Criminal justice II: bail, undertrials and prisons

Detail

1. What bail is and why it matters

• Bail means releasing an accused person before or during the trial. The person gives a bond (a written promise, sometimes backed by money or a surety) to come back to court when called.
• Core principle: "bail is the rule, jail the exception". This comes from State of Rajasthan v. Balchand (1977).
• An accused person is presumed innocent until the court finds them guilty.
• Locking them up before trial must therefore be rare and must have a reason.

• This links bail to Article 21 (right to life and personal liberty).

• The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, in force from 1 July 2024, replaced the CrPC 1973.

• It defines "bail" for the first time.
• It gathers bail law in Chapter XXXV (ss.478-496).

2. Types of bail under the BNSS

Type	BNSS section (old CrPC)	When it applies	Nature
Bailable offence	s.478 (s.436)	Less serious offences listed as bailable	Bail is a right. Police or court must grant it.
Non-bailable offence	s.480 (s.437)	Serious offences	Bail is at the court's discretion
Anticipatory bail	s.482 (s.438)	Before arrest, when a person fears arrest for a non-bailable offence	Discretion of the High Court or Sessions Court
Special powers	s.483 (s.439)	Any case	High Courts and Sessions Courts have wider powers to grant bail or cancel it
Default bail	s.187(3) (s.167(2))	No charge sheet filed in time	An indefeasible right, which the court cannot refuse once the condition is met

• Bailable offence: an offence where the accused can claim bail as a right (s.478).
• Non-bailable offence: an offence where the court decides whether to grant bail (s.480). It weighs:
• how serious the charge is;
• flight risk (the chance the accused will run away);
• the risk of tampering (threatening witnesses or destroying evidence).

3. Anticipatory bail

• Anticipatory bail (s.482): an order made before arrest. If the person is later arrested, they are released on bail at once.
• Origin: added as s.438 CrPC 1973 on the Law Commission's 41st Report.
• Gurbaksh Singh Sibbia v. State of Punjab (1980): a Constitution Bench gave s.438 a wide reading. Courts must not add limits that the law itself does not contain.
• Sushila Aggarwal v. State (NCT of Delhi) (2020): anticipatory bail need not be time-bound. It can last until the end of the trial. A court may still set conditions or a time limit in a fitting case.

4. Default bail

• Default bail (s.187(3) BNSS, formerly s.167(2) CrPC): the accused gets a right to bail if police do not file a charge sheet (the final police report naming the accused and the charges) within:
• 90 days, for offences punishable with death, life imprisonment or at least 10 years;

• 60 days, for all other offences.

• Chain of events: time limit ends → no charge sheet filed → accused applies → bail must be granted. It is an indefeasible right, so the court has no choice.

5. Special statutes: stricter bail rules

• Some laws reverse the normal rule and make bail much harder to get:
• UAPA 1967, s.43D(5): no bail if the court finds the charge "prima facie true" (true on a first look).

• PMLA 2002, s.45: the "twin conditions". The court must believe the accused is not guilty and is not likely to commit an offence while on bail.

• Softening by the courts (prolonged incarceration rulings):

• Union of India v. K.A. Najeeb (2021): a long stay in jail with no trial in sight can justify bail under Article 21, even under UAPA.
• Manish Sisodia v. CBI/ED (2024): long pre-trial detention and a slow trial can override the PMLA s.45 limits. The Court repeated that "bail is the rule".

6. Satender Kumar Antil v. CBI (2022)

• A Supreme Court ruling that laid down bail guidelines by category of offence:
• offences with punishment up to 7 years;
• offences punishable with death, life or more than 7 years;
• offences under special Acts with strict bail rules;

• economic offences not covered by special Acts.

• Key directions:

• Police and courts must follow Arnesh Kumar v. State of Bihar (2014): no automatic arrest for offences punishable up to 7 years, and police must use a notice of appearance instead.
• Time limits for deciding bail pleas: 2 weeks for ordinary bail, 6 weeks for anticipatory bail.
• Bail conditions a poor accused cannot meet must be reviewed.

• Undertrials who cannot furnish bail must be identified.

• It urged Parliament to pass a separate Bail Act, on the model of the UK Bail Act 1976.

7. Plea bargaining

• Plea bargaining: the accused pleads guilty of their own free will in return for a lighter sentence.
• History:
• recommended by the Malimath Committee (Committee on Reforms of the Criminal Justice System, 2003);
• added to the CrPC in 2005 as Chapter XXIA;

• now BNSS ss.289-300 (Chapter XXIII).

• Scope:

• Covers offences punishable with up to 7 years.
• Excludes socio-economic offences (notified by the Centre).

• Excludes offences against a woman or a child below 14.

• Time limit: the application must be filed within 30 days of the framing of charge.

• Steps: 1. The accused applies to the court. 2. The judge checks in private that the plea is voluntary. 3. The prosecutor, the accused and the victim work out a settlement, which may include compensation. 4. The court passes the sentence. For a first offender this can be probation; otherwise it can be a reduced term. 5. No appeal lies against the judgment, except a writ or SLP.

• Problem: it is little used. Reasons include the stigma of pleading guilty, fear of being forced into a plea, and low awareness.

8. Undertrial prisoners: the scale

• Undertrial prisoner: a person kept in jail while their trial is still going on, who has not been convicted.
• About three-fourths of all prisoners are undertrials (NCRB; verify current).
• NCRB Prison Statistics India 2022 (as on 31.12.2022):
• 4,34,302 undertrials, up 1.7% from 4,27,165 in 2021 [4].
• Prison occupancy rate: 131.4% all-India. Jails held about 131 inmates for every 100 places [4].
• By jail type: District Jails 52.1%, Central Jails 35.8%, Sub Jails 9.8% [4].

• By state: Uttar Pradesh had the most undertrials (21.7%, 94,131), followed by Bihar (13.2%) [4].

• Who is affected: the poor, SCs, STs, minorities and the unlettered are over-represented. They often cannot pay for a lawyer or arrange a surety.

9. Maximum detention of undertrials (BNSS s.479)

• Maximum detention of undertrials: a legal limit on how long an undertrial can be held. It applies to any offence under any law, except offences punishable with death or life imprisonment [2].
• General rule: release on bail once the person has been held for half the maximum sentence for the offence [2].

• First-time offender (never convicted before): release on bond once held for one-third of the maximum sentence [2].

• Origin: formerly s.436A CrPC (added 2005). The one-third rule is new in the BNSS.

• Jail superintendent's duty: apply to the court once the half or one-third mark is reached.
• August 2024: the Supreme Court held that s.479 applies to pending cases as well, including cases registered before 1 July 2024.
• Support measures:
• Undertrial Review Committees (UTRCs): district-level panels led by the District Judge. They review undertrial cases and recommend release.
• Support to Poor Prisoners scheme (MHA, 2023):
  • It pays the bail amount or fine for poor prisoners who cannot afford it [3].
  • It has ₹20 crore each for FY 2023-24, 2024-25 and 2025-26 [3].
  • Each district is to have an Empowered Committee to judge the need in each eligible case [3].

10. Prisons: constitutional position and the new model law

• Prisons are State List entry 4 (Seventh Schedule). Prison law and prison management belong to the states. The Centre can only advise and fund.
• Old laws: the Prisons Act 1894 and the Prisoners Act 1900 are colonial and outdated [5].
• Model Prisons and Correctional Services Act 2023:
• drafted by the MHA and sent to all States and UTs on 10 May 2023 for adoption [5];
• a model law: states must pass it themselves for it to apply;

• meant to replace the Prisons Act 1894.

• Key features:

• focus on reform and rehabilitation rather than only punishment;
• open and semi-open jails (low-security jails where trusted prisoners work outside);
• parole and furlough (short, conditional release from jail: parole for a specific reason, furlough as a reward for good conduct);
• high-security jails for hardened and dangerous prisoners;
• electronic tracking of prisoners on leave;
• legal aid, education, vocational training and skill development [5];
• separate enclosures for women and transgender prisoners;

• after-care and rehabilitation services after release [5].

• Adoption gap: no state had confirmed adopting the Model Act. The Model Prison Manual 2016 has been adopted by 21 States and all 8 UTs [6].

11. Sukanya Shantha v. Union of India (2024)

• Judgment date: 3 October 2024, WP (Civil) No. 1404 of 2023 [7].
• Holding: struck down caste-based segregation and work allocation in state prison manuals, for example giving sweeping and cleaning work to "lower" castes. This violates Articles 14, 15, 17, 21 and 23.
• MHA's response (December 2024):
• It amended both the Model Prison Manual 2016 and the Model Prisons and Correctional Services Act 2023 [7].
• It added a new heading, "Prohibition of caste-based discrimination in Prisons and Correctional Institutions" [7].
• It banned running the kitchen or cooking food on the basis of caste or religion [7].
• It banned classifying prisoners by caste, class or socio-economic status [7].
• It redefined "habitual offender" as a prisoner sent to prison repeatedly for a crime, cutting the link with colonial-era "criminal tribes" labels [7].

Prelims Hooks

• "Bail is the rule, jail the exception" → State of Rajasthan v. Balchand (1977).
• BNSS s.478 = bailable offence (right); s.480 = non-bailable offence (discretion); s.482 = anticipatory bail; s.483 = special powers of HC and Sessions Court.
• Default bail = BNSS s.187(3) (old CrPC s.167(2)), after 60 or 90 days with no charge sheet.
• Anticipatory bail was introduced on the Law Commission's 41st Report. Sushila Aggarwal (2020) held it need not be time-bound.
• Plea bargaining: Malimath Committee → CrPC Chapter XXIA (2005) → BNSS ss.289-300. Offences up to 7 years only, and the plea must come within 30 days of framing of charge.
• Trap: BNSS s.479 (half or one-third rule) does not apply to offences punishable with death or life imprisonment. The one-third rule for first-time offenders is new in the BNSS.
• Prisons = State List entry 4. The Model Prisons Act 2023 is a model law, not binding on states.
• NCRB PSI 2022: occupancy 131.4%. UP has the most undertrials [4].
• Sukanya Shantha (3 Oct 2024) → caste-based work and segregation in prisons struck down [7].

Mains Points

• Liberty against public safety: UAPA s.43D(5) and PMLA s.45 almost reverse the presumption of innocence. Najeeb (2021) and Sisodia (2024) show courts using Article 21 and trial delay to restore balance. Critics say this depends on each judge, so the rules should be written into law.
• The case for a Bail Act: Satender Kumar Antil (2022) found that bail practice is uneven, arrests are routine and bail conditions are beyond the reach of the poor. A single Bail Act (UK 1976 model) could fix time limits, presumptions and affordable conditions.
• Undertrials as a social-justice issue: about 4.34 lakh undertrials and 131.4% occupancy in 2022 [4] show that poverty, not guilt, often decides who stays in jail. Remedies include BNSS s.479, active UTRCs, the Support to Poor Prisoners scheme [3], legal aid under the Legal Services Authorities Act 1987, and faster trials.
• Prison reform and federalism: prisons are a State subject, so the Centre can only issue model laws. Because no state has confirmed adopting the 2023 Model Act [6], colonial-era rules survive, including the caste practices struck down in Sukanya Shantha [7]. Options include conditional central funding, NHRC monitoring and court-mandated deadlines.