Bnss Series: Changes Relating To Provisions Of Bail

Chapter XXXV of the BNSS deals with the provisions relating to bail. Chapter XXXIII of the CrPC used to deal with the provisions relating to bail. While most of the BNSS provisions are identical to the corresponding provisions of CrPC, some major changes have been brought about by the BNSS. For instance, the BNSS contains the definitions of the terms – ‘bail’, ‘bond’ and ‘bail bond’. Moreover, the BNSS removes the grounds of anticipatory bail and leaves at completely at the discretion of the court to decide, on the basis of the existing bail jurisprudence, whether anticipatory bail should be granted in a particular case or not.

Section 47 of BNSS provides that an arrested person should be informed of the right to bail. Under Section 480, any person who has been arrested without a warrant for a bailable offense shall be released on bail if the person is prepared to give a bail bond. If such person is unable to furnish the bond within a week of his arrest, then the police officer or Court shall presume that the accused is an indigent person and such arrested person shall be discharge on executing a bond for his appearance. Moreover, if an undertrial prisoner undergoes detention for a period equivalent to half of the maximum imprisonment period prescribed for the offense under which he is charged with, then such undertrial prisoner shall be released on bail.

A person accused of a non-bailable offense and arrested without a warrant may be released on bail except:

• Where there are reasonable grounds to believe that such person is guilty of an offense punishable with death penalty or life imprisonment
• There are reasonable grounds to believe that the person is guilty of a cognizable offense and the accused has been previously convicted of an offense which is punishable with death penalty, imprisonment for seven years or more or life imprisonment.
• There are reasonable grounds to believe that the person is guilty of a cognizable offense and the accused has been convicted in two previous occasions of cognizable offense involving imprisonment for three years or more but less than seven years.

The Constitution of India, in Article 21, provides that a person’s life and personal liberty may be taken away if only a ‘procedure established by law’ is in place. Procedural laws are laws governing the machinery of courts which enable both the state and the individuals to enforce their rights in several courts. They establish guidelines and protocols regarding the handling of legal disputes, in an attempt to treat all the parties involved fairly. The litigation process is regulated by the law of procedure. These laws are safeguards against arbitrary actions, delineating the rights and responsibilities of individuals within the legal process, ensuring impartiality, and fostering trust and confidence in the judiciary.

Since in the field of justice, procedure is supposedly based on values like fairness, equal treatment of parties, impartiality of the judge, adversarial debate, and public hearings, which ought to guarantee fairness in results, procedural laws are the cornerstone in the maintenance of order and efficiency within the legal system. It focuses on the tools that should be used to acquire desired results, by offering a structured approach to defining the necessary steps for initiating lawsuits, overall handling of legal disputes, presentation of evidence, and reaching resolutions. This structure minimizes delays in the judicial process and keeps moving along the cases, enabling timely adjudication to take place. Procedural laws also provide people the ways to ensure that their legal rights are respected and redress any grievances they may have. The transparency allows holding everyone accountable since all procedural laws are created in accordance with legal requirements.

In India, procedural law is primarily classified as:

• Civil Procedural Law: The Code of Civil Procedure of 1908, (CPC) lays down the procedural framework for civil litigation.
• Criminal Procedural Law: The Code of Criminal Procedure 1973 (CrPC), exclusively deals with criminal cases, covering aspects such as rape, murder, arrest, bail, investigation, etc.

Some other examples of Indian procedural Laws are:

• The Indian Evidence Act, 1872
• The Limitation Acct, 1963
• The Court Fees Act, 1870
• The Suits Valuation Act, 1887.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) received the president’s assent on 25^th December 2023, with the aim of replacing CrPC. The BNSS represents a pivotal shift in the criminal procedural framework of India. Although BNSS retains most of the provisions from CrPC, it also brings substantial amendments to material aspects of the administration of criminal justice. It includes various provisions concerning bail regulations, expands the authority regarding property seizure, etc. The BNSS was deliberated upon by the Standing Committee of Home Affairs and stands as a testament to the evolving dynamics of legal frameworks as a response to the perpetual societal needs and challenges. It provides for a faster, and more efficient justice system to address the delay issues in the delivery of justice, large pendency of cases, low conviction rates, low-level use of technology in the legal system, delays in investigation, and inadequate use of forensics.

COMPARATIVE ANALYSIS:

A comparative overview of the key changes which BNSS brings about are:

OTHER KEY PROVISIONS INTRODUCED:

• Under the BNSS, section 475, Life imprisonment or rigorous imprisonment cannot be commuted to just a fine.   A death sentence can only be commuted to life imprisonment.
• Clarifications provided for terms like ‘bail’, ‘bail bonds’, ‘bonds’, ‘surety’, to enhance comprehension. (Section 479)
• BNSS specifically allows handcuffing of certain categories of offenders such as repeat, habitual offenders etc. (Section 43(3))
• Eliminates distinction and role of Metropolitan magistrates.
• An accused need not be arrested. A security bond may be taken to the Judicial Magistrate by the police.
• Addition of new sub-section (3) to section 176 of BNSS mandates the forensic team to visit the crime scene, collect samples and conduct videography of the process if and when the police are informed about commission of a crime punishable by more than 7 years.
• BNSS provides timelines for various procedures. For example, medical practitioners examining rape victims must submit their reports within 7 days to the examining officer.
• Electronic mode may be used for trials, inquiries, and proceedings. Production of communicative devices is likely to contain digital evidence, which will be allowed for investigation.
• Introduces the concept of ‘community service’ as a form of punishment for petty offences.
• Up to 15 days of police custody may be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. (Section 187(3))
• A trial can be conducted and pronounced if a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him.
• An investigating officer need not provide reasons for seeking policy custody of someone in judicial custody, under BNSS.
• Section 223 of BNSS mandates that accused individuals be given a chance to present their side prior to the magistrate taking cognizance of their offence.
• With the object of protecting vulnerable individuals belonging to vulnerable categories, section 195 provides that such individuals need not ‘attend at any place other than where they reside’. This directly ensures said persons’ comfort and security by summoning them to such locations.

CONCLUSION:

The BNSS replaces CrPC 1973 and consists of 531 sections and 177 revised section, 9 new sections, and 14 repealed sections. The CrPC has gone under fewer changes as compared to the Indian Penal Code of 1860, but there have been several changes nonetheless. Several unintentional errors exist, but they may be rectified through amendments.

The BNSS has primarily targeted the following heads through its amendments:

• Elimination of dated, insensitive terminology;
• Enhancement of procedural clarity;
• Introduction of progressive safeguards;
• Inclusion of electronic alternatives; and
• Expediting processes.

Although most changes have been welcomed, some of the changes raise alarms. Such as, the provision of more power for search and seizure, and changes in the processes of investigations and arrests are matters of concern. These changes need to be monitored closely.

These legislative strides towards a more equitable, accessible, and efficient legal framework promise a future where justice is not only served but in inclusive and reflective of our country’s dynamics in the truest sense.