable grounds to believe that the accused is guilty.

The provision of default bail in the Sanhita, however, provides an opportunity to examine the accused for a period of 15 days spread over the first 40/60 days of the total period of detention which claims to strengthen the investigation without curtailing the rights of the accused more than before. However, this change can also lead to bail being denied if the investigating officer argues that they need the accused back in the police custody and can result in misuse of power by the investigating police officer. It can also instil considerable fear among the minds of the accused and an attempt at curtailing their freedom thereby violating their fundamental rights. An attempt to avoid misuse of this power has also been made as the statute further provides that the mere reason that the accused is required at police custody shall not be a ground for denial of bail. If all other conditions are satisfied, and the accused provides an undertaking stating that they shall comply with the investigation and investigating officer, bail can be granted in such a case. However, an ambiguity is there which can lead to investigating agencies moulding the law against the accused.

A provision for Bail to undertrial prisoners who are first time offenders has also been relaxed and liberalised and has been reduced to one third of the maximum period of imprisonment of that particular offence. However, it has also been provided that this provision shall not be applicable upon offences punishable with death or life imprisonment. Earlier, in CrPC, the restriction of application of this section was only in case of offences punishable with death. BNSS, thus, makes it harder and stricter for undertrial prisoners to get bail. The section also says that the provision of ‘Maximum period for which an undertrial prisoner can be detained’ is not applicable when the accused is charged of more than one offence or has more than one suit pending against him. Since, police reports are often enlisted with more than one offence, it would make many undertrial prisoners ineligible to get bail under this section.

BNSS also makes getting bail difficult for an accused of a crime punishable with life imprisonment to get bail. Earlier the parameters used to grant bail in non-bailable offences or offences punishable with life imprisonment were such as “nature and seriousness of offence, the character of evidence, a reasonable apprehension of the presence of the accused not being secured at trial, reasonable apprehension of witness being tampered (State v Captain Jagjit Singh)”. However, BNSS provides that the accused also has to prove that they are not a threat to national security or public order, thereby making it harder to get bail under the new law.

The new criminal laws in the Indian justice system claim themselves to be towards a path of greater protection of the rights of its citizens, trying to maintain a balance between the liberty of its citizens and society’s interest in maintaining peace and harmony along with law and order. However, the Sanhita claiming itself as a code of protecting citizens and their rights along with an aim towards justice has definitely made it more difficult for accused to get bail which goes against the earlier view of the law that believed that the “custody is not punitive but preventive in nature and the accused cannot be kept in jail merely with an intention to punish them” thus, violating their right to liberty. Bail laws are made more stricter for serious offences and the discretionary powers of courts are increased in granting bail applications which causes a serious risk of haphazard and unstable decisions in many cases. However, one has to keep in mind that these laws are still in the early stages of implementation and would go through several stages of modifications and amendments as the further execution of law would happen in future.

STATUTES REFERRED:

  • Code of Criminal Procedure (1898)

  • Code of Criminal Procedure (1973)

  • Bhartiya Nagarik Suraksha Sanhita (2023)

CASES REFERRED:

  • State v Captain Jagjit Singh, 3 SC 622 (1962)

  • Moti Ram v State of MP, 4 SCC 47 (1978)

  • Sanjay Chandra v Central Bureau of Investigation, SCC 118 (2012)

  • State v Sanjay Gandhi, 2 SCC 411 (1978)

OTHER REFERENCES: