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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Bail under BNSS 2023: From Judicial Discretion to the Constitutionalization of Bail

 The concept of bail is perhaps the single most important meeting point of criminal procedure and constitutional law. In India, this intersection has been re‑drawn with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure, 1973 and came into force on 1 July 2024. For students, practitioners, and judges, understanding this transition—from a discretion‑heavy system to a more rule‑based and rights‑oriented framework—is essential.

This article offers a consolidated roadmap: it starts from Article 21, tracks the shift from CrPC to BNSS, explains the “triple test”, analyses key provisions like Sections 187 and 479, critically examines internal tensions such as Sections 479(2) and 482(4), and situates BNSS within the wider “dual bail regime” created by special laws like UAPA and PMLA.

1. Article 21: The bedrock of bail jurisprudence

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Supreme Court: Accused can be permitted to go abroad for his business or professional work

We are called upon to decide only whether the Appellant should be permitted to travel to the US for eight weeks. In evaluating this issue, we must have regard to the nature of the allegations, the conduct of the Appellant and above all, the need to ensure that he does not pose a risk of evading the prosecution. The details which have been furnished to the Court by the Appellant, indicate that he has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020. He has maintained a close contact with India. The view of the High Court that he has no contact with India is contrary to the material on record. The lodging of an FIR should not in the facts of the present case be a bar on the travel of the Appellant to the US for eight weeks to attend to the business of revalidating his Green Card. The conditions which a court imposes for the grant of bail - in this case temporary bail - have to balance the public interest in the enforcement of criminal justice with the rights of the Accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the Accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 648 of 2020 

Decided On: 01.10.2020

Parvez Noordin Lokhandwalla Vs. State of Maharashtra and Ors. 

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Indira Banerjee, JJ.

Author:Dr. D.Y. Chandrachud, J.

Citation: 2020 INSC 573, MANU/SC/0743/2020.

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Medical Facilities In India Comparable To Any Foreign Country', Supreme Court Restrains Accused From Travelling To USA For Treatment

The "exigencies of medical treatment to be undergone" by the Respondent no.2 and that "he has appeared before the Magistrate Court on the last 12 occasions" coupled with his undertaking to return to India within 6 (six) months were considered good enough reasons by the High Court to interfere in the exercise of its revisional jurisdiction. Having regard to the trajectory of the proceedings right from the date the FIR was registered, the conduct of the Respondent no.2, the nature of his ailment, and the medical facilities available in India (which, we believe, are comparable with any facility available in any foreign country), we have no doubt in our mind that the High Court instead of exercising judicial restraint was indulgent towards the Respondent no.2 and permitted him to travel to the USA even though all medical facilities exist domestically. {Para 9}

10. An argument has been advanced on behalf of the Respondent no. 2 that imposing a condition requiring deposit of his passport or mandating prior permission of the Court before travelling abroad would amount to an infringement of his fundamental right Under Article 21 of the Constitution. Suffice it to observe that the right to a speedy trial is equally an integral facet of Article 21. While Article 21 undoubtedly guarantees the fundamental right to personal liberty, which includes the right to travel abroad, such right cannot be viewed in isolation. A balance must be struck between the individual liberty of the Respondent no. 2 on the one hand and the right of the Appellant to a speedy trial together with the larger societal interest in ensuring the effective administration of criminal justice, on the other. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3048 of 2026

Decided On: 04.06.2026

Seesa Santosh Vs. The State of Telangana and Ors.

Hon'ble Judges/Coram:

Dipankar Datta and S.C. Sharma, JJ.

Author: Dipankar Datta, J.

Citation: 2026 INSC 628,MANU/SC/0616/2026

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