Types of Bail in India: Ultimate Guide to Regular, Anticipatory, Transit, Default, and Interim Bail
Introduction
- Bail comes into play when someone is arrested and confined under Judicial Custody, and the investigation is still ongoing or the trial is still pending after the charge sheet has been presented. Once the case is over and the person is either convicted or acquitted, there's no provision for bail. However, in the event of an appeal after conviction, a temporary release, known as 'suspension of sentence', can be requested. Bail is a temporary or conditional release; it doesn't mean the case is over. The court can call the accused whenever needed.
- Both the CrPC and the BNSS divide offences into two categories: bailable and non-bailable. In bailable offences, bail is granted as a matter of right, typically by the Station House Officer of the concerned police station. In contrast, in non-bailable offences, bail is not guaranteed and depends on the court's discretion.
- BNSS, the ongoing procedural law, in section 2(1)(b), defines bail as the release of a person during investigation or trial after they execute a bond or bail bond with certain conditions.
- For FIRs registered and chargesheets presented before July 1, 2024, the provisions of the CrPC, 1973, are applicable. These provisions are now replaced by the provisions of the BNSS, 2023, whose applicability will be for FIRs registered and chargesheets presented after July 1, 2024. The new laws, i.e., BNS, BNSS, and BSA, will function prospectively and not retrospectively.
Types of Bail in Criminal Law
- Regular Bail: This type of bail is for individuals who have already been arrested and are currently in police or judicial custody. Under section 437, CrPC/section 480, BNSS, regular bail can be applied for before the concerned Magistrate. If the Magistrate denies bail, it can be filed before the Court of Sessions. If the Court of Sessions also denies bail, it can be filed before the High Court, and both are presented under section 483 of the BNSS/section 439 of the CrPC. The application for regular bail is filed after arrest and presentation before a magistrate. If granted, the person remains out of jail in that particular matter during the trial unless the bail is canceled or otherwise revoked.
- Conditional Bail: Section 437(3) of the CrPC /section 480(3) of the BNSS defines conditional bail. In severe cases, the court may grant bail with conditions, especially in offences under Chapters VI, XVI, and XVII of the IPC or Chapters VI, VII, and XVII of the BNS. These conditions may include
- Appearing before the court when asked
- Not committing a similar offence again
- Not trying to influence witnesses
- Default Bail: Also known as statutory bail, this provision takes effect when the police fail to complete the investigation within the specified time limit. As per Section 167(2) of the CrPC, if the punishment is more than 10 years and the charge sheet is not filed within 90 days, the accused has the right to apply for bail. For offences with a punishment of less than 10 years, the limit is 60 days. The BNSS defines this under section 187(3). If these timelines are crossed and the accused applies for bail before the charge sheet is filed, the court must grant it; this is a legal right, not a matter of court discretion.
- Anticipatory Bail: This type of bail is granted before arrest, and is available only in cases involving non-bailable offences. It's applied when a person fears arrest. Transit bail also falls in this category of bail. Under section 482 of the BNSS, which replaced section 438 of the CrPC, the person can plead before the Court of Sessions or the High Court to grant anticipatory bail. However, serious offences, such as POCSO and a few other listed offences, according to state amendments and legislation, do not have a provision for anticipatory bail. Section 482(4) of the BNSS says that the provisions of anticipatory bail are inapplicable on the arrest of a person if he is accused under section 65 and section 70(2) of the BNS. Anyhow, before granting an anticipatory bail, the court considers the following factors.
- Nature of the offence
- Criminal record of the person
- Whether the accused may abscond
- He shall comply with the court orders
- Interim Bail: Interim bail can be provided under the above-mentioned provisions of the CrPC or the BNSS, but courts usually allow it with caution. When someone applies for regular or anticipatory bail and the court needs more time to decide, or the court deems it fit to allow interim bail on a specific request from the accused, it may grant interim bail to protect the person from arrest or release from the custody till the final hearing of the bail application, or for a specific period. It's like temporary relief.
Bail in Bailable and Non-Bailable Offences
- Bail in Bailable Offences: Section 436, CrPC, 1973/section 478, BNSS, 2023, provides for bail to be taken in bailable offences. Bail is given as a matter of right in bailable offences. Police or a magistrate cannot refuse it unless there's a breach of condition. Section 436 of the CrPC/section 478 of the BNSS states that bail must be granted if the offence is bailable or if the arrest is made without a warrant. However, if the accused fails to appear in court later or breaches the bail conditions, the court may order their arrest.
- Non-Bailable Offences: Section 437 CrPC/section 480 BNSS applies in cases of non-bailable offences. In matters of non-bailable offences, bail is not a right; it's at the discretion of the court. Section 437 CrPC/section 480 BNSS states that bail should not be granted if the offence is punishable with death or life imprisonment and there are solid reasons to believe the person is guilty. Also, bail can be refused in cases except for women, the infirm or sick, and minors below 16, if
- The person has been previously convicted of cognizable offences with a punishment of more than 7 years, death, or imprisonment for life.
- Has been convicted twice or more for cognizable offences with a punishment of 3 years or more but less than 7 years.
- The court believes there are reasonable grounds that he has committed an offence punishable with death or imprisonment for life.
Conclusion
Bail is not just a legal formality; it's a tool to balance personal freedom and justice. While bailable offences give you the right to bail, in non-bailable offences, you have to convince the court why the bail should be granted. With the new BNSS provisions, the process remains mostly the same, but now with a more structured format. Knowing the types of bail — regular, default, anticipatory, and interim — helps in understanding how our system protects both the accused and society. To learn more, click here.
