Section 478 BNSS: In what cases bail to be taken (Formerly Section 436 CrPC)

Section 478 of Bharatiya Nagarik Suraksha Sanhita, 2023: In what cases bail to be taken

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Bailable Offence Sec 2(1)(a) Charge Sec 2(1)(b) Police Station Sec 2(1)(q) Arrest Sec 35

Legal Commentary & Landmark Judgments: Section 478

Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes the mandatory right to bail in bailable offences and regulates release on personal bond.

Process Issuance & Attendance: Section 478 enacts the foundational rule for bailable offences: 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.
Bail & Custodial Conditions: 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.
Contract of Guarantee & Suretyship: The first proviso mandates that if the person is indigent and unable to furnish surety, the Court or officer shall discharge them on executing a bond without sureties.

This statutory framework establishes clear operational guidelines, balancing legal compliance with procedural safeguards.

Key Landmark Precedents:

Rasiklal v. Kishore Khanchand Wadhwani (2009) 1 SCC 267: The Supreme Court settled that in bailable offences, bail is an absolute, non-discretionary, and indefeasible statutory right; neither the police nor the court has any power to refuse bail if the accused is prepared to furnish sureties.
Satender Kumar Antil v. CBI (2022) 10 SCC 51: Reiterated that for Category A (bailable) offences, personal bonds must be accepted without demanding onerous financial sureties, protecting indigent undertrials under Article 21.

Legal Commentary:

Section 478 leaves zero discretion to the Magistrate or police officer. In bailable matters, any refusal to grant bail or demanding unrealistic sureties amounts to unlawful detention, exposing the officer or magistrate to immediate disciplinary and constitutional challenge.