Constitutional Bail Jurisprudence under BNSS and Special Statutes

1. Contextual Foundations: Article 21 and the Architecture of Liberty

In the Indian criminal justice system, bail is the primary instrument through which the guarantee of personal liberty under Article 21 is made real at the trial‑court level. The Supreme Court, beginning with State of Rajasthan v. Balchand and Gudikanti Narasimhulu, has consistently affirmed that “bail is the rule and jail is the exception”, subject only to clearly articulated risks such as absconding, witness intimidation, or repeated offending.

For a District Judge, the adjudication of bail is therefore not a matter of discretion in the loose sense, but a structured constitutional function: to balance individual liberty and the presumption of innocence against the State’s obligation to maintain public order and ensure a fair trial. The trial court becomes the first and most important “custodian of the sword of justice”, ensuring that pre‑trial detention remains a protective measure, not a pre‑emptive punishment.

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Questions and answers on law (Part 87)

 Q 1:- explain the procedure of session trial as per provisions of BNSS

The Sessions trial procedure under BNSS is laid down in the Chapter on “Trial before a Court of Session” (commonly taught as Sections 248–260).​

Step-wise procedure (BNSS)

1. Prosecution by Public Prosecutor: Every Sessions trial is to be conducted by a Public Prosecutor (S.248).​

2. Opening of prosecution case: After the case is committed to the Sessions Court and the accused appears/is brought, the prosecutor opens the case by describing the charge and stating the proposed evidence (S.249, linked with committal S.232).​

3. Discharge stage: The accused can seek discharge; BNSS introduces/mentions a timeline concept in practice notes (discharge application within 60 days of committal) and the Judge may discharge if there is no sufficient ground to proceed (S.250).

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Important articles and judgments on police investigation U/S 156 of CRPC {S 175(3 ) of BNSS }

 

1) Supreme Court: How BNSS Modernizes Section 156(3) CrPC: Key Changes and Implications

35. Further, by requiring the Magistrate to consider the submissions made by the concerned police officer before proceeding to issue directions Under Section 175(3), BNSS has affixed greater accountability on the police officer responsible for registering FIRs Under Section 173. Mandating the Magistrate to consider the submissions of the concerned police officer also ensures that the Magistrate applies his mind judicially while considering both the complaint and the submissions of the police officer thereby ensuring that the requirement of passing reasoned orders is complied with in a more effective and comprehensive manner.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 352/2020

Decided On: 16.01.2025

Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation:  MANU/SC/0134/2025, 2025 INSC 139.

https://www.lawweb.in/2025/03/supreme-court-how-bnss-modernizes.html

2) Supreme Court: Magistrate's Order U/S. 156(3) CrPC For registration of FIR is Not Vitiated Merely Because Complainant Didn't Avail Remedy Under S.154(3)

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Kerala HC: Police Cannot Attach Bank Account Under S.107 BNSS Without Magistrate's Approval

 IRAC Analysis of Kerala High Court Judgment (Crl.M.C.No.3740/2025, Order dated 02.06.2025)

With Emphasis on the Concept of "Proceeds of Crime"

Issue

·       Whether the police, during the investigation of a criminal case, can freeze the bank account of a third-party company (Headstar Global Pvt. Ltd.) under Section 106 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), or whether such freezing requires a specific procedure under Section 107 of BNSS, especially when the funds involved may constitute "proceeds of crime".

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Kerala HC: BNSS Gives Wider Protection To Accused Of Unsound Mind Or Intellectual Disability, Will Apply Retrospectively

 Following the principles enunciated above, all applications filed and steps taken in a pending proceeding prior to 1.7.2024 shall be under the provisions of the Code of Criminal Procedure, 1973. As I discussed above, Chapter XXVII of the Sanhita has given wider protection to a person of unsound mind or a person suffering from intellectual disability. Where two persons suffering from a mental disability or intellectual disability are dealt with differently, one under the Code, and the other under the Sanhita, it amounts to a violation of Article 14 of the Constitution. Among equals, the law should be equal and equally administered and should be treated alike. The guarantee of 'equal protection' under Article 14 is a guarantee of equal treatment of persons in 'equal circumstances'. To preserve the fundamental right of an individual, the provisions of the Sanhita can be extended retrospectively to any proceedings initiated prior to 1.7.2024. The saving provision under Section 531 of the Sanhita shall not deter the enforcement of the fundamental right of an accused. Issue No.2 is answered as above. {Para 29}

The present case

30. Annexure A3 report reveals that the petitioner is suffering from severe dementia, and the chances of recovery are less. The petitioner is aged 74 years. The report states that the petitioner's soundness of mind is to be assessed in detail by a psychiatrist. The learned Special Judge has taken the stand that if the party requires it, he should be subjected to an examination by a psychiatrist. The learned Special Judge lost sight of the principle that he has an onerous responsibility to try the issue as to whether the petitioner has any mental disability. The order impugned is patently illegal and irregular. The impugned order, therefore, stands set aside. The learned Special Judge shall reconsider the application and proceed under Chapter XXVII of the Sanhita.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. MC No. 6370 of 2023

Decided On: 05.09.2024

V.I. Thankappan Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K. Babu, J.

Citation: MANU/KE/3656/2024,2024:KER:67342

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Shifting the Paradigm: How BNSS 2023 Transforms Criminal Procedure for Accused Persons of Unsound Mind

 The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaces select portions of the Code of Criminal Procedure (CrPC) 1973 and, in doing so, rewrites India’s response to accused persons whose mental condition prevents them from mounting a defence. The reform moves beyond outdated language and narrow categories, extends wider substantive protection, and tightens procedural safeguards.

1. Structural Re-location of the Law

CrPC housed the rules in Chapter XXV, Sections 328 – 339. BNSS mirrors this structure in Chapter XXVII, Sections 367 – 378, ensuring continuity for practitioners while signalling a fresh policy outlook.

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Karnataka HC: No Bail U/S 479(1) BNSS On Completing Half Or 1/3rd Sentence If Accused Booked In Multiple Cases

It is important to note that Section 479 of BNSS makes it clear that the benefit of first proviso to Section 479 is subject to Section 479(2) of BNSS and the Court has to take note of the third proviso, thereof, wherein investigation, inquiry or trial in more than one offence are in multiple cases are pending against a person, he shall not be released on bail by the Court. It is important to note that the second proviso to Section 479(1) of BNSS empowers the Court to order the continued detention of a person for a period longer than one-half of the period. All the provisions have to be read conjointly, including Sections 479(1) and 479(2). The Trial Court also taken note of the said fact into consideration since there are more than one offence against the petitioner and IPC offences are invoked and separate case is also invoked by invoking PML offence.

11.When the offences are different as well as when more number of cases are registered against the petitioner, he cannot invoke the proviso under Section 479 of BNSS seeking the relief on the ground of one third punishment even if it is considered, maximum punishment he has already underwent and the said proviso is not applicable to the facts of the case on hand, since the Court has to take note of the gravity of the offence and multiple cases against the petitioner and more than Rs. 1,544 Crores fraud has been committed that too this petitioner being a founder Chairman of the said bank.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 9930/2024

Decided On: 23.11.2024

K. Ramakrishna Vs. The Assistant Director, Directorate of Enforcement

Hon'ble Judges/Coram:

H.P. Sandesh, J.

Citation:  MANU/KA/3939/2024

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Gauhati HC: [S.187 BNSS] Status Of Hospitalised Arrestee Cannot Remain Unknown, Magistrate Must Verify Through Visit Or VC

Though, there is no dispute at the bar regarding the proposition of law, as mandated by Article 22 of the Constitution of India, that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of his arrest excluding the time taken for the journey from the place of arrest to the Court or the Magistrate and no such person shall be detained in custody beyond the said period without authority of a Magistrate, however, in the instant case, though the petitioner was arrested on 14.04.2025 (as apparent from the arrest memo of the petitioner available in the record), however, there is no order of remand either judicial or police neither the petitioner is released on bail. {Para 13}

14. It appears that the learned Magistrate has erred in not passing any order regarding production of the petitioner through video conferencing mode when such a prayer was made by the Investigating Officer on 15.04.2025 by simply allowing the Investigating Officer to produce the petitioner before the Magistrate as and when he is released from the hospital. Such an order without clarifying the status of the petitioner, as to whether he is in custody or a free person, when the arrest of the petitioner was reported to the said Magistrate stating the reasons for not producing him before such Magistrate, is in violation of the provisions contained in Section 57 of the BNSS as well as Article 22(2) of the Constitution of India.

15. It is settled constitutional position that an arrestee shall have to be produced before the nearest Magistrate within 24 hours excluding the time required for his production before such Magistrate. There may be exceptions to such requirement, like in the instant case where the arrestee is injured and requires urgent medical care so that instead of producing such an arrestee before the Magistrate, he might have to be rushed to the hospital for providing urgent medical treatment. However, in such cases also the Magistrate may ascertain the condition of the arrestee through video conferencing or personally visiting such arrestee whose arrest has been reported to him by the Police. After the arrest of a person if he is not released on bail, an order for remand to judicial custody has to be made though it can be qualified by clarifying that the petitioner may continue to stay in the hospital after ascertaining such a requirement. For the said purpose, the Magistrate may also call for a report from the hospital where the arrestee has been admitted.

16. However, as Section 187 of BNSS categorically states that subject to condition of bail, the Magistrate may authorize his detention either in judicial or in police custody. Unless, such an order is passed, the initial arrest of the petitioner beyond the period of 24 hours from the time of his arrest, would become illegal.

17. In this case, the petitioner has been admitted in hospital for last 45 day after the date of his arrest. Though, he is admitted in the hospital and it appears that his status is not of a free person but of an arrestee as he has not been granted bail in this case, however, no order under Section 187 BNSS was passed by the Magistrate. In absence of any order of remand beyond the period of 24 hours from the time of his arrest, his arrest gets vitiated on completion of 24 hours in custody. Since such non-production of the petitioner, even through video conferencing mode, beyond 24 hours in custody amounts to violation of Article 22(2) of the Constitution of India, his fundamental right to liberty guaranteed under Article 21 of the Constitution of India is also violated and, on that count, the petitioner is entitled to go on bail.

 In the High Court of Gauhati

(Before Mridul Kumar Kalita, J.)

Bittu Kumar  Vs  State of Assam 

Bail Appln./1662/2025

Decided on June 2, 2025

Citation: 2025 SCC OnLine Gau 2842,

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Delhi HC: Chargesheet Filed under S.187(3) BNSS Without Obtaining Sanction To Prosecute Under Arms Act Not Incomplete, No Default Bail

 Further, the Supreme Court in the case of Judgebir Singh v. NIA, MANU/SC/0501/2023 : 2023:INSC:472 : (2023) 17 SCC 48 referred to the judgment in Suresh Kumar (supra) and held that a chargesheet filed without sanction cannot be treated as an incomplete chargesheet and does not entitle an accused to a default bail as contemplated under Section 167(2) of the CrPC [now Section 187(3) of the BNSS]. 

"45. We find no merit in the principal argument canvassed on behalf of the appellants that a charge-sheet filed without sanction is an incomplete charge-sheet which could be termed as not in consonance with sub- section (5) of Section 173CrPC. It was conceded by the learned counsel appearing for the appellants that the charge-sheet was filed well within the statutory time period i.e. 180 days, however, the court concerned could not have taken cognizance of such charge-sheet in the absence of the orders of sanction not being a part of such charge-sheet. Whether the sanction is required or not under a statute, is a question that has to be considered at the time of taking cognizance of the offence and not during inquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that cognizance is taken of the offence and not of the offender. It cannot be said that obtaining sanction from the competent authorities or the authorities concerned is part of investigation. Sanction is required only to enable the court to take cognizance of the offence. The court may take cognizance of the offence after the sanction order was produced before the court, but the moment, the final report is filed along with the documents that may be relied on by the prosecution, then the investigation will be deemed to have been completed. Taking cognizance is entirely different from completing the investigation. To complete the investigation and file a final report is a duty of the investigating agency, but taking cognizance of the offence is the power of the court. The court in a given case, may not take cognizance of the offence for a particular period of time even after filing of the final report. In such circumstance, the accused concerned cannot claim their indefeasible right under Section 167(2)CrPC for being released on default bail. What is contemplated under Section 167(2)CrPC is that the Magistrate or Designated Court (as the case may be) has no powers to order detention of the accused beyond the period of 180 days or 90 days or 60 days as the case may be. If the investigation is concluded within the prescribed period, no right accrues to the accused concerned to be released on bail under the proviso to Section 167(2)CrPC. {Para 36}

46. Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed. After completing investigation and submitting a final report to the court, the investigating officer can send a copy of the final report along with the evidence collected and other materials to the sanctioning authority to enable the sanctioning authority to apply his mind to accord sanction. According sanction is the duty of the sanctioning authority who is not connected with the investigation at all. In case the sanctioning authority takes some time to accord sanction, that does not vitiate the final report filed by the investigating agency before the court. Section 173CrPC does not speak about the sanction order at all. Section 167CrPC also speaks only about investigation and not about cognizance by the Magistrate. Therefore, once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order.

 IN THE HIGH COURT OF DELHI

Bail Appln. 1713/2025

Decided On: 25.06.2025

Suraj Kanojia Vs. State Govt of Nct of Delhi

Hon'ble Judges/Coram:

Tejas Karia, J.

Citation: MANU/DE/4621/2025.

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Rajasthan HC: High Court Affirms Accused’s Right to Seek Call and Location Details of Prosecution Witnesses During Prosecution Evidence

 The petitioner herein is under-trial being accused serious offence under Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused. {Para 12}

13. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to the delay, the call details and location details, which the accused have been advised to adduce in their evidence, may be deleted from the data bank of the service provider of the mobile network of which the accused as well as other witnesses are subscribers.

15. Section 95, supra, thus allows the court to direct postal authorities to produce documents or records that are relevant to a pending trial. The section explicitly grants courts the authority to order the preservation and production of such records, irrespective of whether the documents are in the custody of the accused or not. As per Section 95, the court can direct service providers to produce and retain the required records even before the defense stage, ensuring that these documents are available when needed. This provision thus supports the petitioners' plea to secure the records to avoid their deletion later on by sheer passage of time.

15.1. I am of the view that in the modern day context, postal authority is to be read in a way so as to mean and include even the telecom authority which is a similar service provider qua the electronic data it preserves on behalf of and, delivers, to its consumers. Accordingly, any document or electronic data or a thing, which is not in custody of the accused but with the third party, i.e. postal authority or the telegraph/telecom authority/service provider, but, at the same time, it is relevant for the purpose of the pending trial can be directed by the trial court to be produced in the court as a piece of evidence.

16. If by the time the stage of defense evidence is reached, the call details and location details, which the accused have been advised to adduce in their evidence, have already been deleted from the data bank of the service provider of the mobile network, then the petitioner would be deprived of valuable opportunity of producing their evidence and would thus be seriously prejudiced in his defence.

17. Trite it may sound, but procedure being the handmaid of justice, should not be allowed to thwart justice. Procedural rules exist to facilitate justice, not to hinder it. If strict adherence to procedural rules leads to the destruction of evidence and deprives the accused of a fair chance to defend themselves, the court should exercise its discretion to deviate from the norm. The court should use its powers to ensure that procedural delays do not result in an injustice. Allowing the preservation of electronic records before they are lost is essential for procedural fairness and the integrity of the judicial process.

18. Moreover, the right to a fair trial is enshrined in Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. Personal liberty includes the right to defend oneself in a criminal prosecution. Any deprivation of the accused's ability to present crucial evidence, such as call details and location records, would constitute a violation of this fundamental right. The prosecution is expected to prove its case beyond a reasonable doubt. Similarly, the accused must be given every reasonable opportunity to contest the evidence and present their defense. Failure to preserve critical evidence like call and location details severely hampers the accused's ability to mount a defense, undermining the concept of a fair trial. Courts are duty-bound to avoid miscarriage of justice. Allowing key evidence to be lost due to procedural delays would also result in an unfair trial, which could lead to a wrongful conviction or harsher punishment (including life imprisonment or even the death penalty in this case). By not securing crucial evidence for the defense (which is in the possession of a third party), the court would inadvertently tip the balance in favor of the prosecution, thus creating a disparity which must be obviated.

Ratio: The court at the stage of prosecution evidence, on the application of accused can direct telecom authority/service provider to produce call details and location details of prosecution witnesses.

 IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5372/2024

Mala Ram Vs. State of Rajasthan

Hon'ble Judges/Coram:

Arun Monga, J.

Decided On: 04.09.2024

Citation: 2024:RJ-JD:36831, MANU/RH/1477/2024.

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J & K HC: Magistrate may issue pre-cognizance notice to the accused as per S 223 of BNSS in cheque bounce case

 Section 223 BNSS provides for issuance of pre-cognizance notice to the accused and said provision was not available in the corresponding Section 200 of the repealed Code. Such requirement provided under Section 223 of the BNSS by way of proviso appear to be justice orientated as the same takes care of any legitimate defence of the accused to be appreciated by the Magistrate even at an earliest, while holding a preliminary inquiry and is not barred at all even in respect of complaints under N.I. Act as hereinabove discussed. However, the non-observance of the requirements, provided under Section 223 BNSS, regarding the examination on oath of the complainant/witnesses and the issuance of the pre-cognizance notice shall not render the proceedings invalid. {Para 10}

11. The satisfaction of the competent Court, as regards the maintainability of the complaint, in terms of the accrual of cause of action, is covered under the “inquiry phase,” preceding the “taking of cognizance”. A Magistrate while entertaining a complaint under Section 138 of the Negotiable Instruments Act is not barred to have the observance of the provisions providing for pre-cognizance notice.

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394. REad full Judgment here: Click here.

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J & K HC: Magistrate should not issue non-bailable warrant against accused at pre-cognizance stage of the complaint U/S 138 of NI Act

 So far as the case in hand is concerned, the learned Magistrate upon satisfying himself regarding to record the service of pre-cognizance notice could have inferred, the forfeiture of the right of hearing by the accused at pre-cognizance stage of the complaint and proceeded ahead on the complaint in accordance with law. There was no need for the Magistrate to compel the appearance of the accused by issuance of a subsequent nonbailable warrant as the pre-cognizance hearing was meant for him which he acquiesced. The Magistrate is within its powers to compel the attendance of the accused after taking cognizance on the complaint and even under such circumstances, the normal approach of the Magistrates should be issuance of summon followed by a bailable warrant if needed and the issuance of the non-bailable warrants should be the last option.{Para 12}

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394

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Deemed sanction under the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS)

 Deemed sanction under the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a significant new legal concept introduced to address delays in prosecuting public servants for actions taken in the course of their official duties.

What is deemed sanction under BNSS?

• Section 218(1) of BNSS requires that before a court can take cognizance of an offence allegedly committed by a judge, magistrate, or certain public servants in the discharge of their official duties, prior sanction from the appropriate government (Central or State) is necessary.

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Trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS)

Trial in Absentia under the BNSS (Section 356)

Trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS), specifically governed by Section 356, introduces a structured procedure for conducting a criminal trial when the accused—declared a proclaimed offender—is deliberately absent to evade justice.

Key Features of Trial in Absentia under BNSS

1. Preconditions for Trial in Absentia

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BNSS Provision Capping Maximum Undertrial Term Applies To PMLA : Supreme Court Grants Bail

It has been observed that in the case of Vijay Madanlal

Chaudhary vs. Union of India, (2022) SCC Online SC 926 that

the beneficial provision of Section 436A of the Code of

Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’)may apply

to prosecution under the Prevention of Money-Laundering Act,

2002 (for short, ‘the PMLA’) as Section 436A has come on

statute book subsequent to enactment of the PMLA. Therefore,

a corresponding provision of Section 479(1) of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) will

apply to prosecution under the PMLA. {Para 2}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION}

CRIMINAL APPEAL NO.________/2024

(Arising Out of Special Leave Petition (Criminal) No.10846/2024)

BADSHAH MAJID MALIK  Vs  DIRECTORATE OF ENFORCEMENT & ORS. 

Dated: October 18, 2024.

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Karnataka HC: Notices U/S 35 of BNSS must contain specific information including crime number, alleged offense, and a copy of the FIR, otherwise it will be invalid

13. It is made clear that till the guidelines/check list is so notified by the State, if any person is necessary to be summoned, the drill that shall be followed are:-

(a) The notice under Section 35 of the BNSS shall mention the crime number and the offence alleged in the crime number. This can be communicated to the noticee either through the conventional method or through electronic mode.

(b) The communication shall attach copy of the FIR so registered, as the FIR would contain the gist of the complaint.

(c) In the event notice does not contain the crime number, the offence alleged or appending of the FIR, subject to just exceptions, the noticee is not obliged to appear before the officer who has directed him to appear and no coercive action can be taken for non-appearance.

(d) It is also necessary for the Police Department to bring about robust system for the FIR being uploaded immediately on their registration and make it search friendly. 

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 15125 of 2024 (GM - RES)

Decided On: 19.07.2024

Tavaragi Rajashekhar Shiva Prasad Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

Maheshan Nagaprasanna, J.

Citation: MANU/KA/4446/2024.

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Parliament's Incorporation of Supreme Court Directions in BNSS: A Landmark Integration of Judicial Wisdom

 Introduction

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Criminal Procedure Code 1973, represents a significant milestone in India's criminal justice reform. One of the most noteworthy aspects of this new legislation is how Parliament has systematically incorporated key directions and principles established by the Supreme Court, particularly those outlined in the landmark case of Satender Kumar Antil v. Central Bureau of Investigation (2022). This integration demonstrates a remarkable convergence between judicial wisdom and legislative intent, creating a more balanced and rights-oriented criminal procedure framework.

The Satender Kumar Antil Foundation

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Madras HC: Provisions for Arrest Of Women At Night Are Directory, Not Mandatory:

Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

The Constitution Bench of the Hon'ble Supreme Court in Dattatraya Moreshwar Vs The State of Bombay MANU/SC/0014/1952 : 1952:INSC:18 : AIR 1952 SC 181) held that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty, and the case is such that, to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of Courts to hold such provisions to be directory.

15. Section 46(4) of Cr.P.C has not spelt out the consequence of non-compliance with the requirement set out therein. If the provision was intended to be mandatory, the legislature would definitely have provided for the consequences of non-compliance. It cannot be denied that when a Police officer effects arrest pursuant to the power conferred on him by Cr.P.C, he is carrying out a public duty. The matter is not between the official effecting arrest and the arrestee. There is a third party involved, namely, victim / defacto complainant. The victim cannot be allowed to suffer for the neglect of duty by the Police officer.

16. There are certain practical aspects to be borne in mind. Let us conceive of this situation: a woman commits murder after sunset and before sunrise; the information reaches the local Police Station; the accused is about to escape; in such a situation, should the officer concerned prepare a written report, send it to the local Magistrate, wait for His Honour's permission and upon receipt thereof, proceed to arrest the accused? We have no doubt in our minds that the horse would have bolted by then. Mechanical adherence to procedures can injure public interest at times. That is why, when the Nagpur Bench of the High Court of Bombay directed the State Government to issue instructions to all police officials that no female persons shall be detained or arrested without the presence of the lady constable and in no case after sunset and before sunrise, the Hon'ble Supreme Court in State of Maharashtra Vs Christian Community Welfare Council of India MANU/SC/0817/2003 : (2003) 8 SCC 546 observed that while they agreed with the object behind the direction, a strict compliance with the said direction in a given circumstance would cause practical difficulties to the investigating agency and even might give room for evading the process of law by unscrupulous accused.

17. The statutory provision envisages that the woman police officer should make a written report and obtain the prior permission of the Magistrate before making arrest. One can very easily imagine situations when the investigating officer is left with very little time to respond. Suppose a heinous offence takes place at midnight. The jurisdictional Magistrate may not be available or accessible. Digital solutions may not also work. The Magistrate may be fast asleep. The written report sent by mail would be lying in his inbox. The accused will not be waiting for the Police officer to obtain permission from the Magistrate.

19. Though we have held that Section 46(4) of Cr.P.C / 43(5) of BNSS is directory and not mandatory, the provision cannot be rendered otiose by the Police. There is a laudable reason for incorporating such a provision. It is meant to serve as a note of caution to the officers effecting arrest of women. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer explanation for inability to comply with the procedure.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

W.A. (MD) Nos. 1155 of 2020, 1200, 1216 of 2019, C.M.P. (MD) Nos. 6322, 10380 and 10467 of 2019

Decided On: 07.02.2025

Deepa Vs. S. Vijayalakshmi and Ors.

Hon'ble Judges/Coram:

G.R. Swaminathan and M. Jothiraman, JJ.

Author: G.R. Swaminathan, J.

Citation:  MANU/TN/0552/2025

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Important judgments on BNSS 2023

 

1) Bombay HC: Cases Filed Before July 1, 2024, Will Be Investigated As Per CrPC And Not BNSS

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO.618 OF 2024(F)

Chowgule and Company Pvt. Ltd. Vs  The Public Prosecutor,

 CORAM: BHARAT P. DESHPANDE, J.

PRONOUNCED ON: 02nd August, 2024

https://www.lawweb.in/2024/08/bombay-hc-cases-filed-before-july-1.html

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Supreme Court: under which circumstances the magistrate can release accused on bail as per S.437(6) CrPC/S.480(6) BNSS

14. The foregoing discussion lead us to conclude and answer the questions under reference as under:

Q-1 An Accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has a discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection.

Q-2 The provisions contained in Section 437(6) of the Code are not mandatory.

Q-3 The Magistrate has option/discretion to refuse bail by assigning reasons therefor. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a-vis such application preferred by the Accused Under Section 437(6) of the Code may be:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the Accused?

2. Whether there are any chances of the Accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the Accused on being bailed out?

4. Whether Accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the Accused under first part of Sub-section (6) of Section 437 of the Code.

The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in Sub-section (6) of Section 437 of the Code by the legislature.

It would also be relevant to take into consideration the punishment prescribed for the offence for which the Accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of Accused being tried with Accused and their availability for trial, etc.

The factors which are quoted above by this Court are only illustrative and not exhaustive.

Q-4 The factors, parameters, circumstances and grounds for seeking bail by the Accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to Sub-section (1) and Sub-section (2) of the Section 437 of the code, but may be relevant and overlapping each other depending upon facts and there cannot be any straight jacket formula. But, we may add that the reasons for rejection of applications Under Section 437(6) need to be more weighty than the routine grounds of rejection.

Q-5 The parameters relevant for deciding application Under Section 167(2)(a)(I)(II) of the Code (default bail), cannot be imported for exercise of power Under Section 437(6) of the Code.

Q-6 A decision in principle rendered by a coordinate Bench of equal strength would bind another co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject matter.

Q-7 The legislature, while enacting Section 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons therefor. Therefore, the right of Accused for a speedy trial, though, Constitutional and aimed at liberty of Accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of Section 473(6) of the Code and Article 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly.

20. In the overall view of the matter, we are convinced that the Appellant deserves to be released on bail, subject to certain terms and conditions as may be imposed by the Trial Court. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 818/2025 (Arising out of Special Leave to Appeal (Crl.) No. 1314/2025)

Decided On: 18.02.2025

Subhelal Vs. The State of Chhattisgarh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

 Citation: 2025 INSC 242, MANU/SC/0235/2025

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