What bail is

Bail is the temporary release of an accused person from custody while an investigation or trial is pending, usually on conditions such as appearing in court and not tampering with evidence. It is not a finding on guilt or innocence.

Main types

  • Regular bail: sought after arrest. Section 480 of the BNSS (earlier Section 437 CrPC) deals with bail by a magistrate in non-bailable cases, and Section 483 (earlier Section 439) with the High Court and Court of Session.
  • Anticipatory bail: sought before arrest, by a person who fears arrest for a non-bailable offence. It is now Section 482 of the BNSS (earlier Section 438 CrPC).
  • Default bail: a right that arises if the police do not complete the investigation within the time limit (generally 60 or 90 days, depending on the offence). It is now in Section 187 of the BNSS (earlier Section 167 CrPC).

Principles courts apply

Courts have often said that the general rule is bail and the exception is jail, because detention before conviction affects liberty under Article 21. They still weigh factors such as the seriousness of the offence, the strength of the case, the risk of the accused absconding, tampering with witnesses, and the likelihood of repeating the offence. There is no fixed formula, and each decision depends on the facts.

Bailable and non-bailable offences

In a bailable offence, bail is generally a matter of right. In a non-bailable offence, it is a matter of the court’s discretion. The classification depends on the offence and the applicable law, so check the statute.

Study tip

Practise by comparing two bail applications on the same facts, one for the accused and one for the State, and then read the case notes on Siddharam Satlingappa Mhetre and Arnesh Kumar. For old and new section numbers, use the section finder.

Key references

Start with these primary sources, and check the current official text before relying on them.

  • Bharatiya Nagarik Suraksha Sanhita, 2023: Sections 480, 482, 483 and 187.
  • State of Rajasthan v. Balchand, (1977) 4 SCC 308 (bail as the rule, jail as the exception).
  • Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.
  • Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 (anticipatory bail and its duration).
  • Constitution of India, Article 21.
Check before relying: Offence classifications, time limits and special statutes (such as those on narcotics or terror offences) can change the rules. Check the provision for your offence.