Bharatiya Nagarik Suraksha Sanhita, 2023
Sections 478 & 480—Powers of Magistrate to grant bail—Powers of Chief Judicial Magistrate/Magistrate to grant bail must be understood in conjunction with the similar powers of the Sessions Court and High Court to grant bail, as outlined in Sections 482 and 483 BNSS—Section 482 BNSS applies when the accused has not been arrested, while Section 483 applies when the accused has been arrested, or surrenders—However, in the case of Section 480, the accused must either be produced before the Magistrate by the arresting agency, or confined in police or judicial custody, or have appeared before such Magistrate before whom the accused seeks bail—Given the statutory powers of bail at all three tiers, i.e., Magistrates, Sessions Courts, and High Courts, the established practice is that Chief Judicial Magistrate/Magistrate are competent to grant bail in all cases triable by them, and also in cases defined under Sections 478, 480(1)(i)(ii) and 480(2) of the BNSS, 2023.
[Para 30]
Sections 478 & 480—Powers of Magistrate to grant bail—When the accused is in custody for any non-bailable offense, and as per the Chief Judicial Magistrate/Magistrate, there are no reasonable grounds to believe they have committed the crime, even though further inquiry is warranted, the Chief Judicial Magistrate/Magistrate must grant bail under Section 480(2) of the BNSS.
[Para 31]
Sections 478 & 480—Powers of Magistrate to grant bail—In the cases where an accused is in judicial custody and the bail has either been rejected by the Sessions Court or High Court or pending before them, and in-between, the investigation either absolves such an accused, proposes to file a closure report, or reduces the offences to bailable one, then the concerned Magistrate has jurisdiction and is competent and must grant bail under Section 480 of BNSS, or release such an accused under Section 478 of BNSS, irrespective of earlier rejection of bail by higher court(s) or its pendency in the High Court or/and Sessions Court. In the pending bail petitions, it is the responsibility of the investigating agency to inform the Higher Courts about such a release.
[Para 32]
Sections 478 & 480—Powers of Magistrate to grant bail—In cases triable by the Chief Judicial Magistrate/Magistrate, when the main or similarly placed accused has been granted bail by the Higher Courts, then the Chief Judicial Magistrate/Magistrate has jurisdiction and is competent to grant similar bail on parity to all other similarly placed accused or with a lesser role.
[Para 33]
Sections 478 & 480—Powers of Magistrate to grant bail—Even when the bail of an accused or other co-accused in the same FIR, have been rejected by the Sessions Court or the High Court on merits and/or on other grounds except on the grounds of prolonged custody or delayed trial, then the Chief Judicial Magistrate/Magistrate has the jurisdiction and is competent to grant bails on the ground of prolonged custody and the delay in trial, irrespective of the earlier dismissal of bails on other grounds except when the Higher Court(s) have expedited or time bound the trial—However, even in such cases, the Chief Judicial Magistrate/Magistrate has the power to grant bail if the accused is able to bring their case within the scope and parameters of Sections 479 and 480(7) of BNSS.
[Para 34]
Sections 478 & 480—Powers of Magistrate to grant bail—Whenever all the victim(s) do not oppose bail and rather state before the Chief Judicial Magistrate/Magistrate in the cases triable by them that they have no objection to bail, then, after taking affidavits from such victim(s), bail should generally be granted.
[Para 35]
Section 478 & 480—Powers of Magistrate to grant bail—In any case arising out of any FIR triable by Chief Judicial Magistrate/Magistrate, all the victims compromise the matter which is supported by the victim’s affidavit(s), irrespective of whether the offences were compoundable or not, the said compromise is still relevant for bail, and in all such cases, where the accused is in custody, the bail should be granted.
[Para 36]
Sections 478 & 480—Powers of Magistrate to grant bail—In all cases triable by Chief Judicial Magistrate/Magistrate, i.e., based on FIR or Complaint, including cases under Section 138 of NI Act, when the matter has been compromised with all the victims, then even when accused has either been declared as a proclaimed person or the proclamation proceedings have already been initiated, in the event of surrender of the said person before the concerned Court, the proclamation stands satisfied because the non-appearance is a separate penal offence under Section 174A IPC or Section 209 of the BNS, 2023—Therefore, given the compromise in the primary offence, based on which proclamation was issued, such person should also be released on bail in the consequent FIR for commission of non-bailable offences punishable under Section 174A IPC or 209 of the BNS, 2023.
[Para 37]