Important sections and judgements on bails that every lawyer should know

The word “bail” comes from the old French word “Baillier,” which means to deliver or hand over. The Law Lexicon defines bail as ‘security for the appearance of the accused person, on giving which he is released pending trial or investigation’. Black’s Law Dictionary describes it as a security like money or bond, often required by a court to release a prisoner who must appear later.

Generally grant of bail means to set at liberty a person arrested or imprisoned on security (which’s otherwise known as being released on Jamin) being taken off his appearance in the court on a particular day.

There is a phrase most often used that “bail is the rule, jail is the exception” reflects the legal principle that individuals accused of crimes  should be granted bail as a general rule, with incarceration being a reserved measure. This principle is rooted in the presumption of innocence and the importance of personal liberty. As per the criminal procedure Bail is a matter of right in Bailable Offence, where it’s a discretion of court in case of Non- bailable offence.

Under BNSS, Section 2(1)(b) “bail” has been defined as a means to release a person accused of or suspected of commission of an offence from the custody of law upon certain condition imposed by an officer or court on execution by such person of a bond or a bail bond.

Section 2(1)(c) defines bailable  offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force; and non bailable offence means any other offence .
According to Section 2(1)(e), a “bond” refers to a personal bond or an undertaking for release without surety. This implies that the individual is released on the basis of their personal promise to appear in court as required, without needing a third party to guarantee their appearance. 

As per Section 2(1)(d), a “bail bond” involves an undertaking for release with surety. This means that surety, typically a third party, provides a financial guarantee to ensure the accused’s appearance in court. If the accused fails to appear, the surety may be required to pay the bond amount. 

PROVISION OF BAIL 

There are different kinds of Bail like Regular Bail, Anticipatory (Pre-Arrest) Bail, Interim Bail, Default Bail has been elucidated under BNSS.

Regular Bail can be broadly divided into two categories, viz.;

• (i)    Bail in Bailable cases (478 BNSS/436 CrPC)
• (ii)    Bail in Non-bailable cases (480 BNSS)

In the first class, the grant of bail is a matter of Right. It may be given either by the police officer in-charge of a police station having the accused in his custody or by the Court. The release may be ordered on the accused executing a bond and even without sureties.  When a person who is arrested is the accused of  bailable offence, no needless impediments should be placed in the way of being admitted to bail. In such cases, the man is ordinarily to be at liberty, and it is only if he is unable to furnish such moderate security, he is required to remain in detention, if his appearance is required before a court in a pending inquiry. The Section 436 CrPC is imperative, and under its provisions the Magistrate is bound to release the person on bail or recognizance. The basic rule is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice; Held in State of Rajasthan v. Balchand, 1978 Cr LJ 195 (SC) AIR 1977 SC 2447.

Section 478 BNSS i.e. Section 436 CrPC does not state that a person released must give a bond himself. The person giving bail enters into a contract with a penalty Clause to produce the accused person before a Magistrate when called upon. He is the principal. The person for whom bail is given is the subject of the contract. If the person giving bail fails to perform this contract then the penalty Clause may be put into operation against him although it is not necessary to exact the penalty in full. [Vide S/478(2) BNSS]

Conditions To Be Satisfied Under Section 478 BNSS

This section deals with the grant of bail in bailable offences in general where a person is arrested or detained without a warrant. (Refer Section 73(1) BNSS, bailable warrant; Provision of bail when arrest has been done with warrant). For the grant of bail under this section, the following conditions must be satisfied:-

• (i)    The person has been accused of a bailable offence;
• (ii)    Such person has been arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court;
• (iii)    He is prepared to give bail. 

If all the three conditions mentioned above are satisfied, then bail can be claimed as a matter of right. The word used is ‘shall’ and not ‘may’ and therefore, there is no discretion either with the police officer or with the Court; (Vide State of Mysore v. Biswanath Rao, AIR 1966 Mys 71.)

As per explanation provided in the aforementioned provision   Where a person is unable to give a bail bond within a week of the date of his arrest, it shall be sufficient ground for the officer or court to presume that he is an indigent person for the proviso of this section which provides that if a person is indigent and unable to furnish surety, instead of taking bail bond from such person the officer or court shall discharge him on executing a bond (Personal Undertaking) for his appearance.

Section 478(2) BNSS provides that if a person do not comply with the conditions of the bail granted under  Section 478(1) , then court may refuse to release him on bail when on a subsequent occasion in the same case he appears before the court or is brought in custody.

Maximum Period For Which Under-trial Prisoner Can Be Detained, and Bail to an UTP [479 BNSS/Section 436A CrPC]

• Section 436A of CrPC provided for the maximum period for which an under-trial prisoner can be detained.
• Section 479 of BNSS corresponds to section 436A of CrPC and makes the following changes in provisions:

Section 436A of Cr.PC added through 2005 amendment allows an under trial prisoner to be released on  bail if they have been in jail for half of the maximum punishment for their crime pending investigation, inquiry or trial but was not applicable to an offence for which punishment of death has been specified as one of the punishments. 

Section 479(1) of BNSS has made another significant addition to it, which states that – an under-trial prisoner shall be released on bail if he has undergone one half of the maximum punishment provided for that offence   pending an investigation, inquiry or trail and it is not applicable to an offence for which punishment of death or life imprisonment has been specified as punishment. However, 3rd Proviso has made it clear that the public prosecutor shall be given opportunity of being heard that why the accused should not be released on bail. Then after hearing the contentions raised by the PP the court may either order continued detention of such person beyond one half of the said period or may release him on bail bond instead of bond.

Previously the law did not allow early release of offenders who are first time offenders (i.e. who were never ever convicted before in any cases) even if they had spent significant amount of time in jail awaiting trial. However the new law allows it.
In First Proviso 479 BNSS it provided that where a person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to - one third of the maximum period of imprisonment specified for such offence under that law. 

In 3rd Proviso 479 the law provides that in no cases any person shall be detained in prison for more than the maximum period of imprisonment provided fir the said offence during an undergoing investigation, inquiry or trial.

In Explanation it has provided that in computing the period of detention under this section for granting bail, the period of detention passed due to delay caused in proceeding by the accused shall be excluded.

Previously the law did not have a rule that stopped an under-trial prisoner from getting bail if they were facing investigation, inquiry or trail in multiple cases. But now the new law has become stricter by not allowing bail if someone has multiple cases pending against him.

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. [Section 479(2)]

The new law requires the jail superintendent to submit a written application to the court for releasing under-trial prisoners on bail after serving either one third or one half of the sentence, depending upon cases. 

N:B: It’s pertinent to mention here that the provision regarding under trial prisoner mention under 479 of BNSS applicable to both bailable & non-bailable offence.

When Bail Can Be Taken In Case Of Non-Bailable Offence
 [Section 480 of BNSS/Section 437 of Cr.Pc]

Section 437 of Cr.PC i.e. Section 480 BNSS provides that application for bail can be made before a magisterial court by a person who is accused of or suspected of commission of non bailable offence and is arrested or detained without warrant and it’s the discretion of such court whether to release the accused on bail (Cleared from the use of word ‘May’). However, in the below mentioned two cases magisterial courts are not empowered to grant bail in non- bailable offence. In these two cases the accused has to made application for bail before HC or Sessions Court only. 

• i.    If there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
• ii.    If such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.

However to the above rule of bail denial by the magisterial court, there is an exception. First proviso to section 437(1) Cr.Pc provides that  even Magisterial Court may direct a person referred to in clause (1) or (2) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. 

However, Section 480(1) of BNSS modifies the above exception to bail denial by providing that Court may direct that such person be released on bail if such person is a child or is a woman or is sick or infirm.

Under 2nd Proviso to Section 480(1) it has been mentioned that magisterial court may grant bail to a person falling under Section 480(1)(ii) if the court is satisfied that it’s just and proper to do so for any other  special reason.

Refusal for Bail;
Section 437(1), 3rd proviso, of Cr.PC provided that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

Section 480(1), 3rd proviso, of BNSS with slight modification now provides that the mere fact that an accused person may be required for being identified by witnesses during investigation or for police custody beyond the first fifteen days shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

Section 480(1), 4th Proviso, BNSS provides that a person accused of an offence punishable with death, imprisonment for life , or imprisonment for 7 years or more ,shall not be granted on bail by court without giving an opportunity of hearing to public prosecutor.

Section 480(2) BNSS provides The authority may release the accused on bond at any stage of investigation, inquiry or trial if it appears that there are no reasonable grounds for believing that the accused has committed a non bailable offence. At the time of releasing the accused on bail the court may impose any condition.

Section 480(3) BNSS provides that the court shall impose conditions if the person is accused of or suspected of comission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 or abetment or conspiracy or attempt to commit, any such offence.

Conditions :

• a.    Such person shall attend when called upon.
• b.    Such person shall not commit an offence similar to the offence of which he is accused, or suspected of the commission.
• c.    He shall not tamper any evidence related to the case by way of any direct or indirect involvement in inducing, threatening or promising any person acquainted with the facts of the case.
• d.    Any other conditions which the court deems fit in the interest of justice.

Section 480(5) BNSS provides that at any time court may cancel the bail of a person if it thinks necessary. It states that 

Section 480(6) BNSS mentions a situation where bail  becomes a matter right even in non bailable offences. It provides that if the trial of a case by a magistrate has not been concluded within 60 days from the date of taking first evidence on that case then such person shall be released on bail to the satisfaction of magistrate.

Section 480(7) BNSS provides that if at any time after the conclusion of trial & before the judgement is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, then the person shall be released on bail if such person executes a bond (i.e. personal undertaking without sureties for his appearance).

Bail to require accused to appear before next Appellate Court (Section 481 of BNSS)

• (1)    Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute a bond or bail bond, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bond shall be in force for six months.
• (2)    If such accused fails to appear, the bond stand forfeited and the procedure under section 491 shall apply.

Default Bail

Default bail, also known as statutory bail, is a significant right available to an accused person under Indian law. It arises from the failure of law enforcement agencies to complete their investigation (i.e., filing of chargesheet) within a prescribed time limit. This right is enshrined under Section 167(2) of the Code of Criminal Procedure (CrPC), 1973 (Vide Section 187 BNSS for revised timeline).Default bail serves as a crucial safeguard against arbitrary and prolonged detention of accused individuals. It ensures that law enforcement agencies conduct investigations within a reasonable timeframe and uphold the rights of individuals to liberty and fair trial. By providing an automatic trigger for bail (irrespective of the offence whether bailable or non- bailable) when the investigation is delayed, Section 167(2) of the CrPC acts as a check on investigative agencies and promotes accountability. 

LANDMARK PRECEDENTS 

1.State of Rajasthan, Jaipur v. Balchand @ Baliay (AIR 1977 SC 2447): 
This case established the principle that “bail is the rule and jail is the exception.” The Supreme Court emphasized the importance of personal liberty and ruled that bail should be granted in cases where the accused is not likely to abscond or tamper with evidence.

2. Gurbaksh Singh Sibbia v. State of Punjab (AIR  1980 SC 1632): This landmark judgment laid down comprehensive guidelines for the granting of anticipatory bail under Section 438 of the CrPC. The Supreme Court held that anticipatory bail can be granted even after an FIR is filed and emphasized that the power to grant anticipatory bail must be exercised with care and circumspection.

3. Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40: 
In this case, the Supreme Court granted bail to the accused in the 2G spectrum case, emphasizing that the primary purpose of bail is to ensure the accused’s presence at trial. The court noted that prolonged pre-trial detention undermines the presumption of innocence. (See Para 21)

4. Arnab Manoranjan Goswami v. State of Maharashtra (2020 SCC OnLine SC 964): 
The Supreme Court granted interim bail to journalist Arnab Goswami, highlighting that deprivation of personal liberty for even a single day is too much. The court stressed that the judiciary must protect the fundamental right to personal liberty. Importantly, the Supreme Court has proceeded to analyse the approach adopted by Courts wherein, given a low rate of conviction and given the possibility of conviction being rare, they tend to decide bail applications contrary to legal principles and understandably, deny bail to an accused. The Supreme Court rightly warned Courts against mixing up a bail application, which is not punitive in nature, with that of a possible adjudication by way of trial. While doing so, the Court has stressed on the need to protect constitutional liberties of citizens. It stated 

5. Uday Mohanlal Acharya vs State of Maharashtra (2001) 5 SCC 453:
In this landmark case, the Supreme Court of India clarified the concept of default bail. It held that the right to default bail becomes absolute if the charge sheet is not filed within the prescribed period, and the accused applies for bail and is prepared to furnish bail. The court emphasized that this right cannot be defeated by subsequent filing of the charge sheet before the actual release of the accused. (Vide Para 13)

6. Rakesh Kumar Paul vs State of Assam (2017) 15 SCC 67: 
This case further reinforced the principles laid down in Uday Mohanlal Acharya. The Supreme Court, in a detailed judgment, held that an accused becomes entitled to default bail if the charge sheet is not filed within the stipulated period, irrespective of the severity of the crime. The court reiterated that the right to default bail is an indefeasible right, ensuring that an accused is not unjustly detained.
Furthermore the court observed that 

7. Hussainara Khatoon vs State of Bihar (1979) 3 SCC 532:
 SC held that the object of a bond is only to ensure that the under trial does not flee or hide from trial. (See Para 8)
Further stated that 

8. Sanjay Dutt vs State through C.B.I. Bombay (II) (1994) 5 SCC 410: 
In this case, the Supreme Court clarified that the period for filing the charge sheet is calculated from the date of the remand of the accused. If the prosecution fails to file the charge sheet within the 60 or 90 days, as applicable, the accused is entitled to be released on default bail. The judgment also discussed various procedural aspects related to default bail.

9. Satender Kumar Antil v. Central Bureau of Investigation & Anr., 2021 
SC laid down guidelines on the grant of bail to an accused and while doing so, it has reiterated aspects of personal liberty and constitutional guarantees available to an accused under criminal jurisprudence. The Court observed that while its discussion and findings are meant to operate as guidelines, each case pertaining to a bail application is to be decided on its own merits. (See Para 4)
The judgment has categorised offences into four different categories and has observed that these guidelines would operate upon the satisfaction of two conditions i.e., (a) that the accused was not arrested during the investigation and that (b) the accused co-operated throughout in the investigation including appearing before the Investigating Officer (“IO”) whenever called. These four categories are: (See Para 1)

A.    Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B.    Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C.    Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
D.    Offences punishable under Special Acts containing stringent provisions for bail like NDPS (s.37), PMLA (s.45), UAPA S.43D(5), Companies Act, 212(6), etc.
E.    Economic Offences not covered by Special Acts.

With respect to Category A, the Guidelines appear to be comparatively lenient to the Accused, given the lesser gravity of the offences involved. Here, after filing of the charge sheet or the complaint taking cognizance, ordinary summons must be issued at the first instance including an appearance through lawyer. However, if the accused does not appear despite service of summons, then a Bailable Warrant for physical appearance may be issued. Again, if the accused fails to appear despite issuance of bailable warrant, a non-bailable warrant will be issued. Such non-bailable warrant may be converted by the Magistrate into a bailable warrant/summons without insisting on physical appearance of the accused, if the accused moves an application before execution of the non-bailable warrant on an undertaking to appear physically on the next date of hearing. Once an appearance is made in Court, bail applications may be decided without taking such accused into custody or by granting interim bail till the bail application is decided.
With respect to Categories B and D, the bail application will be decided on merits on appearance of the accused in Court pursuant to process being issued. Furthermore, as far as economic offences are concerned, the Supreme Court observed that to determine whether or not to grant bail, two aspects need to be considered i.e., seriousness of the charge and severity of the punishment. In the context of white-collar crimes, the aforementioned factors are usually considered to decide on bail applications.
Finally, with respect to Category C, the guidelines are the same as Categories B and D with the additional condition of compliance with strict bail provisions under Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985; Section 45 of the Prevention of Money Laundering Act, 2002; Section 212(6) of the Companies Act, 2013; Section 43(d)(5) of the Unlawful Activities (Prevention) Act, 1967 and the provisions under the Protection of Children from Sexual Offences Act, 2012.
Furthermore the Court held that as regards Section 41A CrPC, it requires the IO to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). In this regard, the Court held that Sections 41 and 41A are facets of Article 21 of the Constitution and that any arrest in non-compliance of Section 41/41A CrPC would entitle the accused to bail. Further, the Court mandated all States and Union Territories to facilitate standing orders to comply with Section 41/41A CrPC. (See Para 73& 27)
One of the most important observations in the judgment is that the Supreme Court reiterated the principle that bail is rule and that jail is the exception. (See Para 11)
 
10.Nikesh Tarachand Shah v. Union of India, (2018) 
SC Observed  that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody and that a presumably innocent person must have his freedom to enable him to establish his innocence.(See Para 27)