Section 478 of BNSS, 2023 provides for the grant of bail in Bailable cases. Under section 478 BNSS, bail can be taken at any stage of the proceedings. The proviso to the section gives relief to an indigent person who is unable to furnish surety.  This helps reduce discrimination against the poor, as held in Hussainara Khatoon (I) v. Home Secretary, (1980) 1 SCC 81. He can be released by executing a bond for his appearance. This section corresponds to section 436 of Cr.PC.

Section 478 of BNSS:

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.

No discretion of the court in bailable cases

The provision of 478 BNSS makes it mandatory to grant bail in every bailable offence. The right to claim bail granted by Section 436(Now S.478) of the Code in a bailable offence is an absolute and indefeasible right. The magistrate does not have any discretion to exercise under provision of this section.

 It was held in the case of Rasiklal v. Kishore, (2009) 4 SCC 446, that the only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing (sic unwilling) to offer bail or to execute personal bonds.

There is no manner of doubt that bail in a bailable offence can be claimed by the accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him.

No cancellation of bail under Section 478 or notice to the complainant under Section 478 BNSS

Once bail is granted under Section 478 of the BNSS, the provision does not specify the procedure for its cancellation. Cancellation of bail can only be done by the High Court or the Court of Session under Section 483 BNSS after giving a reasonable opportunity to be heard. Also, there cannot be any question of cancellation of bail on the ground that the complainant was not heard. When a police officer releases a person accused of a bailable offence, he is not required to hear the complainant at all.

Similarly, a court while exercising powers under Section 436 of the Code (now 478 BNSS) is not bound to issue notice to the complainant and hear him. It was also held in the above-mentioned case.

Bail can be cancelled once higher offences are added

In Pradeep Ram vs. State of Jharkhand and another, (2019) 17 SCC 326, as per which, once higher offences are added, an accused, who is already on bail, can be directed to be arrested and committed to custody. However, the Apex Court in the cases of P.K.Shaji @Thammanam Shaji, (2005) 13 SCC 283 and Gurdev Singh and another, (2005) 13 SCC 286, have referred to the maxim audi alteram partem to hold that the accused must be heard before his bail is cancelled.

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This article is written by Jeet Sinha.