This page explains general procedure and is not legal advice on any particular case. Which category applies, and on what terms bail may be granted, depends on the offence alleged, the stage of the matter and the record before the court.
Bailable and non-bailable offences
The starting point is the classification of the offence. In a bailable offence release on bail is available as of right on furnishing a bond, and the officer in charge of the police station may grant it. In a non-bailable offence release is in the discretion of the court, exercised on the nature of the accusation, the material collected, the role attributed to the accused and the antecedents.
Regular bail
Regular bail is release from custody after arrest. The application is made under Sections 480 and 483 BNSS, which correspond to Sections 437 and 439 CrPC, before the Magistrate, the Court of Session or the High Court depending on the offence and the stage. Where a bail application has been rejected, a fresh application lies before the superior court, and before the same court on a material change in circumstances.
The practical aspects — sureties, the bond amount, the conditions and the effect of the charge sheet — are set out on the regular bail page.
Anticipatory bail
Anticipatory bail is pre-arrest protection under Section 482 BNSS, formerly Section 438 CrPC, granted by the Court of Session or the High Court where a person apprehends arrest in a non-bailable offence. The provision, procedure, conditions and the position on rejection are explained in detail in the guide to anticipatory bail under BNSS.
Interim bail
Interim bail is protection for a limited period, granted while a regular or anticipatory bail application is pending, so that the applicant is not taken into custody before the application is decided. It is subject to the conditions specified and lapses on the date fixed unless extended.
Default or statutory bail
Where the investigation is not completed and the charge sheet is not filed within the period prescribed — ordinarily sixty or ninety days depending on the offence — the accused becomes entitled to be released on bail under the proviso to Section 187 BNSS, which corresponds to Section 167(2) CrPC. The right must be claimed while it subsists; it is lost once the charge sheet is filed.
Bail pending appeal and suspension of sentence
After conviction, bail is sought along with an application for suspension of the sentence in the appeal, before the Sessions Court or the High Court depending on the court that passed the judgment. This is considered on different footing from bail before conviction.
Transit bail
Transit bail is short protection allowing a person to approach the court having jurisdiction over a case registered in another State. It is granted for a limited duration and for that limited purpose.
Conditions and sureties
- A personal bond, usually with one or two sureties of a specified amount.
- Attending the court and the investigating officer as directed.
- Not leaving a specified area or the country without permission.
- Not contacting the complainant or the witnesses.
- Surrender of the passport where directed.
Frequently Asked Questions
- What is the difference between regular bail and anticipatory bail?
- Regular bail is sought after arrest and secures release from custody. Anticipatory bail is sought before arrest and directs that the person be released on bail if arrested in the specified case.
- Which section of BNSS deals with regular bail?
- Sections 480 and 483 BNSS deal with bail in non-bailable offences before the Magistrate and before the Court of Session or High Court respectively, corresponding to Sections 437 and 439 CrPC.
- What is default bail?
- It is release on bail because the investigation was not completed within the period prescribed and the charge sheet was not filed in time. The right must be claimed before the charge sheet is filed.
- Can a bail application be filed again after rejection?
- Yes, before the superior court, and before the same court where circumstances have materially changed, for example on filing of the charge sheet or a change in the sections alleged.
- Are sureties always required?
- Not always. Courts sometimes accept a personal bond alone, and in other cases require one or more sureties with proof of identity, address and solvency.