Bail Provisions — Old CrPC vs New BNSS Comparison

In India, bail has been governed since 1 July 2024 by Chapter XXXV (Sections 478–496) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Chapter XXXIII (Sections 436–450) of the Code of Criminal Procedure, 1973 (CrPC). The structure is unchanged; the largest change is Section 479, which releases a first-time undertrial on bond after one-third of the maximum term.

At a glance

New vocabulary: bail, bail bond and bond

The CrPC defined "bailable offence" but never defined bail. Section 2(1) BNSS does:

"(b) "bail" means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;" … "(d) "bail bond" means an undertaking for release with surety; (e) "bond" means a personal bond or an undertaking for release without surety;" — BNSS s.2(1)(b), (d), (e) (extract)

Wherever the BNSS says a person is released "on bond" (the indigent proviso to Section 478, the first-time-offender proviso to Section 479), the definition means release without a surety. Where the CrPC said "a bond without sureties" (Sections 436, 437(2), 437(7)), the BNSS says "a bond". Section 437A CrPC required "bail bonds with sureties"; Section 481 BNSS accepts "a bond or bail bond", so release without a surety is now expressly possible there.

Bailable offences — Section 478 (was Section 436)

The operative words are unchanged: a person accused of a bailable offence who is prepared to give bail "shall be released on bail". The indigent-person proviso and its one-week Explanation carry over, now framed as discharge on "a bond" instead of taking a "bail bond"; cross-references are renumbered (CrPC Sections 116(3), 446A and 446 become BNSS Sections 135(3), 492 and 491). See the Section 436 CrPC vs Section 478 BNSS page.

Undertrial detention limits — Section 479 (was Section 436A)

"Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:" — CrPC s.436A (extract)

"Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:" — BNSS s.479(1), first proviso (extract)

What changed.

• Narrowed — the exclusion reads "death or life imprisonment" instead of "death".
• Modified — release at one-half is "on bail" instead of "on his personal bond with or without sureties".
• New — a first-time offender is released "on bond" at one-third (first proviso).
• Modified — the Court may, after hearing the Public Prosecutor and recording reasons, order detention beyond one-half or release the person "on bail bond instead of his bond" (CrPC: "on bail instead of the personal bond").
• Minor edit — no detention beyond the maximum term: the same words, now the third proviso, opening "Provided also" (CrPC: "Provided further").
• Identical — the Explanation excluding delay caused by the accused.
• New — Section 479(2): where an investigation, inquiry or trial "in more than one offence or in multiple cases" is pending, the person "shall not be released on bail by the Court", "subject to the third proviso".
• New — Section 479(3): the jail Superintendent, "on completion of one-half or one-third of the period … as the case may be, shall forthwith make an application in writing to the Court".

How it works — the steps.

1. Eligibility: if death or life imprisonment is one of the punishments specified for the offence, Section 479 does not apply.
2. Maximum term: take the maximum specified "under that law". The words "an offence under any law" are unchanged, so special-statute offences are not excluded by the text.
3. First-time offender? If he "has never been convicted of any offence in the past", the threshold is one-third and release is on bond; otherwise one-half, on bail.
4. Detention undergone: count custody during investigation, inquiry and trial, excluding delay caused by the accused.
5. Other pending cases: Section 479(2) bars release on bail, but the third-proviso cap still applies.
6. Apply: the Superintendent must apply (s.479(3)); the text does not stop the accused applying directly.

Worked example (the section has no illustrations). An undertrial is charged with cheating under BNS Section 318(4), punishable with imprisonment "which may extend to seven years" and fine (cognizable, non-bailable, triable by a Magistrate of the first class under the First Schedule). If he has never been convicted, the one-third mark falls at two years and four months, and the proviso says he "shall be released on bond". With a prior conviction, the mark is three years and six months. If a second case is pending, Section 479(2) stops release on bail under this section, but on the words of the third proviso he still cannot be held beyond seven years.

One point is open on the text. The second proviso speaks of continued detention "for a period longer than one-half of the said period", while the first proviso fixes release at one-third. Whether the Court can order continued detention of a first-time offender between the one-third and one-half marks is not settled by the words, and no judgment read for this guide decides it.

Non-bailable offences before a Magistrate — Section 480 (was Section 437)

Section 480 keeps the two bars in sub-section (1) (reasonable grounds for believing the person guilty of an offence punishable with death or imprisonment for life; certain repeat offenders) and the provisos allowing release of a woman or a sick or infirm person. The changes:

• Modified — "under the age of sixteen years" becomes "a child". The BNSS does not define "child"; Section 2(2) BNSS imports BNS definitions, and BNS Section 2(3) defines a child as a person below eighteen.
• Expanded — the third proviso adds that the need for "police custody beyond the first fifteen days" is not by itself a ground to refuse bail.
• Modified — clause (ii) reads "three years or more but less than seven years"; the official CrPC text prints "three years or more but not less than seven years", so on the printed words the band has changed.
• Modified — sub-section (3) cites BNS Chapters VI, VII and XVII (human body, the State, property) in place of IPC Chapters VI, XVI and XVII, the same three subjects under different numbers.
• Minor edit — "a bond without sureties" becomes "a bond" in sub-sections (2) and (7).

The sixty-day rule in Section 480(6) is unchanged. See the Section 437 CrPC vs Section 480 BNSS page.

Anticipatory bail — Section 482 (was Section 438)

Sub-sections (1) to (3) repeat Section 438 CrPC, with the cross-reference in (2)(iv) changed to Section 480(3) and the CrPC misprint "confirmity" corrected to "conformity". The change is in sub-section (4):

"Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code" — CrPC s.438(4) (extract)

"Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023." — BNSS s.482(4)

BNS Section 65 covers rape of a woman under sixteen (sub-section (1)) and under twelve (sub-section (2)). BNS Section 70(2) covers gang rape of a woman "under eighteen years of age", punishable with imprisonment for the remainder of natural life and fine, or death. IPC Section 376DA covered gang rape only of a woman under sixteen, so the exclusion is Expanded to a woman aged sixteen or seventeen.

The 2005 amendment that would have inserted a list of factors into Section 438(1) (Section 38 of Act 25 of 2005) was among the provisions excepted from S.O. 923(E) of 21 June 2006, which brought that Act into force from 23 June 2006; in Sushila Aggarwal (2020), S. Ravindra Bhat J.'s opinion recorded (footnote 31) that it "has till now, not been brought into force". The West Bengal and Orissa amendments amended Section 438 CrPC; the enacted Section 482 contains no corresponding words. See the Section 438 CrPC vs Section 482 BNSS page.

Sessions Court and High Court powers — Section 483 (was Section 439)

The powers are in the same words: release an accused in custody, set aside or modify a Magistrate's conditions, and direct re-arrest. The 2018 additions — the second proviso (notice to the Public Prosecutor within fifteen days) and sub-section (1A) (the informant's obligatory presence at the hearing) — now name BNS Section 65 and Section 70(2), so they too reach gang rape of a woman under eighteen. Sub-sections (1A) and (2) become (2) and (3). See the Section 439 CrPC vs Section 483 BNSS page.

Default bail — Section 187(3) (was Section 167(2), proviso (a))

"the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV" — BNSS s.187(3) (extract; the CrPC words are identical except "Chapter XXXIII")

• Identical — ninety days where the investigation relates to an offence punishable with death, life imprisonment or a long term; sixty days otherwise.
• Minor edit — the long term reads "ten years or more" (CrPC: "not less than ten years").
• Omitted — the CrPC words "otherwise than in custody of the police" in the power to detain beyond fifteen days.
• Modified — Section 187(2) allows custody "for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days".

In M. Ravindran (2020), para 11.6, the Supreme Court records that the majority in Rakesh Kumar Paul confined the ninety-day period to offences carrying a minimum ten-year term; whether "ten years or more" changes that is not decided by any judgment read here. See the Section 167 CrPC vs Section 187 BNSS page.

Bonds, sureties and forfeiture — Sections 481 and 484–496

The machinery after a grant of bail carries over almost word for word. The amount of every bond "shall not be excessive" and may be reduced by the High Court or Court of Session (s.484). Every surety must declare the number of persons for whom he stands surety (s.486). Where a forfeited penalty is not paid and cannot be recovered, the Court may order the surety to civil jail for up to six months (s.491(2), proviso). Section 494 now speaks of "a child" instead of "a minor". Section 481 requires the accused, before a trial or appeal ends, to execute a bond or bail bond to appear before the higher court, in force for six months.

What this means in practice

• Undertrial and family: establish the maximum term of every offence charged and whether any carries death or life imprisonment; for a first-time offender, compute the one-third mark.
• Jail Superintendent: Section 479(3) requires a written application "forthwith" at one-half or one-third.
• Defence counsel: where Section 479(2) is invoked, check what is actually pending. For default bail, apply as soon as the period ends and before a charge-sheet is filed (see M. Ravindran). In anticipatory-bail matters, check the woman's age against the eighteen-year line in BNS Section 70(2).
• Public Prosecutor: continued detention beyond one-half requires a hearing and written reasons (s.479, second proviso); a court acting under Section 480(1) may not release a person accused of an offence punishable with death, life imprisonment or seven years or more without giving the prosecutor an opportunity of hearing.

Judgments that still matter

Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., [2020] 2 S.C.R. 1 (2020 INSC 106), decided 29 January 2020. A five-judge bench, in concurring opinions by M.R. Shah J. and S. Ravindra Bhat J., held that protection under Section 438 "should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time" (answer (1)) and can continue till the end of the trial (answer (2)). Bhat J. (para 56) reasoned from the express Section 438(4) exclusion that "neither a blanket restriction can be read into by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon". Why it matters now: Section 482(1)–(3) repeat the words construed, and Section 482(4) is the same kind of express, now wider, exclusion.

M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, [2020] 12 S.C.R. 915 (2020 INSC 608), decided 26 October 2020. A three-judge bench (U.U. Lalit, M.M. Shantanagoudar and Vineet Saran JJ.) held that Section 167(2) "is integrally linked to the constitutional commitment under Article 21" (para 11.6). Once the accused applies, the right survives a later charge-sheet or extension report (paras 18.1–18.2); but "where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished" (para 18.3). Why it matters now: Section 187(3) repeats the release words, so on a reading of the text this construction remains relevant.

Satender Kumar Antil v. Central Bureau of Investigation & Anr., [2022] 10 S.C.R. 351 (2022 INSC 690), decided 11 July 2022. S.K. Kaul and M.M. Sundresh JJ. (judgment by Sundresh J.) held that detention during a pending appeal or revision counts under Section 436A (para 46) and that "the provision contained in Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision" (para 64). On Section 440: "Imposing a condition which is impossible of compliance would be defeating the very object of the release" (para 62). Why it matters now: Section 479 keeps "an offence under any law" and Section 484 repeats Section 440; on a reading, both passages bear on the new sections.

Central Bureau of Investigation v. Dayamoy Mahato etc. (2025 INSC 1418), decided 11 December 2025. Sanjay Karol and N. Kotiswar Singh JJ. (judgment by Karol J.) reproduced Section 436A (para 7) with Section 479 BNSS alongside it, and held: "The use of the word 'shall' indicates a right bestowed upon the accused - an entitlement to be set at liberty and an obligation on part of the State to comply therewith" (para 9.4), subject to continued detention for recorded reasons (para 9.5). Because death was a possible punishment, that "in and of itself, excludes these offences from the ambit" of Section 436A (para 11); the Court still declined to disturb the bail granted, given twelve years' custody and no misuse of liberty (paras 21.2–22). Why it matters now: Section 479 carries the same "shall" and a wider exclusion that also reaches life-imprisonment offences.

Which law applies to your case

Section 531(2)(a) BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is disposed of or continued under the CrPC "as if this Sanhita had not come into force", and Section 531(2)(b) deems CrPC orders then in force to have been made under the corresponding BNSS provisions. On a reading of that text, a bail order in force on 1 July 2024 continues and a bail application pending on that date is decided under the CrPC; how clause (a) applies to a fresh application in a trial already pending is not settled by its words. For the offence itself, BNS Section 358(2) keeps IPC penalties enforceable "as if that Code had not been repealed". See which law applies to an offence before 1 July 2024.

Frequently Asked Questions

Which BNSS sections replaced the CrPC bail chapter?

Chapter XXXV of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 478 to 496) replaced Chapter XXXIII of the Code of Criminal Procedure, 1973 (Sections 436 to 450) from 1 July 2024. Section 436A became Section 479, Sections 437 to 439 became Sections 480, 482 and 483, and Sections 440 to 450 became Sections 484 to 496. Default bail moved from the proviso to Section 167(2) CrPC to Section 187(3) BNSS.

What does Section 479 BNSS give a first-time offender?

Under the first proviso to Section 479(1) BNSS, a person who has never been convicted of any offence and has been detained for up to one-third of the maximum term shall be released on bond by the Court. Others qualify at one-half and are released on bail. Section 479 does not apply where death or life imprisonment is specified as one of the punishments.

Can a court refuse release under Section 479 BNSS?

Yes. The second proviso lets the Court, after hearing the Public Prosecutor and recording reasons, order detention longer than one-half of the period or require a bail bond instead of a bond. Section 479(2) bars release on bail where cases for more than one offence, or multiple cases, are pending. Under the third proviso, no one may be detained beyond the maximum term.

Who must apply for release under Section 479?

The accused may apply, but Section 479(3) BNSS also requires the jail Superintendent, on completion of one-half or one-third of the period, to forthwith apply in writing to the Court. Section 436A CrPC imposed no such duty. Detention caused by the accused's own delay is excluded by the Explanation.

Which offences are excluded from anticipatory bail under Section 482 BNSS?

Section 482(4) BNSS excludes arrest on accusation of an offence under Section 65 (rape of a woman under sixteen or under twelve) and Section 70(2) (gang rape of a woman under eighteen) of the Bharatiya Nyaya Sanhita, 2023. Section 438(4) CrPC reached gang rape only where the woman was under sixteen, so the exclusion now also covers a woman aged sixteen or seventeen.

Did the default bail periods change under Section 187(3) BNSS?

No. Section 187(3) BNSS keeps ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for ten years or more, and sixty days for any other offence. On expiry the accused shall be released if he is prepared to and does furnish bail.

What is the difference between a bond and a bail bond under the BNSS?

Section 2(1)(e) BNSS defines a bond as a personal bond or an undertaking for release without surety; Section 2(1)(d) defines a bail bond as an undertaking for release with surety. Section 2(1)(b) defines bail as release from the custody of law on conditions, on execution of a bond or a bail bond. The CrPC defined none of these terms.

Does the CrPC still govern a bail application filed before 1 July 2024?

Section 531(2)(a) BNSS provides that an application pending immediately before the BNSS came into force is disposed of under the CrPC as if the BNSS had not come into force. On a reading of that text, a bail application pending on 30 June 2024 is decided under the CrPC. How clause (a) applies to a fresh application in a trial already pending on that date is not settled by its words.

Related

• Section 437 CrPC vs Section 480 BNSS: bail in non-bailable offences
• Section 438 CrPC vs Section 482 BNSS: anticipatory bail
• Section 439 CrPC vs Section 483 BNSS: special bail powers
• Section 167 CrPC vs Section 187 BNSS: remand and default bail
• Undertrial release after one-third: Section 479 BNSS vs Section 436A CrPC
• Offence before 1 July 2024: which law applies
• Section 436A CrPC vs Section 479 BNSS — Maximum Period an Undertrial Prisoner Can Be Detained
• Section 397 CrPC vs Section 438 BNSS — Criminal Revision (CrPC 397-401)
• Section 2 CrPC vs Section 2 BNSS — Definitions

Sources

• Acts and sections read: BNSS 2023 ss.2(1)(b)–(e), 2(2), 187, 478–496, 531 and the First Schedule entry for BNS s.318(4) (Gazette CG-DL-E-25122023-250884); BNS 2023 ss.2(3), 65, 70, 318(4), 358 and the headings of Chapters VI, VII and XVII (Gazette CG-DL-E-25122023-250883); CrPC 1973 ss.2(a), 167, 436–450 with footnotes and State amendments, and the Appendix extract of the CrPC (Amendment) Act, 2005 (s.38 and the S.O. 923(E) exception note); IPC 1860 ss.376DA, 376DB and the headings of Chapters VI, XVI and XVII (original India Code texts).
• Judgments read (Veritect judgment corpus, full text): Sushila Aggarwal v. State (NCT of Delhi) (2020_2_1_131_EN.md); M. Ravindran v. Intelligence Officer, DRI (2020_12_915_955_EN.md); Satender Kumar Antil v. CBI (2022_10_351_447_EN.md); CBI v. Dayamoy Mahato (Diary_27175-2023_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.