Key points
- Regular bail (Sections 480 and 483 BNSS) is sought after arrest; anticipatory bail (Section 482) before arrest.
- Default bail under Section 187(3) BNSS is a right that arises if the charge sheet is not filed within 60 or 90 days of the first remand.
- Bail in bailable offences is a matter of right; in non-bailable offences it is a matter of judicial discretion.
Regular bail
Regular bail is release from custody after arrest. For bailable offences it must be granted by the police or the Magistrate. For non-bailable offences, the Magistrate decides under Section 480 BNSS and the Sessions Court or High Court under Section 483. The court considers the nature of the offence, the evidence, the likelihood of the accused fleeing or tampering with evidence, the accused's antecedents and health, and the period already spent in custody.
Anticipatory bail
Anticipatory bail, under Section 482 BNSS, is a pre-arrest order that the person be released on bail if arrested. It is available only from the Sessions Court and the High Court, and only for non-bailable offences. Our separate guide explains the procedure in Delhi.
Default bail
Section 187(3) BNSS entitles an accused to bail if the investigation is not completed and a charge sheet filed within 60 days (or 90 days for offences punishable with death, life imprisonment or imprisonment of ten years or more) of the first date of remand. This is an indefeasible right: the accused must apply, and if the charge sheet is not on record when the application is made, bail must be granted regardless of the merits. The BNSS allows police custody to be sought in parts within the first 40 or 60 days, which does not affect the outer limit.
Interim bail
Courts also grant short-term interim bail pending the hearing of a regular bail application, or for a specific purpose such as a medical emergency or a family event.
Frequently asked questions
Can bail be cancelled?
Yes. The court that granted bail, or a superior court, can cancel it if the accused breaches conditions, tampers with evidence, threatens witnesses or commits another offence while on bail.
What is a surety and can I be released without one?
A surety is a person who undertakes to pay a sum if the accused fails to appear. Courts can release an accused on a personal bond without surety, particularly where the accused is poor or the offence is minor.
Related practice area: Criminal Defence
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.