Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Bailable and Non Bailable Offences under the BNSS 2023
Bailable and Non-Bailable Offences under the BNSS, 2023: Section 2(1)(c), the First Schedule, Sections 478 and 480, and the Right to Bail
Whether an offence is bailable or non-bailable decides one of the most consequential questions in a criminal case: whether the accused is entitled to be released as of right, or must persuade a court to release him. The classification is made by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023, defined by section 2(1)(c), and given effect by sections 478 and 480. It operates from the moment of arrest, long before any question of guilt arises, and for a very large number of accused persons it is the only part of the criminal law that ever affects them directly.
The classification is frequently misunderstood in two ways. It is taken to be a statement about the gravity of the offence, which it is not; it is a legislative allocation recorded in the First Schedule. And it is taken to overlap with the cognizable and non-cognizable division, which it does not; the two are independent, and all four combinations exist.
1. The Definition
Section 2(1)(c), BNSS 2023 “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 offence” means any other offence. |
Three features of the definition matter. First, it is entirely derivative: the Sanhita does not itself state which offences are bailable, but points to the First Schedule or to another law. Second, the second limb is purely residual, so an offence is non-bailable for no reason other than that it is not bailable. There is no positive definition of a non-bailable offence and no independent test for it. Third, the words “or which is made bailable by any other law” mean that a special statute may make its own provision, and where it does, the special law prevails under sections 4(2) and 5.
The First Schedule states the classification for every offence under the Bharatiya Nyaya Sanhita in a column of its own. Its second part deals with offences under other laws by reference to the length of the punishment: broadly, an offence punishable with imprisonment for less than three years, or with fine only, is bailable, and an offence punishable with imprisonment for three years or more is non-bailable, unless the special law provides otherwise.
2. The Consequence of the Classification
Figure 1: What follows from the classification
2.1 Bailable offences: section 478
Where a person accused of a 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 to give bail, he shall be released on bail. The officer or the court may, instead of taking bail, discharge him on his executing a bond without sureties. A proviso deals with the indigent accused: where such a person is unable to furnish surety within a week of arrest, it is a sufficient ground for the officer or the court to presume that he is indigent and to release him on a bond without sureties.
The word is “shall”, and the consequence is that bail in a bailable offence is not a matter of discretion at all. The officer or court has no power to consider the strength of the prosecution case, the antecedents of the accused or the likelihood of his absconding. The only questions are whether the offence is bailable and whether the person is prepared to give bail.
📖 Rasiklal v. Kishore, Khanchand Wadhwani, (2009) 4 SCC 446 Facts: An accused was granted bail in a bailable offence. The complainant applied to have the bail cancelled, contending that he had a right to be heard before bail was granted and that the order had been made without considering material against the accused. Held: The Supreme Court held that the right to claim bail in a bailable offence under what was then section 436 of the Code of Criminal Procedure is an absolute and indefeasible right. There is no question of discretion in granting bail, and the person accused of a bailable offence is entitled to be released the moment he is prepared to furnish bail. Since no discretion is involved, the complainant has no right of hearing at that stage, and the considerations that govern bail in a non-bailable offence are irrelevant. Ratio: Bail in a bailable offence is a right conferred by statute and not a concession granted by the court. The absence of discretion also removes the occasion for hearing the complainant or examining the merits. |
Two qualifications follow from the same reasoning. Because bail in a bailable offence is not granted in the exercise of discretion, it cannot be cancelled on the ground that the discretion was wrongly exercised. It may be cancelled only on grounds arising after release, such as the abuse of liberty or the breach of a condition of the bond. And the right is not lost by the passage of time: it is available at any stage at which the accused is before the officer or the court.
2.2 Non-bailable offences: section 480
In a non-bailable offence the position is reversed. A person accused of such an offence and arrested or detained without warrant, or appearing before a court other than the High Court or Court of Session, may be released on bail. The word is “may”, and the power is subject to restrictions.
Element of section 480 | Content |
|---|---|
The general power | A court other than the High Court or Court of Session may release a person accused of a non-bailable offence on bail |
The first restriction | 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 |
The second restriction | He shall not be released if the offence is a cognizable one and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or has been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven |
The exceptions to both | The court may direct release where the person is a child, a woman, or is sick or infirm, and in the second case also where it is satisfied that it is just and proper to do so for any other special reason |
The long-detention proviso | The mere fact that the accused may be required for identification by witnesses during investigation is not a sufficient ground for refusing bail if he is otherwise entitled and gives an undertaking to comply with the directions of the court |
Reasons | An officer or court releasing a person under this section must record in writing the reasons or special reasons for doing so |
Conditions | Where the offence is punishable with imprisonment of seven years or more, or is an offence against the State or relating to a woman or a child, conditions may be imposed as to attendance, non-commission of a similar offence and non-interference with the evidence |
Hearing the victim | Notice of the application is to be given to the Public Prosecutor in the offences specified, and the victim is to be heard in the cases the Sanhita requires |
📖 Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 Facts: The accused, charged with serious economic offences carrying a maximum sentence of life imprisonment, had been in custody for a substantial period. Bail was refused by the courts below principally on the ground of the gravity of the offence and the magnitude of the alleged loss to the public exchequer. Held: The Supreme Court held that the object of bail is neither punitive nor preventative, and that deprivation of liberty must be considered a punishment unless it is required to ensure that the accused will stand trial when called upon. Seriousness of the charge is a relevant consideration but is not by itself conclusive; the court must also weigh the nature of the accusation, the severity of the punishment, the danger of the accused absconding, tampering with evidence or repeating the offence, the character of the evidence, and the likely delay in the trial. Where the trial is likely to take a long time and the accused has been in custody for a substantial period, continued detention pending trial cannot be justified merely by the gravity of the charge. Ratio: Bail in a non-bailable offence is decided on a structured set of considerations and not on the gravity of the accusation alone. Pre-trial detention is not punishment and must be justified by the need to secure the presence of the accused and the integrity of the trial. |
3. The Architecture of Chapter XXXV
Figure 2: The principal bail provisions and the authority that exercises each
3.1 The provisions in outline
- Section 478 confers the right to bail in a bailable offence, with the proviso on the indigent accused.
- Section 479 provides for the release of an undertrial prisoner who has undergone one half of the maximum period of imprisonment for the offence, or one third where he is a first-time offender, on a bond. The Superintendent of the jail is required to apply to the court once the period is complete. The benefit does not apply to an offence punishable with death or imprisonment for life, nor where an investigation, inquiry or trial in more than one offence or in multiple cases is pending.
- Section 480 governs bail in a non-bailable offence before a court other than the High Court or Court of Session.
- Section 481 requires the trial court, before releasing a convicted person on bail pending appeal or at the conclusion of the trial, to take a bond with sureties for his appearance before the higher court if and when it issues notice.
- Section 482 is anticipatory bail, exercisable only by the High Court or the Court of Session where a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. This provision carried the number 438 in the Code of Criminal Procedure.
- Section 483 confers on the High Court and the Court of Session the special power to grant bail in any case, to impose or set aside conditions, and to direct the arrest and custody of a person released on bail. The victim is to be given an opportunity of being heard in the offences the section specifies.
The remaining sections of the chapter deal with the amount of the bond, the taking of sureties and their discharge, the deposit of money in place of a bond, the forfeiture and cancellation of a bond or bail bond, and appeal against an order of forfeiture. Section 496 provides that nothing in the chapter is deemed to affect the provisions of section 143, on security for good behaviour.
⚠ Anticipatory bail and inherent powers: the number that trips people up Under the Code of Criminal Procedure, 1973 section 438 was anticipatory bail and section 482 was the inherent power of the High Court. Under the Sanhita section 482 is anticipatory bail and the inherent power has moved to section 528. Because section 531(2)(a) keeps both codes in simultaneous operation, a reference to “section 482” without naming the statute is now ambiguous. Name the enactment, not merely the number. |
4. Bailable and Non-Bailable Compared
Point of comparison | Bailable offence | Non-bailable offence |
|---|---|---|
Definition | Shown as bailable in the First Schedule or made bailable by another law: section 2(1)(c) | Any offence that is not bailable; defined residually by the same clause |
Governing provision | Section 478 | Section 480, with sections 482 and 483 for the superior courts |
Nature of bail | A right. The officer or court shall release | A discretion. The court may release |
Who may grant | The officer in charge of the police station, or any court | A court. A police officer cannot grant bail in a non-bailable offence |
Consideration of the merits | Not permitted. The strength of the case is irrelevant | Required. Nature of the accusation, character of the evidence, risk of absconding, tampering and repetition |
Hearing the complainant or victim | No occasion for it, since no discretion is exercised | The Public Prosecutor is to be given notice in the specified offences, and the victim is to be heard where the Sanhita requires |
Reasons | None required, because there is no decision to justify | Reasons or special reasons must be recorded in writing |
Conditions | A bond, with or without sureties | Conditions may be imposed as to attendance, non-repetition and non-interference |
Cancellation | Only on grounds arising after release, such as abuse of liberty or breach of a condition | On the same grounds, and also by the High Court or Court of Session under section 483 |
Anticipatory bail | Does not arise, since the right to bail exists in any event | Available under section 482 from the High Court or Court of Session |
5. Where the Special Law Displaces the Sanhita
The words “or which is made bailable by any other law” in section 2(1)(c), read with sections 4(2) and 5, mean that a special statute may fix its own classification and its own conditions for bail. Several do, and the conditions they impose operate as an additional layer on top of section 480 rather than in place of it.
Statute | What it provides as to bail |
|---|---|
Narcotic Drugs and Psychotropic Substances Act, 1985 | Section 37 makes the specified offences cognizable and non-bailable, and bars bail unless the Public Prosecutor has been given an opportunity to oppose and the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit an offence on bail |
Prevention of Money-laundering Act, 2002 | Section 45 imposes the same twin conditions, with exceptions for a person under sixteen, a woman, a sick or infirm person and certain others |
Unlawful Activities (Prevention) Act, 1967 | Section 43D(5) bars release on bail where the court is of opinion that there are reasonable grounds for believing that the accusation is prima facie true |
Protection of Children from Sexual Offences Act, 2012 | Does not itself contain a general bail provision; bail is governed by the Sanhita, with the classification in the special law and the Schedule |
The common feature of these provisions is that they do not merely make the offence non-bailable. They add a condition that the court must be satisfied of something before releasing the accused, which reverses the ordinary approach in which the court asks whether detention is necessary. The interaction between such conditions and the constitutional requirement that pre-trial detention be justified, stated in Sanjay Chandra, is one of the most heavily litigated areas of bail law.
6. Key Takeaways
The position stated shortly 1. A bailable offence is one shown as bailable in the First Schedule or made bailable by another law; every other offence is non-bailable: section 2(1)(c). The definition of a non-bailable offence is purely residual. 2. In a bailable offence bail is an absolute and indefeasible right under section 478. The officer or court has no discretion, no occasion to consider the merits and no occasion to hear the complainant: Rasiklal. 3. An indigent accused unable to furnish surety within a week of arrest is presumed indigent and released on a bond without sureties. 4. In a non-bailable offence bail lies in the discretion of the court under section 480, subject to restrictions where the offence is punishable with death or imprisonment for life, or where the accused has specified previous convictions, with exceptions for a child, a woman and the sick or infirm. 5. The considerations are the nature and gravity of the accusation, the character of the evidence, the risk of absconding, tampering or repetition, and the likely delay in the trial. Gravity alone is not conclusive and pre-trial detention is not punishment: Sanjay Chandra. 6. A police officer may grant bail in a bailable offence but never in a non-bailable one. 7. Anticipatory bail is section 482, exercisable only by the High Court or Court of Session. Under the CrPC that number was 438, and section 482 CrPC was the inherent power, now section 528 BNSS. 8. Section 479 provides for the release of an undertrial after one half of the maximum sentence, or one third for a first-time offender, with the jail Superintendent required to apply. 9. A special statute may make its own provision, and several impose twin conditions that the court must be satisfied of before releasing the accused. |
7. Frequently Asked Questions
What is a bailable offence under the BNSS?
An offence shown as bailable in the First Schedule to the Sanhita, or made bailable by any other law in force. The definition is in section 2(1)(c), and every offence that is not bailable is non-bailable.
Is bail a right in a bailable offence?
Yes. Under section 478 the officer in charge of the police station or the court shall release the accused on bail if he is prepared to give it. The Supreme Court held in Rasiklal that the right is absolute and indefeasible and that no discretion is involved.
Can the police grant bail in a non-bailable offence?
No. Section 480 confers the power on a court. A police officer may release a person on bail in a bailable offence under section 478, but not in a non-bailable one.
Does non-bailable mean that bail cannot be granted?
No. It means that bail is not claimable as of right and is a matter for the discretion of the court. Bail in a non-bailable offence is granted routinely where the considerations favour release; the restrictions in section 480 apply principally to offences punishable with death or imprisonment for life.
Which section of the BNSS provides for anticipatory bail?
Section 482, exercisable by the High Court or the Court of Session where a person has reason to believe he may be arrested on an accusation of having committed a non-bailable offence. The corresponding provision of the CrPC was section 438.
Are bailable and cognizable the same thing?
No. They are independent classifications. Cognizable concerns whether the police may arrest without a warrant and investigate without an order of a Magistrate; bailable concerns whether the accused is entitled to be released as of right. All four combinations appear in the First Schedule.
Related Topics
- Cognizable and Non-Cognizable Offences under the BNSS, 2023
- Summons Case and Warrant Case under the BNSS, 2023
- Bail and Bonds under the BNSS, 2023: Sections 478 to 496
- Anticipatory Bail: Section 482, BNSS
- Section 479 BNSS: Release of Undertrial Prisoners
- Important Definitions under Section 2 of the BNSS, 2023