When someone is arrested, it can be a frightening experience. Arrest doesn’t mean guilt. Yet many people remain behind bars for extended periods before their case is heard. This disrupts their lives, violates their right to liberty. To prevent this bail serves as an important safeguard. It allows temporary release of an accused person, while legal proceedings continue.

At Saviour Foundation, we believe that legal awareness about the right to bail is essential to protecting your freedom and dignity. Many people are unaware that bail laws are designed to protect innocent people from unnecessary pre-trial detention.

What is Bail?

Bail is not explicitly defined in the CrPC (Criminal Procedure Code, 1973), but under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces the CrPC, the concept of bail is as follows:

Bail is a legal process where an arrested person is temporarily released from custody, usually under the condition of appearing in court and cooperating with the investigation.

“Bail is the rule and jail is the exception.”
— Justice V.R. Krishna Iyer, State of Rajasthan v. Balchand (1977)

Bail protects your fundamental right to personal liberty under Article 21 of the Constitution, ensuring you are not punished before your guilt is proven.

Key Features of Bail/Jurisprudential basis of bail in India:

• Presumption of Innocence – Bail reflects the legal principle that every accused person is innocent until proven guilty.
• Right to Personal Liberty-This ensures that no person shall be deprived of his life or personal liberty except according to procedure established by law.
• Balancing of Interests –Although liberty is of utmost importance the interests of society and victims also matter. Courts look at various factors like the seriousness of the crime and the likelihood of tampering with evidence before granting a bail to someone.

Bail is a legal right, rooted in the idea that freedom is the default unless there are serious reasons to curtail it.

Bail serves two main purposes:

• To protect the rights of the accused
• To ensure the accused appears in court

Bailable and Non bailable Offences:

In order to understand the types of bails we need to know the offences related to bail

1. Bailable offence: As per section 2(1)(c) BNSS any offence defined in First Schedule is bailable and non bailable offence refers to any other offence.
2. This means a person has a right to be released on bail whereas in non bailable offence the bail is granted at the discretion of the Court.

Bailable Offences defined in First Schedule :-

• Less serious offences
• Simple hurt (less serious bodily injury)
• Being a member of an unlawful assembly
• Rioting (in less serious form)
• Bribery (in cases not involving major aggravations)
• Offences punishable with imprisonment less than three years, or fine only, if not specially declared otherwise

Non-Bailable Offences defined in First Schedule :-

• More serious crimes
• Murder
• Attempt to murder
• Kidnapping
• Voluntarily causing grievous hurt
• Dowry death
  

How to Apply for Bail under BNSS, 2023/Bail in a Bailable Offence

For Bailable Offences : As per section section 478 BNSS a person arrested for bailable offence shall be released on submission of bail bond.

Step-by-Step Process:

1. Request Bail at Police Station (if arrested)
   1. You or your lawyer can request bail immediately at the police station
   2. The police officer must grant bail if the person is ready to furnish bail bond.
2. Prepare a Bail Bond
   1. A bail bond with or without surety (a guarantor) is submitted.
   2. If the accused is poor, they may be released on personal bond (no surety) as per BNSS Section 478 proviso for appearance to court when asked.
3. If Police Refuses Bail (rare in bailable offences)
   1. Apply to the Magistrate (lower court) with a simple bail application.
4. Court Will Grant Bail
   1. The accused has a legal right to bail, so the court or police cannot deny it (unless conditions are violated)

How to Apply for Bail in a Non-Bailable Offence

For Non-Bailable Offences: As per section 480 BNSS If a person is arrested for a non-bailable offence, he may get bail from a Magistrate (not High Court or Sessions Court), but with restrictions.

Step-by-Step Process :

• Hire a Lawyer and File Bail Application in the Proper Court
  • Bail in non-bailable offences is not a right, so it’s granted at the discretion of the court.
  • A criminal lawyer will draft a formal bail application.
  • If the case is in a Magistrate court, apply there first then apply to the Sessions Court, and then to the High Court, if rejected.
• Mention Grounds for Bail
  • The bail application should include:
    • The nature of the offence
    • No prior criminal record (if true)
    • The accused is not a flight risk
    • Will cooperate with investigation
    • Health conditions, if any
    • Weakness of evidence (if applicable)
    • Any special grounds under BNSS Section 480
• Public Prosecutor Will Be Heard (in serious cases)
  • If the offence is punishable with death, life imprisonment, or 7+ years, the court must hear the Public Prosecutor before deciding on bail.
• Court May Impose Conditions (Sec 480(3))
  • The person must attend court as per bond
  • Must not commit the same/similar offence again
  • Must not threaten or influence witnesses
  • Court can add other conditions as needed
  • Violation of conditions may lead to cancellation of bail and re-arrest.
• If Bail is Granted
  • The accused must furnish surety or personal bond as per the court order.
• If denied, the person may appeal to the High Court or Supreme Court

No Bail If :

• If there is a good reason to believe that the person committed a very serious crime like murder or an offence punishable with death or life in prison.
• The accused has previous convictions:
  • Already punished earlier with death, life imprisonment, or more than 7 years in jail.
  • Found guilty twice or more for serious crimes.

When Bail May be Given In Non bailable Cases as per BNSS

1. No strong reasons to believe the offence was committed by the accused but there are enough reasons to continue the investigation the bail shall be granted.
2. The court may grant bail if the accused is a woman child sick or physically weak.
3. The court may grant bail for just and proper reasons. (Sec 480(1))
4. If the trial of the person held in custody before the magistrate is not completed within 60 days, bail must be granted. (Sec480(6))
5. Police requests for identification or custody extension beyond 15 days alone don’t justify bail denial. Sec480(1))
6. If after trial but before judgment, the court believes the accused is innocent

Rights of the Accused Regarding Bail

1. Right to Be Informed (BNSS Section 35): Police must inform the arrested person of their right to apply for bail.
2. Right to Legal Counsel (BNSS Section 38): Everyone has the right to a lawyer. If you cannot afford one, legal aid must be provided.
3. Right to Prompt Hearing (BNSS Section 57): Courts must hear bail applications without delay.
4. Right to Personal Liberty (Article 21, Constitution): No one should be without legal justification.

Challenges in Accessing Bail in India

Despite legal protections, many people face significant hurdles in securing bail:

1. Delay in Hearings – Heavy case load leads to long wait times for bail decisions.
2. Discretionary and Inconsistent Decisions – Bail is often subject to the judge’s personal interpretation, with no standard criteria.
3. Lack of Legal Representation – Poor or illiterate individuals often don’t have lawyers or don’t know their rights.
4. Financial Constraints – Many can’t afford the sureties or bonds required for bail.
5. Police Misuse – Bail is sometimes opposed unnecessarily, or new FIRs are filed to keep the person in custody.
6. Overcrowded Prisons – A majority of undertrials remain in jail simply due to non-compliance with bail conditions.
7. Cumbersome Procedure – Bail processes are often paperwork-heavy and complex.
8. Low Public Awareness – Many don’t understand their bail rights or how to apply for it properly.