WRITS (TYPES)
DRAFTING FORMATS
UNIT - III
BAIL
SS. 478-482 BNSS,2023
Section 2 of BNSS:
Clause (b) de nes "bail" as “bail" means release of a person accused of or suspected
of commission of an o ence from the custody of law upon certain conditions imposed
by an o cer or Court on execution by such person of a bond or a bail bond.
Clause (d) de nes "bail bond" as, "bail bond" means an undertaking for release with
surety.
Clause (e) de nes "bond" as "bond", which means a personal bond or an undertaking
for release without surety.
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Stages of Bail
A person named as an accused in the FIR can seek pre-arrest bail from a Court of Sessions or a High Court and/ or
an arrested accused person can seek regular bail from a trial court and/ or a Court of Sessions or a High Court.
i. Anticipatory Bail under Section 482
High Courts and Courts of Sessions are empowered under Section 482 of BNSS to issue directions for bail to be
granted to a person apprehending arrest. Anticipatory bail can only be sought for o ences that are non-bailable in
nature. While making such directions, the concerned court can put the person under conditions depending on the
case-speci c facts including that a person shall make himself available for interrogation by a police o cer as and
when required, a condition to not tamper with evidence, etc.
The striking di erence between Section 438 of the CrPC and Section 482 of BNSS is that the legislation has now
deleted factors which are required to be taken into consideration by courts for granting anticipatory bail. These
factors include the nature and gravity of the accusation, antecedents of the applicant, the possibility of eeing from
justice etc. This provision has relaxed the stringent conditions on which anticipatory bail was earlier granted. This a
welcome step which will be appreciated by the courts while deciding applications for anticipatory bail.
However, it must importantly be noted that anticipatory bail is not available for o ences under Sections 65 and 70(2)
of BNS, namely, for the o ences of rape of a minor (below 16 years of age) and gang rape of a female (below 18
years of age) respectively.
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ii. Bail
Regular bail can only be sought by a person who is in judicial custody for o ences which are non-
bailable in nature. If any person accused of a bailable o ence is arrested or detained by a police o cer
without a warrant or is produced before a court, then such an o cer or court can grant bail to such a
person.
a. Bail under Section 480 for non-bailable o ences
An application for regular bail can be moved by a person who has been arrested or detained without a
warrant for any non-bailable o ence before any court other than a High Court or Court of Sessions.
b. Bail under Section 483
Section 483 of BNSS grants special powers to High Courts and Courts of Sessions for granting bail to
a person accused of an o ence and who is in custody on conditions that the said court deems t. No
High Court or Court of Sessions shall grant bail to a person accused of an o ence triable under
Section 65 or Section 70(2) of BNS without giving prior notice of the application for bail to the Public
Prosecutor. Additionally, the presence of the rst informant or any other person authorised by him/ her
is also obligatory at the time of hearing the application for bail for a person accused of an o ence
triable under Section 65 or Section 70(2) of BNS.
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c. Cancellation of bail
Any court granting bail under Section 480 of BNSS can cancel a bail that has been
granted and direct that the person in question be arrested and committed to custody.
The same can be done under Section 480(5) of BNSS.
Similarly, a High Court and a Court of Session can cancel the bail granted under
Section 483, by invoking powers under Section 483(3) of BNSS. It is worth
mentioning that despite there being several judgments on the cancellation of bail, the
legislature has chosen to remain silent on the grounds on which bail can be
cancelled.
This grants wide powers to the judiciary for cancelling bail once granted. This allows
for the potential hampering of an individual’s fundamental right to life and liberty as
guaranteed by the Constitution of India.
