Bail in Bailable and in Non-Bailable Offences

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 that proviso.

Second proviso. Nothing in the section affects section 135(3) or section 492.

Sub-section (2), the defaulter. Notwithstanding 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 or is brought in custody; and such refusal is without prejudice to the power to call on anyone bound by the bond to pay the penalty under section 491.

Sub-section (2) is the exception that proves the rule. Even in a bailable offence the right can be lost, and it is lost by breaking the bond, not by anything about the offence.

Section 479: the undertrial's release by lapse of time

Sub-section (1), the rule. Where a person has, during the period of investigation, inquiry or trial of an offence under any law, not being an offence for which death or life imprisonment is specified as one of the punishments under that law, undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on bail.

First proviso, the first-time offender, and it is new. Where the person is a first-time offender, who has never been convicted of any offence in the past, he shall be released on bond by the Court if he has undergone detention for a period extending up to one-third of the maximum period of imprisonment specified for that offence.

Second proviso. The Court may, after hearing the Public Prosecutor and for reasons recorded in writing, order his continued detention for a period longer than one-half, or release him on bail bond instead of his bond.

Third proviso. No such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for that offence.

Explanation. In computing the period of detention, the period of detention passed due to delay in proceedings caused by the accused shall be excluded.

Sub-section (2), the multiple-case bar, also new. Notwithstanding sub-section (1), and subject to the third proviso, where an investigation, inquiry or trial in more than one offence, or in multiple cases, is pending against a person, he shall not be released on bail by the Court.

Sub-section (3), the jail's duty, also new. The Superintendent of the jail where the accused is detained shall, on completion of one-half or one-third of the period, as the case may be, forthwith make an application in writing to the Court to proceed under sub-section (1) for his release on bail.

Read the three new pieces together and the design appears. Sub-section (3) makes the release self-starting, so it does not depend on a prisoner who may have no lawyer. The first proviso gives the first-time offender a shorter road. And sub-section (2) takes the benefit away from the man with several cases, subject always to the absolute ceiling in the third proviso.

Section 480: non-bailable offences

Sub-section (1), the discretion and the two disqualifications. When a person accused of, or suspected 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 other than the High Court or Court of Session, he may be released on bail, but:

(i) he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) he shall not be so released if the offence is cognizable and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years.

First proviso. The Court may direct that a person in clause (i) or (ii) be released on bail if he is a child, or is a woman, or is sick or infirm.

Second proviso. The Court may also direct that a person in clause (ii) be released if satisfied that it is just and proper for any other special reason.

Third proviso. The mere fact that the accused may be required for identification by witnesses during investigation, or for police custody beyond the first fifteen days, shall not be sufficient ground for refusing bail if he is otherwise entitled to it and gives an undertaking that he will comply with the Court's directions.

Fourth proviso. Where the offence is punishable with death, imprisonment for life, or imprisonment for seven years or more, no person shall be released on bail under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

Sub-section (2), grounds for further inquiry. If it appears at any stage that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, he shall, subject to section 492 and pending that inquiry, be released on bail, or, at the discretion of the officer or Court, on his own bond.

Sub-section (3), the mandatory conditions. Where a person accused or suspected of an offence punishable with imprisonment which may extend to seven years or more, or of an offence under Chapter VI, Chapter VII or Chapter XVII of the Bharatiya Nyaya Sanhita, 2023, or of abetment, conspiracy or attempt to commit such an offence, is released under sub-section (1), the Court shall impose the conditions:

(a) that he shall attend in accordance with the conditions of the bond; (b) that he shall not commit an offence similar to that of which he is accused or suspected; and (c) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts, so as to dissuade him from disclosing them to the Court or to a police officer, or tamper with the evidence,

and may also impose such other conditions as it considers necessary in the interests of justice.

Sub-section (4). An officer or Court releasing a person under sub-section (1) or (2) shall record in writing his or its reasons or special reasons for so doing.

Sub-section (5). Any Court which has so released a person may, if it considers it necessary, direct that he be arrested and commit him to custody.

Sub-section (6), the sixty day rule. If, in a case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within sixty days from the first date fixed for taking evidence, and he has been in custody during the whole of that period, he shall be released on bail to the satisfaction of the Magistrate, unless for reasons recorded in writing the Magistrate otherwise directs.

Sub-section (7), after the trial and before judgment. If, after the conclusion of the trial and before judgment, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty, it shall release him, if in custody, on his executing a bond for his appearance to hear judgment delivered.

Note the words in sub-section (1): a Court other than the High Court or Court of Session. Those two Courts have their own, wider power, and that is section 483 in the next chapter.

Section 481: the bond to appear before the appellate court

Sub-section (1). Before the conclusion of the trial and before the disposal of the appeal, the trial Court or the Appellate Court shall require the accused to execute a bond or bail bond to appear before the higher Court as and when that Court issues notice in respect of any appeal or petition filed against the judgment; and such bond shall be in force for six months.

Sub-section (2). If the accused fails to appear, the bond stands forfeited and the procedure under section 491 shall apply.

A worked example

Rohit is arrested without warrant for an offence the First Schedule marks bailable.

Is bail discretionary? No. Section 478(1) says that if he is prepared to give bail he shall be released. Neither the officer nor the Court has a choice.

He cannot find a surety. He is unable to give a bail bond within a week of his arrest, which is a sufficient ground to presume he is indigent, Explanation; and an indigent person shall be discharged on his own bond instead, first proviso.

He then jumps the bond and is brought back. The Court may now refuse bail on that subsequent occasion in the same case, section 478(2), and may separately call on the surety to pay the penalty under section 491.

Change the offence to a non-bailable one carrying up to ten years. Now section 480 applies. He may be released, unless there are reasonable grounds for believing him guilty of an offence punishable with death or imprisonment for life, clause (i), or the previous conviction disqualification in clause (ii) applies.

He is disqualified but he is sick. The Court may still release him, first proviso, which covers a child, a woman, and a person sick or infirm.

The prosecution says he is needed for a test identification parade and for police custody beyond fifteen days. That is not by itself a sufficient ground to refuse bail, third proviso, if he is otherwise entitled and undertakes to comply with the Court's directions.

The offence carries more than seven years. Then he cannot be released without giving the Public Prosecutor an opportunity of hearing, fourth proviso; and on release the Court shall impose the three conditions of sub-section (3): attendance, no similar offence, and no inducement, threat or promise to any person acquainted with the facts, and no tampering with evidence. The Court must record its reasons for releasing him, sub-section (4), and may later direct his arrest if it considers it necessary, sub-section (5).

The trial before the Magistrate drags. If it is not concluded within sixty days of the first date fixed for taking evidence and he was in custody throughout, he shall be released on bail, unless the Magistrate otherwise directs for reasons in writing, sub-section (6).

Evidence closes and judgment is reserved. If the Court thinks there are reasonable grounds for believing he is not guilty, it shall release him on his own bond to appear and hear the judgment, sub-section (7).

Now take a long-pending case. The maximum sentence for the offence is six years and it carries neither death nor life. Rohit has been in custody for three years.

What follows? He shall be released on bail: he has undergone one-half of the maximum, section 479(1). Had he never been convicted of any offence in the past, he would be released on bond at two years, that is one-third, first proviso.

The prosecution objects. The Court may, after hearing the Public Prosecutor and recording reasons in writing, order continued detention beyond the half, or release him on a bail bond instead of his own bond, second proviso. But in no case may he be detained longer than the maximum sentence itself, third proviso.

Part of the delay was his own doing. That period is excluded from the computation, Explanation.

He has three other cases pending. Then section 479(2) applies and he shall not be released on bail under the section, subject to the absolute ceiling in the third proviso.

And who moves the application? The Superintendent of the jail, who shall forthwith apply in writing to the Court on completion of the half or the third, sub-section (3).

Finally, before the trial concludes, the Court shall require him to execute a bond or bail bond to appear before the higher Court when it issues notice on any appeal or petition; that bond is in force for six months, and on failure it is forfeited and section 491 applies, section 481.

Distinctions

What this does NOT mean

Bail in a bailable offence is not unconditional. It requires the person to be prepared to give bail, and a breach of the bond can cost him the right on a later occasion in the same case.

The indigent proviso is not charity. It is a duty: the officer or Court shall discharge an indigent person unable to furnish surety on his own bond, and a week's inability raises the presumption.

Section 479 does not apply to every offence. It excludes offences for which death or life imprisonment is one of the punishments, and by sub-section (2) it does not release a man with multiple pending cases.

The disqualifications in section 480(1) are not absolute. The first proviso covers a child, a woman, or a person sick or infirm, and the second lets clause (ii) be relaxed for any other special reason.

And a grant of bail is not the end of the matter. By section 480(5) the Court that released a person may direct his arrest and commit him to custody if it considers it necessary.

Quick revision

• 478(1): in a bailable offence the person shall be released on bail; an indigent person unable to furnish surety shall be discharged on his own bond, and inability to give a bail bond within a week of arrest raises the presumption of indigence.
• 478(2): bail may be refused on a later occasion in the same case to a person who broke the bond as to time and place of attendance, without prejudice to section 491.
• 479(1): release on bail at one-half of the maximum imprisonment, in offences not punishable with death or life; on bond at one-third for a first-time offender never convicted of any offence; continued detention beyond the half only after hearing the Public Prosecutor and recording reasons; never beyond the maximum; delay caused by the accused excluded.
• 479(2) and (3): no release where multiple offences or cases are pending, subject to the ceiling; the Superintendent of jail shall apply forthwith in writing on completion of the half or third.
• 480(1): in a non-bailable offence bail is discretionary, but not where there are reasonable grounds to believe him guilty of an offence punishable with death or life, or where the cognizable offence plus previous conviction clause applies; child, woman, sick or infirm may still be released, and clause (ii) may be relaxed for a special reason; identification or police custody beyond fifteen days is no ground to refuse; the Public Prosecutor must be heard where the offence carries seven years or more.
• 480(2) to (7): release where there are grounds for further inquiry but not reasonable grounds of guilt; the three mandatory conditions for offences of seven years or more and BNS Chapters VI, VII, XVII; reasons recorded; power to re-arrest; sixty day release where a Magistrate's trial is unfinished and the accused was in custody throughout; release before judgment where there are reasonable grounds to believe him not guilty.
• 481: a bond to appear before the higher Court on notice, in force for six months; forfeiture and section 491 on failure.

Test yourself

1. Is bail in a bailable offence a matter of discretion? No. Section 478(1) provides that such a person, if prepared to give bail, shall be released on bail.

2. When is an accused presumed to be indigent? Where he is unable to give a bail bond within a week of the date of his arrest; that is a sufficient ground for the officer or the Court to presume indigence, and an indigent person unable to furnish surety shall be discharged on his own bond.

3. When must an undertrial be released under section 479? On undergoing detention extending up to one-half of the maximum period of imprisonment for the offence, in an offence not punishable with death or life imprisonment; and a first-time offender who has never been convicted of any offence is to be released on bond at one-third.

4. Who applies for that release? The Superintendent of the jail, who shall forthwith make an application in writing to the Court on completion of the one-half or one-third period, section 479(3).

5. When may bail be refused in a non-bailable offence? Where there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, or where the offence is cognizable and he has the previous conviction history described in clause (ii) of section 480(1), subject to the provisos relaxing both for a child, a woman, or a person sick or infirm, and clause (ii) for any other special reason.

6. What conditions must be imposed on bail in a serious case? Attendance in accordance with the bond, not committing a similar offence, and not making any inducement, threat or promise to a person acquainted with the facts or tampering with the evidence, section 480(3); the Court may add such other conditions as it considers necessary.

7. What is the sixty day rule? Where a non-bailable case triable by a Magistrate is not concluded within sixty days from the first date fixed for taking evidence and the accused has been in custody throughout, he shall be released on bail to the Magistrate's satisfaction unless the Magistrate otherwise directs for reasons recorded in writing, section 480(6).