Bail in a Bailable Offence: Why It Is a Right Under Section 478 BNSS

People arrested for the first time often assume that bail always depends on the court's discretion. For bailable offences, that is not the position. Indian criminal procedure treats bail in a bailable offence as a matter of right, and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) carries this rule forward from the old Code of Criminal Procedure.

General information, not legal advice.

Bailable and non-bailable offences

Whether an offence is bailable is fixed by law, not decided case by case. The First Schedule to the BNSS lists offences under the Bharatiya Nyaya Sanhita, 2023 and marks each as bailable or non-bailable. Offences under other laws follow the classification in that law, or the general rules in the Schedule.

Bailable offences are generally the less serious ones. Non-bailable offences are those where the law leaves bail to the court's judgment.

What Section 478 says

Section 478 BNSS (which corresponds to Section 436 of the CrPC) provides that a person accused of a bailable offence, who is arrested or detained without warrant by a police officer, or who appears or is brought before a court, shall be released on bail if prepared to give bail at any time while in custody.

The key word is "shall". The police officer in charge or the court must grant bail. They do not weigh the seriousness of the allegation in the way they would for a non-bailable offence.

Bond with or without sureties

Bail may be on a bond with sureties, or on a personal bond without sureties. Section 478 directs that where the person is indigent and cannot furnish surety, they should be released on executing a bond without sureties. The provision treats a person who cannot furnish bail within a week of arrest as presumed indigent.

Can the right be lost?

Yes, in one situation the law describes. If a person released on bail fails to comply with the conditions of the bail bond as regards time and place of attendance, the court may refuse bail when the person next appears or is brought before it in the same case. Attending every date is therefore important.

Undertrial detention limit

Separately, Section 479 BNSS (which corresponds to Section 436A CrPC) limits how long an undertrial can be held. In general, an undertrial who has served half the maximum sentence for the offence must be released on bond; for a first-time offender, the BNSS reduces this to one-third, subject to the exceptions in the section.

Practical points

1. Ask at the time of arrest which sections are applied and whether they are bailable.
2. Keep identity documents and surety details ready, since police and courts often ask for them.
3. Note every date fixed for appearance after release.

Information about criminal, bail and other matters handled near Bankshall Court, Kolkata is on advocategajanan.com.