The fundamental tenet of bail jurisprudence in India finds its underlying basics in Article 21 of the Constitution. Article 21 states, “Protection of life and personal liberty; No person shall be deprived of his life or personal liberty except according to procedure established by law,” which not only gives liberty and freedom but also gives direction that no one’s liberty should be kept at stake until prescribed by the law.
The same procedural rule that permits arrest and detention also assures that an accused can seek bail through a wide range of measures, from pre-arrest bail to statutory bail.
The bail procedures defined in the Code of Criminal Procedure (CrPC) Sections 436-438 allow the accused to approach a Sessions Court or High Court seeking a direction to release him on bail. In case an investigation is not completed within 60 days or 90 days, depending on the severity of the allegation, the detenu can reach court for regular bail under Section 167 of CrPC.
The recently passed Bharatiya Nagarik Suraksha Sanhita (Second), 2023 [BNSS], replaces the CrPC and sketches out bail in a new form from Sections 478 to 483.
Section 480(1) of the BNSS mentions the phrase "may be released on bail" stipulates that no bail will be given in the following situations: (a) there seem to be reasonable grounds to believe that the individual has committed an offense punishable by death or life in prison; (b) the offense is cognizable and the individual has been convicted of an offense punishable by death, life in prison, or imprisonment for seven years or more; or the individual has been convicted on two or more occasions of an offense cognizable punishable by imprisonment for three years or more but less than seven years. There are no further rules for applying for bail outside of the two situations in 480(1).
What has been entirely disregarded in the BNSS is the Supreme Court's ruling in Satender Kumar Antil regarding the requirements for adhering to Section 41-A of the CrPC, obtaining a standing order for an arrest, meeting thresholds for the issuance of a non-bailable warrant, and the factors that should be considered when determining whether to grant bail.
How Bail Under BNSS is Difficult
The BNSS's Clause 479(1), which addresses the "maximum period of which undertrial prisoner can be detained" and corresponds to Section 436A of the CrPC, makes it clear that an undertrial convicted of a crime carrying a life sentence is not eligible for release based just on their incarnation term. Provision to Clause 479(1) permits the release of a first-time offender during a term of incarceration equivalent to one-third of the maximum sentence.
The wording of Clause 479(2) is peculiar. The subsection states that "where an investigation, inquiry or trial in more than one offense or multiple cases are pending against a person, he shall not be released on bail by the Court." It's unclear if this applies just to the release of undertrials under Clause 481(1) or if it can also be considered for standard bail.
There would be grave repercussions if the Clause is used to negate the right to bail even under BNSS Sections 478 to 483. If this interpretation is used, all that is necessary to refuse someone bail is to file many charges against them or include multiple offenses in the false police report. Two distinct expressions are used in the text, which is noteworthy: (a) more than one offense and (b) multiple cases.
Moreover, the provisions on anticipatory bail have been removed in the BNSS. The clause provides no advice regarding the criteria that apply to the granting of anticipatory bail, leaving the Bench hearing such an application with complete discretion. The clauses that required assuring the physical presence of an accused person requesting anticipatory bail or providing the public prosecutor with a reasonable opportunity of being heard during the application hearing have been eliminated.
It would have been prudent to clarify the authority granted to the High Court and Sessions Court regarding the duration of anticipatory bail in light of Sushila Aggarwal. Additionally, it would have been helpful to know whether a court considering an application for anticipatory bail may determine, based on the allegations and the stage of the investigation at the time of the request, that the bail will last until the trial is over or will apply until the charges are filed. It should be made clear whether anticipatory bail will remain in place even if additional evidence is discovered that implicates the accused and adds a more serious offense while the case is being investigated.
Bail Under Special Laws
The presumption of innocence is a fundamental principle in Indian criminal law, even in the BNSS, is based this principle. Whereas some Indian laws stray from this rule. These variations are part of a greater trend toward "special" criminal laws to cope with "extraordinary" offenses that, some argue, standard criminal law cannot appropriately address. The deviations, which this essay will argue are unconstitutional, are present in these ‘special' criminal statutes at two separate stages i.e. grant of bail, and verdict. All of these impose extremely stringent conditions for the grant of bail; thus, it is rather challenging to obtain bail from courts under these cases.
Special criminal laws such as UAPA (Unlawful Activities [Prevention] Act) and PMLA (Prevention of Money Laundering Act) have resistive bail conditions that make bail an exception and jail as a right. Under UAPA and PMLA there is an assumption of mens rea on the side of the accused, which strikes a blow to the theory of natural justice and bail jurisprudence. As under Section 43D(5) of UAPA if there is a prima facie case against an accused, getting bail is one of the hardest tasks. Additionally, this Act does not apply the provision for anticipatory bail. This implies that anyone can be detained on suspicion of a crime for which there is no possibility of bail based only on the existence of probable cause and weak evidence linking the suspect to terrorist activities and groups.
In cases involving UAPA, such as Zahoor Ahmed Shah Watali and Anup Bhuyan, the courts have been of little to no assistance to the accused. Anup Bhuyan(review) has set a very dangerous precedent by stating that if a person remains a member of an organization after it has been deemed an unlawful association, he or she will face penalties under the statute.
Whereas the PMLA, which is an anti-money laundering law, grants arrest authority under Section 19, which allows higher ED officials to detain anybody they have "reason to believe" is guilty of money laundering based on the evidence in their hands, was probably the subject of these phrases. The threat of being detained by the ED is always present, especially given the rigorous conditions for bail release under Section 45 of the PMLA. Although the phrase "reason to believe" indicates that ED officials must evaluate the necessity for the arrest and that such belief must pass the reasonableness test, this is not the case. As a result, courts should utilize this criterion to evaluate whether remand is appropriate.
In the BNSS, the bail laws have been made stricter, and it is almost impossible to get bail under special criminal laws too, it is high time that cognizance of the judgment in Satender Kumar Antil and a bail act is introduced in India. A bail act should be one of the topmost priorities in order to stand by the principles of the constitution and Indian criminal laws, where the right to life and liberty is given a central stage and it should focus on why detention is needed rather than why a detenu should be released.
(Kumar Kartikeya is a legal researcher. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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