--- title: "Intricacies of Bail in India: Unveiling Different Categories and Impacts – Updated" date: 2024-09-04 author: "Krishnan Sreekumar" url: https://ksandk.com/regulatory/bail-in-india/ --- # Intricacies of Bail in India: Unveiling Different Categories and Impacts – Updated Posted On - 4 September, 2024 • By - Krishnan Sreekumar ![Judge sitting in a court explaining kinds of bail in india|5 Kinds of Bail in India: Categories & Impacts|](https://ksandk.com/wp-content/uploads/5313542.jpg) Article 21 of the Indian Constitution grants the **right to life and personal liberty** to every individual. It upholds the fundamental right to live with dignity and personal freedom, which includes the entitlement to seek bail when detained by any law enforcement agency. ## Constitutional Foundation and Legal Framework In India, **bail** is the legal mechanism that reconciles the accused person’s right to freedom with the public interest of ensuring their appearance in court for trial. It involves the judicial release of an accused person from custody, subject to the condition that they will appear in court at a later stage. Criminal offenses in India are categorized as **bailable and non-bailable** crimes. ## Bail Provisions Under the BNSS With the enactment of the **Bharatiya Nagarik Suraksha Sanhita, 2023** (“BNSS”), which came into force on 1 July 2024, the law relating to bail continues substantially on the same principles as under the Code of Criminal Procedure, 1973 (“CrPC”), although several provisions have now been renumbered and refined. The BNSS introduces updated procedural timelines and additional safeguards, particularly concerning **undertrial detention** and statutory bail. The provisions and regulations pertaining to bail are now outlined under **Sections 478 to 483** and related provisions of the BNSS. Section 478 BNSS (corresponding to Section 436 CrPC) stipulates that a person accused of a bailable offense has the right to be released on bail at any stage of the legal proceedings. This means that even if a person is arrested for a bailable offense, they can be promptly granted bail. It is the accused person’s right to obtain bail under this section, and neither the court nor the investigating officer can ordinarily refuse it. **Section 480 BNSS** (corresponding to Section 437 CrPC) governs bail in non-bailable offences and provides that bail may be granted at the discretion of the Court subject to the conditions prescribed therein. It refers to Courts other than the High Court or Court of Sessions. In *Jai Prakash Singh v. State of Bihar*[[1]](#_ftn1), the Supreme Court held that the discretion to grant bail should always be exercised judicially and not arbitrarily, whimsically or capriciously. Similarly, in *Hussainara Khatoon v. State of Bihar*[[2]](#_ftn2), the Supreme Court emphasized that prolonged incarceration and delayed trials offend the guarantee under Article 21 of the Constitution. ## Kinds of Bail in India ## 1. Regular Bail **Regular bail** refers to a legal mechanism through which a court can order the release of a person in custody on suspicion of committing an offense, with the condition that they do not obstruct the course of justice. This kind of bail may involve executing a bond with sureties. When a person is arrested for a bailable offense, they have the right to be released as outlined in **Section 478 BNSS**. The provision casts a statutory duty upon the police officer or court to release the accused upon furnishing bail or personal bond. Further, the BNSS strengthens safeguards relating to undertrial detention. If an accused person is unable to furnish sureties within a week, such inability may be treated as **indigence**, and the accused may be released on a personal bond. For non-bailable offences, bail continues to remain discretionary. Section 480 BNSS empowers the Magistrate to grant bail after considering the nature of accusations, severity of punishment, possibility of tampering with evidence, and likelihood of absconding. Bail in non-bailable offences may still be granted on specific grounds, including: - If the accused is below or at 16 years of age; - If the accused is a woman; - If the accused is sick or infirm; - If there are humanitarian considerations warranting release. The Supreme Court has repeatedly emphasized that **“bail is the rule and jail is the exception.”** Section 483 BNSS (corresponding to Section 439 CrPC) continues to vest special powers in the High Court and Court of Session to grant bail in appropriate cases. ## 2. Anticipatory Bail **Anticipatory bail** can be sought under Section 482 of the BNSS (corresponding to Section 438 CrPC) by any individual who anticipates being charged with a non-bailable offense. The application for anticipatory bail should be filed before the High Court or the Court of Session having jurisdiction over the alleged offence. Anticipatory bail is sought prior to arrest, and if granted by the court, it protects the individual from being taken into custody. In *Sushila Agarwal and others v. State (NCT of Delhi) and others*[**[3]**](#_ftn3), the Supreme Court clarified that anticipatory bail ordinarily continues till the conclusion of trial unless specifically limited by the court. Certain conditions generally govern the grant of anticipatory bail, including: - There must exist a reasonable apprehension of arrest; - The application must be filed before arrest; - The applicant must cooperate with investigation; - The applicant should ordinarily not tamper with evidence or influence witnesses; - The accused should not leave the country without permission of the court. Courts may also impose conditions requiring appearance before the investigating officer or **surrender of passport** depending upon the facts of the case. ## 3. Interim Bail **Interim bail** is a temporary form of release granted to individuals during the pendency of an application for anticipatory or regular bail, providing them a brief respite from custody. It allows the accused to remain free for a limited period while the main bail application is adjudicated. Although the BNSS does not expressly define interim bail, courts continue to exercise such powers under Sections 480, 482 and 483 BNSS in furtherance of justice and protection of personal liberty. ### What Is Interim Bail? It serves as a **stop-gap arrangement** between arrest and final adjudication of the bail application. Interim bail is particularly significant in circumstances where immediate detention may result in undue hardship, medical complications, or irreparable prejudice to the accused. ### Legal Basis for Interim Bail The interim bail framework continues through **judicial interpretation** of the BNSS provisions. - Section 480 BNSS governs bail in non-bailable offences; - Section 482 BNSS empowers courts to grant anticipatory bail; - Section 483 BNSS grants special powers to the High Court and Sessions Court regarding bail. The meaning and scope of interim bail therefore continue to evolve through judicial discretion and constitutional principles under **Article 21**. ### Characteristics of Interim Bail Interim bail generally possesses the following features: - It is **temporary** and granted for a limited duration; - It is subject to conditions imposed by the court; - It may be extended depending upon circumstances; - It can be revoked upon breach of conditions. Courts may require surrender of passports, appearance before investigating authorities, furnishing sureties, or restrictions on travel. ### Grounds for Granting Interim Bail Courts consider several factors while granting interim bail: - Serious medical conditions; - Humanitarian grounds; - Delay in investigation; - Family emergencies; - Advanced age or infirmity; - Overcrowding in prisons. Additionally, the BNSS introduces a **preliminary inquiry mechanism** in certain offences punishable between three and seven years, which may also become relevant while considering interim protection from arrest. ### Case Laws on Interim Bail In *Prahlad Singh Bhati v. NCT, Delhi* (2001)[[4]](#_ftn4), the court discussed the balance between individual liberty and societal interest while considering interim relief. In *Sukhwant Singh v. State of Punjab* (2009)[[5]](#_ftn5), the Supreme Court recognized the court’s **inherent power** to grant interim protection pending adjudication of the main bail application. In *Badresh Bipinbhai Sheth v. State of Gujarat* (2015)[[6]](#_ftn6), the Supreme Court emphasized liberal interpretation of anticipatory bail provisions in light of Article 21. Recently, the Supreme Court granted interim bail to **Arvind Kejriwal** in 2024 in proceedings initiated by the Directorate of Enforcement in the Delhi liquor policy matter.[[7]](#_ftn7) ## 4. Default Bail **Default bail**, also known as statutory bail, arises where the investigating agency fails to complete investigation within the prescribed statutory timeline. Section 492 BNSS (corresponding to Section 167(2) CrPC) provides that if investigation is not completed within the prescribed period, the accused acquires an **indefeasible right** to seek bail. Under the BNSS framework: - For offences punishable with death, life imprisonment or imprisonment exceeding ten years, the period may extend up to **90 or 120 days** depending upon the nature of offence; - For other offences, the prescribed period generally remains **60 days**. The BNSS has also modified police custody provisions by permitting police custody to be distributed over a larger portion of the investigation period in certain cases. Therefore, defence counsel must carefully monitor remand dates and custody calculations while asserting the right to default bail. The right to default bail remains a **fundamental procedural safeguard** and cannot ordinarily be defeated once the statutory period expires and the accused expresses willingness to furnish bail. ## 5. Medical Bail **Medical bail** refers to bail granted primarily on medical grounds. Courts may grant such relief where the accused requires urgent treatment, specialized medical care, or where incarceration may seriously endanger their health. While granting medical bail, courts generally prioritize humanitarian considerations and the constitutional guarantee under Article 21. Relevant considerations include: - Serious illness; - Need for specialized treatment; - Advanced age; - Risk posed by continued incarceration; - Inability of prison facilities to provide adequate medical care. ## 6. Bail to Undertrial Prisoners A significant addition under the BNSS is **Section 479** relating to release of undertrial prisoners. The provision enables release of undertrial prisoners who have undergone detention extending up to **one-half** of the maximum prescribed sentence for the offence. In cases involving offences punishable with imprisonment of less than seven years, release may be considered upon completion of one-third of the maximum sentence period. This provision aims to reduce overcrowding in prisons and protect the constitutional rights of undertrial prisoners. However, the benefit is generally unavailable in cases punishable with death or life imprisonment. ## Grounds for Granting Bail in Bailable and Non-Bailable Offences The grounds for granting bail in both bailable and non-bailable offences are based upon several factors. One important consideration remains the **presumption of innocence**, under which the accused is entitled to the benefit of doubt until proven guilty. Courts also examine: - The nature and gravity of accusations; - Severity of punishment; - Possibility of tampering with evidence; - Likelihood of absconding; - Antecedents of the accused; - Delay in trial; - Broader humanitarian considerations. If the offence is comparatively less severe and does not involve punishment of death, life imprisonment or long-term incarceration, courts are generally more inclined to grant bail. ## Conclusion In conclusion, bail continues to remain an **essential safeguard** within the Indian criminal justice system. Article 21 of the Constitution guarantees protection of personal liberty, and the law relating to bail serves as a critical mechanism balancing individual freedom with societal interests. The BNSS has substantially retained the foundational principles governing bail while introducing procedural refinements, revised timelines, and additional safeguards for undertrial prisoners. The evolving jurisprudence under the BNSS further reinforces that bail hearings should not become mini-trials and that unnecessary or disproportionate restrictions on liberty must be avoided. Overall, bail remains an indispensable constitutional and procedural safeguard that protects **fairness, dignity, and due process** within the criminal justice system. ## FAQs ### Can anticipatory bail be revoked? Yes. Courts may revoke anticipatory bail if the accused **violates conditions** imposed by the court, tampers with evidence, influences witnesses, or misuses the liberty granted to them. ### What is interim bail? **Interim bail** is temporary bail granted for a short duration pending adjudication of a regular bail or anticipatory bail application. ### Is it necessary for the individual to obtain regular bail while he already has anticipatory bail? No. Ordinarily, anticipatory bail continues unless cancelled by the court. Following the decision in *Sushila Aggarwal v. State (NCT of Delhi)*, anticipatory bail need not be limited by time and can **continue till conclusion of trial** unless specifically restricted. --- ### References [[1]](#_ftnref1) Jai Prakash Singh v State of Bihar (2012) 2 SCC 565. [[2]](#_ftnref2) Hussainara Khatoon v State of Bihar, 1979 AIR 1369. [[3]](#_ftnref3) Sushila Agarwal and others v. State (NCT of Delhi) and others, (2020) 5 SCC 1. [[4]](#_ftnref4) Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280. [[5]](#_ftnref5) Sukhwant Singh v. State of Punjab, (2009) 7 SCC 559. [[6]](#_ftnref6) Badresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152. [[7]](#_ftnref7) Arvind Kejriwal v. Directorate of Enforcement, 2024 SCC OnLine SC 1261. --- ## Office Locations - [New Delhi](https://ksandk.com/locations/top-corporate-law-firm-in-delhi/) (HQ): +91-11-41318190 | info@ksandk.com - [Mumbai](https://ksandk.com/locations/top-corporate-law-firm-in-mumbai/): 3 offices (Nariman Point, Lower Parel, Andheri) | mumbai@ksandk.com - [Bangalore](https://ksandk.com/locations/top-corporate-law-firm-in-bangalore/): bangalore@ksandk.com - [Chennai](https://ksandk.com/locations/chennai/): chennai@ksandk.com - [Hyderabad](https://ksandk.com/locations/hyderabad/): hyderabad@ksandk.com - [Pune](https://ksandk.com/locations/pune/): pune@ksandk.com - [Kochi](https://ksandk.com/locations/kochi/): kochi@ksandk.com ## Contact - [Contact Page](https://ksandk.com/contact-us/) - General: info@ksandk.com | +91-11-41318190 - WhatsApp: +91-7428567444 - [Privacy Statement](https://ksandk.com/privacy-statement/) - [Terms of Use](https://ksandk.com/terms-of-use/)