This article has been written by Shivani Gupta, Law Student, Sinhgad Law College Pune
Introduction
The Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act are among the colonial-era statutes that the BNSS replaces with updated sections that more accurately represent modern society’s requirements and values. This is part of a larger initiative to modernize and streamline the legal system. The Criminal Procedure Code, 1973 (CrPC) is a procedural law established for the administration of the Indian Penal Code, 1860 (IPC). The main goal of BNSS is to modernize the criminal justice system to take into account new social norms, technological breakthroughs, and contemporary values. The New Criminal Procedure Code, or Bharatiya Nagarik Suraksha Sanhita (BNSS), is a major legal reform in India. The current Criminal Procedure Code (CrPC) is being modified in a number of ways with the goal of improving the effectiveness and transparency of the judicial system. The modifications made to the bail requirements under the BNSS will be the main topic of this article.
Definition of Bail under Criminal Procedure Code (CrPC)
Bail is taken from the old French verb “baillier” which depicts “giving or delivering”. Bail is also not defined in our criminal system but signifies the right of the individual protected by the state. The main goal of granting bail to an accused person in detention is to guarantee that the accused will not be imprisoned during the trial process, provided that he does not pose a threat to society, falsify evidence, or coerce witnesses.
Definition of Bail under bharatiya Nagarik Suraksha Sanhita
The Criminal Procedure Code has not defined bail, bail bond and bond but BNSS has introduced this term. According to the definition clause under Section 2 of BNSS:
- Clause (b) defines “bail” as “bail” means release of 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.
- Clause (d) defines “bail bond” as, “bail bond” means an undertaking for release with surety.
- Clause (e) defines “bond” as “bond”, which means a personal bond or an undertaking for release without surety.
Types of Bail:
- Regular Bail: – A court can order the release of a person in custody on suspicion of committing an offence.
- Anticipatory Bail: – Can be sought under Section 438 CrPC by any individual who anticipates being charged with a non-bailable offense.
- Interim Bail: – A temporary form of bail granted during the pendency of an application for an anticipatory or regular bail.
- Default Bail: – If the accused can demonstrate that the required 60 or 90 days have passed since their arrest without any chargesheet or complaint being filed.
- Medical Bail: – Granted to individuals based on solely on medical grounds.
Feature of CrPC and BNSS
The CrPC governs the procedural aspects of criminal justice in India. The key feature of the act include: –
- Separation of offences: – According to the CrPC, offenses fall into two groups: cognisable and non-cognizable. Crimes that the police are able to detain and search without a warrant are known as cognisable offenses. For non-cognizable offenses, a warrant is necessary, and occasionally, the victim or a third party must file a complaint as well.
- Nature of offence: – In the context of India’s Code of Criminal Procedure (CrPC), “nature of the offence” refers to the way an offense is defined and categorized for legal procedures. The criminal process code (CrPC) describes the criminal law’s procedural features in India. Correct use of these procedures depends on knowing the type of offense.
The BNSS retains most of the provision of the CrPC. Key changes proposed include: –
- Bail to Undertrial Provision
Old CrPC: – Under the 2005 Amendment, a prisoner who is awaiting trial and has served half of the maximum sentence for their offense—aside from offenses carrying the death penalty—may be granted bail under Section 436A of the Criminal Procedure Code (CrPC). To acknowledge the right of accused individuals being detained as undertrial prisoners to a prompt and fair trial, this provision was introduced.
New CrPC: – The BNSS further states that the following will likewise be exempt from this provision: (i) crimes carrying a life sentence; and (ii) individuals who are the subject of ongoing legal proceedings for multiple offenses.
- Medical Examination: – The CrPC permits the accused to be examined medically in some circumstances, such as rape trials. At least a sub-inspector level police officer requests that a registered medical practitioner conduct such an evaluation. According to the BNSS, any police officer may ask for this kind of investigation.
- Reduction detention time for the first-time offender: –Before, even in cases when a first-time offender has served an extended period of time in jail while awaiting trial, the law did not permit early release. However, if the first-time offender has served up to one-third of their sentence as an undertrial prisoner, the new statute permits early release.
- Forensic investigation: – Forensic investigations are required by the BNSS for offenses carrying a minimum sentence of seven years in prison. In these situations, forensic specialists will go to crime sites to gather evidence and document the proceedings using a cell phone or other electronic equipment. A state must use forensics facilities located in another state if it lacks its own.
- Signature and finger impression: – A magistrate may require someone to produce sample handwriting or signatures under the CrPC. This is expanded by the BNSS to incorporate voice samples and finger imprints. It makes it possible to obtain these samples from someone who hasn’t been taken into custody.
- Bail can’t be granted if multiple cases are pending: – Before, there was no legal provision preventing an inmate who was awaiting trial or investigation from being granted bail if they were the subject of several investigations, inquiries, or trials. However, the new law is now more stringent and won’t allow bail in circumstances when an individual has several cases against them pending.
- Obligation of jail superintendent: – According to the new rule, the Jail Superintendent must apply in writing to the court before releasing undertrial inmates on bond. Depending on the circumstances, this application must be made after serving either half or one-third of the term.
- Hierarchy of Courts: – A court hierarchy is established by the CrPC in India for the purpose of resolving criminal cases. These courts are: (i) Sessions Courts, which are presided over by Sessions Judges and hear appeals from Magistrate’s Courts; (ii) High Courts, which have inherent jurisdiction to hear and decide criminal cases and appeals; and (iv) the Supreme Court, which hears appeals from High Courts and also exercises its original jurisdiction in certain cases. The CrPC gives state governments the authority to designate as a metropolitan region any city or town having a population of one million or more. There are Metropolitan Magistrates in these districts. The designation of metropolitan areas and Metropolitan Magistrates is eliminated by the BNSS.
Anticipatory Bail Under BNSS
Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.
There is little change in BNSS in compare to CrPC, except for specific exclusion. Now the law prohibits the accused of gang rape involving women under 18 years old for anticipatory bail, expanding on the CrPC provision that disallows anticipatory bail for those accused of gang rape involving women under 16 years old (Section 376DA) or 12-year-old (Section 376DB) under section 438(4) of the CrPC.
This amendment expands scope by refusing anticipatory bail to individuals charged with gang rape of women under the age of 18, as opposed to the CrPC’s 16-year statute of limitations.
As sub section 4 of Section 482 of BNSS say, Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
Also, sub section (2) of section 70 of BNSS reads, “Where a woman under eighteen years of age is raped by one or more persons constituting a group pr acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.”
Police Custody and the bail refusal
Old CrPC: – The prosecution frequently argues against bail during hearings for the accused’s normal bail application by claiming that the accused’s custody is necessary to assist investigating authorities in identifying witnesses.
Proviso 3 to Section 437 of CrPC stating that “Provided also 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.”
New CrPC:- The new law modified the previous regulation significantly by allowing the accused to be granted ordinary bail even if the court determines that they must remain in jail for a longer period of time in order to identify witnesses during the investigation.
Proviso 3 of Section 482 of BNSS talks about when bail may be taken in the case of non-bailable offence as “ Provided also 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 and gives as undertaking that he shall comply with such directions as may be given by the Court.”
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.
Conclusion
Comparing Bharatiya Nagarik Suraksha Sanhita to the Criminal Procedure Code, bail conditions are altered significantly overall. Important modifications include tougher rules for those with numerous crimes and broader eligibility for bail, particularly for first-time offenders. Though it does not apply to cases of juvenile gang rape, anticipatory bail under the BNSS is similar to that of the CrPC.
In order to ensure that undertrial detainees receive equitable treatment while maintaining accountability, it creates new definitions and processes for bail.