Introduction
Every person is guaranteed the protection of their life and personal liberty under Article 21 of the Indian Constitution. It protects our basic right to personal liberty and human dignity, which in turn allows
us to request bail when we are detained by the police or other law enforcement agencies.
The legal presumption of innocence-the idea that a person is presumed innocent unless and until proven guilty-forms the basis of the “Bail” provision, particularly anticipatory bail. Article 11 of the Universal Declaration of Human Rights mentions this essential idea.
Meaning of bail
→ “Bail” refers to the procedure used to secure an accused person’s
release from charges by requiring him to stay under the Court’s
jurisdiction and guaranteeing his future appearance in Court for the
trial.
Bail is defined as “the security required by a court for the release of a
prisoner who must appear at a future time” in the Black’s Law
Dictionary.
Arresting someone has the purpose of bringing the accused before
the Court in order to administer justice. However, there is no need to
restrict his freedom if the same goal can be accomplished without
making any arrests. For this reason, the accused may be given bail in
exchange for a conditional release.
The word ‘bail’ can be said to be derived from the word ‘bailment.’ The accused is handed over to the surety, and finally, the accused is required to appear before the Court as and when required. It is the duty of the surety to make the accused appear before the Court as and when required.
The legal position of bail
The Sanhita contains a definition for the term “Bail” in Section 2(1)(b). According to Section 2(1)(b), “bail” is defined as the release of an individual from custody following the fulfilment of certain requirements set forth by a court or officer in exchange for the execution of a bond or bail bond by the accused or suspected of having committed an offence.
→ Section 2(1)(c) of the BNSS defines the terms “Bailable Offence” and “Non-Bailable Offence.” “Non-bailable offence” refers to any other offence; “bailable offence” refers to any offence that is listed in the First Schedule or that is rendered so by another law now in effect.
Bailable offences
A crime that is designated as bailable under the First Schedule of the Sanhita or under any other law is referred to as a bailable offence under Section 2(1)(c) of the BNSS. If an accused person is charged with a crime for which bail is to be claimed, he or she may be entitled to bail as a matter of right. If the accused is willing to furnish bail, the police officer or any other authority cannot refuse the bail. A person accused of a bailable offence has the right to be freed on bail under BNSS at any point while they are being held without a warrant and throughout the legal process.
Non-bailable offences
Any offence that does not qualify for bail is referred to as a nonbailable offence. It is not permissible for someone to be accused of a crime for which bail is not granted. If the accused does not meet the following requirements, they may be denied bail in the case of nonbailable offences:
There are good reasons to think that he has committed a crime for which the death penalty or life imprisonment is applicable.
The allegation is that the accused has committed a crime that is punished by death, life in prison, or a minimum of seven years in prison or that the accused has been found guilty on two or more occasions of a crime that is both a cognizable and non-bailable offence and not subject to bail
The law occasionally offers extraordinary treatment in circumstances when the accused is a woman, a child, a sick person, etc.
Section 2(1)(c) of the BNSS is a mere declaratory provision, and it does not define bailable and non-bailable offences; instead, it simply makes reference to the First Schedule, that is, the offences are bailable or non-bailable as declared on the First Schedule.
Anticipatory Bail
The BNSS included the Section 482 provision for anticipatory bail. It is predicated on the Law Commission of India’s recommendation, which was made in the 41st report, to include a mechanism for anticipatory
bail. The primary reason for providing anticipatory bail is that influential people may attempt to falsely accuse their rivals to discredit them or achieve other objectives by imprisoning them. There doesn’t seem to be any need, outside of fraudulent situations, to have an accused individual submit to custody, stay in prison for
some days, and then apply for bail or do anything else that would make it more probable that they would abscond or abuse their freedom while on bond.
A person may apply for anticipatory bail in the Court of Session or the High Court if they think they will likely be arrested on non-bailable charges. Pre-arrest bail is a subset of anticipatory bail, and the Court has the discretion to grant it.
The presumption of innocence and the right to personal liberty are covered under procedural Section 482.
This is a straight directive from Sessions or the High Court to grant pre-arrest bail to a criminal suspect. A person may request anticipatory bail if they fear they will be taken into custody. An application for anticipatory bail may occasionally work against the applicant by alerting a law enforcement agency to their possible involvement in a criminal investigation.
The applicant must prove to the Court that they have reason to think they might be arrested for a non-bailable offence for which they are not eligible for bail in order to be granted anticipatory bail. Based on the specifics of the case, the Court may grant anticipatory bail with or without conditions. Anticipatory bail is intended to safeguard people’s personal freedom and prevent them from being detained without a valid reason.
The extent of BNSS Section 482: Anticipatory bail
Pre-arrest bail for crimes that are not subject to bail is mostly covered under Section 482. A person who has been placed under arrest may request permission to be released on bail from the Court of Session or the High Court. For the lower courts, anticipatory bail is an ultra-vires power.
The following criteria are covered by Section 482 of the BNSS and are taken into account by the Court prior to granting anticipatory bail:
- The type and seriousness of the charges.
- . The applicant is accused of attempting to cause him damage or humiliation by detaining him.
- The applicant’s past, including any jail or sentence he may have received for a crime that was considered serious.
- The applicant’s capacity to elude justice.
- . Possibility of repeating the same offence or another.
- Consider the accused’s precise involvement. g. Justifiable fear of intimidating the complaint and tampering with the evidence or witnesses.
Standard conditions while granting anticipatory bail
- The accused should show up for questioning by the investigating office as soon as they are asked to.
- To avoid giving the facts to the Court or the investigating officer, the accused should not attempt, either directly or indirectly, to coerce, threaten, or make any kind of promise to anyone connected to the case and aware of the facts.
- Without the Court’s prior approval, the accused should not leave the nation.
- Whatever additional terms the honorable Court feels appropriate.
Grant of Bail to Person Apprehending Arrest under Section 482 Subsection (1):/Bail Application
According to subsection (1), anyone may apply to the High Court or the Court of Session if they have reason to believe that they could be arrested on suspicion of committing a non-bailable offence for which there is no possibility of release. In the event of such an arrest, the Court may, if it sees fit, order that the person be released on bail. This provision is essential for shielding people from the unwarranted inconveniences of being arrested, especially in situations where the charge may turn out to be unfounded or motivated by malice.
Subsection (2): Conditions for Bail
The High Court or the Court of Session may impose conditions in addition to granting bail under subsection (2). These requirements are designed to make sure the person follows the law and doesn’t impede the administration of justice. Among the prerequisites are:
- Availability for Interrogation: The individual must consent to being questioned by a police officer whenever necessary. This guarantees that the authorities may obtain the required information and that the investigation is not impeded.
- Non-Interference with Witnesses: The person is prohibited from directly or indirectly offering any enticement, threat, or assurance to anybody aware of the case’s facts in order to persuade them not to disclose them to the Court or a police officer. This requirement makes sure that witnesses can testify without fear of retaliation and attempts to stop evidence from being tampered with.
- Limitation on Exiting the Country: The person is not permitted to leave India without the Court’s prior approval. This requirement guarantees that the individual will continue to be available for all court hearings and will stay under the Court’s jurisdiction.
- Additional Requirements: The Court may impose additional requirements as it sees fit, comparable to those outlined in section 480 subsection (3), as if the bail were granted under that section. This allows the court flexibility to tailor conditions specific to the case at hand.
Subsection (3): Procedure for Arrest
The process in case the person is detained without a warrant on the grounds of the aforementioned charge by an officer in charge of a police station is outlined in subsection (3).
The person will be freed on bail if they are willing to give bail, either when they are arrested or while they are in custody. Furthermore, if a Magistrate taking cognizance of such offence decides that a warrant should be issued against that person, a bailable warrant must be issued in conformity with the direction of the Court under sub-section (1). This provision guards against unwarranted incarceration and guarantees a simplified bail procedure.
An anticipatory bail is not an immunity from arrest as Section 482 of BNSS nowhere says that once anticipatory bail is granted, the person becomes immune from arrest rather, subsection (3) clearly specifies that if an arrest is made thereafter, he shall be released on bail provided he furnishes bail.
Thus, practically, a non-bailable offence gets converted into a bailable offence. Moreover, if an arrest warrant has to be issued then that shall be a bailable arrest warrant.
Even if the Magistrate has by mistake issued a non-bailable warrant, then it will also be deemed to be considered a bailable warrant
Subsection (4): Exclusions
This section (482 of BNSS) does not apply to cases involving the arrest of individuals suspected of committing a crime under Section 65 and Sub-section (2 of Section 70 of the Bharatiya Nyaya Sanhita 202 per Subsection (4) of Section 482 of the BNSS. This exclusion reflects the legislature’s intent to address major offences with greater
caution, ensuring that those charged with these specific offences are not eligible for anticipatory bail.
Cancellation of the anticipatory bail
Any person who has been granted bail under Section 482 may be ordered to be arrested and placed under custody by a High Court or Court of Session. If necessary, the Court that granted bail may revoke it subject to specified restrictions. In accordance with Section 482, the Sessions Court, High Court, or Supreme Court may my, suo moto, revoke the accused’s bail and place him or her under custody.
Case Laws
In Gurbaksh Singh Sibba v. State of Punjab, the following key points were observed:
- Anticipatory bail is an injunctive order, whereas regular bail is a remedial order.
- For anticipatory bail, the accused has to prove reasonable grounds for apprehension of arrest.
- In the application for anticipatory bail, he has to specify the particular case In which he is apprehending arrest. There cannot be a blanket order of anticipatory bail.
- The lodging of an F.I.R. is not much for an anticipatory bail. Even without an F.I.R. if an accused can prove reasonable grounds, then he may get anticipatory bail.
- The High Court or the Court of Session shall decide the application itself and shall not leave it to the Judicial Magistrate.
- The anticipatory bail can be granted for an unlimited period up till the completion of trial.
In Sushila Agarwal v. N.C.T of Delhi (2020), in this case, the judgement of Gurbaksh Singh has been reiterated. It was held that anticipatory bail does not end with the summoning of the accused, nor does it end with the framing of the charge. Rather, it can continue up till the end of the trial.
In Som Mittal v. State of Karnataka (2008), Justice Markandey Katju expressed his opinion that in Uttar Pradesh anticipatory bail should be introduced, and on 6th June 2018, anticipatory bail was introduced in Uttar Pradesh.