Understanding the Types of Bail under the BNSS, 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a new chapter in India’s criminal justice system by replacing the colonial-era Code of Criminal Procedure (CrPC). Despite several reforms, the foundational principles of bail remain largely preserved, with some procedural refinements. Understanding the various types of bail under this new legislation is crucial for both legal practitioners and citizens alike.

• Regular bail is perhaps the most commonly understood form. It applies when a person is already under arrest or in judicial custody. The accused can apply to a Magistrate, Sessions Court, or High Court, depending on the severity of the case. If granted, the person is released from custody, usually with conditions to ensure cooperation during the trial.
• Anticipatory bail, on the other hand, is sought when a person has reason to believe they might be arrested for a non-bailable offence. This preventive remedy is granted by either the Sessions Court or the High Court, allowing the person to avoid arrest altogether if certain conditions are fulfilled. It plays a key role in protecting individuals from potential abuse of police powers or false complaints.
• Interim bail provides temporary relief. It is granted when a regular or anticipatory bail application is pending but there is an urgent need to protect the individual from immediate arrest or custody. This bail remains valid for a short period and is usually subject to extension or revocation depending on the final bail decision.
• Default bail, also known as statutory bail, is a right that accrues when the investigating agency fails to file a charge sheet within the stipulated time—typically 60 days for most offences and 90 days for serious crimes. This provision ensures that individuals are not held indefinitely without formal charges being framed.
• Transit bail, although not explicitly codified in many earlier laws, has become a vital legal tool. It offers temporary protection from arrest when a person is located in one state but faces arrest in another. The individual can approach a local court and seek transit bail to travel to the jurisdiction where the case is registered and then apply for regular or anticipatory bail there. This ensures procedural fairness across state boundaries.
• Bail in bailable offences is a matter of right. When the offence is classified as bailable under the BNSS, the accused is entitled to bail and the court or police must grant it, often with minimal conditions. In contrast, bail in non-bailable offences is discretionary and depends on the facts and circumstances of the case. The court may refuse bail if it believes the accused is likely to tamper with evidence, influence witnesses, or evade trial.

As the BNSS ushers in a modern framework for criminal procedure, it is essential for legal stakeholders to remain informed about how bail provisions are interpreted and applied. Understanding the nuances of these different bail types not only helps ensure fair process but also upholds the right to liberty, which lies at the heart of a just legal system.