This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the various modifications in the chapter relating to bail, including the introduction of definition and changes in the scheme of maximum period of detention as an undertrial under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
Chapter XXXV of the BNSS (Cls.479 to 498) deals with the provisions relating to bail and bail bonds. While the contents of most of these clauses are identical to their corresponding sections in the CrPC (ss.436 to 450), some substantive changes have been proposed. For instance, new insertions in the BNSS include definitions of bail, bail bond, and bond. Further, significant changes have been proposed in two provisions – the provision regarding the maximum period of detention of an undertrial, and the provision on anticipatory bail.
A vital amendment proposed is in Cl.482 BNSS which replaces s.437 CrPC (bail in non-bailable offences). Under this provision, two categories of persons who are not to be released on bail are provided,[1] and the exception to this ineligibility is mentioned in the first proviso: women, persons who are sick or infirm, and persons under the age of 16. Under the corresponding Cl.482 BNSS, the age is increased from sixteen to eighteen. This amendment makes the provision consistent with the Juvenile Justice (Care and Protection of Children) Act, 2015.[2]
I. Introduction of definitions
The terms ‘bail’, ‘bond’ and ‘bail bond’ while used throughout the CrPC, have not been defined therein. The BNSS introduces definitions for these terms for the first time in Cl.479. Bail is defined under sub-clause (a) 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.’[3] Bond is defined under sub-clause (b) as a ‘personal bond or an undertaking for release without payment of any surety’ and; bail bond under clause (c) as ‘an undertaking for release with payment of surety.’ A combined reading of these definitions makes apparent the two ways by which a person may be released on bail i.e. execution of a bond (without surety) or a bail bond (with payment of surety).
Although, bail has been understood to include release with or without surety, in jurisprudence, there is currently some confusion regarding the textual usage of the terms bail and bond. This confusion arises as some provisions in CrPC use the term bail to include release either with or without surety, however, there are a few provisions that make a distinction between release on bail with surety, and on a personal bond without surety. For instance, the proviso to s.436 CrPC assumes that bail requires surety, and where a person is unable to pay such surety, instead of bail, can be released on a personal bond. S.441 CrPC is another such provision which uses the language ‘released on bail or released on his own bond.’ Interestingly, s.441 (2) and (3) CrPC use the term bail generically to include release with or without surety.[4]
The BNSS attempted to bring in the much needed clarity on distinction between bail with and without surety. Some changes have further been made to the remaining provisions in the chapter as well, in accordance with these new definitions.[5] However, despite the definition, the confusion on the usage of the terms and bail and surety continue since the Bill seems to have retained the language of the present CrPC in some provisions. For instance, Cl.482(2) distinguishes between ‘release on bail’ and ‘release on bond without surety’.[6]
II. Maximum Period of Detention for Undertrials
S.436A CrPC was inserted vide the Criminal Law (Amendment) Act, 2005 (‘2005 Amendment’).[7] 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 of an accused to a speedy trial by prescribing the maximum period for which such accused may be detained. Interestingly, despite vast jurisprudence which has developed over the years on bail being the rule and jail the exception,[8] the BNSS instead of increasing the scope of bail as a right this provision, has in many ways restricted it.
a. Exclusion of Offences punishable by Life Imprisonment
A significant exclusion from this provision is that of a person accused of offences punishable by life imprisonment. So far, the provision under s.436A has excluded persons who are accused of an offence punishable with death. However, the proposed Cl.481 expands this category by also excluding those accused of an offence punishable with imprisonment for life. Thus, the application of this provision has been made narrower, and also excludes persons arrested for a number of offences where the maximum sentence prescribed is either imprisonment for life or imprisonment for life for the remainder of one’s natural life.
Notably, Cl.482 BNSS (which is in pari materia to s.437 CrPC relating to bail) also excludes the category of persons who are accused of offences punishable by death or imprisonment for life. Cl.483 however has exceptions to this ineligibility,[9] which does not apply in case of Cl.481. Further, the language of Cl.482 provides that such persons would be ineligible for bail if there is a reasonable apprehension that they have committed the offence punishable with death or imprisonment for life. This allows a court to consider the prima facie case against the accused while deciding the bail application, which is not the case in Cl.481. This defeats the objective of a provision introduced to release undertrials who have spent long durations in jail without trial, to prevent further violation of their Art.21 rights and right to speedy trial.[10]
b. Reduction in maximum period of Detention for a First Time Offender
Cl.481 BNSS proposes insertion of a proviso which states that a person who is a first time offender (never convicted of any offence in the past), shall be released on bail if he has undergone a third of the maximum sentence prescribed. This benefit is not made subject to any other consideration, such as the seriousness of the offence of previous conviction or judicial discretion, and remains a matter of right for an undertrial who hasn’t been convicted previously.[11]
Under the CrPC, courts have held ‘prior conviction’ as a relevant consideration for grant of bail[12] under ss.437 or 438.[13] Such categorisation was, however, not envisaged under s.436A.
c. Exclusion of a person against whom Inquiry/Trial is Pending
Sub-clause (2) to Cl.481 BNSS, which is an addition to the existing provisions under s.436A CrPC, provides that where an investigation, inquiry or trial in more than one offence, or in multiple cases are pending against a person, he shall not be released on bail by the court.[14] This sub-clause excludes a category of persons from the benefit of this provision. Not only is this sub-clause palpably contrary to the tenet of presumption of innocence – as it precludes one from the benefit of this section based on the existence of a pending investigation, inquiry or trial – but also raises several other concerns.
First and foremost, the textual language of the provision is extremely wide. Investigation, inquiry or trial in ‘more than one offence’ could also include a situation where a person is accused under several sections for a series of acts forming a part of the same transaction given that it is differentiated from ‘multiple cases’. As such, this sub-clause excludes a substantial number of persons from the benefit of this provision. Secondly, this sub-clause does not consider the nature of these other cases and thus, fails to account for the possibility of the other offence the person is accused of being bailable or non-cognizable. There may also be a situation where the person is not required to be in custody for investigation, inquiry or trial of such other offence. Thirdly, the sub-clause makes the operation of this provision inapplicable even where a person accused of multiple offences has served half of the maximum prescribed punishment in all of those offences.
Through the inclusion of these broad exclusions, the sub-clause defeats the purpose of this provision, as it substantially narrows the scope, and denies the right conferred by the provision to a wide category of persons who are entitled to this relief under the present law. Further, the exclusion under this sub-clause allows for misuse by filing frivolous complaints against a person already in custody, for the purpose of precluding them from release under this provision.
d. Obligation of the Prison Superintendent
A notable insertion proposed under the BNSS is Cl.481(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.
For the first time a statutory obligation is sought to be imposed on the Superintendent of the Jail to ensure that this provision is made use of, and the prisoners eligible for bail under this provision are given the benefit of this right. While it is a welcome step to cast statutory responsibility on the superintendents to file a bail application, this provision misses the point of assigning responsibility for determining eligibility under the provisions. Assessing the eligibility of inmates for bail under this section might involve an in-depth technical understanding of penal laws and their application, which superintendents may not be equipped with.
By means of several notifications by the Ministry of Home Affairs and judicial decisions, processes to ensure operation of this section were laid down. Steps taken by the government to ensure compliance with s.436A CrPC were discussed by the Supreme Court in In Re: Inhuman Conditions In 1382 Prisons.[15] These steps included issuance of an advisory for creation of an undertrial review committee in every district, which would meet every three months to review undertrial cases. Interestingly, the standard operating procedure of the Undertrial Review Committee had also refrained from giving this responsibility of identification of eligibility for release to prison authorities and left it to the legal services authorities.[16] In Bhim Singh,[17] the Supreme Court cast the duty of looking at eligibility under s.436A on the Magistrates and Sessions Judges.[18]
III. Anticipatory Bail
Anticipatory bail or grant of a bail to a person apprehending arrest is presently enshrined under s.438 CrPC. The provision allows a person who has reason to believe that he may be arrested for committing a non-bailable offence, to apply before the High Court or the Sessions Court seeking a direction that in event of such arrest he be released on bail. Cl.484 BNSS seeks to replace s.438 CrPC.
a. Reverting to pre-2005 provision
The changes proposed to the provision on Anticipatory Bail include replacement of the sub-section (1), and deletion of the proviso to sub-section (1), and sub-sections (1A) and (1B). In doing so, Cl.484 seeks to revert to the provision on anticipatory bail as it existed before 2005.Vide the 2005 Amendment the following changes were made to the provision on anticipatory bail:
- S.438(1) CrPC was amended to insert language, which provided guidance to courts regarding factors to be considered while deciding grant of anticipatory bail. A non-exhaustive list of these factors was enumerated in 1(i) to (iv).[19]
- The amended sub-section (1) also stated that an application can either be rejected, or an interim order granting anticipatory bail may be made.
- A proviso was inserted which said that where no interim order has been passed or where the application seeking anticipatory bail has been rejected, it shall be open to an officer incharge to make arrest without warrant, if there are reasonable grounds for such arrest.
- Sub-section (1A) was inserted which states that notice with a copy of an interim order under s.438(1) shall be sent to the public prosecutor with a notice of at least seven days, to give a reasonable opportunity of being heard when the application is finally heard.
- Sub-section (IB) was inserted which provides that if the public prosecutor makes an application or if the court considers it necessary, the presence of the application seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of the final order.
The changes made to the provision on anticipatory bail in 2005 came under widespread scrutiny from lawyers and jurists. The amendment to s.438 was believed to interfere with the independence of the judiciary and rights of the accused. Firstly, the proviso to s.438 was criticised as it permitted an officer in-charge to arrest the applicant without warrant in the pendency of the anticipatory bail application. Secondly, sub-section (1B), gave an opportunity for the accused to be arrested in court, should the application be rejected. Thus, it was argued that the amendments to the section defeat the purpose behind s.438 CrPC.
As a response to this criticism, the Law Commission discussed the amended provision,[20] and recommended inter alia that the proviso, as well as sub-section (1B) be omitted.[21] The BNSS does away with these sub-sections which have been problematised. At the same time, it also removes the grounds to be considered while deciding grant of anticipatory bail. However, given that these grounds were instructive in the first place, their removal may not change the manner in which courts decide applications seeking anticipatory bail, especially in light of the vast jurisprudence on the subject.[22]
The BNSS also does away with the language of s.438(1) CrPC which implies that the initial order made in an application for anticipatory bail is only an interim order. Read together with the s.438(1A), the provision required for the interim order to then be sent to the public prosecutor and to allow them an opportunity to argue against grant of anticipatory bail. However, in practice courts tend to grant an ad interim order on anticipatory bail before hearing the final application, even before the 2005 Amendment, this may not substantially affect the manner in which anticipatory bail applications are decided.
b. Offences for which Anticipatory Bail cannot be granted
An inexplicable amendment proposed in the BNSS is in the scheme of offences prescribed under s.438(4) CrPC.[23] This sub-section provides that the provisions of the section will not apply to any case involving arrest of a person accused of committing an offence under ss.376(3), 376AB, 376DA, and 376DB IPC. These sections pertain to offences involving rape of minor women. The corresponding provision, Cl.484(4), however, precludes those persons who are accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS from being granted anticipatory bail irrespective of the age of the victim. A similar amendment has been proposed to the scheme of offences mentioned in s.439(1A) as well, which states that the presence of the informant or a person authorised by the informant is obligatory while considering an application of bail of a person accused of offences under ss.376(3), 376AB, 376DA, and 376DB IPC. Like Cl.484(4) above, the corresponding provision to s.439(1A) CrPC in BNSS, i.e. Cl.485 (IA) also applies to bail application of a person accused of aggravated forms of rape under Cls.64(2), 66, and 70 BNS.
[1] These two categories are: (i) persons against whom there are reasonable grounds for believing that they committed an offence punishable with death or imprisonment for life; and (ii) persons who have been convicted of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more; or have been convicted two or more times for committing cognizable offences punishable with three years or more.
[2] Under s.12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 all children in conflict with the law under eighteen years of age are entitled to be released on bail and thus the provision does not expand the scope of bail law.
[3] Previously, the 268th Report of the Law Commission of India attempted to define ‘bail.’ The Commission noted that “(T)he literal meaning of the word ‘bail’ is surety. Bail, therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on release subject to monetary assurance—either one’s own assurance (also called personal bond/recognizance) or through third party sureties”.
[4] Moti Ram v. State of Madhya Pradesh (1978) 4 SCC 47: The Supreme Court discussed this ambiguity and held inter alia that bail ought to include both release with and without surety, and persons who are indigent or unable to pay surety ought to be released on their own recognisance.
[5] For instance, in Cls.480 and 481 BNSS the word bond has been inserted after bail wherever in the corresponding CrPC provisions bail was used to denote a bail with surety.
[6] Notably, there are other provisions in the BNSS which speak of executing a bond with or without surety; and thus are inconsistent with the definitions prescribed in Cl.479. Although, Cl.479 does state that the definitions therein shall prevail unless the context provides otherwise, and thus an explicit prescription in a provision that a bond could be with or without surety would mean that the definition of ‘bond’ provided under Cl.479 (which provides that a bond is without payment of any surety) shall not be applicable to such provisions.
[7] S.36 Code of Criminal Procedure (Amendment) Act, 2005.
[8] Recentdirections of the Supreme Court in Satendra Kumar Antil v. Central Bureau of Investigation & Anr. (2021) 10 SCC 773.
[9] As mentioned in the proviso to Cl.482, these exceptions are – women, persons under the age of 18, or persons who are sick or infirm.
[10] Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731.
[11] In 2017, the 268th Report of the Law Commission of India recommended a similar categorisation within this provision – undertrials accused of offences punishable with less than seven years of imprisonment to be released on bail if they had served a third of the maximum sentence prescribed.
[12] Harjit Singh v. Inderpreet Singh 2021 SCC OnLine SC 633.
[13] S.437(1)(i) CrPC provides that bail in non-bailable offences shall not be granted to persons who have been previously convicted of offences punishable with imprisonment for seven years, life imprisonment or death; or have been convicted two or more times of cognizable offences punishable with three years or more. S.438 CrPC presently also prescribes antecedents as one of the factors to be considered for grant of anticipatory bail.
[14] A literal reading of the provision implies that such a person is not to be released by court on bail at all. This literal interpretation, however, is in all likelihood a result of an oversight in drafting of the provision.
[15] Inhuman Conditions in 1382 Prisons, In re, (2016) 3 SCC 700 (Supreme Court order dated 05.02.2016).
[16] National Legal Services Authority, Standard Operating Procedure (SOP) for Undertrial Review Committees (UTRCs), WP(C) 406/2013 – In Re: Inhuman Conditions in 1382 Prisons.
[17] Bhim Singh v. Union of India (2015) 13 SCC 605.
[18] Supreme Court directed that jurisdictional Magistrates/Sessions Judges hold a sitting each week in every jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of s.436A CrPC by identifying and passing release orders for prisoners who are eligible for release under the provision.
[19] The factors enumerated in the subsections are– (i) the nature and gravity of offence, (ii) antecedents of the applicant, (iii) possibility of the applicant to flee from justice, and (iv) whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
[20] Law Commission of India, ‘Two Hundred and Third Report on Section 438 of the Code of Criminal Procedure, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)’ (Law Commission Report No. 203, 2007).
[21] The Law Commission of India had also recommended that an explanation be inserted clarifying that a final order on an application seeking anticipatory bail shall not be construed as an interlocutory order; and that new subsection be inserted stating that conditions may be imposed upon an applicant while grant of anticipatory bail – including condition that the person make themselves available for interrogation when required, condition that a person does not make inducement, threat, promise etc to any person acquainted with facts of the case, condition that the applicant shall not leave India without permission of the court, and any such other condition which may be imposed under s.437(3). These recommendations had not been incorporated in the CrPC.
[22] Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694: the Supreme Court laid down factors to be considered while deciding an application seeking anticipatory bail, which go beyond the factors mentioned in s.438 CrPC. These included the possibility of the accused fleeing from justice, the alleged role of the accused in the offence, material available against the accused, impact of grant of anticipatory bail etc.
[23] This subsection was inserted in the CrPC by s.22 Criminal Law (Amendment) Act, 2018.
