Bails and Bonds Meaning Kinds Under CRPC

Bails and Bonds - (Default Bail, Bail in Bailable Offence)

Introduction

The provisions regarding the issue of summons, relating to arrest with or without warrant and attachment are the kind of steps taken by the law to ensure a person’s presence at a trial. Bail and Bond come under the same category of steps taken to ensure the presence of an accused at trial without unreasonably and unjustifiably interfering with his personal liberty. The denial of bail would go against the presumption of everyone being innocent until proven guilty.

Meaning

Bail generally means the process of procuring the release of an accused by ensuring his future appearance or attendance in the court for trial. It is the process of procuring a temporary release on furnishing security or surety.

It has not been defined under the Cr.P.C., but has been included within the definition section under Section 2(b) of BNSS 2023. It means the release of a person suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution of a bond or bail bond by the arrested person.

Bail through the process of taking security for appearance, balances the rights of the accused to be free until he is proven guilty and the court’s constructive custody for the appearance of the person when needed.

Kinds of Bail

1. Default Bail
2. Bail in case of bailable offences
3. Bail in case of non-bailable offences
4. Bail before arrest

There are other specific kinds of bail such as interim and medical bail which we will cover later on.

Default Bail

This was present in Section 167 of the Cr.P.C., now Section 187 of the BNSS. Under Section 187 (Procedure when an investigation cannot be completed within twenty four hours), 187(2) authorises the detention of and 187(3) contains a mandate on the maximum time one can be kept in custody and how a person is to be released on bail on expiry of such time, whatever offence he might have committed.

In case of an offence punishable with death, life imprisonment and a term of ten years or more, the total time for detention of a person can be 90 days. Out of those 90 days, a person can be sent to police custody for 15 days in total (which can be done in parts) in the initial 60 days of such detention.

In case of any other offence, the total time for which a person can be detained is 60 days out of which police custody can be given for 15 days at once or in parts in the first 40 days of such detention.

When the total period of detention is over, whatever the reason may be for police not completing their investigation or nature of offence, the person is entitled to default bail.

If the detained person is prepared to furnish bail after such a period, he will be considered to be released on furnishing such bail and no magistrate can order his further detention.

Bail in Bailable offence

Bailable offence

Section 2(c) in the BNSS, corresponding to Section 2(a) in Cr.P.C. defines bailable offence. It says that an offence which is shown as bailable in the First Schedule or an offence declared bailable by any other law is a bailable offence.

Non-bailable offence has been defined in the same subsection as ‘any other offence than a bailable offence is a non-bailable offence.

Bail

Section 478 of BNSS, corresponding to Section 436 talks about in what cases bail can be taken.

Conditions/ Essentials

1. The offence should be a bailable offence.
2. The person must have been arrested/ detained without warrant.
3. Such a person is ready at any time of proceeding to furnish bail.

Who Will Grant the Bail

If the person is brought before court, the court will release him on bail.

If he is under custody of a police officer he is entitled to be released by the officer on furnishing bail. It will be a mandatory duty of the police officer to inform the person of bail and release him. (Section 47(2) BNSS)

Indigent persons

The provided and explanation attached to Section 478(1) talk about bail in cases of bailable offence by an indigent person.

An indigent person, in layman terms means a person who is poor or destitute and does not have a comfortable or decent existence. Such a person will not be able to pay his bail, and would lose his right to be free simply due to inability to afford bail. Thus BNSS has made special arrangements for him.

According to the explanation, when a person cannot give his bail bond within a week of his arrest, it will form sufficient grounds for presumption that the person is indigent for this provision.

If such person is indigent, the court or the police officer shall discharge him after he executes a bond for his appearance. Thus a poor person can be released on bail on a personal undertaking too.

Non-compliance (imp. for prelims)

Section 478(2) covers what would happen if a person in a case does not comply with the date and place of appearance conditions in the bail bond or bond, the court can deny his subsequent bail applications in that case if and when he comes before the court or is brought into custody again.

Bail for undertrial prisoners

It was covered under Section 479 of BNSS, corresponding to Section 436A of the Cr.P.C. and has the heading ‘Maximum period for which an undertrial prisoner can be detained’. It has undergone changes in the new act which we will see.

Background

Section 436A was introduced through the amendment in 1980  to the Cr.P.C. This amendment was made after the directions of the Supreme Court in the case of Hussainara Khatoon v State of Bihar (1979). Its purpose is to protect the rights of undertrial prisoners who are held in jail for extended periods of time awaiting inquiry, investigation or trial.

In this case, the SC said that prolonged incarceration without following due process or procedure is violative of Article 21. It also directed the Central and State governments to ensure legal aid through the formation of legal services programmes due to the mandates of equal justice in Article 14, right to life and liberty from Article 21 and the directive of legal aid in Article 39A.

Requirements and procedure

In the earlier Cr.P.C., the accused was released on bail on his own surety if he had served half the maximum term prescribed for that offence for which death penalty is not prescribed. In BNSS, a few additions and conditions have been changed.

According to Section 479(1), a person who has committed and offence and is under detention awaiting trial or during the period of investigation or inquiry for it, he shall be released -

1. If the offence is not punishable by imprisonment for life or death penalty, and he is a first time offender he shall be released on bail or bail bond after completing half of the maximum period of imprisonment specified for that offence. This is a new addition in BNSS, 2023.
2. In other cases, if the offence is not punishable by imprisonment for life or death penalty, he shall be released on bail after completing half of the maximum period of imprisonment specified for that offence.

The Superintendent of the jail shall make an application in writing to the court to start the process of release on the completion of either half or one-third of the maximum period of imprisonment for the offence of an undertrial prisoner. This subsection, Section 479(3) was added in BNSS, 2023.

In both the cases, the court shall give the public prosecutor an opportunity to be heard and can authorise further detention of that person. The release or further detention shall be made by the Court with reasons to be recorded in writing.

And in no case shall the person be detained for more than the maximum time of imprisonment for the offence for which he was detained. But according to Section 479(2), if the person arrested is subject to the process of investigation, inquiry or trial for more than one offence, i.e. he is an accused under multiple cases,  he will not be released on bail by the court.

For calculation of the period of detention, the period of detention which was caused due to delay in proceedings by the accused shall be excluded from the total time of detention.

Bail in non-bailable offences

Non-bailable offences

This has been defined in Section 2(1)(c) of BNSS 2023, corresponding to Section 2(a) of the Cr.P.C. 1973. It is defined as ‘any offence which is not a bailable offence’ in the act.

But this name is a misnomer. Bail can still be given in a non-bailable case, only not as a right. Unlike bailable offences, bail is not a right and has to be applied for and given depending on different circumstances and conditions as we shall see later.

There are four different circumstances of grant of bail in a non-bailable offence and they have been defined under Section 480(1), 480(2), 480(6) and 480(7) of the BNSS, 2023 corresponding to Section 437 of the Cr.P.C. 1973.

Bail

The provision of Section 480 empowers two authorities for considering the question of bail, namely the court and the officer in charge of a police station.

Circumstance I- Arrested without a warrant (Section 480(1))

If a person is

1. accused or suspected of commission of any non-bailable offence and
2. is arrested without warrant either by a police officer in charge of a police station or appears before a court which is not a High Court or Court of Session,

he can be released on bail by the court on its discretion if it considers it justified to do so.

Restrictions

Section 480(1) also provides for restrictions when such a person cannot be released on the discretion of the court. They are :-

1. When there is reasonable suspicion that the person can be guilty of an offence punishable with death or imprisonment for life
2. When the person is suspected of committing a cognizable offence and he has been previously convicted of an offence punishable with death or life imprisonment or imprisonment of 7 years or more; and
3. When the person is suspected of committing a cognizable offence and also he has been previously convicted two or more times of an offence punishable with imprisonment of more than 3 years but less than 7 years.

Exception to restriction

Notwithstanding the above conditions, the court may direct at its discretion the release of a person who is a child, a woman or is sick or infirm. Also, other suspected persons may be released on bail too if the court is convinced that it is just and proper to do so for special reasons.

Circumstance II (Before Trial)

According to Section 480(2), when it appears to the court or officer before which a person who has been arrested or detained that the person has not committed a non-bailable offence, but there are grounds that further inquiry is needed, he can be released on bail pending such inquiry.

This release is subject to the execution of a bond for his appearance when required.

Circumstance Iii (Trial Not Concluded Within 60 Days)

According to Section 480(6), when a person has been in detention from the first date of taking evidence in the trial of a non-bailable offence, and the trial is not completed within 60 days of the above test, the person shall be released on bail on the discretion of the Magistrate. The person released shall also be subject to a personal undertaking in the form of bond to appear when required.

If the magistrate does not allow that person to be released on bail he must record the reasons in writing.

Circumstance Iv (After Trial Concluded, Before Judgement Is Given)

If after the conclusion of a trial for a non-bailable offence, the court has the opinion that the person is not guilty, it will release the person on bail and a bond to appear on the date of delivering judgement.

Discretion

We have seen that the word ‘discretion’ has been used. This discretion cannot be arbitrary or on some standard set by each judge. There are certain factors to be considered while exercising discretion. If the factors are not considered, such arrest or denial of bail would be without an application of mind and thus illegal. The Court has made the various factors clear in many cases and summarised them in the case of Prasanta Kumar Sarkar v. Ashish Chaterjee (2010).

The factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) the nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

Whether Successive Applications for Grant of Bail Be Made or Not?

Kalyan Chandra Sarkar v Rajesh Ranjan (2005)

The SC said that though an accused has the right to make successive applications for bail, the Court entertaining such subsequent bail provisions has the duty to consider the reasons and grounds on which the earlier bail application was rejected.

The Court must also record in writing what changes happened in the circumstances that the subsequent bail application was granted.

Bimla Tiwari v State of Bihar (2023)

In this case, the SC said that the amount of bail is not the deciding factor to grant bail. It is the material on record which will decide whether bail is to be granted or not. Higher payment than the required amount is not a material factor at all as this will lead to arm-twisting of the procedure.

Money taken in bail is only in the form of an assurance to come to the court. The grant of bail is governed by other parameters.

Procedural Aspects in Granting Bail for a Non-Bailable Offence

Section 480 also provides for some restrictions and conditions to be taken into consideration while granting bail in a case of non-bailable offence.

1. If the person is accused of committing an offence punishable with imprisonment of 7 years or above, or punishable with imprisonment for life or the death penalty, the public prosecutor must be given an opportunity to be heard before the Court.
2. Section 480(1) also says that a person entitled to bail cannot be denied bail simply because he is required for identification by witness if he had given an undertaking that he shall comply with the directions of the court.
3. Similarly, a person entitled for bail on other conditions cannot be detained simply for the reason that he is required for police custody beyond the first fifteen days of the investigation if he has given a personal undertaking to follow the directions of the Court.
4. According to Section 480(4), any officer or court releasing a person accused of a non-bailable offence on bail before trial must record their reasons to release him.
5. Section 480(5) says that if it is necessary, the court may order the arrest of a person and send him to custody even after he has been released on bail.

Specific Conditions for Certain Offences

Section 480(3) lays down some special conditions to be imposed in the grant of bail for certain offences. The offences are :-

1. An offence that comes under :-
   1. Chapter VI of BNS, 2023 (Offences affecting the human body)
   2. Chapter VII of BNS, 2023 (Offences against the State)
   3. Chapter XVII of BNS, 2023 (Offences against property)
2. An offence whose punishment extends to 7 years of imprisonment or more.
3. Abetment of or Attempt to commit or Conspiracy to commit any of the offences mentioned under (I) and (II)

The special conditions to be mandatorily imposed by courts who give bail to person accused of such offences are :-

1. The person shall attend the court in accordance with the bond executed by him.
2. On release, the person shall not commit any offence similar to the one that he is accused of.
3. That person will not make any inducement, threat or promise to any witness or any police officer. He shall also not tamper in any kind with the evidence.

Find More - Anticipatory Bail Sec 482 In BNSS

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