Bail is the release of an accused person from custody on conditions while an investigation or trial is pending. Anticipatory bail is sought before arrest under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Bail is a right in bailable offences and a matter of the court's discretion in non-bailable offences.
- Category
- Criminal Proceedings
- Court or forum
- High Court, Trial and subordinate courts
- Type of content
- General information, not legal advice
- Last updated
Purpose and background
Bail is the release of an accused person from custody on conditions while an investigation or trial is pending. Anticipatory bail is sought before arrest by a person who apprehends arrest for a non-bailable offence. It is governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), earlier Section 438 of the Code of Criminal Procedure, 1973.
Jurisdiction: where is it filed?
Section 480 BNSS (earlier Section 437) deals with bail in non-bailable cases by courts other than the High Court and the Court of Session. The High Court and the Court of Session have special powers under Section 483 (earlier Section 439).
Which court to approach first depends on the offence, the stage of the case and the practice of the court.
Procedural stages
- Collect the FIR, the arrest and remand papers and, if filed, the charge-sheet.
- Draft the application: the facts, the grounds for release, the period in custody and details of any earlier bail application.
- File the application and have it listed for hearing.
- The prosecution may file a reply. The court hears both sides.
- The court may grant bail on conditions, such as sureties, reporting to a police station or surrender of a passport, or may reject the application.
- If bail is granted, comply with every condition. If it is rejected, the law provides further remedies.
Documents commonly required
- Copy of the FIR
- Arrest memo and remand orders
- Charge-sheet or status of the investigation
- Earlier bail orders, if any
- Identity and address proof of the applicant and sureties
- Medical or other papers, if relied upon
- Authority or vakalatnama
Limitation and timing
Whether bail is granted depends on the facts of each case and the court's assessment. Nothing in this guide predicts the outcome of an application.
Common questions
What is the difference between regular bail and anticipatory bail?
Regular bail is sought by a person who has been arrested or is in custody. Anticipatory bail is sought before arrest by a person who fears arrest for a non-bailable offence. It is governed by Section 482 of the BNSS, earlier Section 438 of the Code of Criminal Procedure.
Is bail a right in every case?
Bail is a right in bailable offences under Section 478 of the BNSS, earlier Section 436 of the Code of Criminal Procedure. In non-bailable offences the court decides whether to grant it after considering the facts and the law.
What is default bail?
If the investigation is not completed and the charge-sheet is not filed within the period the law allows, 60 or 90 days depending on the offence, the accused may be entitled to bail on that ground. This is provided in Section 187 of the BNSS, earlier Section 167(2) of the Code of Criminal Procedure.
Official references
- India Code, for the text of Central Acts
- Supreme Court of India
- Official website and rules of the High Court concerned
- How to find the right High Court