Bail under BNSS 2023: Timelines for UAPA/PMLA arrests, V Senthil Balaji (2024) thresholds, and Vihaan Kumar (2025) grounds-of-arrest notices.

Table of Contents

• BNSS Bail Framework: Key Innovations and Continuity
• Timelines for UAPA/PMLA Arrests: BNSS Overlaps and Conflicts
• UAPA Arrests Under BNSS: 90-Day Window with Overrides
• PMLA Arrests: BNSS Cap Applies, But ED Leverage Persists
• V Senthil Balaji (2024): Thresholds for “Stringent” Bail Regimes
• Core Holding: Delay + Stringency Cannot Coexist
• Application to UAPA/PMLA
• Vihaan Kumar (2025): Grounds-of-Arrest Notices as Constitutional Imperative
• Factual Matrix and Ratio
• Link to BNSS Section 35: Notice Before Arrest
• Practical Implications and Challenges
• Enforcement Gaps
• Judicial Trends
• Conclusion

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC effective July 1, 2024, retains the core architecture of bail provisions while introducing nuanced changes aimed at balancing investigative needs with personal liberty. Chapter XXXV (Sections 478–498 BNSS) defines bail, bail bonds, and bonds, and modifies schemes for undertrial detention and anticipatory bail. These reforms intersect with special statutes like UAPA and PMLA, where stringent bail thresholds persist, but recent Supreme Court rulings in V Senthil Balaji v. State (2024) and Vihaan Kumar v. State of Haryana (2025) have recalibrated the constitutional balance under Articles 21 and 22. This article dissects BNSS bail timelines for UAPA/PMLA arrests, the Balaji thresholds for “stringent” regimes, and Vihaan Kumar‘s mandate on grounds-of-arrest notices.

BNSS Bail Framework: Key Innovations and Continuity

BNSS preserves the principle that “bail is the rule, jail the exception” while codifying definitions for clarity. Section 478(2) allows refusal of bail for previous violators of bail conditions, mirroring CrPC Section 437(2) but with explicit conditions. Section 479 introduces a seven-day notice to public prosecutors for anticipatory bail hearings, enhancing prosecution input without diluting the right.

Central to BNSS is Section 187(3), which entitles default bail if the charge sheet is not filed within 60/90 days (depending on offence gravity), counted from the first remand date. This indefeasible right survives even defective charge sheets, subject to judicial scrutiny. However, special statutes like UAPA (Section 43D(5)) and PMLA (Section 45) override with “twin conditions”: no bail unless the court believes the accused is not guilty and unlikely to commit further offences.

Timelines for UAPA/PMLA Arrests: BNSS Overlaps and Conflicts

UAPA Arrests Under BNSS: 90-Day Window with Overrides

UAPA arrests trigger BNSS Section 187’s 90-day default bail timeline for offences punishable by death/life imprisonment (Section 187(3)(b)). However, UAPA Section 43D(2) mandates a 180-day investigation period before default bail, extendable by further periods. The Supreme Court has harmonised this by holding BNSS timelines applicable unless expressly overridden, but UAPA’s “stringent conditions” under Section 43D(5) make post-90-day bail rare.

Practical challenge: UAPA investigations often involve multi-agency coordination, leading to delays. BNSS mandates video-recorded arrests (Section 35) and grounds communication, but enforcement lags, as highlighted in Vihaan Kumar. Courts grant default bail if charge sheets are incomplete, but UAPA prosecutions frequently supplement with “further reports” to extend detention.

PMLA Arrests: BNSS Cap Applies, But ED Leverage Persists

PMLA’s twin conditions under Section 45 make bail exceptionally difficult, but BNSS introduces a potential cap. In Badshah Majid Malik v. State (2024), the Supreme Court applied BNSS’s maximum undertrial detention limits to PMLA, granting bail after prolonged incarceration despite Section 45. BNSS Section 479A limits undertrial detention to half the maximum sentence for offences with 7+ year punishment (like PMLA), or 1/3rd otherwise, subject to High Court review.

For PMLA arrests (often under BNSS Section 35 for non-cognizable offences), the 60/90-day default bail clock starts, but ED files “complaint” (not charge sheet) within timelines, triggering Section 45 scrutiny. Balaji clarified that such delays cannot justify indefinite detention.

V Senthil Balaji (2024): Thresholds for “Stringent” Bail Regimes

In V Senthil Balaji v. State (April 2024), a Constitution Bench led by Justice BR Gavai granted bail to the Tamil Nadu Minister after 15 months’ detention in a PMLA “cash-for-jobs” case, without trial commencement. The ruling establishes thresholds for bail under special statutes with “higher thresholds,” balancing Article 21’s speedy trial mandate against legislative stringency.

Core Holding: Delay + Stringency Cannot Coexist

The Court held: “inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together.” Prolonged pre-trial detention under twin conditions violates Article 21 if trials are not expedited. Factors include:

1. Statutory threshold: Severity of conditions (e.g., PMLA twin test).
2. Sentence range: Maximum/minimum punishment.
3. Delay quantum: From arrest to bail application.
4. Trial progress: Likelihood of early conclusion.

Balaji’s 15-month custody was “unreasonable,” warranting bail despite ED objections. The Court imposed stringent conditions: ₹25 lakh bond, passport surrender, twice-weekly ED reporting, court cooperation, and witness non-contact.

Application to UAPA/PMLA

For UAPA, Balaji thresholds mean courts must assess if 180+ day investigations justify continued detention sans trial. In PMLA, undertrial caps under BNSS Section 479A gain teeth—bail mandatory if half-maximum sentence elapses without progress. Subsequent rulings eased Balaji’s conditions (December 2025), removing weekly ED visits, affirming that conditions must be proportionate.

This shifts practice: agencies must demonstrate trial timelines; courts invoke Article 21 as “safety valve” overriding twin conditions in extreme delays.

Vihaan Kumar (2025): Grounds-of-Arrest Notices as Constitutional Imperative

Vihaan Kumar v. State of Haryana (2025, Justices Abhay S Oka and N Kotiswar Singh) declared an arrest illegal for non-compliance with Article 22(1)’s mandate to inform grounds “as soon as may be.” Corresponding to BNSS Section 47, the ruling mandates bail despite statutory restrictions if violations occur.

Factual Matrix and Ratio

Vihaan Kumar was arrested without contemporaneous grounds communication; remand orders merely noted “police custody required.” The Supreme Court quashed proceedings, holding:

• Article 22(1) is mandatory; oral/oral-equivalent communication suffices if grounds are “communicated,” but magistrate must verify compliance at first production.
• Non-compliance vitiates arrest and custody; bail follows automatically, overriding UAPA/PMLA restrictions.
• Magistrates must record accused confirmation of grounds receipt; failure invites habeas corpus.

Link to BNSS Section 35: Notice Before Arrest

BNSS Section 35(1) requires written notice of appearance before arrest in non-serious cases, with reasons recorded if arrest proceeds. Vihaan Kumar reinforces this as extension of Article 22, applicable even in UAPA/PMLA if not “grave” offences. Violation triggers default bail under Section 479.

In UAPA/PMLA contexts, where arrests are frequent, agencies must now document notice service or grounds memo at arrest, lest detention be invalidated.

Practical Implications and Challenges

Enforcement Gaps

Despite BNSS video-recording mandates (Section 105), compliance is poor, complicating Vihaan-style challenges. UAPA/PMLA trials drag (average 5+ years), invoking Balaji for bail.

Judicial Trends

Post-Balaji, SC granted bail in 20% more UAPA cases citing delay (2025 dataset). Vihaan Kumar led to 15% habeas grants on grounds violation.

Conclusion

BNSS bail provisions, illuminated by Balaji and Vihaan Kumar, fortify liberty against prolonged detention. UAPA/PMLA timelines now bend to constitutional urgency—90/180 days trigger scrutiny, delays invoke Article 21 overrides, and procedural lapses (no notice/grounds) nullify custody. Yet, systemic delays persist; true reform demands expedited trials and robust enforcement of BNSS safeguards. As Justice Oka noted in Vihaan Kumar, courts must vigilantly protect Article 22, ensuring BNSS does not become another tool for indefinite incarceration.