Analysing Police Powers of Bail: Limits and Legitimacy

Bail is a foundational principle of Indian criminal jurisprudence that stands as a reconciliation between the constitutional presumption of innocence (Article 21) and the State’s interest in securing the accused’s presence at trial and preventing interference with investigation. Substantively, the recent Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure, 1973 with effect from 1 July 2024, largely preserves the established structure of bail, but modernizes procedures and makes certain substantive refinements. This article focuses on the extent of police powers to grant bail under the new regime, the statutory provisions governing such powers, and the judicial guardrails that continue to confine them.

Arrest in Relation to Bail under BNSS, 2023

Arrest is the deprivation of personal liberty by lawful authority through taking a person into custody for investigation, trial, or prevention of offence. Bail is the mechanism to secure release from such custody when continued detention is unjustified.

Examples: 

1. A person arrested for simple hurt (Section 115 BNS – bailable) must be released on bail by the police officer-in-charge forthwith, and if surety cannot be furnished immediately, on personal bond alone (Sections 478 & 479(2) BNSS).
2. A person arrested for cheating (Section 318 BNS – up to 7 years, non-bailable) can be released by the police on bail under Section 480 BNSS only if there are no reasonable grounds to believe the offence attracts death or life imprisonment and no serious prior convictions exist.
3. A person arrested under Section 16 UAPA (terrorist act – non-bailable with special restrictions) cannot be granted police bail at all, as Section 43D (4) UAPA overrides Section 480 BNSS.

Thus, arrest triggers the possibility of custody, while bail — whether mandatory, discretionary, or statutorily barred — determines whether liberty is immediately restored.

The Limited Police Power in Non-Bailable Offences

The power of a police officer to grant bail in a non-bailable offence under Section 480 of the BNSS, 2023 is narrow and strictly regulated. It is not a matter of unfettered discretion but operates strictly within statutorily defined boundaries.

Section 480 BNSS, 2023: Bail in Non-Bailable Offences

Scope and Restrictions (Sub-section 1)

Section 480 permits the police to release a person arrested without warrant for a non-bailable offence, but only within defined limits. Bail cannot be granted where reasonable grounds exist to believe the accused has committed an offence punishable with death or life imprisonment, or where the accused has serious prior convictions.

Bail Based on Insufficient Evidence (Sub-section 2)

If, during investigation, the police find that there are no reasonable grounds to believe the accused committed a non-bailable offence—though further inquiry is warranted—the accused must be released on bail or on a personal bond.

Mandatory Conditions for Serious Offences (Sub-section 3)

Where bail is granted in serious offences punishable up to seven years or more, or offences under key BNS chapters, three mandatory conditions apply: attendance before court, non-commission of similar offences, and non-tampering with witnesses or evidence. Additional conditions may be imposed in the interests of justice.

Requirement of Written Reasons (Sub-section 4)

Any decision granting bail must record written reasons, ensuring transparency and accountability.

Power to Revoke Bail (Sub-section 5)

Even after bail is granted, the court retains the authority to arrest and remand the accused into custody by cancelling the bail if circumstances so require.

Statutory Framework under BNSS, 2023

1. Definition of “Bailable Offence” and “Bail”

• Section 2(1)(b) BNSS for the first time statutorily defines “bail” as procurement of release of a person accused or suspected of an offence from legal custody by giving security with or without sureties, and includes release on personal bond.
• According to Section 2(1)(c) BNSS, Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.

Cancellation of Bail

Section 484 BNSS empowers only courts (Sessions or High Court) to cancel bail. Police have no power to cancel either regular or anticipatory bail granted by a court, even on alleged violation of conditions (“Himanshu Sharma v. State of Madhya Pradesh, 2024 INSC 139 (SCC OnLine SC 2979).

Practical Scope of Police Bail under BNSS

Police as a Catalyst in Bail Cancellation Through Adverse Reporting

Policing has played a central supporting role in bail cancellation, particularly once an accused has been released. While power to cancel bail resides solely in the court pursuant to relevant provisions of the BNSS, the police are the main source of factual input allowing judicial determination.

If the accused doesn’t cooperate with the police, fails to comply with bail terms, tampers with evidence, threatens witnesses, absconds, or commits a fresh offence, the police may submit an adverse report to the Public Prosecutor or directly to the court. Such a report provides the evidentiary grounding for the application for cancellation because courts do not just operate on a presumption, they require evidence that liberty has been misused.

Police reporting is particularly important in sensitive cases of sexual offences, in organised crime, as well as other concerns involving vulnerable witnesses. Courts trust the police to check enforceability of bail conditions and to promptly file violations of the terms with the judiciary.

“However, the role of the police remains advisory rather than determinative — the court considers the credibility of the report and uses the law’s principles of proportionality and fairness before ordering it cancelled. So, police involvement promotes accountability and prohibits bail from being a shield for obstruction of justice.

Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)

Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, significantly curtails the immediate power of police to arrest by mandating the use of a “notice of appearance” for cognizable offences where arrest is not deemed necessary under general criteria (Sub-section 3). This notice directs the suspect to appear before the officer at a specified time and place. Compliance with the notice terms is a legal duty (Sub-section 4), and crucially, if the person complies and continues to cooperate, they shall not be arrested for that offence unless the officer records specific reasons justifying the arrest (Sub-section 5).

However, failure to comply or refusal to identify oneself allows the police officer to proceed with the arrest (Sub-section 6). Furthermore, the section institutes an added layer of protection for vulnerable groups, requiring the prior written permission of an officer not below the rank of Deputy Superintendent of Police (Dy. SP) before making an arrest in offences punishable by less than three years if the person is infirm or above sixty years of age (Sub-section 7).

Key Judicial Precedents Governing Bail

These Supreme Court judgments establish foundational principles for bail, which continue to guide the interpretation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, by defining the mandatory duties of judicial and police authorities regarding personal liberty. The foundational precedent, Satender Kumar Antil v. CBI, (2022) 10 SCC 51, dictates that the granting of bail in bailable offences (Section 479 BNSS) is an absolute and mandatory duty. Refusal to grant bail in such cases is per se illegal and can lead to departmental or contempt proceedings against the concerned officer or court, a ruling that remains binding post-BNSS.

The application of judicial discretion in non-bailable offences is governed by principles of proportionality and reasoned order-making. Ashok Dhankad v. State of NCT of Delhi, 2025 INSC 974, emphasizes the necessity of balanced discretion in bail decisions, requiring courts to meticulously consider factors such as the gravity of the offence, the accused’s risk of tampering with evidence or fleeing, and the societal impact of release.

The judgment dictates that bail orders must demonstrate a thorough application of mind, and while appeals may set aside orders that are perverse or arbitrary, they must generally avoid deep analysis of evidence at the bail stage.

Furthermore, Jalaluddin Khan v. Union of India, 2024 INSC 604, reinforces the core constitutional principle that “bail is the rule, jail is the exception,” asserting that this standard applies even when considering applications under stringent special laws, like the UAPA, albeit with the modifications mandated by the higher statutory standards of those Acts.

The Supreme Court in Himanshu Sharma v. State of Madhya Pradesh, 2024 INSC 139 (SCC OnLine SC 2979), has authoritatively clarified that the power to cancel bail (whether regular or anticipatory) granted by a court is vested exclusively in the courts under Section 484 BNSS, 2023 (corresponding to Section 437(5)/439 CrPC). The police possess no jurisdiction to cancel court-granted bail, even upon alleged violation of conditions. Upon any breach, the police may only arrest the accused and produce him/her before the magistrate/court; the decision to cancel bail and commit the accused to custody remains a judicial function alone.

Crucially, concerning the power of arrest, the ruling in Wazid & Ors. v. State of Uttar Pradesh (decided August 27, 2025) directly limits police power, holding that they cannot circumvent a judicial bail order by registering fresh FIRs based on the same or substantially similar facts to rearrest the accused. This ruling bars arrests in subsequent FIRs without prior court permission if the secondary FIR appears designed merely to defeat the judicial grant of liberty.

Here is a brief version suitable for insertion:

Doctrinal Position Post-BNSS:

The BNSS establishes a clear three-step framework for bail: first, arrest must be justified under Section 35, applying necessity and proportionality rather than routine custody. Second, bail eligibility is determined—with mandatory release in bailable offences and limited, conditional police discretion in non-bailable offences, subject to statutory bars. Third, judicial oversight remains decisive, with courts retaining exclusive authority to confirm, impose conditions, or cancel bail under Section 484 BNSS. This sequence reinforces that arrest is exceptional, bail is the norm, and detention must be judicially justified.

Conclusion:

The evolving framework of bail under the BNSS, 2023 reaffirms that personal liberty remains the constitutional norm and its deprivation the exception. While the police continue to play an important executive role—particularly in ensuring compliance with bail conditions, providing adverse reports, and preventing misuse of judicial leniency—the ultimate authority over granting, denying, or cancelling bail rests unequivocally with the courts. Judicial scrutiny, guided by constitutional values, statutory safeguards, and binding precedent, acts as the necessary restraint against arbitrary or excessive executive interference.

The BNSS strengthens procedural discipline by narrowing police discretion in non-bailable offences, mandating reason-recording for arrest, requiring notice of appearance before custody, and reinforcing that violations of bail must be proven rather than presumed. Together, these reforms strike a calibrated balance: empowering investigation while preventing liberty from becoming hostage to executive overreach. In this equilibrium lies the legitimacy of the criminal justice process—where the protection of society, the rights of victims, and the dignity of the accused coexist within the rule of law.

References

• Satender Kumar Antil v. CBI, (2022) 10 SCC 51
• Jalaluddin Khan v. Union of India, 2024 INSC 604
• Himanshu Sharma v. State of Madhya Pradesh, 2024 INSC 139: 2024 SCC OnLine SC 2979
• Ashok Dhankad v. State (NCT of Delhi), 2025 INSC 974
• Wazid v. State of Uttar Pradesh, Criminal Appeal No. ___/2025 (@ SLP (Crl.) No. 6378 of 2025), decided on 27 August 2025
• Bharatiya Nagarik Suraksha Sanhita, 2023 – ss. 2(1)(b), 2(1)(c), 35, 478, 479(2), 479(4), 480(1)–(5), 482, 484 & First Schedule
• Unlawful Activities (Prevention) Act, 1967 – s. 43D (4)
• Narcotic Drugs and Psychotropic Substances Act, 1985 – s. 37