Bail after an arrest: bailable and non-bailable offences, sureties and default bail

When someone is arrested, the next hours and days follow a set procedure under the Bharatiya Nagarik Suraksha Sanhita, 2023. Knowing it helps a family act quickly and in the right court.

The first 24 hours

• The police must tell the arrested person the grounds of arrest and, for a bailable offence, that they are entitled to be released on bail (Section 47).
• An arrest memo must be prepared, attested by a family member or a respectable person of the locality, and countersigned by the person arrested (Section 36).
• The police must inform a relative or friend named by the person, and the designated police officer in the district (Section 48).
• The person may meet an advocate of their choice during interrogation, though not throughout it (Section 38).
• The person must be produced before a Magistrate within 24 hours, not counting travel time (Section 58).

At the first production, the Magistrate decides whether to send the person to police or judicial custody, and a bail application can be made at that stage.

Bailable offences: bail is a right

Each offence in the First Schedule to the BNSS is marked bailable or non-bailable. For a bailable offence, Section 478 requires the police officer or the court to release the person once they are ready to give a bail bond or bond. A person who is too poor to provide a surety must be released on their own bond, and a person who cannot give bail within a week of arrest is presumed to be indigent for this purpose.

Non-bailable offences: the court decides

• Magistrate (Section 480). The Judicial Magistrate can grant bail in most cases. Where the offence is punishable with death or imprisonment for life, the Magistrate ordinarily cannot, except for a child, a woman, or a person who is sick or infirm, and in a few other situations the section lists.
• Sessions Court and High Court (Section 483). These courts have wider powers and can grant bail in any case, including where a Magistrate has refused it.

For a case registered in Coimbatore, the usual order is the Judicial Magistrate court that remanded the person, then the Sessions Court in Coimbatore, then the High Court of Madras. Cases under special laws, such as the POCSO Act or the NDPS Act, go to the special court designated for them.

What the court considers

• the nature and seriousness of the offence, and the punishment it carries
• the evidence collected so far
• the risk that the person will flee, tamper with evidence or influence witnesses
• previous convictions and pending cases
• how long the person has been in custody, and how long the trial is likely to take

In Satender Kumar Antil v. CBI (2022), the Supreme Court restated that bail is the rule and jail the exception, and said that bail applications should ordinarily be decided within two weeks.

Bonds and sureties

A bond is the person’s own undertaking to appear, without sureties. A bail bond is an undertaking backed by one or more sureties. A surety promises that the accused will attend court, and may have to pay the bond amount if they do not. Courts usually ask for the surety’s identity and address proof, and proof of means such as a property document or salary certificate. Under Section 484, the amount must not be excessive, and the High Court or the Sessions Court can reduce it.

Default bail if the chargesheet is late

If the investigation is not completed within 60 days, or 90 days where the offence is punishable with death, imprisonment for life or imprisonment of ten years or more, the person in custody is entitled to be released on bail under Section 187(3), if they apply and are ready to give bail. The application must be made before the chargesheet is filed. See default bail explained.

Long custody as an undertrial

Under Section 479, an undertrial who has been in custody for half the maximum sentence for the offence is to be released on bail, unless the court, for reasons recorded after hearing the Public Prosecutor, orders continued detention. A first-time offender is to be released on bond after one-third. This does not apply to offences punishable with death or imprisonment for life, or where investigation, inquiry or trial in more than one offence or in multiple cases is pending against the person. The jail superintendent must apply to the court once a prisoner becomes eligible. In August 2024 the Supreme Court held that the section also applies to undertrials in cases registered before 1 July 2024.

Conditions, and when bail can be cancelled

Bail usually comes with conditions: attending court on every date, not contacting witnesses, and sometimes reporting at a police station. Breaking them, committing another offence, or interfering with the case can lead the court to cancel bail. If a condition is unworkable, for example daily signing at a distant police station, an application can be made to relax it.

Common questions