Delhi High Court Suggests Changes In Section 438 Of New CrPC (BNSS) On Bail Requirement For Release After Acquittal, Says Replace 'Shall' With 'May'

The Delhi High Court has suggested the Parliament's Select Committee to make changes in Section 438 of the new CrPC[BNSS] (akin to Section 437A of Code of 1973) pertaining to the requirement of furnishing of personal bond with surety by an accused on his acquittal.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna suggested the Select Committee to replace the word “shall” with “may” and replace the word “bail or bail bond” with “personal bond with or without surety.”

Section 437A of CrPC [Bharatiya Nagarik Suraksha Sanhita, 2023] makes it mandatory for the accused to execute bail bonds with sureties and to appear before the higher Court as and when the court issues notice in the appeal or petition filed against the judgment and that such bail bonds shall be in force for six months.

This means that when an accused is acquitted of the charges tried against him, he has to mandatorily furnish personal bond with surety bond on acquittal.

Similar provision has been incorporated under Section 438 in the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, which seeks to repeal and replace CrPC 1973. Apart from the CrPC, two other Bills have also been introduced to replace the Indian Penal Code and the Indian Evidence Act.

The bench was hearing a plea raising the issue regarding the mandatory requirement, especially in cases where the accused is forced to continue to remain in jail despite his acquittal due to non-furnishing of the surety.

The counsel appearing for the Union Government told court that the new Criminal Laws, presently under consideration of the Parliament, will answer the issue raised in the matter.

However, on perusing the provision in question in the new CrPC, the bench said that even Section 483 does not resolve the issue.

“The aforesaid Section stipulates that bail is required by the accused to appear before next Appellate Court and the Court who is trying the offence or the Appellate Court, as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court, shall “require the accused to execute bond or bail bond”. In the aforesaid section, the word 'shall‟ means “it is mandatory for the accused to furnish bail bond with surety”,” the court said.

It added: “Therefore, we suggest that the Select Committee should replace the word 'shall‟ with 'may‟ and replace the word „bail or bail bond‟ with „personal bond with or without surety‟.”

However, noting that it may take some time for the new Criminal Laws to be modified, the bench, in the meanwhile, directed the trial courts that in cases relating to Section 437A of CrPC, the word 'shall‟ shall be read as 'may‟ and the word “bail or bail bond‟ shall be read as “personal bond with or without surety‟.

“Copy of this order be provided to the Principal District & Sessions Judges who shall get this order circulated to all the Judicial Officers of their Districts. Copy of this order shall also be sent to the Select Committee for consideration,” the court said.

Harsh Prabhakar (DHCLSC) with Advocates Dhruv Chaudhary and Adeeb Ahmad for the appellant.

APP Manjeet Arya appeared for the State. CGSC Ripu Daman Bhardwaj with Advocate Abhinav Bhardwaj appeared for Union of India.

Advocate Jawahar Raja appeared as Amicus Curiae with Advocates Aditi Saraswat, Varsha Sharma and Parth Goyal.

Advocates Sumer Kumar Sethi and Dolly Sharma appeared for DSLSA.

Title: FIRASAT HUSSAIN v. STATE OF NCT OF DELHI

Citation: 2023 LiveLaw (Del) 934

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