What Changed for Bail Applications Under the BNSS

Since 1 July 2024 bail in India has been governed by the Bharatiya Nagarik Suraksha Sanhita, 2023. Most practitioners noticed the renumbering first. The substantive shifts — in undertrial release, in the notice procedure before arrest, and in timelines for the investigation — have taken longer to work through the district courts.

The Renumbering

A bail application drafted today should cite the BNSS provision where the offence is alleged to have been committed on or after 1 July 2024, and the CrPC provision where it is earlier. Both appear on the cause lists of the Delhi courts and will for some years.

Section 479 BNSS — Release of Undertrial Prisoners

Section 479 BNSS carries forward the principle of the former Section 436A CrPC: an undertrial who has been detained for up to one-half of the maximum period of imprisonment prescribed for the offence is to be released on bond. Two features are worth noting.

• First-time offenders. A person who has never previously been convicted is entitled to release on bond after detention of up to one-third of the maximum period — a shorter threshold than the general rule.
• Duty on the jail superintendent. The provision places an obligation on the Superintendent of the jail to apply in writing to the court for the release of an eligible prisoner, rather than leaving it to the prisoner to move an application.

The provision does not apply to an offence punishable with death or with imprisonment for life, and the position of a person facing multiple proceedings is dealt with separately in the section. Applications under Section 479 have become a routine part of practice before the Delhi Sessions Courts.

Section 35 BNSS — Notice Instead of Arrest

Section 35 BNSS reproduces the substance of the former Section 41A CrPC: where the offence carries a punishment of less than seven years, a police officer is to issue a notice of appearance rather than arrest, and a person who complies with the notice is not to be arrested unless the officer records reasons. Section 35(7) further requires prior permission of an officer not below the rank of Deputy Superintendent of Police before arresting a person above sixty years of age in such cases.

Timelines That Now Bind the Investigation

• Section 193 BNSS requires the investigating officer to inform the complainant of the progress of the investigation within ninety days.
• Section 187 BNSS retains the sixty and ninety-day periods for filing the police report, the expiry of which gives rise to the indefeasible right to default bail.
• Section 251 BNSS requires charges to be framed within a fixed period after the first hearing on charge, tightening the pre-trial stage.

The default bail right remains what it always was: it must be claimed while it subsists. If the chargesheet is filed before the application is moved, the right is lost.

What Has Not Changed

The considerations a court applies — the nature and gravity of the accusation, the severity of the punishment, the risk of the accused absconding, the possibility of tampering with evidence or influencing witnesses, and the antecedents of the accused — are unaltered. Bail is neither punishment nor acquittal, and no advocate can promise it. What preparation can do is put the correct material before the court at the first opportunity.