Introduction of definitions
The terms ‘bail’, ‘bond’ and ‘bail bond’ while used throughout the CrPC, have not been defined therein. The BNSS introduces definitions for these terms for the first time in Cl.479. Bail is defined under sub-clause (a) as ‘release of a person accused of an offence from the custody of law upon certain conditions imposed by an officer or court including execution by such person of a bond or a bail bond.’[3] Bond is defined 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 definitions 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.[4]
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 definitions.[5] However, despite the definition, the confusion on the usage of the terms and bail and surety continue since the Bill seems to have retained the language of the present CrPC in some provisions. For instance, Cl.482(2) distinguishes between ‘release on bail’ and ‘release on bond without surety’.[6]
II. Maximum Period of Detention for Undertrials
S.436A CrPC was inserted vide the Criminal Law (Amendment) Act, 2005 (‘2005 Amendment’).[7]This provision states that where a person has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified 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,[8] 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 significant 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 death or imprisonment for life. Cl.483 however has exceptions to this ineligibility,[9] 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.[10]
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 first 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 benefit 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.[11]
Under the CrPC, courts have held ‘prior conviction’ as a relevant consideration for grant of bail[12]under ss.437 or 438.[13] Such categorisation was, however, not envisaged under s.436A.
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.[14] This sub-clause excludes a category of persons from the benefit of this provision. Not only is this sub-clause palpably contrary to the tenet of presumption of innocence – as it precludes one from the benefit 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 benefit 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 filing 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 the 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 first 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 benefit of this right. While it is a welcome step to cast statutory responsibility on the superintendents to file 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 notifications 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.[15] 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 identification of eligibility for release to prison authorities and left it to the legal services authorities.[16] In Bhim Singh,[17] the Supreme Court cast the duty of looking at eligibility under s.436A on the Magistrates and Sessions Judges.[18]
III. Anticipatory Bail
Anticipatory bail or grant of a bail to a person apprehending arrest is presently enshrined under s.438 CrPC. The provision allows a person who has reason to believe that he may be arrested for committing a non-bailable offence, to apply before the High Court or the Sessions Court seeking a direction that in event of such arrest he be released on bail. Cl.484 BNSS seeks to replace s.438 CrPC.
a. Reverting to pre-2005 provision
The changes proposed to the provision on Anticipatory Bail include replacement of the sub-section (1), and deletion of the proviso to sub-section (1), and sub-sections (1A) and (1B). In doing so, Cl.484 seeks to revert to the provision on anticipatory bail as it existed before 2005.Vide the 2005 Amendment the following changes were made to the provision on anticipatory bail:
- S.438(1) CrPC was amended to insert language, which provided guidance to courts regarding factors to be considered while deciding grant of anticipatory bail. A non-exhaustive list of these factors was enumerated in 1(i) to (iv).[19]
- The amended sub-section (1) also stated that an application can either be rejected, or aninterim order granting anticipatory bail may be made.
- A proviso was inserted which said that where no interim order has been passed or where the application seeking anticipatory bail has been rejected, it shall be open to an officer incharge to make arrest without warrant, if there are reasonable grounds for such arrest.
- Sub-section (1A) was inserted which states that notice with a copy of an interim order under s.438(1) shall be sent to the public prosecutor with a notice of at least seven days, to give a reasonable opportunity of being heard when the application is finally heard.
- Sub-section (IB) was inserted which provides that if the public prosecutor makes an application or if the court considers it necessary, the presence of the application seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of the final order.
The changes made to the provision on anticipatory bail in 2005 came under widespread scrutiny from lawyers and jurists. The amendment to s.438 was believed to interfere with the independence of the judiciary and rights of the accused. Firstly, the proviso to s.438 was criticised as it permitted an officer in-charge to arrest the applicant without warrant in the pendency of the anticipatory bail application. Secondly, sub-section (1B), gave an opportunity for the accused to be arrested in court, should the application be rejected. Thus, it was argued that the amendments to the section defeat the purpose behind s.438 CrPC.
As a response to this criticism, the Law Commission discussed the amended provision,[20] and recommended inter alia that the proviso, as well as sub-section (1B) be omitted.[21] The BNSS does away with these sub-sections which have been problematised. At the same time, it also removes the grounds to be considered while deciding grant of anticipatory bail. However, given that these grounds were instructive in the first place, their removal may not change the manner in which courts decide applications seeking anticipatory bail, especially in light of the vast jurisprudence on the subject.[22]
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