Bharatiya Nagarik Suraksha Sanhita, 2023
Section 478
In what cases bail to be taken
(1) 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, 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: Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 135 or section 492.
(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 and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond or bail bond to pay the penalty thereof under section 491.
Why this exists
For less serious, bailable offences, bail is treated as a right rather than something to be earned, reflecting the presumption of innocence and the idea that people shouldn't be jailed unnecessarily before trial. The indigence safeguard specifically prevents poverty alone from keeping someone locked up simply because they cannot find a surety.
How courts read it
Indian courts have long treated release on bail in bailable offences as an entitlement rather than a matter of judicial discretion — the law says such a person 'shall' be released. This section's indigence safeguard reflects a constitutional concern, recognized since the Hussainara Khatoon line of cases, that undertrials should not remain behind bars merely because they are too poor to arrange sureties.
Common misconceptions
- Myth: Bail always requires money or property as security.
Fact: For bailable offences, if a person is genuinely too poor (indigent) to arrange sureties, the law allows release on a simple bond without any financial security.