Written and reviewed by Adv. Tanmay S. Shirsat, Advocate, High Court of Bombay. Consultations in English, Hindi and Marathi, in person or by video call. Last updated October 2026.
Types of Bail Under the Bharatiya Nagarik Suraksha Sanhita, 2023
Since 1 July 2024, criminal procedure, including bail, is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973. The main forms of bail are:
- Anticipatory bail (Section 482 BNSS): A direction that, if arrested, the applicant be released on bail. It is sought before arrest from the Sessions Court or the High Court.
- Regular bail (Sections 480 and 483 BNSS): Release of a person already in custody, sought from the Magistrate, the Sessions Court or the High Court depending on the offence.
- Bail in bailable offences (Section 478 BNSS): Release on furnishing bail, which the accused is entitled to.
- Default bail (Section 187 BNSS): Release where the investigation is not completed within the period allowed by law.
Offences under special laws, such as the NDPS Act, may impose additional conditions on bail.
Anticipatory Bail: When and How to Apply
Anticipatory bail is sought when a person reasonably apprehends arrest for a non-bailable offence, for example after an FIR is registered or while a complaint is pending with the police. The court considers the nature and gravity of the accusation, the applicant's antecedents, the possibility of the applicant fleeing from justice, and whether the accusation appears to have been made to injure or humiliate the applicant.
Where the matter is urgent, interim protection from arrest may be sought until the application is finally heard. Conditions such as cooperating with the investigation, not leaving the country without permission and not contacting witnesses are commonly imposed.
Regular Bail After Arrest
After arrest, the accused must be produced before a Magistrate, and bail may be sought at that stage or later. The court weighs the seriousness of the offence, the evidence collected, the risk of tampering with evidence or influencing witnesses, the period already spent in custody and the likely length of the trial.
If the Magistrate refuses bail, an application may be made to the Sessions Court, and thereafter to the High Court.
How a Bail Application Is Prepared
- Reviewing the case papers: The FIR, remand applications and any orders already passed.
- Identifying the grounds: The role attributed to the applicant, gaps in the prosecution case, the custody period and personal circumstances.
- Drafting the application: A clear, accurate application with supporting documents.
- Hearing: Arguing the application and proposing suitable conditions and sureties.
- Compliance: Completing the bail formalities promptly once the order is passed.
Applications are also made for modification of bail conditions and extension of interim protection, and for opposing or seeking cancellation of bail where appropriate.
Documents to Keep Ready
- Copy of the FIR or complaint, if available
- Arrest memo and remand orders, where the person is in custody
- Identity and address proof of the applicant and the proposed sureties
- Any notices received from the police
- Details of earlier cases or orders, if any