Bail & criminal procedure

Bail and anticipatory bail, FIR and remand, custody and the procedural spine of a criminal matter under the BNSS.

Questions advocates ask about Bail & criminal procedure

Bail turns first on whether the offence is bailable. For a bailable offence bail is a right; for a non-bailable one it is the court's discretion, guided by the seriousness of the charge and the likelihood of the accused absconding or interfering with the case. The Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the CrPC from 1 July 2024 and renumbered most of the provisions below.

Is bail a right or a favour?

It depends on the offence. In a bailable offence the accused is entitled to be released on furnishing bail, and the police officer or court must release them. In a non-bailable offence the court has discretion, and will not ordinarily grant bail where there are reasonable grounds to believe the accused is guilty of an offence punishable with death or imprisonment for life, subject to exceptions such as a person under sixteen, a woman, or a sick or infirm person.

BNSS s. 478 (bailable offences; formerly CrPC s. 436); BNSS s. 480 (non-bailable offences; formerly CrPC s. 437)

When can I apply for anticipatory bail, and for how long does it last?

Anticipatory bail can be sought by a person who has reason to believe they may be arrested on an accusation of a non-bailable offence, from the Court of Session or the High Court. The court may direct that, if arrested, the person be released on bail, and may attach conditions. The Supreme Court has held that the protection need not be limited to a fixed period and can continue until the end of the trial, unless the court limits it for reasons.

BNSS s. 482 (formerly CrPC s. 438); Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1

What is default (statutory) bail?

If the police do not complete the investigation within the statutory period, the accused is entitled to be released on bail, provided they are ready to furnish it. That period is 90 days where the offence is punishable with death, imprisonment for life or imprisonment of ten years or more, and 60 days for other offences. The right arises once the period expires and, on the Supreme Court's reasoning, is lost if the accused does not claim it before the chargesheet is filed.

BNSS s. 187 (formerly CrPC s. 167(2)); Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453

Can an undertrial be released because they have already spent a long time in custody?

Yes, in the cases the law covers. An undertrial who has been detained for up to half of the maximum sentence for the offence is to be released on a personal bond, and the BNSS reduces this to one-third for a first-time offender. It does not apply to offences punishable with death or life imprisonment, and the section excludes a person facing proceedings in more than one case.

BNSS s. 479 (formerly CrPC s. 436A)

Does every offence punishable with up to seven years lead to arrest?

No. For offences punishable with imprisonment up to seven years, the police are expected to issue a notice of appearance instead of arresting, and to arrest only where they record that arrest is necessary for a reason the law lists. The Supreme Court has directed magistrates not to authorise detention mechanically.

BNSS s. 35 (formerly CrPC ss. 41 and 41A); Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

What do courts look at when deciding a regular bail application?

The nature and gravity of the accusation, the evidence, the likelihood of the accused fleeing, tampering with witnesses or repeating the offence, the period already spent in custody and the stage of the case. The Supreme Court has also laid down categories of offences and directions to reduce unnecessary arrests and delay in bail.

Satender Kumar Antil v. CBI, (2022) 10 SCC 51

Prepared by The EduLaw Editorial Team on 2 November 2026. It has not yet been reviewed by a named advocate. Educational content, not legal advice; check the current text of each provision before relying on it.

Judgments and analysis

Ready-to-file drafts

2,100+ editable Indian legal drafts across 40+ practice areas — applications, petitions, notices, replies and agreements. See the drafts bundle.

Notes and Playbooks

Bundles

Other practice areas