You may have wondered about the workings of Indian law enforcement, particularly regarding bail procedures. This article explains how the bail process functions. Through what means can the courts grant bail while also clarifying if bail represents a fundamental right of the accused person and if healthcare conditions like HIV or AIDS can influence bail decisions? What are the significant modifications to legal procedures under the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, alongside its replacement of components from the Criminal Procedure Code (CrPC)?
Let’s break it down in a simple way.
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What is Bail?
Under basic terms, bail enables defendants to leave official detention by fulfilling certain requirements before the conclusion of their trial or additional investigation period. The right to apply for bail remains open to an accused person throughout their entire court process up until the conviction. The legal foundation for bail operations requires that the accused maintain his innocence until courts establish his guilt. After obtaining a conviction, the accused person can seek bail permission from the court when they have filed appeals or revisions at higher legal forum challenging such a conviction. A pending Appeal or Revision before the Court allows the court to grant bail to an accused person on condition that the court finds both a legitimate case and a reasonable chance of prevailing in their appeal or revision. The fundamental purpose of Bail ensure proper defense access to accused who should not remain jailed throughout lengthy pre-conviction periods.
Key Provisions for Grant of Bail (CrPC & BNSS 2023)
Under the Criminal Procedure Code, 1973, bail is mainly dealt with under Sections 436 to 439. Now, with the new BNSS 2023, the corresponding sections are updated, but the spirit largely remains the same. Section 436 of CrPC deals with Bail in Bailable Offences, which corresponds to Section 479 of BNSS. Similarly, Bail in Non-Bailable Offences is mentioned in Section 437 of Cr.P.C, which corresponds to Section 480 of BNSS. Similarly, the grant of Bail by the Sessions Court or the High Court was in Section 439 of the CrPC, which is now being dealt with in Section 482 of BNSS.
In case of Bailable offences: Bail is a right — if the accused applies for it, he must get it. However, for Non-bailable offences, Bail is discretionary & the court would look at several factors before deciding the bail petition.
What are the Essential Ingredients for Grant of Bail Petitions?
When someone files for bail, the court looks at several key things:
- Nature of the Offence: Is it serious like murder, rape, treason, or something lighter like a simple injury or financial fraud?
- Gravity of the Allegations: Is the allegation against the accused strong or weak, and whether the allegation backed by prima facie material?
- Likelihood of Flight: Will the accused run away if released? This is sometimes mentioned as FLIGHT RISK.
- Possibility of Tampering with Evidence or Witnesses: If the petitioner is released on bail, and whether there is a possibility that he might try to influence the investigation or bias the witnesses.
- Health Conditions: Whether the petitioner is suffering from a serious illness, and if he is further detained in judicial custody, it might lead to serious complications. The serious illnesses like HIV, cancer, or kidney failure weigh heavily in favour of bail.
- Past Criminal Record: Often referred to as criminal antecedents. Here, the Court calls for the record and verifies if the accused is a first-time offender or a habitual criminal! In case the petitioner is a first-time offender, the Court shows leniency and
- Custodial Interrogation Requirement: In case the charge sheet is not prepared, the Court examines whether the police really need the accused in custody for further investigation.
Under BNSS Section 480 (similar to CrPC 437), the court has to balance the interests of justice, which provides that the Courts shouldn’t unnecessarily keep someone in jail if it can be avoided. If the offences are under special statutes, the burden of proof is reversed, and the courts take a less lenient view while disposing of the bail application. There is a detailed article regarding the cases involving special statutes. Read it here
Can Bail Be Granted If One Is Suffering From HIV?
Short answer: YES.
Courts are quite sympathetic to health conditions when deciding on bail applications. Suffering from a chronic or life-threatening illness like HIV is a strong ground for bail. Judges generally consider factors like the Seriousness of the disease, Access to proper medical care in jail, and Risk to the accused’s life due to inadequate prison facilities.
Under both Section 437 CrPC and Section 480 BNSS, "health reasons" are an important factor. Indian courts have often released prisoners on bail if their health demands constant, specialised treatment, which many jails simply can't provide. The Supreme Court and various High Courts have time and again ruled that the right to health is part of Article 21 (Right to Life) of the Constitution. Denying bail to someone critically ill could amount to a violation of their fundamental rights.
Case Study:
In the matter of “B Vs State of Odisha” reported in 137 (2024) CLT 1028/ 2024(I) ILR-CUT 1302, the Hon’ble High Court of Orissa was pleased to hold that if an accused is suffering from HIV, it is sufficient to release him on bail.
Background of the case:
The petitioner was booked under Section 21(b) of the N.D.P.S. Act for possessing brown sugar. After his arrest, he filed for his bail petition before the Court of Seisin, which was rejected since he had a criminal antecedent of a similar nature. He moved before the High Court, and liberty was granted to approach the learned Court of Seisin and move for a bail application annexing his medical documents. But the Special Court under the NDPS Act again rejected the Bail plea, observing that the Jail Authority is taking care of him by giving him proper treatment for HIV. Therefore, the petitioner again moved before the Hon’ble High Court seeking the grant of Bail.
Court’s Observation:
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (16 of 2017) (in short " the Act") has been enacted to provide for the prevention and control of the spread of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome and for the protection of human rights of persons affected by the said virus and syndrome and for matters connected therewith or incidental thereto. Section 34 of the Act empowers a court to pass an appropriate Order on a priority basis on an application made by the party concerned. As the petitioner is HIV+, even though the jail authorities have claimed that he is being provided with proper treatment, the petitioner is also entitled to live with dignity in an environment that is congenial to him, which is not possible inside jail. Hence, even though the petitioner has one antecedent of similar nature, he is entitled to be released on bail.
Quick Tip: What to Mention in a Bail Application
If an accused is seeking bail, make sure the application mentions:
Complete medical history (with documents, if claiming illness like HIV)
No criminal history, if there is one, mention in detail
Willingness to comply with conditions as deemed fit and proper by the court.
Final Thoughts
Getting bail isn't automatic, especially in non-bailable offences, but courts do understand practical realities. A person suffering from serious health issues like HIV absolutely has a prima facie strong case for bail. With the BNSS 2023 aligning closely with the old CrPC, the core ideas around granting bail — fairness, humanity, and justice — remain untouched.
Whether you’re a law student, a practicing lawyer, or just someone curious about the system, knowing these basics can really help.
Reference:
Order passed in “B Vs State of Odisha
Meghalaya HC grants bail to HIV positive accused under NDPS Act.
An Application Under Section 439 Of The ... vs State Of Odisha
Supreme Court Grants Bail To Accused Suffering From HIV
High Court Grants Bail to HIV+ Prisoner After Jail Authorities Fail to Provide Treatment
HIV Patient Case laws