Following the change to the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 with effect from 1 July 2024, matters registered before that date continue under the earlier codes, so bail applications now run on one framework or the other depending on when the matter was registered.
What a bail application involves
An application is moved before the Magistrate’s Court or, depending on the offence, the Sessions Court, setting out the facts of the case, the stage of investigation or trial, and the grounds on which release is sought. Time is usually significant — an application is generally moved as soon as the relevant facts and documents are available.
Information and documents generally needed
- Copy of the FIR or complaint, if available
- Details of the arrest or the notice received
- Identity proof and a surety, where required by the court
- Any prior criminal antecedents relevant to the matter
No outcome of a bail application can be promised; it is decided by the court on the facts and the law. See also anticipatory bail and criminal matters.
Kinds of bail
- Bail in a bailable offence. Where the offence is bailable, release on bail is a matter of right on furnishing bail and surety (Section 478 of the BNSS, earlier Section 436 CrPC).
- Regular bail in a non-bailable offence. Here the court has discretion. The Magistrate, or the Sessions Court or High Court for serious offences, decides under Sections 480 and 483 of the BNSS (earlier Sections 437 and 439 CrPC).
- Anticipatory bail. Sought before arrest, under Section 482 of the BNSS (earlier Section 438 CrPC). It has its own page and article: see Anticipatory bail.
- Default bail. Where the investigation is not completed and the charge-sheet is not filed within the period the law allows, a right to bail can arise under Section 187 of the BNSS (earlier Section 167(2) CrPC). The period is generally 90 days for offences punishable with death, life imprisonment or imprisonment of ten years or more, and 60 days for other offences.
What a court weighs in a non-bailable offence
There is no fixed formula, and each case turns on its own facts. Courts commonly consider the nature and seriousness of the accusation, the punishment that follows on conviction, the material collected so far, whether the applicant is likely to flee or to interfere with witnesses or evidence, any earlier record, and how long the applicant has already been in custody. Bail is a stage in the case and not a finding on guilt.
Conditions that may be imposed
Courts often attach conditions: a personal bond with one or more sureties, regular attendance before the investigating officer or the court, not leaving the city or country without permission (sometimes with surrender of the passport), and not contacting witnesses. Breach of a condition can lead to cancellation of bail.
Where applications are made
Matters from Malad and the Western Suburbs are generally dealt with by the Metropolitan Magistrate Court at Borivali and by the City Civil and Sessions Court at Dindoshi, with the High Court at Mumbai above them. Court allocation can change, so the correct forum for a particular case is confirmed from the case papers before anything is filed.
Common questions
Does bail mean the case is over? No. It decides whether the accused remains in custody while the case continues.
Can bail be refused by the Magistrate and sought again elsewhere? A refusal can be taken to the Sessions Court, and from there to the High Court, within the rules of procedure.
Does an old FIR continue under the old codes? A matter registered before 1 July 2024 continues under the earlier codes, as noted above.
This is general information and not advice on any particular matter.
Related guides
- False FIR Filed Against You? Anticipatory Bail and Quashing
- You Have Received a Police Notice. What Now?
- CrPC to BNSS: The Section Numbers That Changed
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This page describes general procedure and does not constitute legal advice. What applies to a particular matter depends on its own facts.
This page describes general procedure and is published for information only, in keeping with Rule 36 of the Bar Council of India Rules. It is not legal advice and does not solicit work. What applies to a particular matter depends on its own facts.