Provisions Pertaining to Bail and Bonds

Provisions Pertaining to Bail and Bonds

Clauses 479, 481, 482, 483, 484 and 485 Chapter XXXV of the BNSS (Cls.479 to 498) deals with the provisions relating to bail and bail bonds. While the contents of most of these clauses are identical to their corresponding sections in the CrPC (ss.436 to 450), some substantive changes have been proposed. For instance, new insertions in the BNSS include defi nitions of bail, bail bond, and bond. Further, signifi cant changes have been proposed in two provisions – the provision regarding the maximum period of detention of an undertrial, and the provision on anticipatory bail. A vital amendment proposed is in Cl.482 BNSS which replaces s.437 CrPC (bail in non-bailable offences). Under this provision, two categories of persons who are not to be released on bail are provided,242 and the exception to this ineligibility is mentioned in the fi rst proviso: women, persons who are sick or infi rm, and persons under the age of 16. Under the corresponding Cl.482 BNSS, the age is increased from sixteen to eighteen. This amendment makes the provision consistent with the Juvenile Justice (Care and Protection of Children) Act, 2015.243 I. Introduction of defi nitions The terms ‘bail’, ‘bond’ and ‘bail bond’ while used throughout the CrPC, have not been defi ned therein. The BNSS introduces defi nitions for these terms for the fi rst time in Cl.479. Bail is defi ned under sub-clause (a) as ‘release of a person accused of an offence from the custody of law upon certain conditions imposed by an 243 Under s.12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 all children in confl ict with the law under eighteen years of age are entitled to be released on bail and thus the provision does not expand the scope of bail law. 242 These two categories are: (i) persons against whom there are reasonable grounds for believing that they committed an offence punishable with death or imprisonment for life; and (ii) persons who have been convicted of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more; or have been convicted two or more times for committing cognizable offences punishable with three years or more. officer or court including execution by such person of a bond or a bail bond.’244 Bond is defi ned under sub-clause (b) as a ‘personal bond or an undertaking for release without payment of any surety’ and; bail bond under clause (c) as ‘an undertaking for release with payment of surety.’ A combined reading of these defi nitions makes apparent the two ways by which a person may be released on bail i.e. execution of a bond (without surety) or a bail bond (with payment of surety). Although, bail has been understood to include release with or without surety, in jurisprudence, there is currently some confusion regarding the textual usage of the terms bail and bond. This confusion arises as some provisions in CrPC use the term bail to include release either with or without surety, however, there are a few provisions that make a distinction between release on bail with surety, and on a personal bond without surety. For instance, the proviso to s.436 CrPC assumes that bail requires surety, and where a person is unable to pay such surety, instead of bail, can be released on a personal bond. S.441 CrPC is another such provision which uses the language ‘released on bail or released on his own bond.’ Interestingly, s.441 (2) and (3) CrPC use the term bail generically to include release with or without surety.245 The BNSS attempted to bring in the much needed clarity on distinction between bail with and without surety. Some changes have further been made to the remaining provisions in the chapter as well, in accordance with these new defi nitions.246 However, despite the defi nition, the confusion on the usage of the terms and bail and surety continue since the Bill seems to have retained the 246 For instance, in Cls.480 and 481 BNSS the word bond has been inserted after bail wherever in the corresponding CrPC provisions bail was used to denote a bail with surety. 245 Moti Ram v. State of Madhya Pradesh (1978) 4 SCC 47: The Supreme Court discussed this ambiguity and held inter alia that bail ought to include both release with and without surety, and persons who are indigent or unable to pay surety ought to be released on their own recognisance. 244 Previously, the 268th Report of the Law Commission of India attempted to defi ne ‘bail.’ The Commission noted that “(T)he literal meaning of the word ‘bail’ is surety. Bail, therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on release subject to monetary assurance—either one’s own assurance (also called personal bond/recognizance) or through third party sureties''. language of the present CrPC in some provisions. For instance, Cl.482(2) distinguishes between ‘release on bail’ and ‘release on bond without surety’.247 II. Maximum Period of Detention for Undertrials S.436A CrPC was inserted vide the Criminal Law (Amendment) Act, 2005 (‘2005 Amendment’).248 This provision states that where a person has undergone detention for a period extending up to one-half of the maximum period of imprisonment specifi ed for the offence he is under investigation, inquiry or trial for, he shall be released by the Court on bail (with or without surety). This provision envisages the right of an accused to a speedy trial by prescribing the maximum period for which such accused may be detained. Interestingly, despite vast jurisprudence which has developed over the years on bail being the rule and jail the exception,249 the BNSS instead of increasing the scope of bail as a right this provision, has in many ways restricted it. a. Exclusion of Offences punishable by Life Imprisonment A signifi cant exclusion from this provision is that of a person accused of offences punishable by life imprisonment. So far, the provision under s.436A has excluded persons who are accused of an offence punishable with death. However, the proposed Cl.481 expands this category by also excluding those accused of an offence punishable with imprisonment for life. Thus, the application of this provision has been made narrower, and also excludes persons arrested for a number of offences where the maximum sentence prescribed is either imprisonment for life or imprisonment for life for the remainder of one’s natural life. Notably, Cl.482 BNSS (which is in pari materia to s.437 CrPC relating to bail) also excludes the category of persons who are accused of offences punishable by 249 Recent directions of the Supreme Court in Satendra Kumar Antil v. Central Bureau of Investigation & Anr. (2021) 10 SCC 773. 248 S.36 Code of Criminal Procedure (Amendment) Act, 2005. 247 Notably, there are other provisions in the BNSS which speak of executing a bond with or without surety; and thus are inconsistent with the defi nitions prescribed in Cl.479. Although, Cl.479 does state that the defi nitions therein shall prevail unless the context provides otherwise, and thus an explicit prescription in a provision that a bond could be with or without surety would mean that the defi nition of ‘bond’ provided under Cl.479 (which provides that a bond is without payment of any surety) shall not be applicable to such provisions. 88death or imprisonment for life. Cl.483 however has exceptions to this ineligibility,250 which does not apply in case of Cl.481. Further, the language of Cl.482 provides that such persons would be ineligible for bail if there is a reasonable apprehension that they have committed the offence punishable with death or imprisonment for life. This allows a court to consider the prima facie case against the accused while deciding the bail application, which is not the case in Cl.481. This defeats the objective of a provision introduced to release undertrials who have spent long durations in jail without trial, to prevent further violation of their Art.21 rights and right to speedy trial.251 b. Reduction in maximum period of Detention for a First Time Offender Cl.481 BNSS proposes insertion of a proviso which states that a person who is a fi rst time offender (never convicted of any offence in the past), shall be released on bail if he has undergone a third of the maximum sentence prescribed. This benefi t is not made subject to any other consideration, such as the seriousness of the offence of previous conviction or judicial discretion, and remains a matter of right for an undertrial who hasn’t been convicted previously.252 Under the CrPC, courts have held ‘prior conviction’ as a relevant consideration for grant of bail253 under ss.437 or 438.254 Such categorisation was, however, not envisaged under s.436A. 254 S.437(1)(i) CrPC provides that bail in non-bailable offences shall not be granted to persons who have been previously convicted of offences punishable with imprisonment for seven years, life imprisonment or death; or have been convicted two or more times of cognizable offences punishable with three years or more. S.438 CrPC presently also prescribes antecedents as one of the factors to be considered for grant of anticipatory bail. 253 Harjit Singh v. Inderpreet Singh 2021 SCC OnLine SC 633. 252 In 2017, the 268th Report of the Law Commission of India recommended a similar categorisation within this provision – undertrials accused of offences punishable with less than seven years of imprisonment to be released on bail if they had served a third of the maximum sentence prescribed. 251 Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731. 250 As mentioned in the proviso to Cl.482, these exceptions are - women, persons under the age of 18, or persons who are sick or infi rm. c. Exclusion of a person against whom Inquiry/Trial is Pending Sub-clause (2) to Cl.481 BNSS, which is an addition to the existing provisions under s.436A CrPC, provides that 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.255 This sub-clause excludes a category of persons from the benefi t of this provision. Not only is this sub-clause palpably contrary to the tenet of presumption of innocence – as it precludes one from the benefi t of this section based on the existence of a pending investigation, inquiry or trial – but also raises several other concerns. First and foremost, the textual language of the provision is extremely wide. Investigation, inquiry or trial in ‘more than one offence’ could also include a situation where a person is accused under several sections for a series of acts forming a part of the same transaction given that it is differentiated from ‘multiple cases’. As such, this sub-clause excludes a substantial number of persons from the benefi t of this provision. Secondly, this sub-clause does not consider the nature of these other cases and thus, fails to account for the possibility of the other offence the person is accused of being bailable or non-cognizable. There may also be a situation where the person is not required to be in custody for investigation, inquiry or trial of such other offence. Thirdly, the sub-clause makes the operation of this provision inapplicable even where a person accused of multiple offences has served half of the maximum prescribed punishment in all of those offences. Through the inclusion of these broad exclusions, the sub-clause defeats the purpose of this provision, as it substantially narrows the scope, and denies the right conferred by the provision to a wide category of persons who are entitled to this relief under the present law. Further, the exclusion under this sub-clause allows for misuse by fi ling frivolous complaints against a person already in custody, for the purpose of precluding them from release under this provision. d. Obligation of the Prison Superintendent A notable insertion proposed under the BNSS is Cl.481(3) which places the responsibility of applying for bail under this provision upon the superintendent of 255 A literal reading of the provision implies that such a person is not to be released by court on bail at all. This literal interpretation, however, is in all likelihood a result of an oversight in drafting of the provision. 90the prison where the accused is lodged. This is especially relevant as often due to lack of effective (or any) legal aid, prisoners are denied release despite meeting the requisite criteria. For the fi rst time a statutory obligation is sought to be imposed on the Superintendent of the Jail to ensure that this provision is made use of, and the prisoners eligible for bail under this provision are given the benefi t of this right. While it is a welcome step to cast statutory responsibility on the superintendents to fi le a bail application, this provision misses the point of assigning responsibility for determining eligibility under the provisions. Assessing the eligibility of inmates for bail under this section might involve an in-depth technical understanding of penal laws and their application, which superintendents may not be equipped with. By means of several notifi cations by the Ministry of Home Affairs and judicial decisions, processes to ensure operation of this section were laid down. Steps taken by the government to ensure compliance with s.436A CrPC were discussed by the Supreme Court in In Re: Inhuman Conditions In 1382 Prisons.256 These steps included issuance of an advisory for creation of an undertrial review committee in every district, which would meet every three months to review undertrial cases. Interestingly, the standard operating procedure of the Undertrial Review Committee had also refrained from giving this responsibility of identifi cation of eligibility for release to prison authorities and left it to the legal services authorities.257 In Bhim Singh,258 the Supreme Court cast the duty of looking at eligibility under s.436A on the Magistrates and Sessions Judges.