Bail Provisions in BNSS

Will New Laws Reduce Overcrowding of Prisons?

Asma Shuaib*

Bail jurisprudence in India is derived from Article 21 of the Constitution, the right to life and personal liberty, which cannot be denied except through procedure established by law which must be ‘just, fair and reasonable’. In the Gudikanti Narasimhulu and Ors. v. Public Prosecutor¹, Justice V.R. Krishna Iyer observed, “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”

The government has claimed that the new provisions in the Bharatiya Nagarik Suraksha Sanhita (BNSS) have increased the scope of bail and will thus reduce the problem of overcrowding in prisons. This article analyses the revised bail provisions in the context of this claim.

Chapter XVIII of BNSS (from Section 478 to Section 482) deals with provisions on bail and bail bonds. The substantive changes from their corresponding sections in CrPC are mainly three -- insertions of definitions of bail, bail bond, and bond; changes in provision regarding the maximum period of detention of an undertrial; and, changes in provision on anticipatory bail.

Maximum Period of Detention for Undertrials

A significant change is seen in Section 479, which corresponds to Section 436A CrPC (inserted vide the Criminal Law (Amendment) Act, 2005). According to Section 436A CrPC, if an undertrial prisoner had undergone detention for a period extending up to half of the maximum period of imprisonment specified for the offence, not being an offence punishable with death, he shall be released on bail by the Court. The provision was added to recognise the right to a fair and speedy trial of undertrial prisoners.

While CrPC excluded only persons accused of offences punishable with death from this provision, Section 479 of BNSS excludes prisoners accused of offences punishable with life imprisonment as well. Thus, the application has been made narrower as it excludes a wide category of undertrial detainees who have served half of their maximum period of imprisonment.

Further, Section 479 (1) provides an insertion of a proviso which states that a person, who is a first-time offender, shall be released on bail if the person has undergone one-third of the maximum sentence prescribed for the offence. This benefit is not made subject to any other consideration, such as the seriousness of the offence or judicial discretion, and remains a matter of right for an undertrial who has not been convicted previously.

The Supreme Court on August 23, 2024, while hearing a PIL initiated to address the issue of overcrowding of prisons in India² , held that Section 479 of BNSS would apply retrospectively to the undertrials across the country. Thus, the provision will apply to all undertrial prisoners in cases registered before July 1, 2024.

Provision with Problems

Interestingly, Section 479 (2), which is an addition to its counterpart in CrPC, limits the purpose of this Section. Sub-clause (2) provides that where an investigation, inquiry, or trial in more than one offence, or multiple cases are pending against a person, he shall not be released on bail by the court. This provision raises problems on multiple grounds.

While CrPC excluded only persons accused of offences punishable with death from this provision, Section 479 of BNSS excludes prisoners accused of offences punishable with life imprisonment as well.

Firstly, the language of the provision is extremely wide. According to an analysis by Project 39A³ , 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 ‘other cases’ and thus, fails to account for the possibility of the other offence the person is accused of being bailable or non-cognisable. 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.

A legal obligation on the jail superintendents to make use of bail provisions is relevant in the absence of an effective legal aid system in prisons.

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.⁴

Fourthly, the grant of regular bail is usually guided by what is referred to as the triple test -- the ascertainment of whether the accused is at flight risk, possibility of tampering with the evidence and influencing witnesses. Also, the Apex Court has held that the gravity of the offence may also be an additional consideration which may be ascertained by the sentence prescribed for the offence alleged to have been committed⁵ . However, merely the number of offences charged against a person seems to be an inexplicable ground to deny bail as the accused is most often charged with more than one offence in almost all serious cases.

Through the inclusion of these broad exclusions, this 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 were earlier entitled to this relief under CrPC. Further, this sub-clause allows for misuse by filing frivolous complaints against a person already in custody, to prevent them from release under this provision.⁶

Sub-clause (3) of 479 is another notable insertion that casts a statutory responsibility on the superintendents of jail where the accused is detained, to apply for bail under this provision. In Bhim Singh v. Union of India,⁷ the Supreme Court assigned the duty of looking at eligibility under Section 436A to the Magistrates and Sessions Judges. However, a legal obligation on the jail superintendents to make use of bail provisions is relevant in the absence of an effective legal aid system in prisons.

Changes Brought in Anticipatory Bail Provision

The CrPC disallowed granting of anticipatory bail to persons accused of committing gang rape on a woman under 16 (Section 376DA) and 12 years (Section 376 DB) of age, as specified in sub-section 4 of Section 438 CrPC. However, sub-clause (4) of 482 BNSS excludes persons accused of committing gang rape on a woman who is under 18 years of age from seeking anticipatory bail. Thus, the scope of anticipatory bail provision in BNSS has been reduced compared to the provision in CrPC.

Recent SC Judgments on Bail

The Supreme Court has time and again reiterated that bail is the rule and has pronounced various proliberty judgments in recent times. In a breakthrough judgment in Javed Gulam Nabi Shaikh v. State of Maharashtra, ⁸ the Apex Court granted bail to a person booked under UAPA, stating that if a prosecuting agency cannot protect the right to speedy trial of an accused, then it cannot oppose his bail application on the ground that the offence was serious.

The Court stated, “If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution, then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime”. The Court added that the trial courts and the High Courts in the country have forgotten that bail is not to be withheld as a punishment.

In the same case, the Court observed “The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.” The sub-clause (2) of 479 BNSS is palpably contrary to this tenet of presumption of innocence, as it denies bail to an accused based on the existence of a pending investigation, inquiry, or trial in more than one offence.

Recently, the Supreme Court step-sided the narrow reading of the law and stated that ‘bail is the rule, jail is the exception’ principle stands true even in cases of special statutes like the UAPA (Jalaluddin Khan v. Union of India)⁹ and the PMLA (Prem Prakash v. Union of India¹⁰ through the Directorate of Enforcement), which have stringent bail provisions. While granting bail to the former Delhi Deputy CM Manish Sisodia in the money laundering case, the Supreme Court took into consideration the long period of pretrial incarceration and the fact that the trial was unlikely to conclude in the near future. These recent interventions by the Apex Court rekindle hopes for undertrial prisoners, despite the new stricter statutory provisions on bail.

Conclusion

Though in BNSS the maximum period of detention for undertrials has been reduced for first-time offenders and the jail superintendents have been empowered to assist the accused in bail applications, the scope of bail as a right has been substantially constrained, with unreasonable exceptions. This change, rather than providing a solution to the problem of overcrowding of prisons, may further deteriorate the existing condition, particularly for undertrial prisoners. The outcome of the retrospective application of Section 479 BNSS is expected to be much limited in scope considering the wide range of exceptions under the provision. It is unclear if the latest Supreme Court rulings expanding bail jurisprudence to even special statutes will help the bail applications of prolonged detainees under UAPA and PMLA cases. However, it can be said that with the insertion of a sub-clause excluding a larger category from availing bail, the release of undertrials languishing inside prisons over more than half of their maximum imprisonment period, will be considerably restricted under the new laws or left for judicial discretion rather than being upheld as a matter of right under Article 21.

References

1978 AIR 429.
W.P.(C) No. 406/2013.
Project 39A Criminal Law Blog, Criminal Law Bills 2023 Decoded #22: Provisions Pertaining to Bail and Bonds. https://bit.ly/4dPEZRH
Ibid.
P. Chidambaram vs Central Bureau of Investigation, AIR 2019 SUPREME COURT 5272.
Supra note 3.
(2015) 13 SCC 605.
SLP(Crl) No. 3809/2024
Crl. A. No. 3173/2024
SLP (Crl.) No. 5416 of 2024

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