"Bail, not jail" has long been a guiding principle of Indian criminal law. Personal liberty under Article 21 is the rule, and detention before a finding of guilt is the exception. Since 1 July 2024, bail is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure. The section numbers changed, but most principles carry over.

Bailable and non-bailable offences

Every offence is classified as bailable or non-bailable in the First Schedule to the BNSS.

  • Bailable offences (Section 478): bail is a right. The police officer or court must release the person on bail, with or without sureties. A person who cannot furnish bail within a week of arrest is presumed to be indigent and may be released on a personal bond.
  • Non-bailable offences (Section 480): bail is discretionary. The court considers the nature and gravity of the accusation, the strength of the evidence, the accused's antecedents, the risk of absconding, and the possibility of tampering with evidence or influencing witnesses.

The Sessions Court and High Court have wider powers to grant bail, and to impose or relax conditions, under Section 483.

Anticipatory bail (Section 482)

Anticipatory bail is a direction that if a person is arrested for a non-bailable offence, they must be released on bail. It is sought before arrest from the Sessions Court or the High Court, by someone who has reason to believe they may be arrested.

Key points from Sushila Aggarwal v. State (NCT of Delhi) (2020), a Constitution Bench decision:

  • anticipatory bail is not ordinarily limited in time and can continue until the end of the trial, unless the court finds reasons to limit it;
  • the court can impose conditions such as joining the investigation, not leaving the country or not contacting witnesses;
  • the application must show specific facts giving rise to a reasonable fear of arrest. A vague apprehension is not enough.

Some special laws restrict or exclude anticipatory bail. For example, the SC/ST (Prevention of Atrocities) Act restricts it, subject to the courts' interpretation, and certain serious offences under the Bharatiya Nyaya Sanhita (BNS) exclude it.

Default bail (Section 187(3))

If the police do not file a charge-sheet within the time allowed, the accused becomes entitled to default bail, often called "statutory bail":

  • 90 days for offences punishable with death, life imprisonment or imprisonment of at least ten years;
  • 60 days for all other offences.

The right must be claimed, by applying for bail, before the charge-sheet is filed. If the application is made in time, the right cannot later be defeated by filing the charge-sheet.

Undertrial detention limits (Section 479)

An undertrial who has been detained for half of the maximum sentence for the offence (other than offences punishable with death or life imprisonment) must be released on bail. For first-time offenders, this threshold drops to one-third of the maximum sentence. The jail superintendent must apply to the court when these thresholds are reached.

Arrest is not automatic

In Arnesh Kumar v. State of Bihar (2014), the Supreme Court held that for offences punishable with imprisonment of up to seven years, police must not arrest automatically. They must record reasons why arrest is necessary. Otherwise, they should issue a notice of appearance, now under Section 35 BNSS (formerly Section 41A CrPC). A person who complies with the notice should not ordinarily be arrested.

In Satender Kumar Antil v. CBI (2022), the Court issued detailed guidelines requiring courts to apply these principles strictly and to decide bail applications quickly.

Rights on arrest

A person who is arrested has the right to:

  • be told the grounds of arrest and whether the offence is bailable;
  • have a friend or relative informed of the arrest;
  • consult and be defended by an advocate of their choice;
  • be produced before a Magistrate within 24 hours, excluding travel time;
  • free legal aid if they cannot afford an advocate.

Common bail conditions

Courts may require a personal bond and sureties, regular attendance at the police station or court, surrender of passport, no contact with the complainant or witnesses, and staying within a particular area. Breaking a condition can lead to cancellation of bail.

Key takeaways

  • In a bailable offence, bail is a right. In a non-bailable offence, it is up to the court.
  • Anticipatory bail is sought before arrest from the Sessions Court or High Court and is generally not time-bound.
  • If the charge-sheet is late, default bail must be claimed promptly.
  • For offences punishable with up to seven years, a notice of appearance is the norm, not arrest.