Law of Bails in India
Types of bail under BNSS (Bharatiya Nagarik Suraksha Sanhita)
The granting or denial of bail holds significant importance for society, as every criminal offense is viewed as an offense against the society. Striking a delicate balance between individual liberty and societal interests is crucial, as expressed by Justice Dalveer Bhandari in S.S. Mhetre v. State of Maharashtra (2010).
What is Bail
The term “bail” finds its roots in the old French word “Baillier,” signifying delivery or handover.Section 2(b) of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) defines “bail” 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 or a bail bond;
Black’s Law Dictionary describes bail as a form of security, typically money or bond, required by a court for the release of a prisoner who must appear at a later date.
In essence, “bail” denotes the release of an individual from legal custody, with the legal policy favoring its allowance rather than prohibition.
The legal standing of bail is derived from multiple sources:
- Article 21 of the Indian Constitution: This article enshrines the right to life and personal liberty, providing the fundamental right to seek bail when detained by any law enforcement entity.
- Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023: This section specifies that anticipatory bail is granted exclusively in the case of non-bailable offenses.
- Article 11 of the Universal Declaration of Human Rights: Bail, especially anticipatory bail, is grounded in the presumption of innocence, a fundamental value articulated in Article 11 of the Universal Declaration of Human Rights.
Offenses are classified for bail purposes into:
- Bailable Offense: Defined by Section 2(c) of the BNSS, these offenses allow for bail as a matter of right under Section 478 BNSS when specified conditions are met. The police may grant bail to the offender at the time of arrest or detention.
- Non-Bailable Offense: These offenses, where bail cannot be granted as a matter of right, are governed by Sections 480 and 483 of the BNSS. Judicial discretion plays a crucial role in deciding bail for non-bailable offenses, which are typically more severe, carrying a penalty of three years or more.
Types of Bail in India
Regular bail is granted after arrest, ensuring attendance at trial.
Section 480 BNSS empowers the magistrate’s court to grant regular bail for non-bailable offenses, and Section 483 BNSS extends this to the High Court or Sessions Court. Factors influencing bail decisions include the nature of the crime, evidence reliability, accused’s character, and public interest.
Anticipatory bail is sought when arrest for a non-bailable offense is anticipated, governed by Section 482 of the BNSS, allows individuals to seek bail before arrest for anticipated non-bailable offenses. Eligibility depends on factors like charge severity, the applicant’s background, and the risk of false charges.
Statutory bail, also known as default bail, arises when the police fail to file a report within a specified time under Section 187(2) of the BNSS. It is an inherent right of the accused if chargesheet isn’t filed in the specified time, applicable regardless of the offense’s nature, and can be granted by Magistrates of the First or Second Class.
Frequently Asked Questions (FAQs) about Bail:
What is the legal standing of bail in India?
The legal standing of bail in India is derived from Article 21 of the Indian Constitution, Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Article 11 of the Universal Declaration of Human Rights.
How are offenses classified for bail purposes?
Offenses are classified into bailable and non-bailable. Bailable offenses allow for bail as a matter of right, while non-bailable offenses involve discretionary bail based on factors like the crime’s severity.
What are the different types of bail in India?
The four types of bail are Regular Bail (post-arrest), Interim Bail (temporary release during pending applications), Anticipatory Bail (sought before arrest), and Statutory Bail (default bail when chargesheet isn’t filed within a specified time).
What factors influence bail decisions for non-bailable offenses?
Factors include the nature of the crime, credibility of evidence, accused’s character, and public interest. Judicial discretion is crucial in deciding bail for non-bailable offenses.
How is statutory bail, or default bail, granted?
Statutory bail is granted under Section 187(2) BNSS when the police fail to file a report within a specified timeframe. It is an inherent right of the accused and can be granted by Magistrates of the First or Second Class.
What is anticipatory bail, and when can it be sought?
Anticipatory bail, governed by Section 482 BNSS, allows individuals to seek bail before arrest for anticipated non-bailable offenses. Eligibility depends on factors like charge severity, the applicant’s background, and the risk of false charges.
Whether Anticipatory Bail can be applied before registration of F.I.R.
Yes, Courts can grant anticipatory bail even if no FIR has been registered, provided there is a reasonable apprehension of arrest in a non-bailable offence. This is not a strict requirement but rather a consideration of the circumstances surrounding the case Bharat Devdan Salvi VS State of Maharashtra – Bombay.
Conclusion
Anticipatory bail can indeed be granted without the registration of an FIR, provided there is a reasonable apprehension of arrest and the circumstances justify such a grant. However, it is essential for the court to impose conditions and limit the duration of the bail to ensure that it does not interfere with ongoing investigations. Legal practitioners should carefully assess the specific facts of each case and prepare to argue for or against anticipatory bail based on the principles outlined above.
