Why in the News?
The US President has stopped federal funds that allowed cashless bail, sparking debate on whether the system is fair to the poor.
Cashless Bail System in the US:
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About Bail Provisions in India (BNSS, 2023, replacing CrPC, 1973):
- Bail is essentially a mechanism to release an accused from custody with assurances that they will not abscond or tamper with evidence.
- Governed by Chapter 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Types of Bail under BNSS:
- Regular Bail:
- For bailable offences (Sec. 478): Bail is a right.
- For non-bailable offences (Secs. 480, 483): Bail is at court’s discretion, depending on seriousness of offence, evidence, risk of absconding, and public interest.
- Anticipatory Bail (Sec. 482): Pre-arrest bail in non-bailable offences, granted by higher courts with conditions such as no interference in investigation or threats to witnesses.
- Interim Bail: Temporary release while a regular or anticipatory bail application is pending.
- Statutory/Default Bail (Sec. 187): Accused has the right to bail if chargesheet not filed within the stipulated period.
Bail Mechanisms in Practice:
- Bond: Accused signs a bond and deposits cash as guarantee; refunded after trial unless terms are violated.
- Bail Bond: Surety given by another person such as a friend, family member, or employer. Courts verify their documents, financial stability, and residence. In Mumbai, a solvency certificate issued by a revenue officer is required, which delays bail.
- Personal Recognisance (PR) Bond: Accused released without immediate cash deposit but must arrange money within a specified time. Courts often hesitate to grant PR bonds citing trial integrity.
Challenges in India’s Bail System
- Undertrials stuck despite bail:
- Many accused cannot furnish surety or small sums (₹5,000 or less).
- Maharashtra (2022): 1,600+ persons in jail unable to meet bail conditions; 600 in Mumbai Metropolitan Region alone.
- Prisons overcrowded: Maharashtra prisons had 12,343 excess prisoners (July 2025).
- Judicial concerns: 268th Law Commission Report (2017):
- Monetary bail system is discriminatory & unconstitutional.
- Violates right to fair trial; leads to arbitrary classifications.
- Supreme Court (2023 guidelines):
- If an accused remains in jail >1 week despite bail, jail superintendent must inform District Legal Services Authority (DLSA).
- DLSA can send para-legal volunteers/lawyers to assist release.
- Based on NALSA data: ~5,000 undertrials jailed despite bail.
- Reform under BNSS (2023):
- Jail authorities must apply for bail for undertrial prisoners who have:
- Served 1/3 of maximum sentence (first-time offenders).
- Served 1/2 of maximum sentence (repeat offenders).
- Not applicable in life imprisonment or death penalty cases.
- Jail authorities must apply for bail for undertrial prisoners who have:
| [UPSC 2021] With reference to India, consider the following statements:
1.Judicial custody means an accused is in the custody of the concerned magistrate, and such an accused is locked up in the police station, not in jail. 2.During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court. Which of the statements given above is/are correct? Options: (a) 1 only (b) 2 only* (c) Both 1 and 2 (d) Neither 1 nor 2 |
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