Filing a Regular Bail Application under BNSS: Procedural Steps for Tax Evasion Allegations

A Practical Roadmap to Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for Economic Offence Litigation

By Ankita Rana

Abstract

A Regular Bail BNSS application is often the first and most decisive step available to a person taken into custody on allegations of tax evasion. With the transition from the Code of Criminal Procedure, 1973 to the Bharatiya Nagarik Suraksha Sanhita, 2023 the entire architecture of bail procedure in India has been renumbered, though its constitutional foundations remain firmly intact. For a person arrested under Section 69 of the CGST Act, 2017, or proceeded against under the prosecution provisions of the Income Tax Act, 1961, the pathway to liberty now runs through Section 480 BNSS before the Magistrate, and Section 483 BNSS before the Sessions Court or High Court — provisions that replace the long-familiar Sections 437 and 439 of the erstwhile CrPC.

The article is written as a working reference for anyone preparing a case note, a client-facing explainer, or a first working draft of a bail application in a tax evasion matter. It sets out the statutory scheme, drafting checklist, correct forum, applicable court fee, and the standard litigation flow anchoring each step in the judicial reasoning that actually decides such applications. Any workable BNSS bail application in a tax matter must engage with two competing lines of authority: one that treats economic offences as a distinct, graver category deserving stricter scrutiny, and another that insists gravity must be assessed case-by-case rather than through blanket categorisation. Understanding this tension is the foundation on which every subsequent procedural step in this guide rests.

From CrPC to BNSS: Mapping the Renumbered Bail Provisions

Effective from 1 July 2024, the BNSS replaced the CrPC in its entirety. The bail chapter was substantially retained in substance but renumbered and practitioners must cite the correct provision depending on when the FIR or complaint was registered. The table below sets out the working correspondence that one should keep at hand while researching a bail procedure in India query.

CrPC Provision	BNSS Provision	Subject Matter
Section 436	Section 478	Bail in bailable offences (right of the accused)
Section 436A	Section 479	Maximum period of detention of an undertrial prisoner
Section 437	Section 480	Bail in non-bailable offences before a Magistrate
Section 437A	Section 481	Bail to secure appearance before the appellate court
Section 438	Section 482	Anticipatory bail (pre-arrest protection)
Section 439	Section 483	Special powers of the Sessions Court / High Court regarding bail

 

Non-Bailable Offences and the Discretionary Test under Section 480 BNSS

Section 2(1)(c) BNSS defines a non-bailable offence as any offence that is not shown as bailable in the First Schedule. Unlike bailable offences, where release is a matter of right under Section 478 BNSS, a non-bailable offence places the grant of bail squarely within judicial discretion. Section 480(1) BNSS empowers a court other than the High Court or Court of Session to release an accused on a BNSS bail application subject to the statutory bar where reasonable grounds exist to believe that the accused is guilty of an offence punishable with death or life imprisonment.

A recurring point of confusion concerns Section 480(3) BNSS, which mandates certain conditions — such as furnishing local sureties and appearing before the police as directed — in specified categories of offences. In Narayan v. State of Madhya Pradesh (2026), the Supreme Court clarified that these mandatory conditions do not extend to non-bailable offences punishable with imprisonment of up to seven years, correcting an interpretation that several trial courts had applied inconsistently since the BNSS came into force. Since a substantial share of tax-evasion offences fall within this seven-year band, this clarification materially affects how a drafting professional should frame the prayer clause.

The Governing Framework for Tax Evasion Allegations: GST and Income Tax Prosecutions

Tax evasion allegations that lead to arrest typically arise under two distinct statutory regimes, and a professional must first identify which regime governs the client’s facts before selecting the correct BNSS provision.

• GST offences: Section 132 of the CGST Act, 2017 penalises acts such as supply without invoice, fake invoicing, and fraudulent availment of Input Tax Credit. Section 69 of the CGST Act empowers the Commissioner to authorise arrest where there is reason to believe an offence under Section 132(1)(a) to (d) has been committed.
• Income Tax offences: Prosecutions under Sections 276C and 277 of the Income Tax Act, 1961 deals with wilful attempts to evade tax and false statements in verification and generally proceed by way of complaint rather than police-style arrest though custodial situations can still arise.

The monetary threshold is central to a GST bail strategy. Offences involving tax evasion or wrongful Input Tax Credit exceeding 5 crore rupees are classified as cognizable and non-bailable while amounts between two and five crore rupees are treated as bailable and amounts below the threshold generally do not attract arrest at all. So drafting the factual background of the application must therefore quantify the exact sum alleged to have been evaded since this single figure determines whether the client needs a bailable-offence release under Section 478 BNSS or a full contested hearing under Section 480 or Section 483 BNSS.

It is worth noting that the arrest power under Section 69 of the CGST Act is procedurally distinct from an ordinary police arrest under the BNSS. The authorised GST officer must record reasons to believe, inform the arrestee of the grounds of arrest in writing, and produce the person before a Magistrate within 24 hours consistent with the constitutional safeguard against arbitrary detention. Once produced before the Magistrate, however, the subsequent bail proceeding is governed entirely by the BNSS. Several High Courts have further cautioned that arrest should not precede a completed tax assessment since the offence under Section 132 is only truly established once the evaded amount is quantified through due process rather than mere suspicion.

Step-by-Step Procedure for filing application

Step 1: Drafting the Regular Bail Application

A BNSS bail application in a tax evasion matter should ordinarily contain the following components arranged in the sequence a duty judge expects to see them:

1. Cause title, memo of parties and correctly naming the investigating agency (State GST Department, Directorate General of GST Intelligence, or the Income Tax Department) as respondent.
2. A concise narrative of facts: the nature of the allegation, the date and circumstances of arrest, the section invoked, and the quantified amount of alleged evasion.
3. Grounds for bail, addressing the triple test — flight risk, tampering with evidence, and influencing witnesses — alongside submissions on custodial necessity.
4. A distinct paragraph addressing the economic-offence objection likely to be raised by the prosecution pre-empting it with the case law discussed in Step 4 below.
5. Prayer clause seeking release on bail under Section 480 BNSS (or Section 483 BNSS, where filed directly before the Sessions Court or High Court) with a request for reasonable bail conditions rather than a blanket denial.

Step 2: Document Checklist for a BNSS Bail Application

Document	Purpose
Copy of the FIR / arrest memo / grounds of arrest	Establishes the exact offence and statutory provision invoked
Remand order and case diary extracts (where available)	Shows the current custodial status and stage of investigation
Vakalatnama	Authorises the advocate to appear on the applicant’s behalf
Identity and address proof of the applicant and proposed sureties	Required for verification of bail bonds under Section 478 BNSS
Medical or family-hardship records, if relied upon	Supports grounds of humanitarian consideration
Prior bail order(s), if any earlier application was filed or rejected	Mandatory disclosure; non-disclosure can lead to dismissal
Show-cause notice / summons issued by the tax authority	Demonstrates the scope and stage of the revenue proceeding

 

Step 3: Identifying the Correct Court of Jurisdiction

Jurisdiction in a regular bail matter is layered. The first application ordinarily lies before the jurisdictional Magistrate under Section 480 BNSS. If refused or if the gravity of the allegation warrants it, the applicant may approach the Court of Session or the High Court under the concurrent powers conferred by Section 483 BNSS. In Satender Kumar Antil v. Central Bureau of Investigation, the Supreme Court observed that while a direct approach to the High Court is maintainable, it is ordinarily undesirable to bypass an equally competent Sessions Court without exceptional justification. So, the litigation flow should almost always begin at the Magistrate or Sessions Court level rather than the High Court unless the facts genuinely warrant an exception.

Step 4: Court Fees and Filing Formalities

Unlike civil suits, a regular bail application does not attract an ad valorem court fee linked to the amount in dispute. Most State Court-Fees Acts prescribe only a nominal, fixed court-fee stamp for criminal miscellaneous applications along with process fees for service of notice on the investigating agency or Public Prosecutor. Because these fixed amounts vary from state to state and are periodically revised, a profesional should always verify the current fixed fee applicable in the relevant State Court-Fees Rules or High Court Rules before finalising the filing rather than relying on a figure quoted in an older precedent file.

Step 5: The Standard Litigation Flow

1. Filing of the application along with the Vakalatnama and supporting documents before the Registry.
2. Listing before the concerned court typically with notice issued to the Public Prosecutor or the standing counsel for the tax department.
3. Filing of a reply or status report by the investigating agency, addressing custodial necessity and the stage of investigation.
4. Oral hearing where the triple test and the economic-offence gravity argument are typically the two central battlegrounds.
5. Pronouncement of the order, granting or refusing bail often with conditions such as surrender of passport, furnishing of sureties, or periodic appearance before the investigating officer.
6. On a favourable order, execution of the bail bond and surety bond under Section 478 BNSS before the trial court followed by release from custody.

Case Studies: How Courts Have Approached Bail in Economic Offences

A working knowledge of the following precedents is essential for drafting the grounds section of a tax evasion bail application:

• Sanjay Chandra v. CBI (2011): The Supreme Court held that pre-trial detention should rest on the operative test of necessity rather than presumed guilt reinforcing that bail is the rule and jail the exception even in cases involving substantial financial allegations.
• Nimmagadda Prasad v. CBI (2013): The Court recognised that economic offences involving deep-rooted conspiracies and loss to the public exchequer require a different and more cautious approach to bail than ordinary offences.
• Chidambaram v. Directorate of Enforcement (2019): While affirming that bail remains the rule, the Court held that the gravity of an economic offence is a relevant factor the court must weigh alongside the conventional triple test.
• A tax evasion matter before the Punjab and Haryana High Court (2025) applied this balance directly holding that jail should not be treated as the automatic norm in every economic offence particularly where the allegations are not of a grave nature on the specific facts.
• Narayan v. State of Madhya Pradesh (2026): As discussed above, the Supreme Court confined the mandatory conditions under Section 480(3) BNSS to offences punishable beyond seven years directly benefiting applicants in mid-range tax evasion cases.

Critical Analysis and Evaluation

The bail jurisprudence surrounding tax evasion allegations remains, in practice, an exercise in reconciling two competing judicial instincts. The first instinct visible in Nimmagadda Prasad and reiterated in P. Chidambaram, treats economic offences as a class apart because of the scale of harm they inflict on public revenue and market confidence. The second instinct reflected in the Punjab and Haryana High Court’s 2025 tax evasion order and reaffirmed in Satender Kumar Antil, resists any blanket categorisation insisting that gravity be assessed on the specific facts of each case rather than the label of the offence.

This unresolved tension creates a genuine drafting challenge. One cannot simply cite Sanjay Chandra and expect a favourable order in every tax matter nor can the prosecution simply invoke Nimmagadda Prasad to defeat every application. The more persuasive drafting strategy is therefore fact-specific: quantifying the exact sum allegedly evaded, distinguishing the case from the largest reported precedents, and directly engaging with whether the offence falls above or below the 7 year threshold clarified in Narayan.

A second area warranting reform-oriented commentary is the pre-assessment arrest practice under Section 69 of the CGST Act. Courts, including the Punjab and Haryana High Court in Akhil Krishan Maggu v. DGGI, have cautioned that an arrest ordered before the completion of a proper tax assessment is difficult to justify since the offence under Section 132 is triggered only once an amount is actually established as evaded. Aligning arrest practice more closely with completed assessments and codifying a uniform nationwide fixed court fee for bail applications instead of the current state-by-state variation would meaningfully reduce procedural uncertainty for both applicants and the department. Until such reform occurs careful, fact-anchored drafting remains the most reliable tool.

A third, more structural loophole lies in the inconsistent treatment of undertrial detention timelines in economic offence matters. While Section 479 BNSS entitles an undertrial to statutory bail once a defined portion of the maximum sentence has been served in custody, tax evasion prosecutions often proceed slowly because voluminous financial records and forensic audits take considerable time to compile. While briefing a client one should flag this delay risk early and consider where appropriate a follow-up application invoking Section 479 BNSS if the trial stalls well beyond the initial bail order. Building this timeline awareness into the very first draft of the bail application rather than treating it as an afterthought is one of the more valuable habits.

Conclusion

Filing a regular bail application under the BNSS in a tax evasion matter is not a mechanical exercise of citing Section 480 or Section 483 and reciting the triple test. It requires a precise identification of the governing statute – GST or Income Tax, an accurate quantification of the alleged evasion, correct forum selection consistent with Satender Kumar Antil and a grounds section that directly engages the ongoing judicial debate on how ‘grave’ an economic offence really is on the facts at hand. Mastering this sequence of drafting, documentation, jurisdiction, fees, and litigation flow is the difference between a bail application that merely restates the law and one that persuades a court to grant liberty.

 

Frequently Asked Questions

1. Is a regular bail application the same as anticipatory bail under BNSS?

No. A regular bail application under Section 480 or Section 483 BNSS is filed after arrest, seeking release from custody. Anticipatory bail under Section 482 BNSS is a pre-arrest remedy sought before the applicant is taken into custody at all.

2. Which court should a first-time applicant approach for a BNSS bail application in a tax evasion case?

Ordinarily the jurisdictional Magistrate under Section 480 BNSS. A direct approach to the Sessions Court or High Court under Section 483 BNSS is permissible but, per Satender Kumar Antil v. CBI, should be reserved for cases with exceptional justification.

3. Does the amount of tax evaded affect whether the offence is bailable?

Yes, under the GST framework. Evasion or wrongful Input Tax Credit exceeding five crore rupees is treated as cognizable and non-bailable, amounts between two and five crore rupees are bailable, and smaller amounts generally do not attract arrest under Section 132 of the CGST Act.

4. Are the mandatory bail conditions under Section 480(3) BNSS applicable to every tax evasion case?

Not necessarily. Following Narayan v. State of Madhya Pradesh (2026), the Supreme Court clarified that these mandatory conditions apply only to non-bailable offences punishable with imprisonment beyond seven years, excluding many tax evasion allegations from their scope.

5. What happens if a bail application is rejected by the Magistrate?

The applicant may approach the Court of Session or the High Court afresh under Section 483 BNSS, placing on record the earlier order and any  change in circumstances since the rejection.

6. Is there a fixed court fee for filing a bail application?

Bail applications attract a nominal, fixed court fee under the applicable State Court-Fees Rules rather than an ad valorem fee based on the        amount involved. The exact figure varies by state and should always be verified before filing.

 

References and Citations

Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 478–483.

Central Goods and Services Tax Act, 2017, Sections 69 and 132.

Income Tax Act, 1961, Sections 276C and 277.

Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40.

Nimmagadda Prasad v. Central Bureau of Investigation, (2013) 7 SCC 466.Chidambaram v. Directorate of Enforcement, Criminal Appeal No. 1831 of 2019 (Supreme Court of India, 4 December 2019).

Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51.

Narayan v. State of Madhya Pradesh, SLP (Crl.) No. 7011 of 2026 (Supreme Court of India, 22 April 2026), as reported by LiveLaw.

Akhil Krishan Maggu v. Directorate General of GST Intelligence, Punjab and Haryana High Court.

Punjab and Haryana High Court order on bail in a tax evasion matter, as reported by LiveLaw (31 May 2025).