Section 436 CrPC vs Section 478 BNSS: Bail in Bailable Offences, Indigent Bond Rule (2026)

In India, bail in bailable offences is governed by Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 436 of the Code of Criminal Procedure, 1973 (CrPC). Release remains mandatory; an indigent person unable to furnish surety must be discharged on a bond without surety, and a week without bail bond supports a presumption of indigence.

At a glance

	Old law	New law
Section	Section 436, CrPC 1973 (Chapter XXXIII, "Provisions as to Bail and Bonds")	Section 478, BNSS 2023 (Chapter XXXV, "Provisions as to Bail and Bonds"; in force from 1 July 2024, S.O. 848(E) of 23 February 2024)
What it does	A person accused of a bailable offence who is prepared to give bail "shall be released on bail"	Same words
Punishment	None — procedural section	None — procedural section
Cognizable / bailable / triable by	Applies to offences shown as bailable in the CrPC First Schedule or made bailable by another law (s.2(a))	Applies to offences shown as bailable in the BNSS First Schedule or made bailable by another law (s.2(1)(c)). Under Part II, offences against other laws punishable with less than three years or with fine only are bailable
Indigent accused	Shall be discharged on "a bond without sureties" (since Act 25 of 2005, w.e.f. 23 June 2006)	Shall be discharged on "a bond", defined in s.2(1)(e) as a personal bond or undertaking without surety
Change type	—	Minor edit

What changed

Identical — the right. "When any person other than a person accused of a non-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 … such person shall be released on bail". Every word of the main clause of sub-section (1) carries over.
Minor edit — the indigence proviso. "Instead of taking bail" becomes "instead of taking bail bond", and "discharge him on his executing a bond without sureties" becomes "discharge him on his executing a bond". The mandatory words "may, and shall, if such person is indigent and is unable to furnish surety" are unchanged. They were substituted into s.436 by Act 25 of 2005, w.e.f. 23 June 2006.
Minor edit — the Explanation. "Where a person is unable to give bail within a week" becomes "unable to give bail bond within a week". The presumption still reads "it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person". The Explanation, too, dates from Act 25 of 2005.
Minor edit — the second proviso. The saving for "sub-section (3) of section 116 or section 446A" becomes "sub-section (3) of section 135 or section 492". These are the renumbered provisions on interim bonds in security proceedings and on cancellation of a forfeited bond. The words "or section 446A" had been added by Act 63 of 1980, w.e.f. 23 September 1980.
Minor edit — sub-section (2). "Notwithstanding anything contained in sub-section (1)" loses "contained". "The conditions of the bail-bond" becomes "the conditions of the bond or bail bond". "Any person bound by such bond" becomes "such bond or bail bond", and the penalty cross-reference moves from s.446 to s.491.
New, outside s.478 — definitions. Section 2(1)(b) defines "bail" as release 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". Section 2(1)(d) defines "bail bond" as "an undertaking for release with surety", and s.2(1)(e) defines "bond" as "a personal bond or an undertaking for release without surety". The CrPC defined none of these; the Supreme Court remarked in Moti Ram that "There is no definition of bail in the Code".

Statutory text (relevant extract)

Extract — Section 436(1), first proviso and Explanation, CrPC (as amended by Act 25 of 2005):

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided. Explanation.—Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso:

Extract — Section 478, BNSS:

(1) … such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge him on his executing a bond for his appearance as hereinafter provided. Explanation.—Where a person is unable to give bail bond within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso: … (2) Notwithstanding anything in sub-section (1), where a person has failed to comply with the conditions of the bond or bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody …

How it works — the steps

Is the offence bailable? Section 2(1)(c) BNSS: an offence "shown as bailable in the First Schedule, or which is made bailable by any other law". For offences under other laws, Part II of the First Schedule classifies those punishable with less than three years or with fine only as bailable.
Who must release. Either "an officer in charge of a police station", where the person is arrested or detained without warrant, or "a Court" before which he appears or is brought.
When. "At any time while in the custody of such officer or at any stage of the proceeding before such Court".
The only condition. The person "is prepared … to give bail". Once he is, he "shall be released on bail".
Surety or no surety. Ordinarily the officer or Court takes a bail bond, an undertaking with surety (s.2(1)(d)). It "may" instead accept a bond without surety (s.2(1)(e)). It "shall" do so if the person is indigent and unable to furnish surety.
The one-week rule. If the person has not given bail bond within a week of arrest, that is "a sufficient ground" to presume indigence (Explanation).
Amount. The amount of every bond must be fixed with regard to the circumstances and "shall not be excessive" (s.484(1)). The High Court or Court of Session may direct a reduction (s.484(2)).
Exceptions. A Court may refuse bail on a later occasion in the same case if the person broke the attendance conditions of an earlier bond (s.478(2)). The section also does not affect s.135(3), which allows interim detention pending a bond in security proceedings, or s.492, under which a bond forfeited for breach of a condition stands cancelled and, where there was no sufficient cause for the breach, the person may not be released on his own bond alone.

Worked example. Under s.127(2) of the Bharatiya Nyaya Sanhita, 2023, wrongful confinement (up to one year) is listed in the BNSS First Schedule as cognizable and bailable. Suppose a person is arrested for it. The arresting officer must tell him that he is entitled to be released on bail and may arrange sureties (s.47(2)). If he offers bail, the officer in charge "shall" release him. If he is still in custody a week after arrest because he cannot find a surety, the Explanation lets the officer or the Magistrate presume indigence. The proviso then requires discharge on a bond without surety. By contrast, voluntarily causing hurt under s.115(2) BNS is bailable but non-cognizable. Police cannot arrest for it without a warrant (s.35(2)), so s.478 usually operates when the accused appears before the Court.

What this means in practice

For the accused and family. Tell the officer or Court that the accused is prepared to give bail; that is the only precondition. If no surety can be found, ask for discharge on a bond without surety as an indigent person. After a week in custody, rely expressly on the Explanation to the first proviso to s.478(1). If the amount is excessive, s.484(1) forbids it and s.484(2) allows a reduction by the High Court or Court of Session.
For the police. Section 47(2) requires the arresting officer to tell a person arrested without warrant for a bailable offence that he is entitled to be released on bail and may arrange sureties. The officer in charge has no discretion to refuse release to a person prepared to give bail.
For the Magistrate. Per Rasiklal v. Kishore (para 8), the questions are only whether the offence is bailable and whether the accused is ready to give bail. The complainant need not be given notice. The Court's choice is between a bond and a bail bond, and for an indigent person unable to furnish surety the proviso makes it a bond.
For legal aid. In Hussainara Khatoon (9 March 1979) the Supreme Court directed the State to provide a lawyer at its own cost to undertrial prisoners charged with bailable offences, to apply for bail. On a reading, s.478's one-week presumption gives such a lawyer a fixed point at which to press for release on a bond.
For the complainant. There is no right to be heard on the first grant (Rasiklal, para 8). Where the accused misuses liberty, the routes are cancellation on the grounds Rasiklal lists (paras 7–8), a direction under s.483(3) BNSS that a person released on bail under Chapter XXXV be arrested, and the High Court's inherent powers saved by s.528 BNSS.

Judgments that still matter

The operative words of s.478 BNSS are those of s.436 CrPC, with "bail bond" and "bond" substituted in the proviso and sub-section (2). On a reading of the text, judgments construing s.436 remain relevant; none of the judgments below construes s.478 itself.

Moti Ram v. State of M.P., [1979] 1 S.C.R. 335, decided 24 August 1978. V.R. Krishna Iyer J., for a bench with D.A. Desai J., dealt with a mason whose release on bail, already ordered by the Supreme Court pending his appeal, was frustrated. The Magistrate had demanded a Rs 10,000 surety and refused a surety from another district. Reading the Code's bail provisions, the Court said "'bail bond' in Sec. 436(2) covers own bond" (p.345). It held "that bail covers both-release on one's own bond, with or without sureties" (p.347), and it mandated release on the petitioner's own bond of Rs 1,000. It added: "The best guarantee of presence in court is the reach of the law, not the money tag" (p.348). The report has no paragraph numbers. Why it matters now: the BNSS now defines "bail", "bail bond" and "bond" (s.2(1)(b), (d), (e)), and s.478(2) speaks of "the bond or bail bond". On a reading, this settles in the text the ambiguity Moti Ram identified, and the bar on excessive amounts is s.484(1).

Hussainara Khatoon v. Home Secretary, State of Bihar, [1979] 3 S.C.R. 532, order of 9 March 1979. P.N. Bhagwati J., for a bench with D.A. Desai J., recorded that undertrial prisoners charged with bailable offences remained in jail because no bail application had been made, or because they were too poor to furnish bail. Magistrates sometimes insisted on "monetary bail with sureties" instead of personal bonds (pp.536–537). The Court held free legal services to be implicit in Article 21. It directed that on the next remand dates such prisoners be given a lawyer at the State's cost to apply for bail (pp.537–540). Why it matters now: the indigence proviso and one-week Explanation in s.478 address the same failure. Their text is mandatory ("shall"), but they still depend on someone invoking them.

Rasiklal v. Kishore, [2009] 2 S.C.R. 795 (2009 INSC 226), decided 20 February 2009. J.M. Panchal J., for a bench with R.V. Raveendran J., restored bail granted in a bailable defamation case that the High Court had cancelled because the complainant had not been heard. "The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail" (para 6). A person released can forfeit the right by conduct prejudicial to a fair trial, enforced through the High Court's inherent powers (para 7). Bail in a bailable offence can be cancelled only on grounds such as misuse of liberty, interference with investigation, tampering with evidence, threatening witnesses or absconding. These grounds are "illustrative and not exhaustive", and the complainant need not be heard at the grant stage (para 8). Why it matters now: s.478(1) repeats the words the Court called imperative.

Which law applies to your case

Section 531(2)(a) BNSS provides that any "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". On a reading of that text, a bail application already pending on that date is decided under s.436 CrPC. Whether a fresh application after that date, in a case pending since before it, falls under s.436 or s.478 is not answered in terms by the text. In substance the answer rarely matters, because the operative words, including the indigence proviso and the one-week Explanation, are the same. For the full analysis see which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 436 CrPC? Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 436 of the Code of Criminal Procedure, 1973 from 1 July 2024. Its operative words are the same: a person accused of a bailable offence who is prepared to give bail shall be released on bail. The changes are drafting ones, such as bail bond for bail and renumbered cross-references.

Is bail a right in a bailable offence under the BNSS? Yes. Section 478(1) BNSS says such a person shall be released on bail if prepared to give bail while in police custody or at any stage before the Court. In Rasiklal v. Kishore ([2009] 2 S.C.R. 795, para 6) the Supreme Court described the identical right under Section 436 CrPC as absolute and indefeasible, with no discretion to refuse. The only exception in the section is Section 478(2).

What if the accused cannot find a surety? The first proviso to Section 478(1) BNSS says the officer or Court shall, if the person is indigent and unable to furnish surety, discharge him on executing a bond instead of taking a bail bond. Section 2(1)(e) BNSS defines bond as a personal bond or an undertaking for release without surety. The same rule was in Section 436 CrPC from 23 June 2006.

What happens if the accused cannot give bail bond within a week of arrest? Under the Explanation to the first proviso to Section 478(1) BNSS, inability to give bail bond within a week of the date of arrest is a sufficient ground for the officer or the Court to presume that the person is indigent. Once the person is taken to be indigent and cannot furnish surety, release on a bond without surety is mandatory. The Explanation is not new: it was inserted into Section 436 CrPC by Act 25 of 2005, w.e.f. 23 June 2006.

Can bail be refused in a bailable offence? Under Section 478(2) BNSS, where a person has failed to comply with the conditions of the bond or bail bond as to time and place of attendance, the Court may refuse bail when he appears or is brought in custody on a subsequent occasion in the same case. Bail already granted can be cancelled only on grounds such as misuse of liberty or tampering, as the Supreme Court explained in Rasiklal v. Kishore (para 8).

What is the difference between Section 478 and Section 479 BNSS? Section 478 gives a right to bail in bailable offences from the outset. Section 479 deals with undertrial detention for any offence not punishable with death or life imprisonment: release on bail after one-half of the maximum term, or on bond after one-third for a first-time offender, subject to the provisos and to Section 479(2) for persons facing more than one offence or multiple cases.

Sources

Acts and sections read: BNSS 2023 ss.2(1)(b)–(e), 35(2), 47(2), 135(3), 478, 479, 483(3), 484, 485, 491, 492, 528, 531 and the First Schedule (Part II and the BNS ss.115(2) and 127(2) entries) (Gazette CG-DL-E-25122023-250884); CrPC 1973 ss.2(a), 116(3), 436, 436A, 440, 446A (original India Code text).
Judgments read (Veritect judgment corpus, full text): Moti Ram v. State of M.P. (Diary_90478-1978_Judgment.md); Hussainara Khatoon v. Home Secretary, State of Bihar, order of 9 March 1979 (Diary_62692-1979_Judgment.md); Rasiklal v. Kishore (2009_2_795_805_EN.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.

Section 436 CrPC vs Section 478 BNSS — Bail in Bailable Offences