When someone is arrested — or fears arrest — the first question the family asks is: “How do we get bail?” Since 1 July 2024, bail in criminal cases is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure (CrPC). The basic principles remain the same, but the section numbers have changed. This guide explains the two most common types of bail in simple words.
What is bail?
Bail is the temporary release of an accused person from custody, on the condition that they will appear before the court whenever required. The Supreme Court has repeatedly said that “bail is the rule and jail is the exception”, especially where the accused cooperates with the investigation.
Bailable and non-bailable offences
- Bailable offences — bail is a matter of right. The police or the court must release the person on furnishing bail bonds (Section 478 BNSS, earlier Section 436 CrPC).
- Non-bailable offences — bail is at the discretion of the court (Section 480 BNSS for the Magistrate, earlier Section 437 CrPC; and Section 483 BNSS for the Sessions Court and High Court, earlier Section 439 CrPC).
What is regular bail?
Regular bail is sought after a person has been arrested and is in police or judicial custody. The application is usually first filed before the Magistrate and, if rejected, before the Sessions Court and then the High Court.
Factors the court considers
- Nature and seriousness of the offence and the likely punishment
- The role attributed to the accused and the evidence collected
- Criminal antecedents, if any
- Possibility of the accused fleeing, tampering with evidence or influencing witnesses
- Period already spent in custody and the stage of investigation or trial
What is anticipatory bail?
Anticipatory bail is a direction that, if the person is arrested, they shall be released on bail. It is sought before arrest by someone who has a reasonable apprehension of being arrested in a non-bailable offence. Under the BNSS it is provided in Section 482 (earlier Section 438 CrPC), and the application is filed before the Sessions Court or the High Court.
Courts can impose conditions such as joining the investigation when called, not leaving the country without permission and not contacting witnesses.
Default bail
If the police do not file the charge-sheet within the time allowed by law — generally 60 or 90 days depending on the offence — the accused gets an indefeasible right to default bail under Section 187 BNSS (earlier Section 167(2) CrPC), provided it is claimed before the charge-sheet is filed.
Documents usually needed
- Copy of the FIR (available online for most Delhi FIRs) and arrest memo, if any
- Identity and address proof of the accused
- Details and ID of the surety
- Any documents that show a false case, a settlement or the accused’s limited role
Practical tips
- Do not delay — speak to an advocate as soon as you receive a notice or learn about an FIR.
- Always respond to a police notice (Section 35 BNSS, earlier Section 41A CrPC); cooperation strongly helps your bail case.
- Never post about the case on social media or contact the complainant directly.
- Keep copies of every document and every order.
Need help with a bail matter in Delhi?
Adv. Swati Suman appears in bail and criminal matters before Delhi courts including Tis Hazari Courts. For urgent help, call or WhatsApp 8789818007.
Disclaimer: This article is for general legal awareness only and is not legal advice. Every case depends on its own facts — please consult an advocate before taking any step.
