Understanding Liberty: A Student’s Guide to BNSS Bail Jurisprudence

 The concept of bail represents the most significant intersection between criminal procedure and constitutional law. In the Indian legal landscape, this field has undergone a profound transformation with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This guide serves as a curriculum roadmap for students to navigate the shift from a discretion-heavy past toward a future defined by the "Constitutionalization of Bail."

1. The Bedrock of Freedom: Article 21 and the Constitution

Every statutory provision regarding bail must be interpreted through the lens of Article 21 of the Indian Constitution. This article is not merely a legal clause but the foundation upon which the entire architecture of personal liberty is constructed.

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Supreme Court: Jail Superintendents Should Make Special Efforts To Identify Women Prisoners Eligible For Release U/s. 479 Of BNSS:

 Although the provisions of Section 479 of the BNSS are gender neutral, it is also necessary for this Court to say that special efforts should be made to identify women prisoners who are entitled to release under the beneficial provision. The concerned Jail Superintendents where the women prisoners are lodged should therefore pay personal attention to the female prisoners, who might have become eligible for the release benefits, under Section 479 of the BNSS. {Para 12}

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Writ Petition(s)(Civil) No(s).406/2013

IN RE-INHUMAN CONDITIONS IN 1382 PRISONS 

 VERSUS

. & ORS. Respondent(s)

([MR. GAURAV AGRAWAL, SENIOR ADVOCATE IS AMICUS CURIAE.] )

Date : 19-11-2024 This petition was called on for hearing today.

CORAM :

 HON'BLE MR. JUSTICE HRISHIKESH ROY

 HON'BLE MR. JUSTICE S.V.N. BHATTI

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Kerala HC: Benefit Of First Proviso To Section 479 BNSS Cannot Be Applied Retrospectively To Convicted Prisoners

Therefore, the benefit of the first proviso to sub section (1) has only been given to the under-trial prisoners with retrospective effect and not to the convicted prisoners. The learned counsel for the applicant/accused referred to the dictum in Satender Kumar Antil v. Central Bureau of Investigation, MANU/SC/0851/2022 : 2022:INSC:690 : 2022 (4) KHC 570 : AIR 2022 10 SCC 51 in which it has been held that appeal or revision shall also be construed as a facet of trial. It was also held that delay in taking up the appeal coupled with the benefit conferred under Section 436A Cr.P.C. among other factors shall be considered for a favorable release on bail. Section 479 BNSS which has substituted Section 436A Cr.P.C. is more beneficial and hence the benefit is to be granted to the applicant/accused, goes the argument.

Here the crucial question is not whether Section 479 BNSS is applicable to appeal and revisions, but the question is whether retrospective effect of the provision can be given to convicted prisoners also. The Apex Court as per the aforesaid order has extended the benefit of the first proviso to Section 479 BNSS with retrospective effect only to under-trial prisoners. When the Apex Court is presently seized of the matter and is monitoring implementation of Section 479 BNSS, propriety demands that this Court refrain from interpreting and passing orders regarding its applicability to convicted prisoners retrospectively. Hence, the relief claimed by the applicant/first accused cannot be granted.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M. Appl. No. 1/2023 in Crl. A No. 1042 of 2023 and Crl. Appeal No. 1042 of 2023

Decided On: 14.01.2025

Arunkumar Vs. State of Kerala

Hon'ble Judges/Coram:

C.S. Sudha, J.

Citation: MANU/KE/0696/2025.

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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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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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Supreme Court directs the courts to give Benefit Of Section 479 BNSS To Undertrials In Cases Registered Before July 1, 2024

On the last date of hearing, Mr. Gaurav Agrawal, learned Amicus Curiae had submitted that the Bharatiya Nagarik Suraksha Sanhita, 2023,in short ‘the BNSS’, which has replaced the Code of Criminal Procedure, 1973 w.e.f. 01st July, 2024, contains a provision under Section 479 relating to the ‘Maximum period for which an undertrial prisoner can be detained’. The attention of this Court was drawn to the first proviso to Section 479 to urge that a first-time offender (who has never been convicted for any offence in the past) is required to 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 an offence under a particular law.

2. Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the Code of Criminal Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this Court had called upon the learned Additional Solicitor General to obtain instructions from the Department and submit a clarification regarding application of the said provision to all undertrials across the country.

3. Today, Ms. Aishwarya Bhati, learned Additional Solicitor General, submits that pursuant to the aforesaid order, instructions have been obtained from the Department to the effect that the aforesaid provision under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July, 2024, the date when the newly minted legislation has come into effect.

4. In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails

which is the primary focus of this Court in the present petition.

S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO. 406/2013

IN RE-INHUMAN CONDITIONS IN 1382 PRISONS

CORAM :

 HON'BLE MS. JUSTICE HIMA KOHLI

 HON'BLE MR. JUSTICE SANDEEP MEHTA

Date : 23-08-2024 This petition was called on for hearing today.

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