Bail is the rule and jail the exception is a settled principle of Indian criminal law. This page explains the main forms of bail and the courts that grant them. For how bail applications actually proceed in the Delhi courts, see the Delhi bail practice page.
Forms of Bail
Regular bail
A person who has been arrested applies for regular bail. In bailable offences, bail is a matter of right under Section 436 CrPC, now Section 478 BNSS. In non-bailable offences, a Magistrate considers bail under Section 437 CrPC, now Section 480 BNSS, while the Sessions Court and the High Court exercise wider powers under Section 439 CrPC, now Section 483 BNSS.
Anticipatory bail
A person apprehending arrest in a non-bailable offence may seek a direction that, in the event of arrest, they be released on bail. This is anticipatory bail under Section 438 CrPC, now Section 482 BNSS, granted by the Sessions Court or the High Court.
Interim bail
While a regular or anticipatory bail application is pending, the court may grant short-term interim bail or interim protection from arrest, so that the applicant is not taken into custody before the main application is decided.
Default bail
If the investigating agency does not file its chargesheet within the statutory period — ordinarily 60 or 90 days depending on the offence — the accused becomes entitled to default bail under Section 167(2) CrPC, now Section 187 BNSS. This right is indefeasible if exercised before the chargesheet is filed.
Which Court to Approach
Practice ordinarily begins before the Magistrate or the Sessions Court of the district where the FIR is registered, and moves to the High Court if relief is declined. Anticipatory bail applications are usually filed directly before the Sessions Court, with the High Court as the next forum.
Conditions and Cancellation
Courts commonly impose conditions: joining the investigation, surrendering the passport, not contacting witnesses, and marking attendance at the police station. Breach of conditions, tampering with evidence or threatening witnesses can lead to cancellation of bail under Section 437(5) or Section 439(2) CrPC, and the corresponding provisions of the BNSS. Offences committed before 1 July 2024 continue to be governed by the CrPC provisions.
Advocate Manish Jha has argued bail matters for over 15 years before the Delhi District Courts, the High Court of Delhi and the Supreme Court of India. For urgent matters, see the urgent bail contact page.
Frequently Asked Questions
What is the difference between regular and anticipatory bail?
Regular bail is sought after arrest, asking the court to release a person from custody. Anticipatory bail is sought before arrest by a person who apprehends being arrested in a non-bailable offence, under Section 438 CrPC, now Section 482 BNSS. Anticipatory bail lies before the Sessions Court or the High Court, while regular bail can begin before the Magistrate.
What is default bail and when does it arise?
If the police fail to complete investigation and file the chargesheet within the statutory period, ordinarily 60 or 90 days depending on the punishment prescribed, the accused is entitled to be released on bail under Section 167(2) CrPC, now Section 187 BNSS. The accused must apply and furnish bail before the chargesheet is actually filed for this right to operate.
Can bail once granted be cancelled?
Yes. Bail can be cancelled if the accused breaches conditions, attempts to influence or threaten witnesses, tampers with evidence, or commits a fresh offence while on bail. The power flows from Section 437(5) and Section 439(2) CrPC and the corresponding BNSS provisions. Cancellation requires supervening circumstances and is decided after hearing the person on bail.
What conditions do courts usually attach to bail?
Typical conditions include furnishing a personal bond with sureties, joining and cooperating with the investigation, not leaving the country without permission, depositing the passport, refraining from contacting witnesses or the complainant, and appearing before the investigating officer or court when required. Conditions vary with the offence and can later be modified by the court on application.