The law of bail in India is founded on Article 21 of the Constitution — the fundamental right to life and personal liberty. The Supreme Court has consistently held that deprivation of liberty before conviction is a serious matter requiring justification, and that bail should ordinarily be granted unless the court is satisfied that the accused is a flight risk, likely to tamper with evidence, or likely to commit offences while on bail. The BNSS 2023, which replaced the CrPC, retains and in some respects strengthens bail protections.
Types of bail: (1) Bail in bailable offences (Section 478 BNSS) — an absolute right; the police officer or court shall release on bail if the offence is bailable. (2) Bail in non-bailable offences (Section 480 BNSS) — a discretionary remedy before Magistrate courts. (3) Regular bail before Sessions or High Court (Section 483 BNSS) — the most important provision for serious non-bailable offences; the Sessions Court and High Court have wide powers to grant bail with or without conditions. (4) Anticipatory bail (Section 482 BNSS) — bail granted before arrest. (5) Default/statutory bail (Section 187(2) BNSS) — an absolute right to bail if the chargesheet is not filed within 60 days (for offences punishable with less than 10 years) or 90 days (for offences punishable with death, life imprisonment, or 10 years or more).
Factors for bail in non-bailable offences: Courts consider: the nature and gravity of the offence; the accused's antecedents and character; the possibility of fleeing from justice; the danger of the offence being repeated; the character and behaviour of the accused; and the health, age, and sex of the accused. The landmark decision in Satender Kumar Antil v. CBI (2021) directed trial courts and High Courts to consider bail applications liberally, and held that unnecessary incarceration pending trial violates Article 21.
Section 479 BNSS — undertrial prisoners: One of the most significant bail reforms in BNSS 2023 is Section 479, which entitles an undertrial prisoner who has served half the maximum period of imprisonment specified for the offence to be released on bail. This provision addresses India's chronic problem of undertrial overcrowding — over 75% of Indian prisoners are undertrials — and applies retrospectively to all pending cases.
Bail conditions and cancellation: Courts commonly impose conditions such as surrender of passport, reporting to the police station periodically, furnishing sureties, and refraining from contacting witnesses. Bail can be cancelled under Section 483(5) BNSS if the accused violates conditions, is found to be tampering with evidence, or is involved in a fresh offence. The Supreme Court in P.K. Shaji v. State of Kerala (2005) held that bail cancellation requires a higher threshold than bail grant.