Bail

The Bharatiya Nagarik Suraksha Sanhita (BNSS), which took the place of the Code of Criminal Procedure (CrPC) in July 2024, brings forth numerous modifications to India’s bail regulations. Significant provisions for bail under the BNSS encompass: 

For first-time offenders 

  • A first-time offender (one who has never been convicted before) is now eligible for release on a personal bond after serving merely one-third of the maximum sentence applicable to their offense as an undertrial.
  • The former legislation under the CrPC permitted early release only after the individual had served half of the sentence, without differentiating between first-time offenders. 

Restrictions on undertrial bail 

  • The BNSS disallows the provision of mandatory bail to an undertrial if they are undergoing investigation, inquiry, or trial for multiple offenses or in various cases.
  • Under the CrPC, undertrials who had completed half of the maximum sentence for a crime were entitled to bail. Nevertheless, the new legislation may complicate the process for many inmates seeking this mandatory bail. 
Revised police custody regulations
  • The BNSS allows police custody for a maximum of 15 days, which can be sanctioned at any time during the initial 40 or 60 days of the overall 60 or 90-day judicial custody duration.
  • This represents a shift from the CrPC, which restricted police custody to the first 15 days following an arrest.
  • Legal professionals have expressed concerns that this adaptable custody regulation could be exploited to postpone bail for the entire duration, especially in serious cases.
Anticipatory bail
  • Anticipatory bail serves as a pre-arrest legal safeguard provided by a High Court or Sessions Court for non-bailable offenses.
  • A significant modification in the BNSS is the clear prohibition on granting anticipatory bail for gang rape cases involving women under 18 years of age. The CrPC had previously established this age threshold at 16.
Standardized terminology
  • For the first time, the BNSS clarifies the definitions of “bail,” “bond,” and “bail bond,” which were not defined in the CrPC.
  • A bail bond is characterized as a commitment with sureties for release, whereas a bond is a personal commitment without sureties.
Jail Superintendent’s new responsibility

  • Jail Superintendents are now required to submit a written request to the court for the release of undertrial prisoners who have served one-third or one-half of their sentence, as applicable. This initiative is designed to facilitate the prompt release of undertrials.

Bail in bailable offenses
  • Under Section 478 of the BNSS, an accused individual possesses an unequivocal right to be granted bail for bailable offenses.
  • Bail may be issued by either the police station or the court once the accused provides a bail bond.

Bail in non-bailable offenses
  • In the case of non-bailable offenses, bail is granted at the court’s discretion and is not an inherent right.
  • The court evaluates various factors, including the severity of the offense, the criminal record of the accused, and the potential for the accused to interfere with evidence or intimidate witnesses.
  • Regular bail petitions for non-bailable offenses can be submitted under Section 480 (in courts other than the High Court or Sessions Court) or Section 483 (in the High Court or Sessions Court).