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Bail Provisions in BNSS

With the new criminal laws coming in force, the legal practitioners - particularly Criminal Lawyers, law students and the ordinary people at large have their own set of doubts related to specific provisions. While bail remains at the heart of criminal matters, regardless of the stage of trial, here is an attempt to throw some light upon the provision related to Bail under BNSS - Bharatiya Nagarik Suraksha Sanhita, 2023. It may be noted that there is no major change in law for bail under CrPC.  

Definitions related to Bail under BNSS

The importance of defining certain terms can never be undermined in the legal world. While the Code of Criminal Procedure did not define the terms such as bail, bail bond and bond, BNSS has done the deed in this aspect. Given below are the definitions of bail related facets in BNSS: 

• Section 2(b) - "bail" means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;

• Section 2 (d) "bail bond" means an undertaking for release with surety; 

• Section 2 (e) "bond" means a personal bond or an undertaking for release without surety;

Regular Bail under BNSS

Without diverting from the provision under Section 436 of CrPC, Section 478 for bail provision in BNSS lays the law for regular bail. In other words, it provides the circumstances when a person gains the right to be released on bail in cases of bailable offences. Another positive aspect is the special provision regarding bail for indigent persons unable to furnish surety, to be discharged on executing bond for appearance.

“478. In what cases bail to be taken:

(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: 

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge him on his executing a bond for his appearance as hereinafter provided. 

Explanation.—Where a person is unable to give bail bond within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso:

 Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 135 or section 492. 

(2) Notwithstanding anything in sub-section (1), where a person has failed to comply with the conditions of the bond or bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond or bail bond to pay the penalty thereof under section 491.”

Case Law on Section 436 of CrPC - Section 478 of BNSS

In case of Rasiklal V/s Kishore Khanchand Wadhwani (AIR 2009 1341), the hon’ble Supreme Court of India reinforced the sense of ‘right to bail’ under the provision. The Apex Court held that “As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative.”

What is Section 437 CrPC in BNSS?

Section 437 of CrPC laying the provision for bail in non-bailable offences has been restored under Section 480 of BNSS. Speaking of difference in provision of bail under BNSS Section 437 as against CrPC, since the term ‘child’ has been defined under new criminal laws, it does not specify the age of 16 years as against that of CrPC. It also introduced the requirement of the accused person for identification by witnesses during investigation “or for police custody beyond the first fifteen days” to negate as sufficient ground for refusal of bail.

Some people get confused between the provisions of anticipatory bail as against this bail in non-bailable offences. The difference is that while anticipatory bail may be granted in non-bailable offences before a person is apprehending arrest, Section 480 allows bail in cases where the person has already been arrested and in custody. Section 480 of BNSS lays that:

“480. When bail may be taken in case of non-bailable offence:

 (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but— 

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; 

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is a child or is a woman or is sick or infirm: 

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation or for police custody beyond the first fifteen days shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: 

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 494 and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond for his appearance as hereinafter provided. 

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,— 

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter; 

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and 

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary. 

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. 

(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. 

(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond for his appearance to hear judgment delivered.”

Case Law on Section 437 of CrPC - Section 480 of BNSS

The Supreme Court in Bashir and Others v. State of Haryana (decided on 3/10/1977) clarified the dilemma regarding cancellation of bail under Section 437 of CrPC. The Court illuminated that -  

“Subsection (5) to section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under section 437(1) or (2). Section 437(5) empowers the court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167(2). Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody.”

Anticipatory Bail under BNSS 

The provision for Bail under Section 438 of CrPC has been restored through Section 482 under the BNS. Section 482 of the Bharatiya Nyaya Sanhita lays for the provision for anticipatory bail in BNSS. It lays the option of bail for persons yet to be arrested but apprehending arrest due to being named in a non-bailable offence. In such cases, High Court or the Session Courts have special powers to grant bail if they deem fit, while imposing conditions as specified hereunder. The provision for anticipatory bail under BNSS reads as: 

“482. Direction for grant of bail to person apprehending arrest:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. 

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required; 

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; 

(iii) a condition that the person shall not leave India without the previous permission of the Court; 

(iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). 

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.”

Case Law on Anticipatory Bail under CrPC - Section 482 of BNSS

The Supreme Court in Lavesh vs. State (NCT of Delhi) ((2012) 8 SCC 730) held that “Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.”

Special Powers of High Court/Sessions Court

Section 439 of CrPC has been reincarnated into the BNSS under Section 483. The provision grants special powers to the High Court and the Sessions Court regarding grant of bail under BNSS. It leaves scope for the two Courts to release a person on bail while imposing necessary conditions, and also improve or set aside the bail orders passed by the Magistrate. There are powers to cancel the bail granted and to order arrest and custody of the person released on bail. The provision reads as:

“483. Special powers of High Court or Court of Session regarding bail:

(1) A High Court or Court of Session may direct,— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice: Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023. 

(3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

Case Law on Section 439 of CrPC - Section 483 of BNSS

The Supreme Court in Sundeep Kumar Bafna vs State Of Maharashtra & Anr (2014 AIR SCW 2115) negated any compulsion over High Court to entertain bail applications under Section 437 of CrPC. The Court said that “there are no provisions in the CrPC contemplating the committal of a case to the High Court, thereby logically leaving its powers untrammelled. There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court.”

Written by: Advocate Kalpana Sanap