Arrest, Bail and Your Rights under the New Criminal Codes (BNS & BNSS)
What are the new criminal codes?
India's criminal law framework has been overhauled by three new codes that came into force on 1 July 2024: the Bharatiya Nyaya Sanhita 2023 (BNS), which replaces the Indian Penal Code; the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), which replaces the Code of Criminal Procedure; and the Bharatiya Sakshya Adhiniyam 2023, which replaces the Indian Evidence Act.
The BNS defines offences and punishments, while the BNSS governs procedure — including arrest, investigation, bail and trial.
What are your rights at the time of arrest?
An arrested person has important rights, many of which reflect constitutional protections under Articles 21 and 22 of the Constitution and are carried forward in the BNSS. These include:
- The right to be informed of the grounds of arrest;
- The right to be produced before a Magistrate within 24 hours of arrest (excluding travel time);
- The right to inform a relative or friend of the arrest and place of detention;
- The right to consult and be defended by a legal practitioner of one's choice;
- Protection against self-incrimination and against custodial ill-treatment.
It is advisable to contact an advocate as early as possible after arrest.
What is the difference between bailable and non-bailable offences?
Offences are classified as bailable or non-bailable:
- For a bailable offence, bail is a matter of right, and the person is released on furnishing bail as prescribed;
- For a non-bailable offence, bail is at the discretion of the court, which considers factors such as the nature and gravity of the accusation, the likelihood of the accused absconding or tampering with evidence, and the person's antecedents.
Non-bailable does not mean bail cannot be granted; it means the court decides whether to grant it.
What are the main types of bail?
There are three commonly encountered forms of bail:
- Regular bail: sought by a person already in custody, for release pending investigation or trial;
- Anticipatory bail: sought before arrest by a person who apprehends arrest in a non-bailable matter, asking the court to direct release in the event of arrest;
- Interim bail: a short-term bail granted pending the hearing of a regular or anticipatory bail application.
Applications are made to the appropriate court — the Magistrate, the Sessions Court or the High Court of Madras — depending on the offence and the stage.
What happens after arrest and how is custody dealt with?
After arrest, the accused must be produced before a Magistrate, who decides on remand. Custody may be police custody or judicial custody, subject to the limits and safeguards in the BNSS. The investigation must be completed within the statutory period, and if the investigating agency fails to file the charge sheet within the prescribed time, the accused becomes entitled to "default bail." Throughout, the accused is presumed innocent until proven guilty.
Frequently Asked Questions