Introduction

The Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act are
among the colonial-era statutes that the BNSS replaces with updated sections that more accurately
represent modern society’s requirements and values. This is part of a larger initiative to modernize
and streamline the legal system. The Criminal Procedure Code, 1973 (CrPC) is a procedural law
established for the administration of the Indian Penal Code, 1860 (IPC). The main goal of BNSS is to
modernize the criminal justice system to take into account new social norms, technological
breakthroughs, and contemporary values. The New Criminal Procedure Code, or Bharatiya Nagarik
Suraksha Sanhita (BNSS), is a major legal reform in India. The current Criminal Procedure Code (CrPC)
is being modified in a number of ways with the goal of improving the effectiveness and transparency
of the judicial system. The modifications made to the bail requirements under the BNSS will be the
main topic of this article.

Definition of Bail under Criminal Procedure Code (CrPC)

Bail is taken from the old French verb “baillier” which depicts “giving or delivering”. Bail is also not
defined in our criminal system but signifies the right of the individual protected by the state. The
main goal of granting bail to an accused person in detention is to guarantee that the accused will not
be imprisoned during the trial process, provided that he does not pose a threat to society, falsify
evidence, or coerce witnesses.

Definition of Bail under bharatiya Nagarik Suraksha Sanhita

The Criminal Procedure Code has not defined bail, bail bond and bond but BNSS has introduced
this term. According to the definition clause under Section 2 of BNSS:

• Clause (b) defines “bail” as “bail” means release of a person accused of or suspected of
commission of an offence from the custody of law upon certain condition imposed by an
officer or court on execution by such person of a bond or a bail bond.

• Clause (d) defines “bail bond” as, “bail bond” means an undertaking for release with surety.

• Clause (e) defines “bond” as “bond”, which means a personal bond or an undertaking for
release without surety.

Types of Bail:

• Regular Bail: – A court can order the release of a person in custody on suspicion of
committing an offence.

• Anticipatory Bail: – Can be sought under Section 438 CrPC by any individual who anticipates
being charged with a non-bailable offense.

• Interim Bail: – A temporary form of bail granted during the pendency of an application for an
anticipatory or regular bail.

• Default Bail: – If the accused can demonstrate that the required 60 or 90 days have passed
since their arrest without any chargesheet or complaint being filed.

• Medical Bail: – Granted to individuals based on solely on medical grounds.

Feature of CrPC and BNSS

The CrPC governs the procedural aspects of criminal justice in India. The key feature of the act
include: –

1. Separation of offences: – According to the CrPC, offenses fall into two groups: cognisable
and non-cognizable. Crimes that the police are able to detain and search without a warrant
are known as cognisable offenses. For non-cognizable offenses, a warrant is necessary, and
occasionally, the victim or a third party must file a complaint as well.

2. Nature of offence: – In the context of India’s Code of Criminal Procedure (CrPC), “nature of
the offence” refers to the way an offense is defined and categorized for legal procedures. The
criminal process code (CrPC) describes the criminal law’s procedural features in India.
Correct use of these procedures depends on knowing the type of offense.

The BNSS retains most of the provision of the CrPC. Key changes proposed include: –

1. Bail to Undertrial Provision

Old CrPC: – Under the 2005 Amendment, a prisoner who is awaiting trial and has served half of the
maximum sentence for their offense—aside from offenses carrying the death penalty—may be
granted bail under Section 436A of the Criminal Procedure Code (CrPC). To acknowledge the right of
accused individuals being detained as undertrial prisoners to a prompt and fair trial, this provision
was introduced.

New CrPC: – The BNSS further states that the following will likewise be exempt from this provision:
(i) crimes carrying a life sentence; and (ii) individuals who are the subject of ongoing legal
proceedings for multiple offenses.

2. Medical Examination: – The CrPC permits the accused to be examined medically in some
circumstances, such as rape trials. At least a sub-inspector level police officer requests that a
registered medical practitioner conduct such an evaluation. According to the BNSS, any
police officer may ask for this kind of investigation.

3. Reduction detention time for the first-time offender: –Before, even in cases when a first-
time offender has served an extended period of time in jail while awaiting trial, the law did
not permit early release. However, if the first-time offender has served up to one-third of
their sentence as an undertrial prisoner, the new statute permits early release.

4. Forensic investigation: – Forensic investigations are required by the BNSS for offenses
carrying a minimum sentence of seven years in prison. In these situations, forensic specialists
will go to crime sites to gather evidence and document the proceedings using a cell phone or
other electronic equipment. A state must use forensics facilities located in another state if it
lacks its own.

5. Signature and finger impression: – A magistrate may require someone to produce sample
handwriting or signatures under the CrPC. This is expanded by the BNSS to incorporate voice
samples and finger imprints. It makes it possible to obtain these samples from someone who
hasn’t been taken into custody.

6. Bail can’t be granted if multiple cases are pending: – Before, there was no legal provision
preventing an inmate who was awaiting trial or investigation from being granted bail if they
were the subject of several investigations, inquiries, or trials. However, the new law is now
more stringent and won’t allow bail in circumstances when an individual has several cases
against them pending.
 7. Obligation of jail superintendent: – According to the new rule, the Jail Superintendent must
apply in writing to the court before releasing undertrial inmates on bond. Depending on the
circumstances, this application must be made after serving either half or one-third of the
term.

8. Hierarchy of Courts: – A court hierarchy is established by the CrPC in India for the purpose of
resolving criminal cases. These courts are: (i) Sessions Courts, which are presided over by
Sessions Judges and hear appeals from Magistrate’s Courts; (ii) High Courts, which have
inherent jurisdiction to hear and decide criminal cases and appeals; and (iv) the Supreme
Court, which hears appeals from High Courts and also exercises its original jurisdiction in
certain cases. The CrPC gives state governments the authority to designate as a metropolitan
region any city or town having a population of one million or more. There are Metropolitan
Magistrates in these districts. The designation of metropolitan areas and Metropolitan
Magistrates is eliminated by the BNSS.

Anticipatory Bail Under BNSS

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek
‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in
expectation of being named or accused of having committed a non-bailable offence.

There is little change in BNSS in compare to CrPC, except for specific exclusion. Now the law
prohibits the accused of gang rape involving women under 18 years old for anticipatory bail,
expanding on the CrPC provision that disallows anticipatory bail for those accused of gang rape
involving women under 16 years old (Section 376DA) or 12-year-old (Section 376DB) under section
438(4) of the CrPC.

This amendment expands scope by refusing anticipatory bail to individuals charged with gang rape of
women under the age of 18, as opposed to the CrPC’s 16-year statute of limitations.

As sub section 4 of Section 482 of BNSS say, Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having committed an offence under section 65 and sub-
section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.

Also, sub section (2) of section 70 of BNSS reads, “Where a woman under eighteen years of age is
raped by one or more persons constituting a group pr acting in furtherance of a common intention,
each of those persons shall be deemed to have committed the offence of rape and shall be punished
with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural
life, and with fine, or with death.”

Police Custody and the bail refusal

Old CrPC: – The prosecution frequently argues against bail during hearings for the accused’s normal
bail application by claiming that the accused’s custody is necessary to assist investigating authorities
in identifying witnesses.

Proviso 3 to Section 437 of CrPC stating that “Provided also that the mere fact that an accused
person may be required for being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an
undertaking that he shall comply with such directions as may be given by the Court.”
New CrPC:- The new law modified the previous regulation significantly by allowing the accused to be
granted ordinary bail even if the court determines that they must remain in jail for a longer period of
time in order to identify witnesses during the investigation.

Proviso 3 of Section 482 of BNSS talks about when bail may be taken in the case of non-bailable
offence as “ Provided also that the mere fact that an accused person may be required for being
identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail
and gives as undertaking that he shall comply with such directions as may be given by the Court.”

Moti Ram v. State of Madhya Pradesh (1978) 4 SCC 47: The Supreme Court discussed this ambiguity
and held inter alia that bail ought to include both release with and without surety, and persons who
are indigent or unable to pay surety ought to be released on their own recognisance.

Conclusion

Comparing Bharatiya Nagarik Suraksha Sanhita to the Criminal Procedure Code, bail conditions are
altered significantly overall. Important modifications include tougher rules for those with numerous
crimes and broader eligibility for bail, particularly for first-time offenders. Though it does not apply to
cases of juvenile gang rape, anticipatory bail under the BNSS is similar to that of the CrPC.

In order to ensure that undertrial detainees receive equitable treatment while maintaining
accountability, it creates new definitions and processes for bail.