Court cases are time consuming, since adjournments due to various reasons make days into months, then years. If such is the case, what happens to the person who is accused of committing a crime? Is he/she supposed to stay in jail until the Court gives its decision? This is where the role of bail comes into play. Bail in criminal law can be understood as the temporary release from jail of a person arrested or apprehending arrest. Ms Ridhi Khurana had the opportunity to discuss the law pertaining to bail in India as encapsulated under the Bharatiya Nagarik Suraksha Sanhita, 2023, with Advocate Bhagat Singh Sharma on behalf of Lawgical Shots.
Exploring Facets of Bail Law in India
1. What are the different bail options available to an accused in different case scenarios?
Advocate Bhagat Singh Sharma: In the context of the latest provisions under the Bharatiya Nagarik Suraksha Sanhita 2023, the bail options available for an accused depend upon the nature of offence as well as the stage of the criminal trial.
- Regular bail can be sought from Courts for a person already in custody. An application may be moved before a Magistrate or a Higher Court depending upon the severity of the offence and the fact of whether it is bailable or a non-bailable offence.
- Anticipatory bail allows the opportunity to seek protection from arrest if a person apprehends being accused in a non-bailable case. Since the bail can be obtained before actual arrest by the Police, it provides a safeguard against unwarranted detention.
- Interim bail is a temporary relief granted when an accused in custody seeks urgent release while the formal bail application awaits disposal. Major examples of interim bail include medical emergencies.
- For bailable offenses, the accused person is entitled to bail, while they meet the basic conditions of bail.
In every case, courts examine factors like the nature of the offense, evidence, risk of flight, and the likelihood of tampering with evidence before granting bail.
2. When should a person apply for anticipatory bail?
Advocate Bhagat Singh Sharma: Anticipatory bail can be applied only when a person has a reasonable apprehension of arrest in a non-bailable offense. The provision for anticipatory bail under section 482 of BNSS aims at protecting individuals from unwarranted detention while balancing their liberty under Article 21 of the Constitution. A person should consider filing for anticipatory bail only if there is credible information or strong likelihood that an FIR may be filed against them for a non-bailable offense. In case FIR is already filed, anticipatory bail may be sought before arrest takes place. The provision comes into play before the arrest takes place, since anticipatory bail cannot be sought once the person is in custody. An application for anticipatory bail can be filed in Court of Sessions or the High Court, depending on circumstances of the case. When argued before the Court, factors like the seriousness of allegations, criminal antecedents, and nature of evidence are assessed.
3. What is the most recommended pattern when applying for a regular or anticipatory bail? Should a person approach the Trial Court first, or directly proceed towards the High Court?
Advocate Bhagat Singh Sharma: When applying for regular or anticipatory bail, it is generally recommended to approach the Trial Court first, rather than directly proceeding to the High Court. This approach endorses the Judicial Hierarchy and ensures that lower courts are not bypassed unnecessarily. However, in exceptional circumstances, such as undue delay, bias, or lack of jurisdiction in the Trial Court, the High Court may be approached directly. It is also a common trend to move the High Court in complex or high-profile cases, where the matter involves broader legal principles. This step-by-step approach reflects Judicial discipline and demonstrates respect for the hierarchy, strengthening the case if appeal to the High Court becomes necessary.
4. How is the bail amount determined in India?
Advocate Bhagat Singh Sharma: The determination of amount for bail bond is the discretion of the Court. Courts usually take into account the nature and gravity of the offense, financial status of the accused, likelihood of absconding, and whether the accused has any previous criminal record. For petty crimes or bailable offenses, the bail amount is usually nominal and may be determined by the Police or Magistrate. In non-bailable cases, where the Court exercises its discretion, the amount may be higher, depending upon the seriousness of the offense. In addition, the Court may consider the accused’s socio-economic background to ensure that the bail amount is not oppressive or unaffordable. If the accused demonstrates inability to furnish the bail amount, the Court may consider reducing the same or allow his/her release on personal bond. The Supreme Court of India has time and again emphasized that bail extended to the accused should not be punitive, and must strike a balance between the interests of justice and liberty of the accused.
5. Can a person get the bail money back, and if yes, is it only after the person is acquitted or convicted?
Advocate Bhagat Singh Sharma: Yes, a person can get the bail money back, but does not solely depend upon acquittal or conviction. Bail amount, also termed as surety amount, is deposited as a guarantee that the accused shall comply with the conditions set by the Court and appear for all hearings during the trial. Once the trial concludes, regardless of whether the accused is acquitted/convicted/the case is otherwise disposed of, bail money is refunded to the person who deposited it. To get the money back, the depositor needs to file an application with the Court for its release. The Court thereby verifies compliance with bail conditions during the trial and, upon satisfaction, orders the refund. On the contrary, if the accused fails to adhere to the conditions of bail, the bail amount may be forfeited.
It may be noted that bail money is refunded even in cases where the accused is convicted, as long as there was no violation of terms of bail. This ensures that the purpose of bail, which is to secure attendance of the accused during the trial, without causing unnecessary financial loss to the depositor.
6. Judges are often seen mentioning in bail orders that the specific question needs to be determined during the trial. So what all aspects are determined during bail arguments?
Advocate Bhagat Singh Sharma: While hearing arguments for bail, Courts primarily examine the nature and gravity of the alleged offense, evidence available against the accused, and the likelihood of conviction. They also assess whether the accused poses a flight risk, possibility to tamper with evidence, or influence witnesses. The criminal antecedents of the accused, such as prior convictions or involvement in similar offenses, are also considered.
The stage of the investigation also plays a vital role during bail arguments. For instance, bail may be denied if custodial interrogation is required. Judges also evaluate the broader impact of granting bail, especially in cases involving public outrage or sensitive matters like sexual offenses or economic fraud. They need to weigh the personal liberty of the accused against the societal interest while ensuring justice. Specific legal principles, such as presumption of innocence and whether the offense is bailable or non-bailable, play a decisive role on the question of bail. If the offense carries severe penalties, Courts may be more cautious while extending the benefit of bail.
7. What are the new and emerging trends for bail conditions?
Advocate Bhagat Singh Sharma: In recent years, Indian courts have emphasized a more reformative and balanced approach while imposing bail conditions, upholding justice without unnecessary infringement of personal liberty. Emerging trends include bail conditions tailored as per individual circumstances, particularly in cases involving vulnerable groups, such as juveniles, women, and the elderly. Courts are mindful of preventing harassment or coercion during investigations, often directing accused persons to cooperate without regular custodial visits. There is also a recent shift towards utilizing technology, with conditions like location tracking through mobile devices or electronic monitoring instead of physical presence. Additionally, Courts are exploring innovative non-monetary sureties, such as personal bonds or community guarantees, to prevent financial hardships, especially for marginalized groups. In complex cases, like those involving economic offenses, Courts are imposing conditions to ensure transparency, such as periodic submission of financial records. In matters of public sensitivity, such as cases under the SC/ST Act or POCSO, stricter guidelines ensure the protection of victims and witnesses.
8. What happens if bail conditions are violated? Can you please share some personal experience when a person released on bail was caught violating one of the conditions imposed while granting bail?
Advocate Bhagat Singh Sharma: If a person released on bail violates one or more conditions of bail, the same may accompany serious consequences, including the cancellation of bail under Section 492 of BNSS. The Prosecution or the complainant in such a case may file an application seeking revocation of bail, citing the breach of conditions. The Court, if satisfied of the accused’s willful disobedience of the terms, such as failure to appear during Court hearings, tampering with evidence, or intimidating witnesses, may pass order for cancellation of bail, issue a warrant for re-arrest and direct the accused to be immediately taken into custody.
In a case I dealt with, an accused was granted bail with the condition that they would not enter the complainant’s locality or contact any of the witnesses. However, it was later discovered that the accused had visited the area on several occasions and also threatened the complainant to withdraw the case. Upon bringing this to the Court’s notice, while also producing credible evidence, the Court immediately revoked the bail, and the accused was remanded to custody. Through that incident, I often remind my clients regarding strict compliance with the bail conditions, since any breach not only risks their freedom, but may also hamper their credibility in subsequent legal proceedings.
9. What are the most common reasons for rejection of bail in India?
Advocate Bhagat Singh Sharma: Bail can be rejected for several reasons, primarily rooted on the chances of the accused influencing the investigation, committing further offenses, or fleeing from trial. The most common grounds for bail rejection include the severity of offense, particularly in cases involving violent crimes, terrorism, or serious economic offenses. Courts often tend to deny bail if the accused is likely to tamper with evidence, intimidate witnesses, obstruct the course of justice, or fleeing/absconding not to appear for the trial. In addition, in cases where the accused has a criminal history or has previously violated bail conditions, the Court may consider rejection of bail application to prevent further crimes.
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In matters involving stringent laws such as the Prevention of Corruption Act or the Unlawful Activities (Prevention) Act (UAPA), NDPS, bail is often denied due to the gravity of charges. Finally, the nature of the evidence, if there exists a strong prima facie case against the accused, may lead to rejection of bail. Therefore, the Courts weigh upon various factors before arriving at a decision regarding bail.
If you wish to connect with Advocate Bhagat Kumar Singh for one of the criminal matters in Rajasthan, you may contact him through his LinkedIn.
