Jurisprudence on Bail in India: Glance through Bharatiya Nagarik Suraksha Sanhita, 2023

Bail is defined under Section 2(1)(b) of the recently promulgated Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which became enforceable wef 01.07.2024, as 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  and commonly known as a bail bond.

Before the enactment of the BNSS, the law relating to bail was detailed under the Criminal Procedure Code, 1973. Chapter XXXIII under the CrPC dealt with the provisions as to bail. Broadly, there are five types of bails under the Indian Law. This article will delve into each of the types of bail, the circumstances under which an accused is released on bail and the relevant case laws.

Regular Bail

The law on regular bail is given under Section 478, 480 and 483 of the BNSS. The provisions  under section 483 hold that a High Court or court of session that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section 480(3). The objective of bail was laid down by the court in the case of Sanjay Chandra v. CBI^[1] Jurisprudence on Bail in India wherein the Supreme Court held that the objective of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The purpose of the 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.

Under Section 480 a person accused of a non-bailable offence can be granted bail except when:

• There appears reasonable ground that he is guilty of an offence punishable by death or imprisonment for life.
• Such person shall not be so released if such offence is a cognizable offence.
• The court should have reasons to believe that the accused has no flight risk and he is likely not to flee the country
• The court should be also convinced that the the accused shall not be in a position to interfere with the investigation and not tamper with the evidence 

In CrPC the law on regular bail was enunciated under Section 436. 

Anticipatory Bail

Anticipatory bail is a type of pre-arrest bail that an individual seeks when they anticipate imminent arrest. According to Section 482(1) of the BNSS, if someone believes they may be arrested for a non-bailable offense, they can apply to the High Court or the Court of Session for a direction under this section. If deemed appropriate, the court may grant bail to ensure that the individual is released if arrested.

Anticipatory bail is subject to certain conditions:

• The individual must be available for police interrogation when required.
• The individual must not, directly or indirectly, influence or threaten anyone with knowledge of the case to prevent them from disclosing relevant facts to the court or police.
• The individual must not leave India without prior court permission.

Unlike regular bail, which is granted at the time of arrest, anticipatory bail is sought beforehand. In the landmark case of Gurbaksh Singh Sibbia v. State of Punjab^[2] , the Supreme Court speaking through the constitution bench judgment provided guidelines clarifying that anticipatory bail cannot be granted on vague grounds, and that the filing of an FIR is not a prerequisite for such bail. 

In State of Madhya Pradesh v. Pradeep Sharma^[3], the Supreme Court ruled that individuals who are absconding and against whom a warrant has been issued are not eligible for anticipatory bail.

Default Bail

Default bail serves as a protection against extended detention. It is granted when investigative agencies fail to complete their investigations and submit a chargesheet on time. According to Section 187(3) of the BNSS, a Magistrate may allow the detention of an accused beyond the standard fifteen days if there are sufficient grounds for doing so. However, detention cannot exceed:

• 90 days for offences punishable by death, life imprisonment, or a term of ten years or more.
• 60 days for other offences.

In CBI v. Anupam J. Kulkarni^[4], the Supreme Court ruled that during the initial 15 days of detention, a judicial magistrate can permit either police or judicial custody, but the total detention period cannot surpass fifteen days. In CBI v. Vikas Mishra^[5], the court reexamined whether police remand could extend beyond 15 days, given that the accused had evaded the full execution of the police custody order issued by the Special Judge.

Interim Bail

Interim bail is granted for shorter period of time while the main bail application is pending jurisdiction. The Bombay High Court^[6] had recently held that a conscious decision was taken by the legislature not to incorporate any provision of interim bail in the BNSS. The court held that such power clearly exists as inherent power under the provision of grant of bail. However, it is also clear that even while granting ad interim relief, there has to be a subjective satisfaction of the Court and such ad interim relief should be on certain conditions and not blanket. It is required to be considered on the premise of Article 21 of the Constitution of India which is clearly traceable with an intent to protect life and liberty of a person.

Triple Test

In the case of Gurwinder Singh v. State of Punjab^[7], the Supreme Court reiterated the test for rejection of bail. The court held that the test for rejection of bail is quite straight forward. As per Section 43D(5) and 43D(6) of the Unlawful Activities Prevention Act, 1967, bail may be rejected if the Public Prosecutor has been given an opportunity of being heard on the application for such release. Bail may also be rejected if the judge has reasonable grounds to believe that the accused is not guilty. If this test is not satisfied, the courts proceed to decide the bail application in accordance with the triple test:

• If the accused is at flight risk.
• If they are in a position to tamper the evidence.
• If they are in a position to influence the witnesses. 

The triple test was reiterated in a plethora of cases such as P. Chidambaram v. Directorate of Enforcement^[8]. In the case of Amanpreet Singh v. State of Punjab^[9], the Punjab and Haryana Court held that question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.

Conclusion

Bail is a complex area of law that strives to seek a balance between rights of the accused and interest of justice and completely  based on the judicial discretion iof the courts . The legal framework, along with judicial interpretations, have worked to establish guidelines for granting or denying bail. However, courts have also emphasized that no single factor or circumstance can solely determine whether bail should be granted or refused. Thus, the jurisprudence on bail has continued to evolve, reflecting changes in judicial perspectives.