Bail Application Under BNSS

Bail is one of the most important protections guaranteed to an accused in the criminal justice system. It safeguards the fundamental right to personal liberty under Article 21 of the Constitution. With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023 along with BNSS (procedure) replacing the CRPC, the laws on offences and their classification have undergone major changes, which directly impact bail applications.

What is Bail and Why is it Important?

Bail simply means the temporary release of an accused from custody while the trial is still pending. The purpose of bail is not to give the accused freedom permanently, but to ensure that the person appears before the court whenever required. The Supreme Court has repeatedly held that “bail is the rule and jail is the exception.” The underlying principle is that no one should be punished before they are proven guilty.

The BNS has reclassified offences, rewritten several penal provisions, and some crimes earlier categorized as non-bailable are now bailable and vice versa. This shift has made it essential to understand the updated bail regime.

Types of Bail in India

1. Regular Bail

Regular bail is granted to a person who is already arrested and is in police or judicial custody. It is sought under Sections 480–482 of the BNSS, depending on the nature of the offence.

Example: If A is arrested for theft (bailable under BNS Section 303), he can directly apply for regular bail.

2. Anticipatory Bail

Anticipatory bail protects individuals who fear arrest in the near future. It is applied before arrest. Under BNSS, anticipatory bail is available but with certain conditions. Courts may grant it when the accusation appears mala fide, politically motivated, or based on false information. This remedy is important to prevent harassment by misuse of criminal law.

3. Interim Bail

Interim bail is a temporary bail granted for a short period until the court decides the main bail application. It prevents the accused from being arrested before a full hearing takes place.

4. Default Bail (Statutory Bail)

If the police fail to file a chargesheet within the prescribed time—60 days (ordinary offences) or 90 days (serious offences), the accused becomes entitled to default bail. This is not a privilege but a right, as held by the Supreme Court in several cases.

Procedure for Filing a Bail Application

1. Drafting the Bail Application

A bail application must include:

• Name and details of the accused

• FIR number & police station

• Sections invoked under BNS

• Custody details

• Grounds for seeking bail

• A promise to comply with conditions imposed by the court

2. Filing Before the Appropriate Court

• Bailable offences → Bail can be taken from the police station itself or from the Magistrate.

• Non-bailable offences → Application must be made to the Magistrate or the Sessions Court, depending on severity.

3. Notice to the Prosecution

In non-bailable offences, the prosecutor is heard before bail is granted. Courts often seek a full case diary from the investigating officer.

4. Hearing Before the Judge

The defence argues grounds for bail, while the prosecution opposes citing risks such as absconding, tampering with evidence, or influencing witnesses.

5. Court’s Order

The court may:

• Grant bail with conditions (surety, bond amount, passport surrender)

• Reject the bail

• Reserve the order for a later date

Grounds for Granting Bail

Courts evaluate several factors before granting bail:

1. Nature and Gravity of the Offence

Less serious or bailable offences usually favour the accused. Under BNS, certain offences have been reclassified, making bail easier in some cases.

2. No Likelihood of Absconding

If the accused has deep roots in society job, family, property, courts consider him less likely to flee.

3. Health, Age & Gender of the Accused

Courts show leniency toward:

• Women

• Elderly persons

• Persons with serious medical conditions

4. No Tampering with Evidence

If the prosecution cannot prove that the accused will influence witnesses, bail is usually granted.

5. Delay in Trial

Long incarceration without trial violates Article 21. Courts have granted bail when cases drag for years.

6. Prima Facie Case

If evidence appears weak or motivated, bail becomes more likely.

Bail and BNS: What Changed?

BNS has reorganized offences with a new numbering system. Some offences earlier considered severe are now categorized differently. For example:

• Certain financial crimes now have stricter punishment, impacting bail prospects.

• Offences like mob lynching and terrorism remain extremely stringent with limited bail scope.

• Some minor offences have been made bailable to reduce overcrowding in jails.

Thus, understanding the new classification is crucial in preparing bail applications.

Case Laws Relevant to Bail

1. Arnesh Kumar v. State of Bihar (2014) – Misuse of Arrest Powers

The Supreme Court held that police must not arrest automatically in offences punishable up to 7 years. Notice under Section 41A should be served. This case protects citizens from unnecessary arrest and forms the backbone of many bail applications.

2. Sanjay Chandra v. CBI (2011) – Bail is the Rule

The Court held that imprisonment before conviction is unjust unless absolutely necessary. It emphasized that bail should not be denied merely because the offence is serious if the accused is not a flight risk.

3. Hussainara Khatoon v. State of Bihar (1979) – Right to Speedy Trial

This case exposed the plight of undertrial prisoners languishing for years. The court stated that prolonged detention without trial violates Article 21, and such accused must be released on bail.

4. Dataram Singh v. State of UP (2018) – Presumption of Innocence

The Court reaffirmed that every accused is presumed innocent until proven guilty. Bail cannot be denied simply because the accused is poor or unable to furnish heavy sureties.

Conclusion: Bail as a Protector of Liberty

Bail plays a crucial role in balancing two equally important objectives, protecting individual liberty and ensuring the administration of justice. With the introduction of the BNS and BNSS, lawyers must adapt to new offence classifications and updated procedural rules. A well-drafted bail application, strong legal grounds, and understanding of judicial principles can significantly impact whether a person spends months in custody or continues life freely while facing trial.