Introduction

Bail is a fundamental concept in the criminal justice system that allows the temporary
release of an accused person awaiting trial, balancing the presumption of innocence
with the necessity of ensuring justice. Historically, Indian bail law has been governed by
the Cr PC, 1973. However, the BNSS, 2023, brings sweeping changes aimed at
addressing contemporary challenges in criminal justice, such as reducing frivolous bail
applications and preventing misuse by both the accused and prosecution. This section
will outline the evolution of bail laws, leading to the need for these reforms.
Meaning of Bail
The term ‘bail’ is derived from the French word ‘baillier’ which means ‘to give away or
deliver’. Bail is also defined as “the setting free of the defendant by releasing him from
the custody of law and entrusting him to the custody of his sureties who are liable to
produce him to appear for his trial at a specific date and time.”
Definition of Bail
According to Section 2(b) of the BNSS, the term 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 bail
bond.”
The discussed definition introduces two essential components i.e., bail bond and bond.
The term ‘bail bond’ means an undertaking with sureties for the release of an accused
from the custody while the term ‘bond’ a personal undertaking or bond without sureties
for the release of an accused from the custody.
Right to bail is one of the essential aspects of right to life and personal liberty as
enshrined under Article 21 of the Constitution of India, 1950 (hereinafter referred as
COI).
In the case of Kashmira Singh v. State of Punjab, the hon’ble Supreme Court of India
(hereinafter referred as SC) considered the situations wherein people are kept in jail for
years and later acquitted in the case. On the basis of the said considerations, the SC
held that right to bail of a person is protected under Article 21 of the COI and it can only
be refused in accordance with the procedure established by law.
Recently in the case of Jalaluddin Khan v. Union of India, the hon’ble SC held that
the bail is a rule and jail is an exception and balanced the right to personal liberty and
criminal liability of the offender.
Authority to grant bail
One of the essential aspects of the bail under the BNSS is that who has the authority to
grant bail under the law. To understand the above said aspect, it is important to
understand the categorization of the offences which is wholly done on the basis of the
bail i.e., bailable offence and non-bailable offence. According to section 2© of the
BNSS, “the bailable offence means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force and
non-bailable means any other offence”. In bailable offences, the authority granting bail
has limited discretion to which the right to bail of an accused is subjected while in non-
bailable offences, the authority is wide discretionary powers.
Under BNSS, there are two authorities which can legally grant bail to the accused
persons. In cases of bailable offence, the officer in charge of a police station and the
Court have the power with limited discretion to grant bail to the accused person, while in
the cases of non-bailable offence, the Court has more power and discretion than the
police officer. According to section 480(2) of the BNSS, the court or the police officer
may release the accused on the execution of the bail bond or bond, if there are no
reasonable grounds to believe that the accused person has committed any non-bailable
offence. Thus, it can be concluded that both the officer in charge of a police station and
the court have the power to grant bail. Also, according to Section 47 of the BNSS, it is
the duty of the police officer to inform the person regarding his right to bail, if he is
arrested without warrant for any bailable offence.
Special powers of High Court and Session Court
Under Section 483 of the BNSS, the High Court and the Session Court have special
powers in the matter of bail. Under the said section, the mentioned courts have power,
To impose any condition if the person is accused of offences affecting the human body
or of offences against the state or of offences against property or of abetment of the
said offences.
To set aside or modify any condition imposed by the magistrate while granting bail.
To notify the public prosecutor regarding the bail application and to seek presence of the
informant while hearing bail application for the offence under section 65 and 70(2) of the
Bharatiya Nyaya Sanhita, 2023.
To direct the arrest of any person released on bail
When Bail May Be Granted in a Non-Bailable Offence (Section 480 BNSS)
Even in cases of non-bailable offenses, the court has the discretion to grant bail. The
general principle is "bail, not jail," but this is subject to certain conditions and
considerations. The court will consider various factors before granting bail, including:
 * Nature and Gravity of the Offence: More heinous crimes are less likely to result in
bail.
* Evidence Reliability: The strength of the prosecution's case and the reliability of the
evidence.
* Accused's Character and Antecedents: The past criminal record or conduct of the
accused.
* Risk of Flight: Whether the accused is likely to abscond or evade trial.
* Possibility of Tampering with Evidence: If there's a belief that the accused might
interfere with the investigation or influence witnesses.
* Public Interest: The potential threat to public safety or order if the accused is
released.
* Special Considerations: The court may be more inclined to grant bail if the accused is:
* Under the age of sixteen years.
* A woman.
* Sick or infirm.
* Default Bail (Statutory Bail): If the investigating agency fails to file a charge sheet
within the stipulated time (typically 60 days for most offenses and 90 days for serious
crimes), the accused gains a right to default bail, irrespective of the nature of the
offense.
* Trial Not Concluded within a Period: If the trial of a person accused of a non-bailable
offense is not concluded within a period of sixty days from the first date fixed for taking
evidence (in cases triable by a Magistrate), and the person has been in custody for the
whole of that period, they shall be released on bail.
* Belief of Not Guilty: If, after the conclusion of the trial but before judgment, the court is
of the opinion that there are reasonable grounds for believing the accused is not guilty, it
shall release the accused on bail if they are in custody.
Special Powers of the Court of Session Regarding Granting Bail (Section 483
BNSS)
The High Court and the Court of Session have concurrent and more extensive powers
regarding bail compared to a Magistrate's court. Section 483 of the BNSS specifically
outlines these special powers:
* Direct Release on Bail: The Court of Session can direct that any person accused of
an offense and in custody be released on bail.
 * Impose Conditions: If the offense is of a serious nature (as specified in sub-section (3)
of Section 480), the Court of Session can impose any conditions it considers necessary
for purposes like ensuring the accused's presence during trial, preventing them from
tampering with evidence, or influencing witnesses.
* Vary or Cancel Conditions: It can also direct that any condition imposed by a
Magistrate when releasing a person on bail be set aside or modified.
* Notice to Public Prosecutor: Before granting bail to a person accused of an offense
exclusively triable by the Court of Session or punishable with imprisonment for life, the
High Court or Court of Session must give notice of the bail application to the Public
Prosecutor.
* Obligatory Presence of Informant (Specific Cases): For certain serious offenses
(under sections 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita,
2023), the presence of the informant or any person authorized by them is obligatory at
the time of hearing the bail application.
* Cancellation of Bail: The Court of Session also has the power to direct that any
person who has been released on bail under this Chapter be arrested and committed to
custody. This power is generally exercised if the accused violates bail conditions or if
new facts emerge that warrant their recommitment to custody.
* Anticipatory Bail: The Court of Session (along with the High Court) has the power to
grant anticipatory bail under Section 482 of the BNSS. This allows a person to seek bail
before arrest if they apprehend arrest on an accusation of a non-bailable offense.
In essence, while the grant of bail in non-bailable offenses is a matter of judicial
discretion, the BNSS provides a framework and guidelines for its exercise, with the
Court of Session having significant powers to grant, deny, or modify bail conditions,
particularly in more serious cases.
Types of Bail
The Bhartiya Nagrik Suraksha Sanhita, 2023 contains elaborate provisions relating to
bails. The Sanhita provides different kinds of Bails:-
1. Bail in Bailable Offence (Section 478)
Section 478 of the BNSS provides for the release on bail of a person accused of a
bailable offense. Section 478 of the BNSS is mandatory in nature and the court or
the police have no discretion in the matter. Any accused person arrested for a
bailable offence willing to provide bail must be released. The only discretion
available with the police is to release the accused either on a personal bond or with
sureties. In cases where the accused is unable to provide bail, the police officer
must produce the accused person before the Magistrate within 24 hours of arrest as
 specified under Sec. 58 of BNSS. Subsequently, when the person accused of an
offense is produced before a Magistrate and is willing to furnish bail, then the
Magistrate must release the accused person and the only discretion available is to
release either on personal bond or a bond with sureties. The Magistrate cannot
authorize detention of a person who is willing to furnish bail with or without sureties
even for the purposes of aiding the investigation.
2. Bail in Non-Bailable Offence (Section 480)
Provision, as to bail in case of non-bailable offence, is laid down in Section 480 of
the code. This section gives discretionary power to the Court (other than High court
or Court of Session) to release an accused on bail in a non-bailable case. It list down
circumstances when bail will not be granted or when shall bail be granted with
specific condition etc.
3. Anticipatory Bail (Section 482)
Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends
arrest under a non-bailable offence in India can apply for Anticipatory Bail under the
provisions of section 482 of BNSS.
Scope and Ambit of Anticipatory Bail
The court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra,
here discussed the scope and ambit of anticipatory bail and said that principles
regarding it has been laid down in the Sibbia’s case should be followed by the court.

1. Section 482 (1) is to be interpreted in light of Article 21 of the Constitution of

India.
2. Filing of FIR is not a condition precedent to exercise of power under Section 482.
3. Order under Section 482 would not affect the right of police to conduct
investigation.
4. Conditions mentioned in Section 480 cannot be read into Section 482.
5. Although the power to release on anticipatory bail can be described as of an
“extraordinary” character this would “not justify the conclusion that the power
must be exercised in exceptional cases only.”
It has been held in the Gurbaksh Singh Sibbia v. State of Punjab that section 482
of BNSS, was enacted to protect those people who are implicated by their rivals in
false cases for the purpose of disgracing them or for other purposes by detaining
them in jail
4. Bail on Default (Section 187(2))
Section 187(2) of BNSS, 2023 empowers judicial magistrates to authorize custody of
an accused person in cases wherein investigation cannot be completed in twenty-
four hours. It provides for the maximum period of custody that can be authorized. It
further contains a mandate that if the investigation is not completed within the
stipulated maximum period, the accused is to be released on bail whatever may be
 the nature of accusation against him. The object of this provision manifests the
legislative anxiety that once a person’s liberty has been interfered with, the arrest
made without a warrant or a court order, the investigation must be conducted with
utmost urgency Persons who are detained for committing an offence and undergoing
investigation are statutorily eligible for bail under Section 187(2) of Sanhita after
ninety days where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for not less than ten years; and sixty days
where the investigation is relating to any other offence, if the investigating authorities
fail to complete their investigation and file a charge-sheet within this period.
5. Interim Bail (Section 483)
There is no express legal provision of ad-interim or interim bail. Section 483 of
BNSS is on the High Court’s and the Sessions Court’s power to release the accused
on bail in custody. Evident as it is that Sections 478, 480 and 483 are repository of
powers of the court to release the accused in custody on bail. That’s post-arrest. As
seen above, the newly substituted Section 482 expressly provides for interim bail
pending disposal of the plea for anticipatory bail. It’s a important provision as the
accused faces the threat of arrest before his application for the bail is decided. Also,
it’s consistent with the concept of fundamental right to life and liberty under Article 21
of the Constitution of India. Interim bail may be granted when the court is satisfied
that the object of the. However, this Bail kind after of conviction bail may be granted
at any stage of a case by way of court’s inherent power.
6. Bail after Conviction (Section 430)
Section 430 (1) and (2) of BNSS deals with a situation where convicted person can
get a Bail from appellate court after filing the criminal appeal. Section 430 (3) deals
with a situation where the trial court itself can grant a bail to convicted accused
enabling him to prefer an appeal.
Cancellation of Bail
The basic criteria for cancellation of bail are interference or even an attempt to interfere
with due course of justice or any abuse of indulgence/ privilege granted to the accused.
In Ram Govind Upadhya Vs. Sudarshan Singh it was held by the Hon’ble Apex court,
that the power of the Court under section 480(5) BNSS to cancel bail can be invoked
either by the state itself or by any aggrieved party or even suo motu the same was also
held in the case of Puran vs. Ramvilas As per Section 480(5) of BNSS, any Court
which has released a person on bail considered it necessary so to do, cancel the bail
and direct that such person be arrested may, if it and committed to custody.
In R.J Sharma Vs. R.P. Patankar, it was held that Magistrate ought to pursue the
application for cancellation of bail and afford an opportunity to accused to be heard.
In Dolat Ram v. State of Haryana, The Hon’ble Supreme Court has held that once bail
has been granted, it can only be cancelled based on cogent and overwhelming
circumstances. Proceedings for the cancellation of bail are not in the nature of an
appeal from the grant of bail, and therefore, a court must look for circumstances that
warrant cancellation of bail, such as interference or attempt to interfere with the due
course of justice, or abuse of concession of bail granted to the accused in any manner.
Bail granted to an accused with reference to bailable offence can be cancelled only if
the accused:-
(1) misuses his liberty by indulging in similar criminal activity,
(2) interferes with the course of investigation,
(3) attempts to tamper with evidence of witnesses,
(4) threatens witnesses or indulges in similar activities which would hamper smooth
investigation,
(5) attempts to flee to another country,
(6) attempts to make himself scarce by going underground or becoming unavailable to
the investigating agency,
(7) attempts to place himself beyond the reach of his surety, etc. These grounds are
illustrative and not exhaustive.
However, a bail granted to a person accused of bailable offence cannot be cancelled on
the ground that the complainant was not heard.