BNSS

Lecture – 29 By – Karan Sangwan

Topics
1 Bail and Bonds under BNSS (Sec. 478 - Sec. 496)
 Section 478: In what cases bail to be taken (Bail in Bailable
Offences)
When a person accused of a bailable offence (less serious offence) is arrested or appears before a police
officer or court, and if they are willing to give bail (provide surety or bond), the police or court must release
them on bail.
However, if the arrested person is poor (indigent) and unable to furnish sureties, the police or court must
release them simply on executing a personal bond without insisting on sureties.

(1) Bail in Bailable Offences (Sub-section 1):

• If a person accused of a bailable offence:
• Is arrested without a warrant, or
• Appears voluntarily or is presented before the court, and
• Is willing to provide bail (bond/surety),
Then such a person must be granted bail immediately by police or court.
 Section 478: In what cases bail to be taken (Bail in Bailable
Offences)
First Proviso (Regarding Poor Persons):
• If the arrested person is poor (indigent) and unable to arrange sureties, the court or police officer must
release him/her on a personal bond, meaning the person only promises to appear when required, without
needing someone else as surety.
• If the arrested person remains unable to provide a bail bond for one week, police or court must
automatically presume that the person is indigent and must release them on a personal bond.

Second Proviso (Exception):

• This rule does not affect specific provisions such as Section 135(3) and Section 492.

(2) Refusal of Bail (Sub-section 2):

• If a person previously released on bail violates bail conditions (e.g., doesn’t appear in court on time),
then if later arrested or appearing before the court again in the same case, the court can refuse bail due to
this past breach.
• Refusing bail under these circumstances does not prevent the court from imposing a penalty or
fine on persons who stood as sureties if the accused violates bail conditions, under Section 491.
 Section 479: Maximum Period for Detention of Under-
Trial Prisoners
(1) General Rule of Bail:
• If an under-trial prisoner has spent half (½) the time of the maximum punishment prescribed for the
alleged offence, bail becomes mandatory.
First Proviso (Benefit for First-Time Offenders):
• If the accused has no prior criminal conviction, bail (personal bond, no surety required) is mandatory
after detention equal to one-third (⅓) of the maximum punishment.
Second Proviso (Exception for Continued Detention):
• The court can still order the continuation of detention beyond half of the maximum sentence if justified
with
written reasons and after hearing the Public Prosecutor.
Third Proviso (Absolute Maximum Limit):
• Under no circumstances can detention exceed the maximum prescribed punishment for that specific
offence.
Explanation (Delay by Accused):
• The time period lost due to delays intentionally caused by the accused is not counted when calculating
detention periods for release.

(2) Multiple Cases Exception:

• If an accused is facing multiple criminal cases simultaneously, then despite meeting the above
criteria, the accused will not automatically be eligible for bail under this provision.
 Section 479: Maximum Period for Detention of Under- Trial
Prisoners
(3) Jail Superintendent's Duty:
• It’s the Jail Superintendent’s responsibility to notify the court in writing as soon as an accused
reaches the threshold detention period (½ or ⅓), requesting the court to grant bail.
 Section 480: When Bail may be taken in Non-Bailable
Offences
(1) When Can Bail Be Granted in Non-Bailable Offences?
• Bail in serious offences is discretionary—not automatic.
• Bail should generally not be granted if:
• There are reasonable grounds suggesting guilt in an offence punishable by death or life imprisonment.
• The accused previously had serious convictions (punishable with imprisonment of 7+ years) or multiple
convictions (two or more) for offences punishable with imprisonment of 3 years or more.
Exceptions (Special Considerations):
• The court may still grant bail if the accused is a:
• Child (under 18 years)
• Woman
• Sick or infirm (physically weak/unwell)
• Court may grant bail if there is any other special reason justifying release even if the accused has a
serious past conviction.
Additional Note:
• Merely needing the accused for identification by witnesses or extended police custody (beyond first 15
days) cannot be the sole reason to refuse bail.
Mandatory Public Prosecutor Hearing:
• If the offence is punishable by 7+ years imprisonment, life imprisonment, or death, the court must hear
the
Public Prosecutor before granting bail.
 Section 480: When Bail may be taken in Non-Bailable
Offences
(2) If Guilt Seems Doubtful (Sub-section 2):
• If the court/police officer finds there are no strong reasons to believe that the accused committed the
non- bailable offence (yet sufficient grounds for further inquiry), bail or personal bond should be granted.

(3) Conditions for Bail (Sub-section 3):

When bail is granted for serious offences (punishable with imprisonment of 7 years or more, or offences under
Chapters VI, VII, XVII of the Bharatiya Nyaya Sanhita, 2023 like crimes against the State, offences affecting
human body, or property crimes), the court must impose conditions, like:
• Attending court hearings regularly.
• Not committing similar offences again.
• Not threatening, inducing, or influencing witnesses or tampering with evidence.
• Any other necessary condition in the interest of justice.

(4) Reasons to be Recorded (Sub-section 4):

• Courts/officers granting bail under sub-sections (1) or (2) must clearly record their reasons in writing.

(5) Cancellation of Bail (Sub-section 5):

• If later found necessary, a court that earlier granted bail can cancel it and arrest the accused again.
 Section 480: When Bail may be taken in Non-Bailable Offences
(6) Mandatory Bail after Delay in Trial (Sub-section 6):
• If a Magistrate-level trial for a non-bailable offence isn't concluded within 60 days from the first date
fixed for evidence, the accused must be granted bail unless the Magistrate explicitly records reasons for not
granting bail.

(7) Release Before Judgment (Sub-section 7):

• After the trial but before the final judgment, if the court believes the accused is likely not guilty, they
must release the accused on a personal bond until judgment is pronounced.
 Section 481: Bail to Require Accused to Appear Before Next
Appellate Court
(1) Bond/Bail Bond for Appearance in Higher Court:
• While granting bail, trial or appellate courts must ask the accused to sign a bond/bail bond.
• Through this bond, the accused promises to appear before the higher court whenever notified if there’s an
appeal against the judgment.
• The validity of this bond is 6 months from the date it is executed.

(2) Consequences of Failure to Appear:

• If the accused does not appear before the higher court as promised, their bond is forfeited (cancelled).
• Upon forfeiture, the process laid down under Section 491 (procedure to recover penalty or take further
legal
action for breach of bond conditions) will be applicable.
 Section 482: Direction for Grant of Bail to Person Apprehending
Arrest (Anticipatory Bail)
Anticipatory Bail, allowing a person who fears arrest for a non-bailable offence to approach the High Court or
Court of Session in advance, seeking protection from arrest.

(1) Anticipatory Bail Application:

• Anyone who reasonably fears arrest for a serious (non-bailable) offence can approach:
• The High Court, or
• The Court of Session
• to seek anticipatory bail.
• If the court finds it just and proper, it can issue directions that the person, upon being arrested later, must
be
released on bail immediately.

(2) Conditions for Anticipatory Bail:

The court granting anticipatory bail may impose conditions such as:
• Availability for questioning by police whenever needed.
• No threats, promises, or inducements to witnesses or anyone familiar with case details.
• Not leaving India without the court’s prior permission.
• Any other suitable condition specified under Section 480(3).
 Section 482: Direction for Grant of Bail to Person Apprehending
Arrest (Anticipatory Bail)
(3) Procedure upon Subsequent Arrest:
• If later arrested without a warrant, the accused must be immediately released on bail upon giving
the bail bond, in line with the anticipatory bail order.
• If a Magistrate subsequently decides to issue a warrant for this accused person, it must be a bailable
warrant,
consistent with the earlier anticipatory bail order.

(4) Exceptions (Cases Where Anticipatory Bail Isn't Allowed):

• This provision of anticipatory bail cannot be used for offences specified under:
• Section 65 or
• Section 70(2) of the Bharatiya Nyaya Sanhita, 2023.
 Section 483: Special Powers of High Court or Court of Session
Regarding Bail
(1) Special Powers Regarding Bail (Sub-section 1):
A High Court or Sessions Court can:
• Grant bail to any accused person who is currently in custody.
• Impose special conditions if the offence falls under serious categories (punishable by 7 years or more, or
offences under Chapters VI, VII, XVII of Bharatiya Nyaya Sanhita, 2023).
• Change or cancel any conditions set by a Magistrate during earlier bail proceedings.

Conditions for Serious Offences (First Proviso):

• If the offence is exclusively triable by a Sessions Court or punishable by life imprisonment, the court
must inform the Public Prosecutor before granting bail, unless impractical (reasons must be recorded if
not practicable).

Special Conditions for Offences under Sections 65 and 70(2) (Second Proviso):
• For offences under Section 65 or Section 70(2) (grave offences like national security threats), the High Court
or
Sessions Court must give notice to the Public Prosecutor within 15 days of receiving the bail application.

(2) Presence of Informant at Bail Hearing (Sub-section 2):

• In cases involving offences under Sections 65 or 70(2) of Bharatiya Nyaya Sanhita, 2023, the informant or
 their
authorized representative must be present during the bail hearing.
 Section 483: Special Powers of High Court or Court of Session
Regarding Bail
(3) Cancellation of Bail (Sub-section 3):
• High Court or Sessions Court may cancel bail, directing re-arrest and custody of any person who has
previously been granted bail.
 Section 484: Amount of Bond and Reduction Thereof

(1) Reasonable Amount of Bond (Sub-section 1):

• The court must fix the bond or bail amount considering the seriousness of the offence, the accused’s
financial
capability, and other relevant circumstances.
• The amount fixed should never be excessive or unreasonable.

(2) Reduction of Excessive Bail (Sub-section 2):

• If the bail amount set by a police officer or Magistrate is very high and unreasonable, the
accused can approach the High Court or Sessions Court.
• The High Court or Sessions Court can then reduce the bail amount to a fair and reasonable figure.
 Section 485: Bond of Accused and Sureties

(1) Execution of Bond and Sureties (Sub-section 1):

• Before an accused is released on bond or bail bond, they must sign a personal bond, promising to
appear at specified times and places (court/police station).
• Alongside the accused’s bond, the bond must also be signed by one or more sureties who promise to
ensure
the accused's attendance.

(2) Conditions of Release Included (Sub-section 2):

• If the police or court sets any specific conditions (e.g., regular attendance at a police station, restrictions on
travel), these must be explicitly included in the bond or bail bond.
(3) Bond Applies to Higher Courts as well (Sub-section 3):
• The bond or bail bond also binds the accused to appear before higher courts (like Sessions Court or
High Court) whenever called upon for answering charges.

(4) Assessing Fitness and Sufficiency of Sureties (Sub-section 4):

• The court must verify if sureties are suitable (trustworthy, financially stable).
• Verification can be done either:
• Through affidavits (sworn statements).
• Through an inquiry conducted by the court itself or by any subordinate Magistrate.
 Section 486: Declaration by Sureties
• When someone agrees to act as a surety (someone who guarantees that the accused will follow
court conditions and appear in court), they must clearly declare before the court:
• How many people, including the current accused, they have already stood surety for.
• Relevant details of those cases (like names, case details, court information).
This ensures courts can assess the credibility and reliability of sureties effectively.
 Section 487: Discharge from Custody upon Execution of
Bond
(1) Immediate Release after Execution of Bond:
• As soon as the bond/bail bond is signed and formalities are completed, the accused must be
released immediately.
• If the person is in jail, the court issues a specific release order to jail authorities to ensure prompt release.

(2) Release Limited to Specific Case:

• The accused's release only applies to the particular offence or matter for which bail was granted.
• If the accused is also in custody for other offences, they remain detained for those other cases, despite the
execution of bail bond in the current case.
 Section 488: Power to Order Sufficient Bail when First Bail is
Insufficient
• Sometimes, a court mistakenly accepts sureties (guarantors) who aren't capable or financially
strong enough.

• If the court later realizes the sureties are insufficient (not capable of fulfilling their promise), it can order the
re-arrest of the accused.

• After re-arrest, the accused must provide new and sufficient sureties.

• If the accused fails to provide new sufficient sureties, they may be sent back to jail.
 Section 489: Discharge of Sureties
• A surety (person who has guaranteed an accused's attendance in court) can later request the court
to discharge (release) them from their obligation.
• When such a request is made, the court will issue a warrant to bring the accused to court.

• Once the accused appears, the court discharges the original surety and asks the accused to provide
new sureties.

• If the accused can't find new sureties, they may be sent back to jail.
 Section 490: Deposit Instead of Recognizance
• Instead of executing a bond with sureties, the court or police officer can allow the accused person to deposit
a sum of money or government bonds directly with the court.

• This deposited money acts as a security, ensuring the accused’s appearance in court.

• This provision does not apply to bonds for maintaining good behavior (Section 492 bonds).
 Section 491: Procedure when Bond has been Forfeited

(1) When does Bond get Forfeited (Sub-section 1)?

A bond is forfeited if:
• The accused fails to appear in court when required, or
• Fails to produce property as promised, or
• Breaks any other conditions of the
bond. The court must:
• Record the reasons for concluding the bond was forfeited.
• Give the accused or surety a chance to explain (show cause) or pay the penalty amount.
Explanation:
If the case is transferred from one court to another, the bond conditions still apply in the new court.

(2) Recovery of Penalty (Sub-section 2):

• If no valid reason is provided and the penalty isn’t paid, the court can recover the penalty amount as if it
was a
fine.
• If it can't be recovered, the surety can be sent to civil jail for up to six months.

(3) Partial Remission (Reduction) of Penalty (Sub-section 3):

• The court may reduce the penalty amount, giving written reasons, and recover only part of the
penalty if deemed fit.
 Section 491: Procedure when Bond has been Forfeited

(4) Death of Surety (Sub-section 4):

• If the surety dies before the bond is forfeited, their family or estate won’t be responsible for
paying the penalty.

(5) Conviction as Evidence against Surety (Sub-section 5):

• If someone who executed a bond is convicted of an offence which breaches bond conditions, a certified
copy of the conviction judgment can be evidence against their sureties.
• The court assumes the accused indeed committed the breach unless proven otherwise.
 Section 492: Cancellation of Bond and Bail Bond

(1) Immediate Cancellation of Bonds upon Violation:

• If a bail condition is broken (for example, the accused doesn't appear in court), the personal bond
of the accused and the bonds of their sureties automatically get cancelled.

(2) Restriction on Future Release on Personal Bond:

• After such cancellation, the accused can no longer be released solely on their personal bond
(without sureties), unless the court or police is satisfied there's a genuine reason for their absence or
breach.
(3) Option to Provide Fresh Bonds and Sureties:
• The accused may still be released later by submitting a new personal bond along with fresh
sureties as required by the court or police officer, subject to satisfaction.
 Section 493: Procedure in case of insolvency or death of surety, or
forfeiture of bond
• If a surety (the guarantor of someone's bail) either becomes insolvent (financially unable to pay debts),
dies, or if a bond is forfeited (due to breach of bail conditions), the court may require the accused to
provide new sureties.

• If the accused cannot provide fresh sureties as required, the court may treat it as if the accused has
violated the bail conditions, possibly leading to re-arrest.
 Section 494: Bond required from child

• If the accused is a child (below 18 years), the court will not require the child to sign the bond directly.

• Instead, the court accepts the bond executed only by sureties (such as parents or guardians).
 Section 495: Appeal from orders under Section 491
• If a person disagrees with an order related to forfeiture of bond or surety penalties under Section 491,
they can appeal against it.

• If the Magistrate passed the order, the appeal goes to the Sessions Judge.

• If the Sessions Court passed the order, the appeal goes to the higher court that hears appeals from
that Sessions Court (typically the High Court).
 Section 496: Power to direct levy of amount due on certain
recognizances
• The High Court or Sessions Court can instruct any Magistrate to collect (levy) the amount due from a
bond executed to ensure appearance in these higher courts.

• This means that if a bond related to attendance in High Court or Sessions Court is broken, the Magistrate can
be directed to recover the penalty amount.