Criminal procedure in India
Section 88 CrPC and Section 91 BNSS: Power to Take Bond for Appearance
Section 88 of the Code of Criminal Procedure, 1973 empowered a court to require a person already present before it to execute a bond for future appearance. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 91.
Section 88 CrPC: statutory provision
The heading of Section 88 of the Code of Criminal Procedure, 1973 was "Power to take bond for appearance." Its text provided:
"When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial."
The provision appeared in Chapter VI of the CrPC, under the rules concerning processes to compel appearance. See the official CrPC text on India Code.
Section 91 BNSS: current corresponding provision
Section 91 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled "Power to take bond or bail bond for appearance." It provides:
"When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond or bail bond for his appearance in such Court, or any other Court to which the case may be transferred for trial."
Read the BNSS on India Code or the BNSS chapter-wise text published by the National Crime Records Bureau.
Meaning and essential requirements
The provision allows a court to secure future attendance without necessarily issuing a fresh summons or arrest warrant when the person concerned is already before it. Its essential elements are:
- Jurisdiction to compel appearance: The presiding officer must be empowered to issue a summons or warrant for that person's appearance or arrest.
- Presence before the court: The person must be present in that court when the power is exercised.
- Judicial discretion: The word "may" gives the court discretion; execution of a bond is not automatic in every case.
- Undertaking to appear: The bond or bail bond is intended to secure attendance before the same court or another court to which the case is transferred for trial.
Bond, bail bond and surety: definitions
Under Section 2(1)(e) BNSS, a bond means a personal bond or an undertaking for release without surety. Under Section 2(1)(d) BNSS, a bail bond means an undertaking for release with surety. A surety is a person who undertakes responsibility under the bond arrangement for compliance with the specified appearance obligation. These distinctions help explain the updated wording in Section 91 BNSS.
Section 88 CrPC compared with Section 91 BNSS
| Issue | Section 88 CrPC | Section 91 BNSS |
|---|---|---|
| Legislation | Code of Criminal Procedure, 1973 | Bharatiya Nagarik Suraksha Sanhita, 2023 |
| Heading | Power to take bond for appearance | Power to take bond or bail bond for appearance |
| Instrument | Bond, with or without sureties | Bond or bail bond |
| Purpose | Secure future court attendance | Secure future court attendance |
| Legal status | Repealed, subject to savings | In force from 1 July 2024 |
Is a court required to take a bond in every case?
No. The Supreme Court has explained that Section 88 CrPC is an enabling provision. The court may consider the circumstances and decide whether requiring a bond is necessary. The mere appearance of an accused following a summons does not invariably require a bond. The distinction between an appearance bond and a substantive order granting bail must also be maintained.
For the Supreme Court's discussion of Section 88 and court appearance following summons, see the Supreme Court judgment dated 16 May 2024 (official PDF). See also the Supreme Court judgment discussing the discretionary nature of Section 88 (judicial academy PDF).
What happens if a person fails to appear?
Section 89 CrPC dealt with arrest on breach of a bond for appearance. Under the corresponding Section 92 BNSS, when a person bound by a bond or bail bond taken under the BNSS fails to appear, the presiding officer may issue a warrant directing that the person be arrested and produced before the court. Consequences relating to forfeiture or enforcement of a bond may also arise under other applicable provisions, depending on the facts.
Practical example
Suppose a person appears before a criminal court in proceedings where the court is empowered to summon that person. The court may, after considering the circumstances, require an appearance bond so that the person undertakes to attend the next hearing. This does not mean that every person who appears must furnish a surety, or that the provision automatically decides entitlement to bail.
Frequently asked questions
Is Section 88 CrPC still in force?
The CrPC was repealed with effect from 1 July 2024. The saving provisions of Section 531 BNSS must be considered for pending proceedings. Section 91 BNSS is the corresponding current provision.
Can the court require a bond without a surety?
The old Section 88 expressly contemplated a bond with or without sureties. The BNSS distinguishes a personal bond from a bail bond with surety, and Section 91 authorises the court to require a bond or bail bond as appropriate.
Does an appearance bond amount to bail?
Not necessarily. The power to obtain an undertaking for future appearance is distinct from deciding whether a person in custody should be released on bail. The facts and the relevant statutory bail provisions remain important.
Does Section 91 BNSS apply to a transferred case?
Yes. The provision expressly contemplates appearance before another court to which the case may be transferred for trial.
Official legal references
- Code of Criminal Procedure, 1973 - India Code
- Bharatiya Nagarik Suraksha Sanhita, 2023 - India Code
- New criminal laws - Bureau of Police Research and Development
- Supreme Court judgment, 16 May 2024 - official PDF
This article provides general legal information, not advice for a particular case. Consult the applicable statute, court orders and a qualified legal practitioner for case-specific questions.