Bail, anticipatory bail and bonds

1. Meaning and the new definitions

The BNSS defines bail for the first time: release of a person accused or suspected of an offence from the custody of law upon conditions imposed by an officer or court, on his executing a bond or a bail bond (s.2(1)(b)). A bail bond is an undertaking for release with surety (s.2(1)(d)); a bond is a personal bond without surety (s.2(1)(e)). Bail does not end the case; it changes the form of custody from the jail to the sureties and the accused's own undertaking. Its purpose is to secure his attendance at trial without punishing him before conviction.

2. Bailable offences: bail as of right (s.478, old s.436)

A person accused of a bailable offence who is arrested or detained without warrant, or appears before a court, and is prepared to give bail, shall be released. Neither the police nor the court has discretion. If he is indigent and cannot furnish surety, he shall be released on his own bond; inability to furnish a bail bond within a week of arrest raises a presumption that he is indigent. A person who has broken the conditions of an earlier bond in the same case may be refused bail (s.478(2)). In Moti Ram v. State of M.P., 1978 INSC 143, (1978) 4 SCC 47, the Court criticised excessive surety amounts and held that a poor accused may be released on his own bond.

3. Maximum detention of undertrials (s.479, old s.436A)

• For an offence not punishable with death or life imprisonment, an undertrial who has been detained for one-half of the maximum sentence shall be released on bail.
• A first-time offender (never convicted before) shall be released on bond after one-third (new).
• The court may, after hearing the PP and for recorded reasons, order continued detention, but never beyond the maximum sentence. Delay caused by the accused is excluded.
• New: where investigation, inquiry or trial is pending in more than one offence or in multiple cases, he shall not be released under this section (s.479(2)).
• The jail superintendent must apply to the court on completion of the half or third (s.479(3)).

4. Non-bailable offences: discretionary bail (s.480, old s.437)

A person accused of a non-bailable offence, before a court other than the High Court or Court of Session, may be released on bail, but shall not be released if:

• (i) there appear reasonable grounds for believing he is guilty of an offence punishable with death or life imprisonment; or
• (ii) the offence is cognizable and he was previously convicted of an offence punishable with death, life or seven years or more, or twice convicted of a cognizable offence punishable with three years or more but less than seven years.

The exceptions: a child, a woman, or a sick or infirm person may be released even in cases (i) and (ii); a person in case (ii) may be released for any other special reason. The need for identification or police custody beyond fifteen days is not alone a ground to refuse bail. For offences punishable with death, life or seven years or more, the PP must be heard.

• If there are no reasonable grounds for believing he committed a non-bailable offence but sufficient grounds for further inquiry, he shall be released (s.480(2)).
• Mandatory conditions for offences of seven years or more, and offences under BNS Chapters VI, VII and XVII: attend as required, commit no similar offence, not threaten witnesses or tamper with evidence (s.480(3)).
• Reasons must be recorded (s.480(4)); the court may cancel bail (s.480(5)).
• Magistrate's trial not concluded within sixty days from the first date fixed for evidence: the accused in custody throughout shall be released unless the Magistrate otherwise directs (s.480(6)).
• After trial and before judgment, if there are reasonable grounds to believe he is not guilty (s.480(7)).

Factors. The courts consider the nature and gravity of the accusation, the severity of the punishment, the nature of the evidence, the chance of the accused absconding or tampering with witnesses, his antecedents, and the period already spent in custody. In Sanjay Chandra v. CBI, 2011 INSC 819, (2012) 1 SCC 40, the Court held that bail is not to be refused as a form of punishment and that the seriousness of the charge is not the only test. In Satender Kumar Antil v. CBI, 2022 INSC 690, (2022) 10 SCC 51, the Court classified offences into categories for bail, restated that arrest need not be made in every case, and recommended a separate Bail Act.

5. Default bail (s.187(3), old s.167(2))

If the police report is not filed within 60 or 90 days, as the case may be, the accused shall be released on bail if he is prepared to and does furnish it. In M. Ravindran v. Intelligence Officer, DRI, 2020 INSC 608, (2021) 2 SCC 485, the Court held that this right is indefeasible once the accused applies after the period expires and before the charge-sheet is filed; the prosecution cannot defeat it by filing the report later.

6. Anticipatory bail (s.482, old s.438)

A person who has reason to believe that he may be arrested on an accusation of a non-bailable offence may apply to the High Court or the Court of Session for a direction that, in the event of arrest, he be released on bail.

• Conditions (s.482(2)): to be available for interrogation; not to threaten or induce witnesses; not to leave India without permission; and any condition under s.480(3).
• Effect (s.482(3)): on arrest he shall be released on bail; if a Magistrate decides to issue a warrant, it must be a bailable warrant.
• Exclusion (s.482(4)): no anticipatory bail where the accusation is under BNS s.65 (rape of a woman under sixteen or twelve) or s.70(2) (gang rape of a woman under eighteen).
• What changed. The BNSS drops the list of factors and the provisions on interim orders, notice to the PP and the applicant's presence that the 2005 amendment had added to s.438 CrPC. The case law now fills that space.

Case law. In Gurbaksh Singh Sibbia v. State of Punjab, 1980 INSC 68, (1980) 2 SCC 565, a Constitution Bench held that the power is wide and should not be cut down by judge-made restrictions; the applicant must show reasonable grounds for his belief of arrest, a blanket order is not to be made, and the order may be granted even after an FIR but before arrest. In Sushila Aggarwal v. State (NCT of Delhi), 2020 INSC 106, (2020) 5 SCC 1, another Constitution Bench held that anticipatory bail need not be limited in time and ordinarily continues until the end of the trial, although the court may limit it in a particular case, and the police may still seek custody for recovery under the Evidence Act provisions.

7. Special powers of High Court and Court of Session (s.483, old s.439)

They may release any accused in custody on bail, impose conditions, and set aside or modify conditions imposed by a Magistrate. Notice to the PP is required before bail in offences exclusively triable by the Court of Session or punishable with life imprisonment, and, for BNS s.65 and s.70(2), within fifteen days; the informant must be present at the hearing in those cases. They may also cancel bail and commit the person to custody (s.483(3)). Bail to appear before the appellate court is dealt with in s.481.

8. Bonds and sureties (ss.484–496)

• The amount must be fixed with regard to the circumstances and not be excessive (s.484).
• The bond is conditioned on attendance; conditions of bail are written into it; fitness of sureties may be proved by affidavit or inquiry (s.485). A surety declares how many others he stands for (s.486).
• Insufficient sureties may be replaced (s.488); a surety may apply for discharge (s.489); deposit of money may be accepted instead (s.490).
• Forfeiture (s.491, old s.446): when the bond is forfeited, the court records the grounds and calls on the person bound to pay the penalty or show cause; it may recover it as a fine, remit part of it, and a surety who does not pay may be sent to civil jail for up to six months. The estate of a surety who dies before forfeiture is discharged.
• Cancellation (s.492, old s.446A): on forfeiture for breach of a condition, the bonds stand cancelled and the person is not released again on his own bond alone in that case.
• Orders under s.491 are appealable (s.495).

9. Problem

R, an accountant in a private firm, learns that a complaint of criminal breach of trust under BNS s.316(2) (punishable up to five years) has been lodged against him and that the police are likely to arrest him. Advise him.

Issue. Whether R can obtain a direction for release on bail before arrest.

Law. Section 482 BNSS allows a person apprehending arrest for a non-bailable offence to apply to the High Court or Court of Session. Sibbia requires reasonable grounds for the apprehension, not a vague fear; Sushila Aggarwal holds the protection need not be limited in time. Section 35 also limits arrest for offences up to seven years to cases of necessity.

Application. Criminal breach of trust under s.316(2) is cognizable and non-bailable (First Schedule); a registered complaint and police inquiries give a reasonable basis for his belief. He is not accused under BNS s.65 or s.70(2), so s.482(4) does not bar him. The court will look at the documentary nature of the evidence, his fixed residence and steady employment (low risk of absconding), and his readiness to join investigation.

Conclusion. R should apply to the Sessions Court under s.482. He is likely to get a direction for release on bail, on conditions that he attend for interrogation, not contact witnesses and not leave India without permission.

How this is examined

For the essay on bail in non-bailable offences, define bail with s.2(1)(b), contrast s.478 (right) with s.480 (discretion), list the bars and the child/woman/sick exception, the factors with Sanjay Chandra and Antil, and end with ss.479 and 483. A short note on anticipatory bail needs s.482, Sibbia, Sushila Aggarwal, and the s.482(4) exclusion. “Breach of bond” is answered with ss.491, 492 and 495.