Bail in India: Bailable and Non-Bailable Offences, Default Bail and Undertrial Release

Once a person is arrested, the immediate question is how soon they can be released. That is the question of bail. In India, bail is the temporary release of an accused person while the case is pending, on condition that they attend court. The Supreme Court has repeated that bail is the rule and jail the exception, because a person is presumed innocent until proved guilty. This guide explains the main kinds of bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

What Is the Difference Between Bailable and Non-Bailable Offences?

The First Schedule and the offence sections classify each offence. In a bailable offence, an accused has a right to be released on bail. The police or the court must release the person on furnishing a bond, and refusal is not allowed. In a non-bailable offence, bail is not a right. It is granted by the court, in its discretion, after considering the facts. Bailable offences are dealt with in Section 478 of the BNSS, and bail in non-bailable offences in Sections 480 and 483, which correspond to Sections 436, 437 and 439 of the earlier Code. Check the numbering against the statute.

How Do Courts Decide Bail in Non-Bailable Cases?

A court looks at the seriousness of the offence and the punishment, the strength of the prima facie case, the accused's background, the risk of flight, interference with witnesses or evidence, and how long the accused has been in custody. A magistrate can grant bail in most non-bailable cases, but not in offences punishable with death or life imprisonment, where the Sessions Court or High Court decides. In Satender Kumar Antil v. CBI (2022), the Supreme Court issued guidelines to make the process fairer and reduce unnecessary detention.

What Is Default Bail?

Default bail, sometimes called statutory bail, arises when the police fail to complete the investigation and file the charge sheet within the time the law allows. Under Section 187 of the BNSS, the counterpart of the earlier Section 167(2), the accused is entitled to bail if the charge sheet is not filed within 60 days, or within 90 days where the offence is punishable with death, life imprisonment or imprisonment of ten years or more. The Supreme Court has called this an indefeasible right, but it must be claimed by applying before the charge sheet is actually filed. An accused who does not apply in time can lose it. Our advocate can check the dates from the date of remand.

Who Must Be Released as an Undertrial?

Many people spend years in jail waiting for trial. The BNSS has a rule intended to prevent this. Section 479 provides that an undertrial who has been detained for up to half of the maximum sentence for the offence is to be released on bail, with a first-time offender entitled to release after one-third of the maximum period, subject to exceptions, such as offences punishable with death or life imprisonment. The jail authorities are meant to apply to the court on the person's behalf. Check the exact wording against the statute, because the numbering of this provision has been cited differently in different sources.

What Conditions Do Courts Attach to Bail?

Common conditions are to attend court and the police station when required, not to leave the jurisdiction or the country without permission, not to contact the complainant or witnesses, to surrender the passport, and to furnish a personal bond and sureties. A breach can lead to cancellation. Courts are also told not to impose conditions that are impossible to meet, such as very high sureties.

What Is the Process of Applying?

An application is filed before the court with the arrest or FIR details and the grounds for release. The prosecution is heard, and the court decides. Where the court is the Sessions Court or the High Court, the accused applies directly. If bail is refused, the accused can approach the higher court. A person who fears arrest can apply earlier for anticipatory bail, as our guide to anticipatory bail under Section 482 of the BNSS explains.

What Happens After Bail Is Granted?

The bail bond is signed, sureties are verified, and the court sends a release order to the jail. The accused must then attend every hearing and obey each condition until the end of the case. Bail can be cancelled if there is a breach, or if the accused misuses it, for example by threatening a witness.

What Should a Family Prepare?

A family should have the arrest or FIR details, identity and address proof of the accused and the sureties, proof of income or property for the surety, and any documents relevant to the case. Our guide to your rights on arrest gives a longer checklist.

Bail depends on the offence, the stage and the court. Our Criminal Law practice advises on bail applications at all stages, and you can request a consultation. This article is general information, and the outcome of a bail application depends on the facts and the court.