Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Release of a Person Arrested under the BNSS 2023
Release of a Person Arrested under the BNSS, 2023: Section 60, Bail as of Right, Default Bail, Section 479 and the Routes Out of Custody
Every arrest ends in a release. The question is when, on what terms, and by whose order. The Bharatiya Nagarik Suraksha Sanhita, 2023 provides a considerable number of routes out of custody, spread across five chapters, and they operate at different stages and on different principles. Some are rights that the officer or the court cannot refuse; some are discretions to be exercised judicially; and one, default bail, is a right that arises from the failure of the investigating agency rather than from the merits of the case at all.
Governing all of them is a short provision that is easy to miss. Section 60 provides that no person who has been arrested by a police officer shall be discharged except on his own bond, on bail, or under the special order of a Magistrate. A person once arrested cannot simply be let go. That rule, and the reporting requirement in section 59, exist to close the gap through which an arrest could be made, a person held for a period, and both events left unrecorded.
Figure 1: The routes out of custody
1. The Controlling Rule: Sections 59 and 60
Sections 59 and 60, BNSS 2023 Section 59. Police to report apprehensions. Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant within the limits of their respective stations, whether such persons have been admitted to bail or otherwise. Section 60. Discharge of person apprehended. No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. |
The two sections work together. Section 59 makes the fact of every warrantless arrest known to a Magistrate whether or not the person was bailed, and section 60 makes the release itself a recorded event that must take one of three forms. Neither is much discussed, and together they are the provisions that make an unrecorded arrest and release a breach of statutory duty rather than an untraceable occurrence.
The three permitted forms of release | What it means |
|---|---|
On his own bond | A personal undertaking without surety, defined in section 2(1)(e). The police may take such a bond in a bailable offence, and section 479 requires an undertrial who has served the qualifying period to be released on bond |
On bail | Release from the custody of law on conditions, on execution of a bond or bail bond: section 2(1)(b). In a bailable offence the officer in charge may grant it; in a non-bailable offence only a court may |
Under the special order of a Magistrate | Where neither of the first two applies, the release requires a judicial order, which is what makes it a recorded event examined by a judicial officer |
2. Release Without Any Court: the Police Routes
2.1 Bail as of right in a bailable offence: section 478
Where a person accused of a bailable offence is arrested 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 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 court to presume that he is indigent and to release him on a bond without sureties.
The word is “shall”, and there is no discretion. The officer cannot consider the strength of the case, the antecedents of the person or the likelihood of his absconding, and there is no occasion to hear the complainant. The only questions are whether the offence is bailable and whether the person is prepared to give bail. A refusal is a failure of a statutory duty, not an exercise of judgment that went the wrong way.
2.2 Release after a name-and-address arrest: section 39
Where a person accused of a non-cognizable offence refuses on demand to give his name and residence, or gives one the officer has reason to believe to be false, he may be arrested so that they may be ascertained. Once they are ascertained he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required; and in any event he shall not be detained for more than twenty-four hours from the arrest. If his name and residence cannot be ascertained within that period, or if he fails to execute the bond or to furnish sufficient sureties, he is forwarded to the nearest Magistrate.
2.3 Release after an arrest by a private person: section 40
Where a private person hands over a person he has arrested, and the police officer has reason to believe that the case falls within section 35(1), the officer takes him into custody. Where the offence appears to be non-cognizable and the person refuses to give his name and residence, he is dealt with under section 39. In all other cases he shall be released at once. The words are mandatory and the release is immediate: a person handed over by a private citizen without any basis in section 35(1) is not to be held while the matter is looked into.
3. Release by Order of a Court
Provision | Route | Character |
|---|---|---|
Section 480 | Bail in a non-bailable offence, by a court other than the High Court or the Court of Session | Discretionary, with reasons recorded; restricted where the offence is punishable with death or imprisonment for life, subject to the relaxation for a child, a woman, or a sick or infirm person |
Section 482 | Anticipatory bail, on apprehension of arrest in a non-bailable offence | Exercisable only by the High Court or the Court of Session. This provision carried the number 438 in the CrPC |
Section 483 | The special powers of the High Court and the Court of Session | Bail in any case, the imposition or setting aside of conditions, and the direction that a person released be arrested and committed to custody. The victim must be heard in the specified offences |
Section 187, proviso | Default bail on the expiry of sixty or ninety days without a police report | A right that accrues from the failure to complete the investigation, not from the merits |
Section 479 | Release of an undertrial who has served one half of the maximum period, or one third where he is a first-time offender | On bond. The Superintendent of the jail must apply. Excluded for offences punishable with death or imprisonment for life, and where more than one offence or multiple cases are pending |
Section 481 | A bond taken from a convicted person before release, to appear before the appellate court if and when it issues notice | Taken by the trial court at the conclusion of the trial or on release pending appeal |
4. Default Bail
Figure 2: How the right arises and how it is lost
Default bail is the most distinctive of the routes out of custody because it has nothing to do with the strength of the case. It arises from the failure of the investigating agency to complete its investigation within the period the statute allows, and it is the statutory sanction for that failure. Section 187 permits detention during investigation for ninety days where the offence is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, and for sixty days in any other case. On the expiry of the period, the accused shall be released on bail if he is prepared to and does furnish bail.
📖 Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 Facts: The accused applied for default bail on the expiry of the statutory period, and while the application was pending the prosecution filed the charge sheet. The question was at what point the right is “availed of”, and whether the subsequent filing of the charge sheet defeats an application made before it. Held: The Supreme Court held that the right to default bail is an indefeasible right which accrues on the expiry of the period, but that it must be availed of by the accused. It is availed of when he files an application for bail on the ground of the default and offers to furnish bail, not when the order is actually passed. If the accused has made such an application before the charge sheet is filed, the subsequent filing of the charge sheet does not defeat his right, and the court is bound to release him; a contrary view would allow the prosecution to defeat an accrued right by the accident of the time taken by the court to hear the application. Where the accused does not apply at all before the report is filed, the right is lost. Ratio: The right accrues on the expiry of the period but must be availed of by an application. It is availed of on the filing of the application, and the subsequent filing of the police report does not defeat it. |
📖 Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 Facts: The accused, prosecuted under a special statute, applied for default bail on the expiry of the period applicable under the ordinary law, the extension of the period under the special statute having been granted by a court which, it was contended, was not competent to grant it. The question was the nature of the right to default bail and the consequences of an invalid extension. Held: The Supreme Court held that the right to default bail is not a mere statutory right but part of the procedure established by law under Article 21 of the Constitution, and is therefore a fundamental right. It cannot be defeated by an order of extension passed by a court not competent to pass it, nor by any procedure that does not answer the requirements of the statute. Where the period expires without a valid extension and without a report being filed, the accused is entitled to be released, and the entitlement cannot be taken away by subsequent events. Ratio: Default bail is an incident of the right to personal liberty under Article 21 and not a concession. An invalid extension of the period does not defeat it. |
⚠ Four practical points on default bail The accused must apply. The right accrues automatically but is not self-executing. No particular form of words is required and an oral application will do, but an application there must be, and it must be made before the report is filed. An incomplete report does not defeat it. A document filed to stop the clock, without the investigation having been completed and without the material section 193 requires, is not a police report, and the right survives. “Not less than ten years” means a minimum of ten years. An offence punishable with imprisonment which may extend to ten years attracts the sixty-day period, not the ninety-day period. The transition matters. Where an investigation was pending on 30 June 2024, section 531(2)(a) keeps it under the Code of Criminal Procedure, and the periods and the right that accrues are those of section 167 of the old Code. |
5. Release of Undertrial Prisoners: Section 479
Section 479 corresponds to section 436A of the Code of Criminal Procedure and widens it. Where a person has, during the period of investigation, inquiry or trial, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for the offence, he shall be released by the court on bond. Where he is a first-time offender, that is to say a person who has never been convicted of any offence in the past, the period is one third. The Superintendent of the jail is required to make an application to the court for the release of such a person on completion of the period.
Element | Section 436A, CrPC | Section 479, BNSS |
|---|---|---|
General rule | Release on personal bond after one half of the maximum period | Retained |
First-time offender | No separate provision | Release after one third of the maximum period |
Who moves the court | In practice the prisoner or his counsel | The Superintendent of the jail shall make the application |
Excluded offences | Offences punishable with death | Offences punishable with death and with imprisonment for life |
Multiple proceedings | No express exclusion | The benefit does not apply where an investigation, inquiry or trial in more than one offence, or in multiple cases, is pending |
Overall cap | No detention beyond the maximum period specified for the offence | Retained |
The one-third rule is a real widening of the entitlement, and the duty cast on the Superintendent of the jail addresses the practical problem that the benefit under section 436A was frequently not claimed because the prisoner did not know it existed. Against that, the exclusion where an investigation, inquiry or trial in more than one offence is pending is a substantial narrowing, since a charge sheet commonly lists several offences arising out of a single transaction. Whether that exclusion is directed at multiple cases or extends to multiple offences in one case is the question on which the practical reach of section 479 turns.
6. Release by the Termination of the Proceeding
The remaining routes are not bail at all. They end the proceeding, and release follows from that.
- Discharge. Sections 250, 262 and 268 permit the court to discharge the accused where the charge is groundless or where no case is made out which, if unrebutted, would warrant a conviction. Discharge is not an acquittal, and the proceeding may in some circumstances be revived.
- Acquittal. Sections 271 and 278 provide for acquittal at the conclusion of the trial; section 279 permits acquittal in a summons case where the complainant does not appear or has died; and section 280 provides for acquittal on the withdrawal of a complaint with the leave of the Magistrate.
- Withdrawal from prosecution. Under section 360 the Public Prosecutor may, with the consent of the court and after the victim has been heard, withdraw from the prosecution; the accused is discharged if the withdrawal is before a charge is framed and acquitted if it is after.
- Stopping of proceedings. Section 281 permits a Magistrate in a summons case instituted otherwise than on a complaint to stop the proceedings at any stage without pronouncing judgment, which operates as a discharge or an acquittal according to the stage reached.
- Compounding. Section 359 permits the specified offences to be compounded, with the permission of the court where it is required, and the composition has the effect of an acquittal.
7. Key Takeaways
The position stated shortly 1. Section 60: no person arrested by a police officer shall be discharged except on his own bond, on bail, or under the special order of a Magistrate. A person once arrested cannot simply be let go. 2. Section 59: every arrest without warrant must be reported to the District Magistrate, whether or not the person was admitted to bail. 3. Section 478: in a bailable offence release is a right, and the officer in charge or the court shall release the person on bail. The indigent accused unable to furnish surety within a week is presumed indigent and released on a bond. 4. Section 39: a person arrested to ascertain his name and residence must be released on a bond once they are ascertained, and in any event within twenty-four hours. 5. Section 40: a person handed over by a private person must be released at once unless the case falls within section 35(1) or section 39. 6. Release by order of a court comes under section 480 in a non-bailable offence, section 482 for anticipatory bail, section 483 in the special powers of the High Court and the Court of Session, the proviso to section 187 for default bail, and section 479 for an undertrial. 7. Default bail accrues on the expiry of sixty or ninety days without a police report. It is an indefeasible right but must be availed of by an application made before the report is filed: Uday Mohanlal Acharya. 8. The right is part of the procedure established by law under Article 21 and cannot be defeated by an invalid extension of the period: Bikramjit Singh. 9. Section 479 adds release after one third of the maximum for a first-time offender and casts a duty on the jail Superintendent to apply, but excludes offences punishable with life imprisonment and cases where more than one offence or multiple cases are pending. 10. Discharge, acquittal, withdrawal from prosecution, the stopping of proceedings and compounding end the proceeding, and release follows from that rather than from any order of bail. |
8. Frequently Asked Questions
Can the police release a person they have arrested?
Only in one of the three ways section 60 permits: on his own bond, on bail, or under the special order of a Magistrate. In a bailable offence the officer in charge must release him on bail under section 478 if he is prepared to give it; in a non-bailable offence the police cannot grant bail at all.
What is default bail?
The right to be released on bail on the expiry of the period allowed for the investigation without a police report having been filed: sixty days in ordinary cases, and ninety days where the offence is punishable with death, imprisonment for life, or imprisonment for not less than ten years. It arises from the failure of the agency, not from the merits of the case.
Does filing the charge sheet defeat an application for default bail?
Not where the application was made before the charge sheet was filed. The right accrues on the expiry of the period and is availed of when the accused files an application offering to furnish bail; the subsequent filing of the report does not defeat an application already made: Uday Mohanlal Acharya.
Is default bail a fundamental right?
It is part of the procedure established by law under Article 21 and has been treated as such. It is not a mere statutory concession, and it cannot be defeated by an extension of the period granted by a court not competent to grant it: Bikramjit Singh.
When must an undertrial prisoner be released under section 479?
On completing one half of the maximum period of imprisonment specified for the offence, or one third where he has never been convicted of any offence. The Superintendent of the jail must apply to the court. The benefit does not apply to offences punishable with death or imprisonment for life, or where an investigation, inquiry or trial in more than one offence or in multiple cases is pending.
What is the difference between discharge and acquittal?
Discharge is an order made before the evidence is taken, on the footing that the charge is groundless or no case is made out; it does not decide guilt and the proceeding may in some circumstances be revived. Acquittal is a finding at the conclusion of the trial, or an order treated as one, and it bars a second trial for the same offence.
Related Topics
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Escape from Custody and Retaking under the BNSS, 2023
- Bailable and Non-Bailable Offences under the BNSS, 2023
- Bail and Bonds under the BNSS, 2023: Sections 478 to 496
- Section 187 BNSS: Remand, Police Custody and Default Bail
- Illegal Arrest and Compensation under the BNSS, 2023