Types of Bail Explained: Insights from BNSS and CrPC

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Bail is one of the most important features of criminal law. It protects a person’s right to liberty while ensuring that justice is served. With the coming of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the old Code of Criminal Procedure (CrPC), 1973, the procedure for bail has been updated and modernized, though its basic spirit remains unchanged.

The BNSS has retained most of the bail-related provisions from the CrPC but renumbered and simplified them for better clarity. Let’s understand what bail means, its types, and how it operates under the BNSS along with landmark judicial interpretations.

Meaning of Bail

The term bail simply means the temporary release of an accused person from custody, with an undertaking that they will appear before the court when required. It is a way of securing the accused’s attendance at trial without unnecessary imprisonment. BNSS introduces explicit definitions for bail, bond, and bail bond under Section 2, which were previously undefined in CrPC. This enhances procedural clarity.

BNSS introduces explicit definitions for bail, bond, and bail bond under Section 2, which were previously undefined in CrPC. This enhances procedural clarity.

Bail is based on the fundamental principle that every person is presumed innocent until proven guilty. As famously stated by the Supreme Court in State of Rajasthan v. Balchand (1977) 4 SCC 308 –

“Bail is the rule, and jail is the exception.”

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Relevant Provisions under BNSS and CrPC

The provisions related to bail in the BNSS 2023 correspond to those in the CrPC 1973. The table below shows the parallel sections for easy reference:

Nature of Bail	BNSS Section	CrPC Section	Description
Bail in bailable offences	Section 478	Section 436	Right to bail – accused must be released on bond or surety.
Bail in non-bailable offences	Section 479	Section 437	Discretionary bail – court decides based on seriousness of offence.
Anticipatory bail	Section 480	Section 438	Pre-arrest bail to prevent misuse of police powers.
Powers of High Court and Sessions Court	Section 481	Section 439	Special authority to grant, cancel, or modify bail.

These provisions continue the same structure as the CrPC but align with the new procedural framework under BNSS.

Types of Bail

1. Regular Bail

Regular bail is granted to a person who has already been arrested and is in custody.

• Legal Basis: Section 479 BNSS / Section 437 CrPC.
• Example: If a person is arrested for a non-bailable offence like cheating, they can apply for regular bail before the Magistrate.

The court considers factors such as the seriousness of the offence, chances of absconding, and risk of tampering with evidence.

Landmark Case:
In Sanjay Chandra v. CBI (2012) 1 SCC 40, the Supreme Court held that the object of bail is to secure the presence of the accused, not to punish them before conviction.

2. Anticipatory Bail

Anticipatory bail is a pre-arrest legal protection granted to a person who anticipates arrest for a non-bailable offence.

• Legal Basis: Section 480 BNSS / Section 438 CrPC.
• The court may impose conditions such as:
  • Cooperation with the investigation,
  • No tampering with evidence,
  • Not leaving the country without permission.

Landmark Cases:

• Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 – The Court held that anticipatory bail should be granted based on the facts of each case to protect personal liberty.
• Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – The Court clarified that anticipatory bail, once granted, can continue till the end of the trial unless cancelled for valid reasons.

3. Interim Bail

Interim bail is a temporary form of bail granted for a short duration until the final hearing of a regular or anticipatory bail application. BNSS does not explicitly mention interim bail, but courts continue to grant it under inherent powers or judicial discretion, especially in urgent or humanitarian cases.
The concept has evolved through judicial interpretation to prevent unjustified arrests while the main bail plea is pending.

4. Default Bail

Granted when the investigation is not completed within the prescribed time (usually 60 or 90 days). Though BNSS retains this provision (Section 482), it now emphasizes timely filing of charge sheets to prevent misuse.

Bailable and Non-Bailable Offences

The distinction between bailable and non-bailable offences continues under BNSS just as under CrPC.

• Bailable offences: The accused has a right to bail. The police or the Magistrate must release them upon furnishing surety or bond.
  Example: Simple hurt, public nuisance.
• Non-bailable offences: Bail is not a right but is granted at the discretion of the court.
  Example: Murder, rape, robbery, or corruption cases.

Judicial Principles Governing Bail

The decision to grant bail depends on judicial discretion. Courts balance the right to liberty with the need to ensure justice. BNSS encourages courts to record reasons for granting or denying bail, promoting transparency and accountability.

Key considerations include:

1. Nature and gravity of the offence,
2. Strength of the evidence,
3. Chances of absconding,
4. Previous criminal record, and
5. The likelihood of influencing witnesses.

Landmark Judgments:

• Gudikanti Narasimhulu v. Public Prosecutor (1978 AIR 429): Justice Krishna Iyer famously said, “The delicate light of liberty is not to be extinguished unless there are reasons of gravity.”
• Arnesh Kumar v. State of Bihar (2014) 8 SCC 273: The Supreme Court directed that arrests should not be made automatically and police must follow Section 41 CrPC guidelines before arrest. Section 41 of CrPC is now reflected in BNSS Section 35. Police must record reasons for arrest and ensure compliance with procedural safeguards.

These cases reaffirm that liberty should not be curtailed unless absolutely necessary.

Relevance and Reforms under BNSS

While the BNSS largely mirrors the CrPC in terms of bail provisions, its introduction signals a modern and citizen-friendly criminal procedure system.

Key highlights include:

• Simplified structure and numbering of sections for clarity.
• Alignment with Article 21 of the Constitution – protection of life and personal liberty.
• Emphasis on transparency, speed, and fairness in bail proceedings.

India’s prisons are overcrowded, and many inmates are undertrial prisoners. Proper application of bail principles under BNSS can help reduce unnecessary incarceration and uphold the values of justice.

Conclusion

The law of bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 continues the spirit of the CrPC while reinforcing constitutional safeguards. It upholds the belief that liberty is a fundamental right and that detention before conviction should be an exception, not the norm.

As India moves toward a more efficient justice system, bail remains a vital mechanism to balance the rights of the individual with the interests of society. Courts must continue to interpret these provisions with fairness, compassion, and respect for human dignity.

Also Read:

Understanding Community Service Under BNSS 2023

Lalita Kumari Case: Mandatory FIR Registration Explained

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References

1. The Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 478–481.
2. The Code of Criminal Procedure, 1973 – Sections 436–439.
3. Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565.
4. Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1.
5. Sanjay Chandra v. CBI (2012) 1 SCC 40.
6. Gudikanti Narasimhulu v. Public Prosecutor (1978 AIR 429).
7. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
8. State of Rajasthan v. Balchand (1977) 4 SCC 308.

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