"Enhanced Bail Provisions under BNSS: Supreme Court's Landmark Ruling on Retrospective Application of Section 479 for Undertrials Nationwide"

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"Enhanced Bail Provisions under BNSS: Supreme Court's Landmark Ruling on Retrospective Application of Section 479 for Undertrials Nationwide"

By Jangam Siddhartha, High Court Advocate

Section 478: In what cases bail to be taken.

Clause (1)

  1. When it Applies:
    • This clause applies when a person (other than one accused of a non-bailable offence) is:
      • Arrested without a warrant by an officer in charge of a police station, or
      • Appears before or is brought before a Court.
  2. Right to Bail:
    • If the person is prepared at any time (while in custody or during any stage of the proceeding) to give bail, they shall be released on bail.
  3. Indigent Person Exception:
    • If the officer or the Court believes that the person is indigent (i.e., unable to furnish surety), instead of taking a bail bond, they can discharge the person on the execution of a bond for appearance.
  4. Presumption of Indigency:
    • If the person is unable to provide a bail bond within one week of the arrest, it is presumed that they are indigent for the purpose of the above provision.
  5. Exceptions:
    • The clause does not affect the provisions of:
      • Section 135(3) (related to release under the Criminal Procedure Code in certain cases).
      • Section 494 (dealing with the withdrawal of prosecution by the public prosecutor).

Clause (2)

  1. Failure to Comply with Bail Conditions:
    • If the person fails to comply with the conditions of the bail bond regarding time and place of attendance, the Court may refuse to release the person on bail in the future, if they appear again in the same case or are brought in custody.
  2. Effect on Surety:
    • This refusal does not affect the Court's power to call upon the person bound by the bail bond to pay the penalty under Section 493 if the bond is forfeited.

Explanation

  • If a person is unable to furnish a bail bond within one week from the date of arrest, the officer or Court can presume the person is indigent (unable to afford surety).

 

 

Section 479:  Maximum period for which undertrial prisoner can be detained.

Clause (1)

  1. Eligibility for Bail:
    • A person undergoing detention during the investigation, inquiry, or trial for an offence (under any law except offences punishable by death or life imprisonment) is eligible for bail if:
      • They have been detained for a period that extends to one-half of the maximum period of imprisonment specified for the offence.
  2. First-Time Offenders:
    • If the person is a first-time offender (i.e., they have never been convicted of any offence in the past), they shall be eligible for bail if:
      • They have been detained for a period that extends to one-third of the maximum period of imprisonment specified for the offence.
  3. Exception to Bail Release:
    • The Court, after hearing the Public Prosecutor, may order continued detention for a period longer than one-half of the maximum specified period if:
      • Reasons for such continued detention are recorded in writing.
    • The Court may choose to release the person on a bail bond instead of a personal bond.
  4. Maximum Detention Limit:
    • In no case shall a person be detained beyond the maximum period of imprisonment provided for the offence under that law, during the investigation, inquiry, or trial.
  5. Explanation:
    • When calculating the detention period under this section for granting bail, any period of delay caused by the accused shall be excluded from the total detention period.

Clause (2)

  1. Multiple Offences or Cases:
    • If a person is under investigation, inquiry, or trial for more than one offence or multiple cases, they shall not be released on bail by the Court under this section.

Clause (3)

  1. Superintendent of Jail's Duty:
    • The Superintendent of the jail, where the accused is detained, must:
      • Upon completion of one-half or one-third of the detention period (as applicable under Clause (1)), make an application in writing to the Court to initiate proceedings for the release of the person on bail.

 

 

 Section 480 : When bail may be taken in case of non-bailable offence.

  1. Sub-section (1): Bail in Non-Bailable Offences
    • When a person is accused or suspected of a non-bailable offence and is arrested without a warrant by a police officer or appears before a court (excluding High Court or Sessions Court), they may be released on bail.
    • Exceptions:
      • Clause (i): Bail will not be granted if there are reasonable grounds to believe that the person has committed an offence punishable by death or imprisonment for life.
      • Clause (ii): Bail will not be granted if the offence is a cognizable offence, and the accused has been previously convicted of:
        • An offence punishable with death, life imprisonment, or imprisonment for 7 years or more; or
        • Has been convicted on two or more occasions for a cognizable offence punishable with imprisonment for 3 to 7 years.
    • Exceptions to the exceptions (Provisos):
      • The court may grant bail to persons in these categories if they are:
        • Under 18 years of age
        • A woman
        • Sick or infirm
      • The court may also release a person under clause (ii) on bail for any special reason if deemed just and proper.
      • The fact that a person might need to be identified by witnesses during investigation is not a sufficient ground to deny bail.
      • If the offence is punishable by death, life imprisonment, or 7 years or more, the court must give the Public Prosecutor a chance to be heard before granting bail.
  1. Sub-section (2): Bail in Case of Insufficient Evidence
    • If at any stage of the investigation or trial, the police officer or court believes that there aren’t sufficient grounds to believe the accused has committed a non-bailable offence, but there are grounds for further inquiry, the accused may be:
      • Released on bail, or
      • Released on a bond without sureties, at the officer’s or court's discretion.
  1. Sub-section (3): Conditions for Bail
    • If the accused is released on bail under sub-section (1), the court must impose conditions, including:
      • The accused must attend court as per the bond’s conditions.
      • The accused must not commit a similar offence.
      • The accused must not induce, threaten, or promise anyone related to the case to tamper with evidence or dissuade them from testifying.
    • The court may also impose additional conditions to serve justice.
  1. Sub-section (4): Reasons for Bail Must Be Recorded
    • The officer or court granting bail must record in writing their reasons or special reasons for doing so.
  1. Sub-section (5): Power to Revoke Bail
    • The court has the power to revoke bail and re-arrest the accused if it finds it necessary.
  1. Sub-section (6): Bail if Trial is Delayed
    • In cases triable by a Magistrate, if the trial is not concluded within 60 days from the first date of evidence and the accused has been in custody during this period, the accused shall be released on bail unless the Magistrate provides reasons in writing not to do so.
  1. Sub-section (7): Bail Before Judgment
    • If, after the trial but before delivering the judgment, the court believes that there are reasonable grounds to think the accused is not guilty, it may release the accused on a bond without sureties to appear for the final judgment.

 

Section 481: Bail to require accused to appear before next Appellate Court.

Sub-section (1): Requirement for Bond Before Conclusion of Trial or Appeal

  • Who:
    • Applies to an accused person whose trial is ongoing or who is involved in an appeal process.
  • What:
    • The court conducting the trial or the appellate court must require the accused to execute a bond or bail bond.
  • Why:
    • The purpose of this bond is to ensure that the accused appears before a higher court (for example, a High Court or Supreme Court) if a notice is issued regarding any appeal or petition against the judgment of the current court.
  • Duration:
    • The bond remains in force for six months from the time of its execution.

Sub-section (2): Consequences of Failure to Appear

  • What happens if the accused fails to appear:
    • If the accused does not appear before the higher court when required, the bond will be forfeited.

 

  • Next Steps:
    • After forfeiture of the bond, the procedure under Section 493 will apply. Section 493
    • likely details the process for bond forfeiture and possible actions like penalties or recovery of the bond amount.

 

Section 482: Direction for grant of bail to person apprehending arrest.

Sub-section (1): Application for Anticipatory Bail

  • Who can apply:
    • Any person who believes they may be arrested on the accusation of having committed a non-bailable offence.
  • Where to apply:
    • The person can apply to the High Court or the Court of Session for a direction to be released on bail in the event of an arrest.
  • What the court may do:
    • The court, if it deems fit, may direct that the person should be released on bail if arrested.

Sub-section (2): Conditions for Anticipatory Bail

  • What the court may impose:
    • When granting anticipatory bail, the High Court or Court of Session may impose certain conditions, depending on the facts of the case. These conditions can include:
      1. Availability for police interrogation:
        • The person must make themselves available for questioning by the police as needed.
      2. No interference with witnesses or evidence:
        • The person must not make any inducement, threat, or promise to anyone acquainted with the facts of the case, to prevent them from revealing the truth to the court or police.
      3. Restriction on travel:
        • The person must not leave India without the prior permission of the court.
      4. Other conditions:
        • The court may also impose any other conditions that are similar to those that would be imposed under Section 482(3) for regular bail.

 

Sub-section (3): Arrest and Release on Bail

  • If arrested after anticipatory bail is granted:
    • If the person is later arrested without a warrant by a police officer for the offence they anticipated, and the person is ready to provide bail at the time of arrest or while in police custody, they must be released on bail.
    • If a Magistrate issues a warrant:
      • If a Magistrate takes cognizance of the offence and decides to issue a warrant, it must be a bailable warrant (in compliance with the court's direction under sub-section 1), allowing the person to be released on bail.

Sub-section (4): Exceptions to Anticipatory Bail

  • What cases are excluded from anticipatory bail:
    • This section does not apply to cases where the arrest is based on accusations of committing offences under certain sections of the Bharatiya Nyaya Sanhita, 2023, specifically:
      • Section 64(2): Deals with specific serious crimes (likely related to terrorism or national security).
      • Section 66: Relates to grave offences (such as sedition or offences against the state).
      • Section 70: Involves serious crimes (possibly related to organized crime or large-scale fraud)

Section 483: Special powers of High Court or Court of Session regarding bail

Sub-section (1): Powers of the High Court or Court of Session to Grant Bail or Modify Conditions

·        Clause (a):

    • The High Court or Court of Session can direct the release on bail of any person accused of an offence and currently in custody.
    • If the offence falls under the category described in Section 482(3) (serious offences), the court may impose any condition it deems necessary for the purposes mentioned in that section (such as ensuring the person appears for trial, does not commit a similar offence, etc.).

·        Clause (b):

o   The High Court or Court of Session can also set aside (remove) or modify any condition imposed by a Magistrate when releasing a person on bail.

o   Proviso 1:

      • For offences that are:
        • Triable exclusively by the Court of Session, or
        • Punishable with life imprisonment (even if not exclusively triable by the Court of Session),
      • The court must notify the Public Prosecutor before granting bail, unless the court believes it is not practicable to give such notice (with reasons recorded in writing).

o   Proviso 2:

      • For offences under Section 64, Section 70 of the Bharatiya Nyaya Sanhita, 2023 (serious crimes like those related to terrorism, sedition, or grave offences against the state), the court must give notice of the bail application to the Public Prosecutor within 15 days from the date of receipt of the application.

Sub-section (1A): Mandatory Presence of the Informant

  • What it mandates:
    • For offences under Section 64, Section 66, or Section 70 of the Bharatiya Nyaya Sanhita (serious offences), it is obligatory that the informant (the person who lodged the complaint) or their authorized representative be present during the bail hearing.
    • This ensures the informant or their representative has the opportunity to express any concerns regarding bail for serious offences.

Sub-section (2): Power to Revoke Bail

  • The High Court or Court of Session also has the power to direct the arrest of any person who has already been released on bail and commit them back to custody.
    • This can happen if the court deems it necessary, ensuring that bail is not misused or if circumstances change after bail is granted.

Supreme Court Implements Retrospective Application of Section 479 BNSS to Address Undertrial Detention and Prison Overcrowding

On August 23, 2024, the Supreme Court issued a significant ruling in the case of "Re-Inhuman Conditions In 1382 Prisons v. Director General of Prisons and Correctional Services and Ors.", directing the retrospective application of Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) to undertrials across the country. This decision has a wide-reaching impact, especially for undertrial prisoners detained before July 1, 2024.

Key Highlights of the Judgment:

  1. Retrospective Application: Section 479 of the BNSS will apply retrospectively to all undertrials, meaning it covers those imprisoned in cases registered before July 1, 2024.
  2. New Bail Provision:
    • Undertrials who have served half of the maximum period of imprisonment for their offence are eligible for release on bail.
    • For first-time offenders, a new relaxation allows their release if they have served one-third of the maximum period of imprisonment, an improvement from the one-half provision under Section 436A of the CrPC.
  3. Court's Order:
    • The Court directed jail superintendents across India to identify eligible undertrials and process their bail applications through the concerned courts.
    • The implementation must occur as quickly as possible, with a deadline of three months to complete the steps.
  4. Addressing Prison Overcrowding:
    • This ruling emerged from a public interest litigation (PIL) aimed at addressing the overcrowding in prisons across India.
    • Senior Advocate Gaurav Aggarwal emphasized that implementing Section 479 would significantly ease the burden on overcrowded prisons.
  5. Government's Support:
    • Additional Solicitor General Aishwarya Bhati, representing the Union of India, supported the retrospective application of the provision, stating that undertrials who have completed one-third of their sentence must be considered for bail.
  6. Follow-up Actions:
    • The Court ordered each State and Union Territory to submit reports through the jail superintendents on the progress within the same three-month timeframe.
    • The consolidated reports will be used to file comprehensive affidavits with the Supreme Court.

Impact:

This ruling introduces a more lenient and structured approach to granting bail for undertrials, particularly benefiting first-time offenders. It also seeks to significantly reduce overcrowding in Indian prisons, with the court mandating urgent action from the authorities.

 

Location: High Court, Ghansi Bazaar, Hyderabad, Telangana, India

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