BNSS Section 478 - In what cases bail to be taken

Section 478 of the BNSS deals with grant of bail in bailable offences and lays down the mandatory duty of the police and courts to release such persons on bail. It also provides special consideration for indigent (poor) persons, and prescribes consequences for breach of bail conditions.

1. Applicability:

This section applies only to persons accused of bailable offences. It does not apply to persons accused of non-bailable offences.

2. Bail as a Matter of Right (Sub-section 1):

• When a person is arrested or detained without a warrant by a police officer, or
  
  

• When a person appears or is brought before a court,
  
  

• And such person is not accused of a non-bailable offence,
  
  

• He shall be released on bail if he is prepared to furnish it at:
  
  

  • The time of arrest/detention,
    
    

  • Or at any later stage before the police or the court.
    
    

This makes bail in such cases a statutory right, not a matter of discretion.

3. Provision for Indigent Persons:

• First Proviso:
  If the arrested person is indigent (poor) and unable to provide surety, then:
  
  

  • The police officer or the court may (in general cases), and
    
    

  • Shall (in cases of proven indigence),
    release the person on a personal bond without requiring sureties.
    
    

• This ensures that poverty alone does not become a ground for continued detention, upholding the constitutional principle of equality.
  
  

• Explanation to the Proviso:
  If a person fails to furnish bail within one week of his arrest, then:
  
  

  • It will be presumed by the police or court that the person is indigent.
    
    

  • This presumption aids in avoiding unnecessary and prolonged detention due to inability to afford bail.
    
    

4. Exceptions to the Provision (Second Proviso):

• This section does not override the provisions of:
  
  

  • Section 135(3): Likely dealing with specific procedures or exceptions concerning police powers or custody rules.
    
    

  • Section 492: Possibly providing exceptions or special procedures concerning the grant or denial of bail in specific situations.
    
    

This proviso ensures that the right to bail under Section 478 is subject to certain statutory exceptions.

5. Denial of Bail on Breach of Conditions (Sub-section 2):

• If a person violates the conditions of bail or bond, especially:
  
  

  • Fails to appear in court at the agreed time and place,
    
    

• Then the court may:
  
  

  • Refuse to grant bail to him on any subsequent occasion in the same case.
    
    

  • This denial is without prejudice to the court’s power to:
    
    

    • Recover penalty or forfeit the bond under Section 491.
      
      

This sub-section serves as a deterrent against misuse of the liberty granted through bail and enforces accountability for adherence to bail terms.

Conclusion:

Section 478 of BNSS, 2023, reinforces the principle that bail is a rule and jail is an exception in bailable offences. It balances the right to liberty with mechanisms to ensure attendance and accountability. Additionally, it is progressive and humane, especially towards economically weaker sections, by recognizing inability to furnish bail as a ground to release on personal bond.