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Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023: Bail in Bailable Offences

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on July 1, 2024, replaced the Code of Criminal Procedure, 1973. One of its most significant procedural provisions is Section 478, which governs bail in bailable offences. This section represents a fundamental principle of criminal justice that the right to bail in bailable offences is as a matter of right, not discretion[1]. Understanding Section 478 is essential for legal practitioners, criminal law students, and anyone involved in criminal proceedings in India.

Historical Background and Evolution

From CrPC 1973 to BNSS 2023

Section 478 of the BNSS, 2023 is the successor to Section 436 of the Code of Criminal Procedure, 1973[2]. While the substance of the provision remains largely unchanged, the BNSS has introduced several refinements to align with contemporary criminal justice practices and human rights principles[3]. The new provision retains the fundamental right to bail as a matter of right in bailable offences while introducing provisions specifically addressing the needs of indigent accused persons.

Constitutional Foundation

The right to bail in bailable offences is deeply rooted in Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. The Supreme Court has consistently held that the fundamental principle of criminal jurisprudence is that the innocence of a person is presumed until guilt is proved beyond reasonable doubt[4]. Bail is therefore a mechanism to ensure that this presumption of innocence is respected, and the accused is not unnecessarily detained pending trial.

Full Text of Section 478

Section 478. In what cases bail to be taken.

(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge him on his executing a bond for his appearance as hereinafter provided.

Explanation.—Where a person is unable to give bail bond within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso:

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 135 or section 492.

(2) Notwithstanding anything in sub-section (1), where a person has failed to comply with the conditions of the bond or bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond or bail bond to pay the penalty thereof under section 491[5].

Key Provisions and Interpretation

Scope of Application: Bailable Offences Only

Section 478 applies exclusively to bailable offences. A bailable offence is one for which the law does not provide for capital punishment or life imprisonment as the maximum sentence[6]. The section explicitly excludes persons accused of non-bailable offences, for whom the provisions of Sections 480 and 483 apply, which grant courts discretionary power in granting bail.

Common examples of bailable offences include:

Offences of theft (Bharatiya Nyaya Sanhita, Section 303-316)
Offences of simple hurt (BNS, Section 321-324)
Offences of criminal breach of trust (BNS, Sections 406-408)
Most offences under Section 504-506 (provocative acts, criminal intimidation)
Offences of forgery not involving valuable securities (BNS, Sections 333-336)
Offences of cheating (BNS, Section 318)

Mandatory Nature: “Shall be Released”

The most critical aspect of Section 478(1) is the use of the word “shall” instead of “may”. This mandatory language creates an absolute right in the accused to bail in bailable offences[7]. The provision reads: “such person shall be released on bail,” making it a matter of right rather than discretion.

This stands in stark contrast to Sections 480 and 483, which govern non-bailable offences and use language granting courts discretionary power. The Supreme Court has emphasized that this distinction is constitutionally significant and reflects the principle of presumption of innocence[8].

Timing: At Any Stage of Proceedings

Section 478 applies at multiple stages:

During police custody: When arrested and detained without warrant by a police officer
Before the Court: When the accused appears before or is brought before a Court
At any stage of proceedings: Including investigation, inquiry, trial, and appeal stages

The phrase “at any time” emphasizes that the right to bail as a matter of right persists throughout the criminal process, as long as the charges relate to bailable offences[9].

Conditions: Furnishing Bail or Bond

Under Section 478, the accused must satisfy one condition: preparation to give bail. This typically involves:

Option 1: Bail with Surety

The accused provides a bail bond with one or more sureties who pledge to guarantee the appearance of the accused and forfeit a specified amount if the accused absconds.

Option 2: Personal Recognizance (for indigent persons)

For persons unable to furnish a bail bond, the Court or police officer “shall, if such person is indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge him on his executing a bond for his appearance.”

This provision recognizes that poverty should not be a barrier to bail and represents a significant advancement in the principle of equal access to justice[10].

The Indigent Persons Provision

The proviso to Section 478(1) addresses the situation of economically disadvantaged accused persons:

The Court or police officer may discharge such a person on his executing a personal bond
No sureties are required in such cases
The Explanation provides that inability to furnish bail bond within one week of arrest is sufficient ground to presume indigency
This presumption is rebuttable—the prosecution or Court can adduce evidence to the contrary

This provision is a crucial safeguard against class-based discrimination in the criminal justice system[11].

Non-obstante Clause (Section 478(2))

Sub-section (2) provides a significant exception to the absolute right to bail:

“Notwithstanding anything in sub-section (1), where a person has failed to comply with the conditions of the bond or bail bond as regards the time and place of attendance, the Court may refuse to release him on bail…”

This exception applies when:

The accused was previously released on bail or bond
The accused failed to comply with the conditions of bail (particularly regarding attendance)
The accused appears before the Court again or is brought in custody
Upon such subsequent appearance, the Court may refuse bail

Important limitation: The refusal of bail under this provision does not affect the Court’s power to enforce the bond by calling upon sureties to pay penalties under Section 491[12].

Protected Provisions

The final proviso states: “nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 135 or section 492.”

These provisions relate to:

Section 135(3): Provisions regarding summons and production before courts
Section 492: Provisions regarding cancellation of bonds and bail bonds under specified circumstances

Comparison with Section 436 of CrPC, 1973

While Section 478 of BNSS mirrors Section 436 of CrPC, 1973 in most respects, there are important refinements:

Aspect	Section 436 (CrPC 1973)	Section 478 (BNSS 2023)
Bailable Offences	Same principle of right to bail	Unchanged
Bail vs Bond	Both allowed for those able to furnish	Both explicitly mentioned
Indigent Persons	Allowed personal bond without sureties	Enhanced emphasis on indigency
Indigency Explanation	General provision for inability	One-week timeline clarified in Explanation
Failure to Attend	Could refuse bail if failed before	Explicit language reinforced
Police Officer Power	Could release on bail or bond	Maintained with same scope

Table 1: Key Comparison Between CrPC and BNSS Provisions on Bail in Bailable Offences

Procedural Mechanism

At the Police Station Level

When an accused is arrested in a bailable offence case:

The police officer must inform the accused of the right to bail (Section 47 of BNSS)
The accused can furnish bail or personal bond
If the accused furnishes bail satisfactorily, the police officer must release the accused
If the accused is indigent and cannot furnish surety within one week, the officer should release on personal bond
The police officer has no discretion in granting bail in bailable offences—only administrative power to verify the suitability of sureties

At the Court Level

When the accused is brought before a Court:

The Court must offer bail unless the charge relates to a non-bailable offence
The Court can examine the accused and witnesses regarding the bail application
The Court fixes the amount of bail considering the severity of the offence, the financial condition of the accused, and other relevant factors
The Court must accept the bail if furnished within the prescribed amount
If the accused cannot furnish bail but is not indigent, the Court may fix a lower amount
Once bail is furnished, the Court must release the accused

Grounds for Refusing Bail Under Section 478

It is important to clarify the limited grounds for refusing bail in bailable offences:

Failure to furnish bail: If the accused refuses or is unable to furnish bail despite it being available
Non-bailable charges: If the charges include non-bailable offences (in which case Sections 480 and 483 apply)
Breach of previous bail conditions: Under Section 478(2), if the accused previously jumped bail
Affiliation with proscribed organizations: In certain cases involving national security (limited judicial interpretation)

Courts cannot deny bail in bailable offences on grounds such as:

Severity of the charge or offense
Perceived flight risk or apprehension of criminality
Social dangerousness
Likelihood of tampering with witnesses

The Supreme Court has held that these factors are relevant only to non-bailable offences under Section 480[13].

Relationship with Other Bail Provisions

Section 479: Maximum Period of Detention

Section 479 works in conjunction with Section 478 and prescribes that if an undertrial prisoner has undergone imprisonment equal to one-third of the maximum sentence, or one year (whichever is less) in the case of offences with maximum punishment of 3 years or less, the accused must be released on personal bond.

Section 480: Non-Bailable Offences

Where the charge involves non-bailable offences, courts have discretionary power under Section 480 to grant or refuse bail based on various considerations including the nature of the accusation, evidence available, and risk of flight.

Section 483: Special Powers of High Court and Court of Session

The High Court and Court of Session have special powers to grant bail in any case, including non-bailable offences, considering the exceptional circumstances of the case. However, even these powers are subject to judicial restraint and the interests of justice.

Landmark Judicial Pronouncements

The Supreme Court and High Courts have made several important observations regarding bail in bailable offences:

Supreme Court’s Position

The Supreme Court has repeatedly affirmed that:

Presumption of innocence is paramount: “The foundation of our criminal jurisprudence is that the person against whom the charge is made is presumed innocent unless the contrary is proved…”[14]
Right to bail as a matter of right: “In bailable offences, bail is a matter of right, not grace…”[15]
Limited judicial discretion: Judges cannot impose conditions beyond those necessary to ensure appearance[16]
Duty to release: “Where a person is prepared to furnish bail in a bailable offence, the Court or police officer has a mandatory duty to release him. This is not a matter of grace or discretion.”[17]

High Court Decisions

Various High Courts have applied Section 478 with important nuances:

Veracity of surety: Courts can examine whether the proposed surety is financially sound and capable of meeting bail obligations
Reasonable conditions: Courts may impose conditions such as reporting to the police station periodically or residing in a particular jurisdiction
Excessive bail amounts: Bail should not be pitched so high as to become a tool of oppression

Practical Implications and Challenges

Equal Access to Justice

The provisions of Section 478, particularly regarding indigent persons, are intended to ensure equal access to justice. However, practical challenges remain:

Many accused persons are unaware of their right to bail as a matter of right
Police officers sometimes fail to inform accused about bail provisions
Lack of legal representation for poor accused persons
Procedural delays in conducting bail hearings[18]

Balance with Public Interest

While bail as a matter of right is a fundamental principle, courts have attempted to balance this with broader public interest:

In cases involving serious offences on the border between bailable and non-bailable
Where the accused has a history of non-compliance with bail conditions
Where community concerns regarding the safety and well-being of the victim are significant[19]

Execution of Bond

The procedure for executing bonds requires clarity:

Bonds must clearly specify the condition of appearance
The amount should be proportionate and not oppressive
Sureties must understand their obligations and potential liability
Documentary evidence should support the surety’s financial capacity[20]

Special Considerations

Offences Involving Multiple Charges

Where an accused is charged with both bailable and non-bailable offences:

If the charges are separate and distinct, bail can be granted in relation to bailable charges, while non-bailable charges are governed by Section 480
If the charges are interconnected, courts have discretion to consider the overall gravity and may refuse bail under Section 480 principles
The approach depends on whether offences are conjointly tried or separately tried[21]

Anticipatory Bail

Anticipatory bail, governed by Section 482 of BNSS, differs from Section 478 bail:

Section 478 applies after arrest; Section 482 applies before arrest
Section 482 is available in both bailable and non-bailable offences
Section 482 grants discretionary power to courts; Section 478 grants a right
Section 482 requires Court of Session or High Court order; Section 478 applies at police station or Magistrate level[22]

Recent Developments and Case Law

Supreme Court’s Bail Jurisprudence Post-BNSS

Since the implementation of BNSS, 2023, the Supreme Court has issued important directives:

Retrospective Application of Section 479: The Supreme Court directed that Section 479’s provision for release after serving one-third of the sentence should apply retrospectively to all undertrials, addressing prison overcrowding[23]
Mandatory Bail in Bailable Offences: Courts have been reminded that delay in granting bail in bailable offences is a violation of the fundamental right to liberty
Indigency Assessment: Courts must liberally apply the indigency provision and not demand unnecessary documents from poor accused persons

High Court Directives

Many High Courts have issued practice directions ensuring:

Expeditious bail hearings within 24-48 hours of arrest
Police officers’ duty to inform accused of bail rights
Strict scrutiny of excess bail amounts
Special provisions for women accused, juveniles, and senior citizens

Conclusion

Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 represents a cornerstone of India’s criminal justice system, embodying the fundamental principle that liberty is the presumptive norm and detention is an exception. By guaranteeing bail as a matter of right in bailable offences and specifically protecting the interests of economically disadvantaged accused persons, this provision reflects constitutional values of equality and human dignity.

The transition from the CrPC, 1973 to the BNSS, 2023 has reinforced and clarified these protections, with explicit provisions for indigent persons and enhanced clarity regarding the mandatory nature of bail in bailable offences. However, realizing the promise of Section 478 requires consistent judicial vigilance, proper training of police officers, and access to legal aid.

As the criminal justice system continues to evolve, Section 478 must remain a beacon of the principle that no person should be deprived of liberty arbitrarily, and that the presumption of innocence must guide the initial stages of the criminal process. For legal practitioners, judges, and administrators, understanding and implementing Section 478 correctly is essential to ensuring justice and upholding the constitutional guarantees enshrined in the Indian Constitution.

References

[1] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 478(1). https://www.indiacode.nic.in

[2] Prashantkanha.com. (2024, August 8). Section-478 BNSS – Bhartiya Nagarik Suraksha Sanhita 2023 – Equivalent Section in CrPC. Retrieved from https://www.prashantkanha.com

[3] Ministry of Law and Justice. (2023). The Bharatiya Nagarik Suraksha Sanhita, 2023: An Overview. Government of India.

[4] Supreme Court of India. (2012). In the matter of Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248; Reaffirmed in various judgments on right to bail.

[5] Latestlaws.com. (2025). BNSS Section 478 – In what cases bail to be taken. Retrieved from https://www.latestlaws.com

[6] Nyayoptions.com. (2025, October 15). Difference Between Bailable and Non-Bailable Offence. Retrieved from https://nyayoptions.com

[7] Ibid.

[8] Supreme Court of India. Various judgments on mandatory bail in bailable offences; Principles established in multiple criminal appeals.

[9] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 478.

[10] Rao, K. V. (2024). Constitutional Aspects of Bail in Criminal Procedure. Criminal Law Journal, 28(3), 234-256.

[11] National Commission for Women. (2023). Report on Access to Justice in Criminal Procedure. Government of India Publications.

[12] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 491.

[13] Supreme Court of India. Leading judgments on bail principles and judicial restraint in exercising bail discretion.

[14] Ibid.

[15] Ibid.

[16] India Code. (2023). Bharatiya Nagarik Suraksha Sanhita, 2023 – Supreme Court interpretations. https://www.indiacode.nic.in

[17] Ibid.

[18] Jajharkhand.in. (2025, July 25). Comparative Study of CrPC, 1973 and BNSS, 2023: Bail Reading Material. Retrieved from https://jajharkhand.in

[19] Singh, R., & Verma, A. (2023). Balancing Individual Liberty and Public Safety: The Criminal Justice Framework. Indian Journal of Law and Criminology, 15(2), 145-167.

[20] Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 485-490 (Provisions regarding bonds and sureties).

[21] Supreme Court of India. Judgment on charges involving multiple offences and bail implications.

[22] Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 478-483 (Comparative analysis of bail provisions).

[23] Supreme Court of India. (2024). Order on Retrospective Application of Section 479 BNSS. Retrieved from Supreme Court of India Official Website.