The Bharatiya Nagarik Suraksha Sanhita carries forward, with refinements, much of the earlier procedural code. The procedural grounds for bail, however, have sharpened materially since 2023.
Four anchors that change the conversation
- Pankaj Bansal v. Union of India, (2024) 7 SCC 576. Written grounds of arrest must be furnished at the time of arrest. The Court read this requirement into the right under Article 22 read with section 19 of the Prevention of Money Laundering Act, 2002. The principle has since been applied beyond PMLA.
- Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254. The written-grounds requirement is not a formality. It is a constitutional safeguard. Failure renders the arrest invalid, and continued custody untenable.
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, with the 2026 reaffirmation. For offences punishable with imprisonment up to seven years, arrest is not automatic. The arresting officer must record reasons under what is now section 35(1)(b) of the BNSS.
- Section 35(3) of the BNSS. Where the arrest is not necessary, the police officer shall, instead of making arrest, issue a notice to the person directing him to attend the place mentioned in the notice. Failure to issue a notice, where the section requires it, is a substantive defect.
How the four anchors stack in a bail application
In a brief that turns on procedure, the order of presentation matters.
- Lead with the arrest itself: was it accompanied by written grounds, in a language the person understood?
- Move to the necessity of arrest: was a section 35(3) notice considered, and if not, why not?
- Test the seven-year threshold: where the maximum sentence is seven years or less, the Arnesh Kumar protocol applies. Reasons for arrest must be recorded contemporaneously.
- Read the remand order against the Satender Antil v. CBI, (2022) 10 SCC 51 categories. Category A matters carry a strong presumption in favour of bail.
Drafting note
A bail application in the Sessions Court should not bury procedural grounds inside a recital of facts. They are independent grounds. Each should sit in its own paragraph, with the citation in the margin and the operative principle in plain Indian English.
The doctrine is settled. The discipline is in the drafting.
This post is informational. It is not legal advice. The chamber takes briefs only after a conflict-check.