It is essentially a protection measure allowing an accused individual to stay out of jail during the police investigation or the court trial on certain conditions set by the court. The concept of bail in India is intimately intertwined with the right to personal liberty guaranteed under Article 21 of the Constitution. With the passing of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the procedural framework of bail remains in the light of the updated statutory references but the constitutional principles stay firm.
This educational piece lays out the process of getting bail in India in 2025. It details various aspects like categories of bail, legal grounds, necessary documents, court jurisdiction, and obligations after getting bail, all backed by running case law. The main points have been presented with thoroughness, correctness, and an everyday practical approach.
Understanding Bail in Indian Law
The word bail is generally understood as one of the ways through which a person accused of a crime can be freed from judicial custody on the condition of appearing in court as and when required. Giving bail doesn’t imply the court’s decision on the convicted person’s guilt or innocence. It simply serves as a protective measure to avoid the unwarranted detention of a person waiting for conviction.
The Supreme Court of India as well as other courts have consistently emphasized that a person must not be held in custody without trial unless the law and necessity demand it, and that detention cannot be a mode of punishment.
Statutory Basis of Bail (BNSS, 2023)
These details are codified in the BNSS and are illustrated by:
- Section 479 BNSS – Bail in bailable offences
- Section 480 BNSS – Bail in non-bailable offences by Magistrate
- Section 482 BNSS – Anticipatory bail
- Section 483 BNSS – Bail powers of Sessions Court and High Court
- Section 187(3) BNSS – Default (statutory) bail
These bail rules are in harmony with the constitutional safeguards under Article 21.
Types of Bail in India
1. Regular Bail:
Regular bail is applied for after the accused has been arrested, and is either in police custody or judicial custody. The courts weigh different factors such as the type of allegations, the gravity of the crime, possibility of custodial interrogation, risk of fleeing and the person’s previous behavior.
In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, the Supreme Court stressed that courts, when deciding on bail, have to strike a balance between the individual’s freedom and the needs of the investigation.
2. Anticipatory Bail:
Anticipatory bail refers to the one which a person can take before he/she is actually arrested. A person, who reasonably fears that he/she may be arrested without sufficient ground, can take this bail.
The Court in Gurbaksh Singh Sibbia v. State of Punjab, explained that whether or not to grant anticipatory bail is essentially up to the court’s discretion based on the specific circumstances of each case, and not by the application of strict rules. The court may require, for instance, the accused to comply with some conditions so as to facilitate the investigation.
3. Interim Bail
Interim bail is a sort of short-term bail granted until the final determination of bail by the court. It generally happens at times when immediate relief is sought and the court requires the time to examine the issue at length.
4. Default Bail
Default bail results in a situation when the police fail to submit the chargesheet within the stipulated time period.
Section 187(3) BNSS says that the accused is automatically entitled to be released on bail after the expiration of the time limit only if an application for bail is made.
Bailable and Non-Bailable Offences
In the case of bailable offences, bail should be given as a matter of right either by the police or the Magistrate once the accused has complied with the conditions laid down in the law. However, in the case of non-bailable offences, the discretion lies with the court when it comes to the granting of bail.
Step-by-Step Process to Obtain Bail
- Step 1: Identify the offenceCheck the BNSS schedules to see if the offence is a bailable or non-bailable one.
- Step 2: Select the correct bail remedy
Arrested → Regular bail
Apprehension of arrest → Anticipatory bail
Delay in investigation → Default bail
- Step 3: Prepare the bail application. The application should set out the case facts, legal grounds for requesting bail, commitment of the accused to cooperation, and the fact that he or she is not a flight risk.
- Step 4: Approach the appropriate court. Depending on the offence and the stage of the case, go to the Magistrate Court, Sessions Court, or the High Court.
- Step 5: Hearing and order. The court listens to both parties and then issues a reasoned order.
- Step 6: Furnish bonds and secure release. Once bail is approved, bonds and sureties are provided, and release follows.
Documents Required for Bail
- Bail application
- FIR or case details
- Arrest memo and remand order (if arrested)
- Identity and address proof
- Supporting affidavit
- Surety documents (if required)
- Vakalatnama
- Medical or personal records (if relied upon)
Court Jurisdiction for Bail
- Magistrate Court: Regular bail in non-bailable offences not punishable with life imprisonment or death
- Sessions Court: Anticipatory bail, serious offences, or after Magistrate rejection
- High Court: Concurrent jurisdiction, repeated rejection, or misuse of arrest powers
- Supreme Court: Exceptional cases involving constitutional issues
After Bail Is Granted
It being granted does not mean the case is over. The accused will have to follow the conditions of the bail, be present for the court hearings, and cooperate with the investigation. If the accused fails to comply with the condition of bail or abuses the liberty, bail will be revoked.
In Sanjay Chandra v. CBI, the Supreme Court emphasised that pre-trial detention should not be a substitute for punishment.
Conclusion
It continues to be the major protection of personal freedom in Indian criminal law. Under the BNSS system coming into force in 2025, courts remain guided by the principles of proportionality, fairness, and constitutional discipline. Seeking legal advice without delay, preparing the correct documentation, and being fully aware of procedural requirements are vital for securing bail and remaining compliant with the law. For reliable legal assistance, SJLC (Sushrut Joshi Law Clinic)—recognized as one of the best law clinics in Indore, Madhya Pradesh—offers experienced guidance and representation in criminal matters. For consultation, contact +91 9963826959.
