Bail
Also called: Release on bail, Regular bail, Anticipatory bail
Release of a person accused or suspected of an offence from the custody of law, on conditions imposed by an officer or Court, after he executes a bond or a bail bond. Defined in Section 2(1)(b) of the BNSS.
Explained
Section 2(1)(b) of the BNSS defines bail as release of a person accused of or suspected of the commission of an offence from the custody of law upon conditions imposed by an officer or Court, on execution by that person of a bond or a bail bond. The old Code of Criminal Procedure had no definition of bail; the BNSS supplies one for the first time. The BNSS also separates the two undertakings: a bail bond under Section 2(1)(d) is an undertaking for release with surety, while a bond under Section 2(1)(e) is a personal bond or undertaking for release without surety.
The law of bail now sits in Chapter XXXV of the BNSS. Under Section 478 (earlier Section 436 CrPC) a person accused of a bailable offence is entitled to be released on bail as of right, and an indigent person unable to furnish surety must be released on a bond; inability to give a bail bond within a week of arrest is a ground to presume indigence. Section 480 (earlier Section 437) governs bail in non-bailable offences, where release is discretionary and restricted where there are reasonable grounds to believe the offence is punishable with death or life imprisonment, subject to the proviso for a child, a woman, or a sick or infirm person.
Section 482 (earlier Section 438) provides anticipatory bail, a direction by the High Court or Court of Session that a person apprehending arrest for a non-bailable offence be released on bail if arrested. Section 483 (earlier Section 439) gives those courts special powers to grant bail and to set aside or modify conditions imposed by a Magistrate. Section 479 (earlier Section 436A) requires release of an undertrial who has served one half of the maximum sentence, and one third for a first time offender, except for offences punishable with death or life imprisonment.
Examiners test the definitions in Section 2(1), the difference between bond and bail bond, the indigence presumption, the exceptions in Section 480, and the conditions that may be attached to anticipatory bail. The guiding principle, stated in State of Rajasthan v. Balchand and restated in Satender Kumar Antil, is that bail is the rule and jail the exception.
What the law says
(b) “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;
Section 2(1)(b), (d) and (e) define bail, bail bond and bond
Earlier law: CRPC 2. Definitions.
(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail bond from such person, discharge him on his executing a bond for his appearance as hereinafter provided.
Explanation.—Where a person is unable to give bail bond within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso:
Bail as of right in bailable offences and release of indigent persons on bond
Earlier law: CRPC 436. In what cases bail to be taken.
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years:
Discretionary bail in non-bailable offences and its limits
Earlier law: CRPC 437. When bail may be taken in case of non-bailable offence.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
Anticipatory bail by the High Court or Court of Session
Earlier law: CRPC 438. Direction for grant of bail to person apprehending arrest.
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Special powers of the High Court and Court of Session regarding bail
Earlier law: CRPC 439. Special powers of High Court or Court of Session regarding bail.
(1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail:
Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:
Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:
Maximum period of detention of an undertrial prisoner
Earlier law: CRPC 436A. Maximum period for which undertrial prisoner can be detained.
Example
For example, A is arrested for a bailable offence and cannot find a surety for a week. The officer or Court may presume him indigent and must release him on his own bond under Section 478 of the BNSS.
For the exam
- Bail is defined for the first time in Section 2(1)(b) BNSS; the CrPC had no definition.
- Bail bond (Section 2(1)(d)) is with surety; bond (Section 2(1)(e)) is without surety.
- Section 478: bail as of right in bailable offences; indigence presumed if no bail bond within a week of arrest.
- Anticipatory bail is under Section 482 BNSS, granted only by the High Court or Court of Session.
- Section 479: undertrial released after half the maximum term, one third for a first time offender.
634 questions in the Law Maker question bank use this term. Practise Bharatiya Nagarik Suraksha Sanhita questions
Judgments
- State of Rajasthan v. Balchand (1977)Stating that the basic rule is bail, not jail, the Court released on bail a respondent who had surrendered after the State was granted leave to appeal against his acquittal by the High Court.
- Satender Kumar Antil v. Central Bureau of Investigation (2022)Reaffirming that bail is the rule and jail the exception, the Court explained the bail provisions of the Code of Criminal Procedure, adopted a categorisation of offences for bail, and issued directions to investigating agencies, courts and governments.
- Gurbaksh Singh Sibbia v. State of Punjab (1980)The Constitution Bench held that the discretion of the High Court and Court of Session to grant anticipatory bail under Section 438 CrPC is wide and must not be cut down by reading in limitations the legislature did not impose.
- Sushila Aggarwal v. State (NCT of Delhi) (2020)Anticipatory bail under Section 438 CrPC need not be limited to a fixed period and may continue till the end of trial, though courts may impose conditions, including limits on time, where the facts of a case require.
Related terms
- Bail bondAn undertaking for release with surety. Section 2(1)(d) of the BNSS; contrasted with a 'bond', which is a personal bond or undertaking for release without surety.
- Bailable offenceAn offence shown as bailable in the First Schedule to the BNSS, or made bailable by any other law. A person accused of it is entitled to release on bail as of right.
- Non-bailable offenceAn offence that is not shown as bailable in the First Schedule to the BNSS and is not made bailable by any other law. Bail in such a case rests in the court's discretion and is not a right.
- Cognizable offenceAn offence for which a police officer may arrest without warrant, in accordance with the First Schedule to the BNSS or any other law in force.
- OffenceAn act or omission made punishable by law. The BNS core meaning is a thing made punishable by the Sanhita; the BNSS meaning covers any law in force.
Further reading
Checked 6 November 2026. Statutory text is quoted from the Bare Acts library, taken from India Code. See the full glossary.