Bailable and non-bailable offences
Under Section 478 of the Bharatiya Nagarik Suraksha Sanhita, 2023, a person accused of a bailable offence is entitled to bail as of right. In a non-bailable offence, bail is a matter of judicial discretion under Sections 480 and 483 BNSS, and the court considers the seriousness of the offence, the strength of the case, the risk of absconding and the possibility of interfering with witnesses.
Bail as the rule
The Supreme Court has repeatedly said that bail is the rule and jail the exception. In Satender Kumar Antil v. CBI (2022), the Court categorised offences and urged courts to avoid unnecessary arrests and to grant bail liberally in cases that do not need custodial detention. The Court also recommended that the legislature consider a separate law on bail.
Default bail
Section 187 BNSS, which replaces Section 167 of the Code of Criminal Procedure, entitles an accused to bail if the police do not complete the investigation and file the report within 60 days, or 90 days in cases punishable with death, life imprisonment or imprisonment of ten years or more. The accused must apply for bail before the charge sheet is filed, and must be prepared to furnish bail. The right is indefeasible and flows from personal liberty.
Bail for long-detained undertrials
Section 479 BNSS provides that an undertrial who has been detained for one half of the maximum sentence for the offence must be released on bail. A first time offender is entitled to release after one third of the maximum period. The provision does not apply to offences punishable with death or life imprisonment, or where multiple cases are pending, subject to the statute.
Cancelling bail
Bail can be cancelled where the accused misuses liberty, tampers with evidence, threatens witnesses or violates conditions. The prosecution or complainant must approach the court that granted bail or a higher court.
What to prepare for a bail hearing
A well prepared application includes the FIR, the remand papers, details of custody period, the accused's ties to the community, medical or family circumstances and a proposal for conditions. Early legal advice helps, since the arguments in the first bail application shape later ones.
Frequently Asked Questions
Q. Is bail a right in every offence?
A. No. It is a right in bailable offences, and a matter of judicial discretion in non-bailable ones.
Q. What is the difference between default bail and regular bail?
A. Default bail arises when the investigation is not completed within the statutory period, while regular bail depends on the court's assessment of the merits and risk factors.
Disclaimer: This article is for general information only and is not legal advice. The law may change, and the facts of each matter differ.