AISHWARYA COLLEGE OF EDUCATION(LAW)
SESSION-2023-24
B.A.LL.B –VIIIth SMESTER
SUBJECT – THE BHARITYA NAGRIK SURAKSHA SANHITA ,2023
TOPIC- BAIL PROVISIONS
SUBMITTED TO - SUBMITTED BY -
Mrs.SUMAN SANDAR DUSHYANT SINGH BHATI
(ASS. PROFESSOR)
INDEX
Sr.No Content Page No.
1 Acknowledgement
2 Introduction
3 Meaning of Bail
4 Objects of Bail
5 Evolution of Concept of Bail
6 Types of Bail
7 Sections related to Bail in
BNSS
8 Important Case Law
Regarding Bail
9 Conclusion
10 Bibliograpy
ACKNOWLEGEMENT
On this great occasion of successful completion of my assignment
on Bail Provisions , I would like to thank my lecturer Mrs. Suman
Sandar , Ma’am , who has guided and assisted me to complete the
assignment. Without his support I would not have finished the
assignment within time.
I would also like to take again this opportunity to thank our
Coordinator Mrs. Dr Neelima Arora , Ma’am and my friends and
family members, without them this assignment could not have
been completed in a short duration.
INTRODUCTION
The Popular meaning of word ‘bail’ is simply that it is the security given for the due
appearance of a prisoner in order to obtain his release from imprisonment. The word ‘bail’
has various connotations and as verb it means to deliver and arrested person to his surety’s
on their giving the requisite obligation or security his appearance. The noun ‘bail’ may
refer either to the obligation or the obligators.
In Black’s Law Dictionary the word bail as a noun has been defined as “A security such
as cash or bond especially security required by a court for the release prisoner who must
appear at a future date”. Bail as a verb means “to obtain the release of (oneself or another)
by providing security for future appearance” or to release a person after receiving such
security ‘Bail’ in criminal proceedings means:
1. Bail grantable in or in connection with proceedings for an offence to a person who is
accused or convicted of the offence. (or)
2. Bail grantable in connection with an offence to a person who is under arrest for the
offence or for whose arrest for the offence a warrant, indorsed for bail, is being issued.”
Meaning of Bail
The concept of bail has a long history and deep roots in English and American law. In
medieval England, the custom grew out of the need to free untried prisoners from disease
ridden jails while they were waiting for the delayed trials conducted by travelling justices.
Prisoners were bailed or delivered, to reputable third parties of their own choosing who
accepted responsibility for assuring their appearance at trial. If the accused did not appear,
his bailor would stand trial in his place. Eventually it became the practice for property
owners who accepted responsibility for accused persons to forfeit money when their
charges failed to appear for trial from this grew the modern practice of posting a money
bond through a commercial bondsman who receives a cash premium for his service, and
usually demands some collateral as well. In the event of non-appearance the bond is
forfeited, after a grace period of a number of days during which the bondsman may
produce the accused in court.
Objects of Bail
It is not the purpose of the criminal law to confine a person accused of crime before his
conviction. Bail, in criminal cases is, therefore, intended to combine the administration of
justice with the liberty and convenience of the person accused. Administration of justice
on the spot or immediately after the commission of a crime in accordance with the
fundamental principles of natural justice embedded in a fair and just legal system is not
feasible.
This appears to be one of the reason for the evolution of the bail jurisdiction in any legal
system. After the registration of crime it takes time to complete the investigation and
thereafter it takes even much longer time to conclude the trial. It is a matter ofcommon
experience that the judicial machinery, more particularly in India is ill equipped to provide
a speedy trial to the accused in conformity with well established principles of criminal
jurisprudence. The question, whether accused should be kept in the prison or should be
kept free pending investigation and trial, therefore, falls for consideration before the court
in every criminal case wher accused is under arrest. An accused person cannot be detained
in judicial custody for long time by refusing him bail if the legal system is not in a position
to providespeedy trial.
The inability of the judicial system to provide expeditious trial to the accused should
always be kept in mind while dealing with the issue of bail. Keeping a person behind bars
without providing him a quick trial is quite incongruous to the concept of personal liberty
which is a basic human right. The under-trial prisoner, therefore, cannot be allowed to
suffer in jail for indefinitely long time.Further, bail is allowed to prevent confinement of
innocent persons which would otherwise result into a pre-trial punishment and to enable
an accused person to prepare his defense to the charge against him. The principle
underlying release on bail is that an accused person is presumed in law to be innocent till
his guilt is proved and as a presumably innocent person, he is entitled to freedom and
every opportunity to look after his case, provided his attendance is secured by proper
security. It goes without saying that an accused person, if he enjoys freedom, will be in a
much better position to look after his case and to properly defend himself than if he were
in custody.1
1
Bharatiya Nagarik Surkhshya Sanihita 2023 Bare Act by Universal
Evolution of Concept of Bail
The concept of bail can trace back to 399 BC, when Plato tried to create a bond for the
release of Socrates. The modern bail system evolved from a series of laws originating in
the middle ages in England.
Evolution in England:
There existed a concept of circuit courts during the medieval times in Britain. Judges used
to periodically go? On circuit? To various parts of the country to decide cases. The terms
Sessions and Quarter Sessions are thus derived from the intervals at which such courts
were held. In the mean while,the under trials were kept in prison awaiting their trials.
These prisoners were kept in very unhygienic and inhumane conditions this was caused
the spread o a lot of diseases. This agitated the under trials, who were hence separated
from the accused. “This led to their release on their securing a surety, so that it was ensured
that the person would appear on the appointed date for hearing. If he did not appear then
his surety was held liable and was made to face trial. Slowly the concept of monetary bail
came into existence and the said under trials was asked to give a monetary bond, which
was liable to get forfeited on non-appearance.
In India:
“ The ethics and injunctions of ancient Hindu jurisprudence required interalia, an
expedient disposal of disputes by the functionaries responsible for administration of
justice. No laxity could be afforded in the matter as it entailed penalties on the
functionary’s.Thus; a judicial interposition took care to ensure that an accused person was
not unnecessarily detained or incarcerated. indeed devised practical modes both for
securing the presence of a wrongdoer, as well as to spare him of undue strains on his
personal freedom.”
the form and contents of the British institution of bail were statutorily transposed by the
passing of Code of Criminal Procedure in 18612, followed by its re-enactment in 1872 and
1898 respectively. In the changed context of an independent Republican India,
administrators of law and justice are mandated to function in a manner that the
constitutional equilibriu between the ‘freedom of person’ and the ‘interests of social order’
are maintained effectively. “Ushering of democratic social order necessarily required
updating and streamlining of the then existing laws.
2
Now it is replace by BNSS 2023
Types of Bail
Bail is a kind of security that you provide to the law for them to release you. It is a
surety that you would be available in court as and when required in future. As
mentioned before bail is your right, it’s your right to freedom and you must apply for it.
There are different categories of bails applicable depending upon the type of charge
against you.
(1) Interim Bail – This bail is for certain period of time granted before hearing to the
prosecution.
(2) Permanent Bail – This bail is permanent in nature and granted only after hearing to
the petitioner as well as the prosecution.
(3) Bail before Arrest – It is granted when the court feels that the accused is falsely
involved in the case and an arrest would affect his honor and dignity badly.
(4) Bail on Arrest – Under section 497 of Cr. Pc. Bail can be granted for both bailable
as well as non bailable offenses after the accused is arrested against a charge.
(5) Protective Bail – A bail granted so that the accused can approach the provincial court
for getting a pre-arrest bail without touching its merit.
(6) Directly approaching Superior Court – The superior courts can grant pre- arrest bail
in some appropriate cases directly if the accused has been deprived or prevented of
approaching lower courts.
(7) Bail for the Convict – Once convicted, bail is granted to the accused even if he appeal
for the same is accepted if court finds that there are considerable grounds for his/her
release
Sections Related to Bail In BNSS
Section 478- In what case bail to be taken .-
(1) When any person other than a person accused of a nonbailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is
brought before a Court, and is prepared at any time while in the custody of such officer or
at any stage of the proceeding before such Court to give bail, such person shall be released
on bail:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is
indigent and is unable to furnish surety, instead of taking bail bond from such person,
discharge him on his executing a bond for his appearance as hereinafter provided.
Explanation.—Where a person is unable to give bail bond within a week of the date of his
arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an
indigent person for the purposes of this proviso:
Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section (3) of section 135 or section 492.
(2) Notwithstanding anything in sub-section (1), where a person has failed to comply with
the conditions of the bond or bail bond as regards the time and place of attendance, the
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 and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond or bail
bond to pay the penalty thereof under section 491.
Section 4793 – Maximum Period for which undertrial prisoner can be detained –
(1) Where a person has, during the period of investigation, inquiry or trial under this
Sanhita of an offence under any law (not being an offence for which the punishment of
death or life imprisonment has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he shall be released by the Court
on bail:
3
Correspoonds to Section 436 A of the Code of Criminal Procedure 1973(2of 1974)
Provided that where such 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:
Provided further that the Court may, after hearing the Public Prosecutor and for reasons
to be recorded by it in writing, order the continued detention of such person for a period
longer than one-half of the said period or release him on bail bond instead of his bond:
Provided also that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment
provided for the said offence under that law.
Explanation.—In computing the period of detention under this section for granting bail,
the period of detention passed due to delay in proceeding caused by the accused shall be
excluded.
(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof,
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.
(3) The Superintendent of jail, where the accused person is detained, on completion of
one-half or onethird of the period mentioned in sub-section (1), as the case may be, shall
forthwith make an application in writing to the Court to proceed under sub-section (1) for
the release of such person on bail.
Section 4804.When bail may be taken in case of non –bailable offence.-
(1) When any person accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained with0out warrant by an officer in charge of a police station
or appears or is brought before a Court other than the High Court or Court of Session, he
may be released on bail, but---
(i) such person shall not be so released if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released 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 less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be
4
Corresponding to Section 437 of the Code of Criminal Procedure,1973(2of 1974)
released on bail if such person is a child or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be
released on bail if it is satisfied that it is just and proper so to do for any other special
reason:
Provided also 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:
Provided also that no person shall, if the offence alleged to have been committed by him
is punishable with death, imprisonment for life, or imprisonment for seven years or more,
be released on bail by the Court under this sub-section without giving an opportunity of
hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial,
as the case may be, that there are not reasonable grounds for believing that the accused
has committed a non-bailable offence, but that there are sufficient grounds for further
inquiry into his guilt, the accused shall, subject to the provisions of section 492 and
pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on
the execution by him of a bond for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission 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 of, or
conspiracy or attempt to commit, any such offence, is released on bail under sub-
section (1), the Court shall impose the conditions,---
(a) that such person shall attend in accordance with the conditions of the bond executed
under this Chapter;
(b) that such person shall not commit an offence similar to the offence of which he is
accused, or suspected, of the commission of which he is suspected; and
(c) that such person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer or tamper with the evidence, and
may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-
section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub-
section (2), may, if it considers it necessary so to do, direct that such person be arrested
and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable
offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be
recorded in writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable
offence and before judgment is delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a bond for his appearance to hear
judgment delivered.
Section 481- Bail to require accused to appear before next Appellate Court
Section 482- Direction for grant of bail to person apprehending arrest
Section 483 Special powers of High Court or Court of Session regarding bail-
(1) A High Court or Court of Session may direct,---
(a) 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 (3) of section 480, may impose any
condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set
aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the Court of Session or which,
though not so triable, is punishable with imprisonment for life, give notice of the
application for bail to the Public Prosecutor unless it is, for reasons to be recorded in
writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to
a person who is accused of an offence triable under section 65 or sub-section (2) of section
70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the
Public Prosecutor within a period of fifteen days from the date of receipt of the notice of
such application.
(2) The presence of the informant or any person authorised by him shall be obligatory at
the time of hearing of the application for bail to the person under section 65 or sub-
section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
(3) A High Court or Court of Session may direct that any person who has been released
on bail under this Chapter be arrested and commit him to custody.
“Till section 496 Section related to Bail is given ”
Important case law regarding Bail
1. Sunil Batra Vs. Delhi Administration5:
The right to life includes right to give importance to human dignity and decency even in
rescuse homes and prisons.
2. Rasiklal Vs. Kishore Khanchand Wadhwani6
it was observed that, "In case of bailable offence there is no question of discretion in
granting bail"
3. State of Maharashtra Vs. Anant Dighe 7
it is observed that : "There are no hard and fast rules regarding grant of refusal of bail,
each case has to be considered on its own merits. The matter always calls for judicious
exercise of discretion by the Court"
4. Babusing Vs.State of Uttar Pradesh8
it is observed that, "Refusal of an application for bail does not necessarily preclude
another application on later occasion giving more details,further development and
different consideration he findings of a higher Courtor a co-ordinate bench must receive
serious consideration at the hands of the Court entertaining a bail application at a later
stage when the same had been rejecte earlier.
5
AIR 1978 SC 1675
6
reported in AIR 2009 SC 1341
7
AIR 1990 SC 625
8
AIR 1990 SC 625
CONCLUSION
The power given to the police for arrest has become one of the remunerative sources for
police corruption. It has become a handy tool who act with ill motive.Courts, especially
the district courts and courts subordinate to it, hesitate to provide bail to the accused as
the fear grows in Judicial Magistrates’ minds as to they may be questioned by higher
judiciary or vigilance case may be initiated against them.
In such cases, the accused approaches the higher judiciary for bail,resulting in courts’
overcrowding. Therefore, Judicial Magistrates of the level of District Judge and below
should adhere to the directions given by High Courts and Supreme Courts while deciding
bail related cases.
This not only will help the accused in getting bail rather overcrowding of higher courts
can be prevented. This will also be a lesson for the police for making unnecessary arrests.
Bibliography
www.advocate kojo.com
www.writinglaw.com
www.lawtimesjournal.in
BNSS Bare Act by Universal
www.humanrightiniciative.org
