Bharatiya Nagarik Suraksha Sanhita

Provisions as to Bail (Sec. 478 to 483)

Adv. Usha Andewar

Introduction

The word "bail" comes from the old French word "Baillier," which means to deliver
or hand over. The Law Lexicon defines bail as 'security for the appearance of the
accused person, on giving which he is released pending trial or investigation'. Black's
Law Dictionary describes it as a security like money or bond, often required by a
court to release a prisoner who must appear later.

In Gurbaksh Singh Vs. State of Punjab 1980, the SC held that grant of bail
means to set at liberty a person arrested or imprisoned on security being taken off
his appearance in the court on a particular day. The word 'bail' covers release on
one's own bond.

Objective of Bail

The object of arrest and detention of the accused person is primarily to secure his
appearance at the time of trial and to ensure that, in case he is found guilty, he is
available to receive the sentence. But if his presence at trial can be assured without
arresting him, it's unfair to detain him while the case is ongoing.

Personal liberty is one of the most valuable Fundamental Rights given under the
Constitution of India. The principle underlying the release on the bail is that the
accused is presumed innocent until proven guilty. A person released on bail is

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considered to be in constructive custody of the Court. (Sunil Fulchand Vs. Union
of India 2000).

Pre-trial detention leads to severe psychological and physical deprivations for the
Accused who is presumed innocent. The jailed defendant is prevented from
preparing for his defense and the innocent family members suffer equally due to this
detention. Therefore, the provision of Bail serves as a backbone of the Indian Legal
System and a means to protect life and liberty of the citizens as per Article 21 of the
Constitution.

The law says ‘No Jail but Bail’. In the case of Sanjay Chandra Vs. CBI (2011), the
court held that an accused cannot be detained in custody with the object of punishing
him on the presumption of guilt. Bail is a matter of right of the accused in bailable
offences, security proceedings.

Defiinitions
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
(d) "bail bond" means an undertaking for release with surety
(e) "bond" means a personal bond or an undertaking for release without surety

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 Regular Bail Interim Bail
Anticipatory Default Medical
Bail Bail
Bail

Section 478

❖ Person accused of a bailable offence – arrested or detained without warrant –

appears or brought before the court – prepared to give bail – to be released on
bail.
❖ If that person is indigent (poor/needy) – unable to furnish surety – release him
on bail bond.
❖ Person not able to give bail – within a week of arrest – sufficient ground to
presume he is indigent.
❖ Persons fails to comply with conditions of bond / bail bond – regarding
attendance etc. – court can refuse bail

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Section 479
Provision regarding the maximum period for which an undertrial can be detained

❖ Person undergone one-half of maximum period of imprisonment for that

offence – (and the offence is not punishable with death / life) - he shall be
released on bail.
❖ First time offender – released on bond – if undergone detention of 1/3rd of the
maximum sentence.
❖ After hearing Public Prosecutor – and reasons being recorded – can be
detained for more than one-half or release him on bail bond instead of bond
❖ During investigation, inquiry, trial – cannot be detained for more than
maximum period if imprisonment.
Bail can't be granted if multiple cases are pending.
Obligation of Jail Superintendent - Jail Superintendent to submit a written
application to the court for releasing under-trial prisoners on bail after serving
either one-third or one-half of the sentence, depending on the case.
Section 480

1. Bail Eligibility

Individuals accused of non-bailable offences can be granted bail, except under

certain conditions – Bail may be denied if there are reasonable grounds to
believe the accused has committed an offence punishable by death or life
imprisonment.

2. Cognizable Offences and Previous Convictions

Bail may be denied if the accused has a previous conviction for certain
offences, highlighting the seriousness of the allegations (i.e. offence

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 punishable with death / life / more than 7 years / convicted before for
cognizable offence on 2 or more occasions with imprisonment for 3 years or
more and less than 7 years.

Exceptions are made for children, women, or those who are sick or infirm.

3. Special Reasons for Bail

The court can, under special circumstances, direct bail even if the conditions
of sub-section 1 are met, providing flexibility in the interest of justice.

4. Witness Identification

Bail cannot be refused solely based on the need for the accused's identification
by witnesses during the investigation. OR police custody required beyond 15
days no reason to refuse bail.

An undertaking to comply with court directions can be a crucial factor in

granting bail.
5. Public Prosecutor's Involvement

If offence punishable - with death / life imprisonment / or seven years or more,

the accused cannot be released on bail without giving an opportunity for the
Public Prosecutor to be heard.

6. Insufficient Grounds for Non-Bailable Offence

If, during any stage of the investigation or trial, there are insufficient grounds
for believing the accused committed a non-bailable offence, bail may be
granted.
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7. Imposition of Conditions
Offence punishable with imprisonment of 7 years or more – Under Chapter
VI (Offences affecting human body), VII (Offences against State) or XVII
(offences against property) of BNS

Conditions for bail include ;

▪ Attendance as per the bond
▪ Refraining from similar offences
▪ Shall not directly or indirectly make inducement, threat or promise to
witnesses or any person acquainted with the facts
▪ Tampering with evidence

The court may impose additional conditions in the interest of justice.

8. Recording Reasons
Officers or courts releasing individuals on bail must record reasons or special
reasons in writing for their decision, promoting transparency.

9. Re-arrest and Custody

The court has the authority to re-arrest and commit an individual to custody if
deemed necessary after being released on bail.

10. Time-bound Release

If the trial is not concluded within 60 days – from the first date fixed for taking
evidence – in a Magistrate's trial, the accused must be released on bail, unless
specified otherwise.

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11. Post-trial Release

If, after the trial, the court believes there are reasonable grounds to believe the
accused is not guilty, they shall release the accused on the execution of a bond
without sureties.

Section 481

❖ Before conclusion of trial And disposal of Appeal – Trial or Appellant Court

– shall require bond / bail bond to appear in the higher Court as and when
notice issued – in respect of Appeal / Petition against the judgment.
❖ Such bond shall be in force for 6 months.
❖ Accused fails to appear – bond stands forfeited.

Section 482

Anticipatory Bail
❖ When someone expects to be arrested for a crime, they can apply for
anticipatory bail before court to avoid detention.
❖ Can apply to High Court or Court of Sessions
❖ If fit case – anticipatory bail is granted on arrest

Conditions
❖ Will be available for interrogation by police as and when required
❖ Shall not directly or indirectly make inducement, threat or promise to
witnesses or any person acquainted with the facts
❖ Shall not leave India without permission of Court

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 BNSS now prohibits anticipatory bail for those accused of rape involving
women under 16 and 12 years old (Section 65 of BNS) and gang rape on
women under 18 years (Section 70 (2) of BNS)

Section 483

❖ Special powers to High Courts and Courts of Sessions for granting bail to a
person accused of an offence and who is in custody on conditions that the said
court deems fit.
❖ Conditions can be set aside or modified – imposed by magistrate.
❖ No High Court or Court of Sessions shall grant bail to a person accused of an
offence triable under Section 65 or Section 70 (2) of BNS without giving prior
notice of 15 days of the application for bail to the Public Prosecutor.
❖ Additionally, the presence of the first informant or any other person authorised
by him is also obligatory at the time of hearing the application for bail for a
person accused of an offence triable under Section 65 or Section 70 (2) of
BNS.

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