Bail — which route applies

This does not tell you whether bail will be granted. It tells you which provision governs your situation and what that provision says.

Free legal aid is your right (NALSA / District Legal Services Authority).

Has an arrest already been made?

Default bail — this is a right, not a favour

If the charge-sheet is not filed within 90 days (offences punishable with death, life or ten years or more) or 60 days (all others), counted from the first remand, bail becomes an indefeasible right — BNSS s.187(3) (formerly CrPC s.167(2)). People stay in custody simply for not knowing this.

BNSS s. 187(3)(formerly CrPC s. 167)

Default bail when no charge-sheet is filed — BNSS s.187(3)

BNSS s.187(3) (formerly the proviso to CrPC s.167(2)) says a Magistrate cannot authorise detention for investigation beyond 90 days where the offence is punishable with death, imprisonment for life or imprisonment for ten years or more, and beyond 60 days for every other offence. On the expiry of that period the accused is entitled to be released on bail if he is prepared to and does furnish bail.

  • The count runs from the day of remand, and the remand day itself is counted (Enforcement Directorate v. Kapil Wadhawan, 2023).
  • Under the CrPC the 90-day class was 'not less than ten years', so offences punishable with 'up to ten years' fell in the 60-day class (Rakesh Kumar Paul, 2017). The BNSS says 'ten years or more'.
  • The right accrues the moment the period expires, but it has to be exercised: an application must be made and the accused must be prepared to furnish bail. If the charge-sheet is filed before the application, the right is extinguished.
  • Every person released under this provision is deemed to be released under Chapter XXXV of the BNSS (formerly Chapter XXXIII of the CrPC) — the ordinary bail conditions apply to that release.
  • An incomplete or 'supplementary' charge-sheet filed only to stop the clock does not defeat the right.

In Bikramjit Singh v. State of Punjab (2020) the Supreme Court reiterated that default bail under CrPC s.167(2) (now BNSS s.187(3)) is an indefeasible right linked to Article 21, not a matter of judicial discretion.

Read the full section

Release of an undertrial

BNSS s.479 (formerly CrPC s.436A): an undertrial who has served half the maximum sentence must be released on bond — one-third for a first-time offender, a BNSS addition. It does not apply to offences punishable with death or life imprisonment.

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

    Release of an undertrial who has served half the maximum period (one-third for a first offender) — BNSS s.479

    BNSS s.479 (formerly CrPC s.436A) says that a person who has, during investigation, inquiry or trial, undergone detention for up to one-half of the maximum period of imprisonment specified for that offence shall be released by the court on bail. A first-time offender — never convicted before — is to be released on bond after one-third. It does not apply to offences for which death or life imprisonment is one of the punishments (the CrPC excluded only death).

    • In no case shall a person be detained during investigation, inquiry or trial for longer than the maximum period of imprisonment provided for that offence. Time lost to delay caused by the accused is left out of the count.
    • After hearing the Public Prosecutor and for reasons recorded in writing, the court may order continued detention beyond the half-way mark, or release on a bail bond instead of a bond.
    • Section 479(2) — new in the BNSS: a person against whom investigation, inquiry or trial in more than one offence or in multiple cases is pending is not to be released under this section.
    • Section 479(3) — new in the BNSS: when the half or one-third mark is reached, the jail superintendent must himself apply in writing to the court for release.
    Read the full section

Special acts displace this route

s.37 NDPS, s.43D(5) UAPA, s.45 PMLA and s.18 of the SC/ST Act each restrict or remove the ordinary BNSS bail route.

  • NDPS Act, 1985 — s.37

    Section 37 makes offences involving commercial quantity, and offences under ss.19, 24 and 27A, cognizable and non-bailable, and bars bail unless the Public Prosecutor has had an opportunity to oppose it and the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit an offence while on bail. These conditions are in addition to those in the CrPC.

  • UAPA, 1967 — s.43D(5)

    Section 43D(5) says a person accused of an offence under Chapters IV and VI shall not be released on bail if the court, on a perusal of the case diary or the police report (BNSS s.193; formerly CrPC s.173), is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true.

  • PMLA, 2002 — s.45

    Section 45 imposes twin conditions: the Public Prosecutor must have an opportunity to oppose, and the court must be satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit an offence while on bail. The proviso relaxes them for a person under sixteen, a woman, a sick or infirm person, and where the amount involved is less than one crore rupees.

  • SC/ST (Prevention of Atrocities) Act, 1989 — s.18

    Section 18 says that anticipatory bail — now BNSS s.482 (formerly CrPC s.438) — shall not apply to any case involving the arrest of a person on an accusation of having committed an offence under this Act. Section 18A, inserted in 2018, restates that bar.

    The bar is not absolute. In Prathvi Raj Chauhan v. Union of India (2020) the Supreme Court, while upholding s.18A, held that if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by ss.18 and 18A(i) shall not apply. In Shajan Skaria v. State of Kerala (2024 INSC 625) the Court restated this — s.18 bars the remedy of anticipatory bail only in cases where a valid arrest can be made, and where the necessary ingredients of the offence are not disclosed on a reading of the complaint the court is not absolutely precluded from considering an application under s.438. This page cannot say what will happen in your case; it says only that the question is not closed.

Which code applies?

Procedure: the BNSS governs every case registered on or after 1 July 2024; an investigation, inquiry or trial already pending on that day continues under the CrPC (BNSS s.531(2)(a)). Offences: an act committed on or after 1 July 2024 is charged under the BNS; one committed before it, under the IPC.

Every right above is given under the BNSS first. The CrPC section in brackets is for reference, and still governs a case that was already pending on 1 July 2024.

Which code applies?

Procedure: the BNSS governs every case registered on or after 1 July 2024; an investigation, inquiry or trial already pending on that day continues under the CrPC (BNSS s.531(2)(a)). Offences: an act committed on or after 1 July 2024 is charged under the BNS; one committed before it, under the IPC.