Regular bail and default bail are the two most common ways an accused person secures release from custody. Regular bail depends on the court’s assessment of the case, while default bail is a right that arises when the police fail to complete the investigation in time. Both are now governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure. This guide explains how each works, the sections involved and the practical steps.
Bailable and non-bailable offences
The first question is whether the offence is bailable. The First Schedule of the Sanhita classifies every offence.
- Bailable offence (Section 478 BNSS): Bail is a matter of right. The police or the court must release the accused on furnishing a bond, with or without sureties.
- Non-bailable offence (Section 480 BNSS): Bail is a matter of discretion. The court looks at the nature and gravity of the offence, the likelihood of absconding or tampering with witnesses, the accused’s antecedents and the stage of the case.
- A person accused of an offence punishable with death or life imprisonment is not ordinarily released if there are reasonable grounds to believe he is guilty. The law makes exceptions for women, children, and sick or infirm persons.
Regular bail and default bail: how regular bail works
Regular bail is sought after arrest. The application goes first to the Magistrate. For serious offences triable by the Court of Session, or after a Magistrate refuses bail, the application goes to the Sessions Court or the High Court under Section 483 BNSS.
Courts apply well-settled principles. The Supreme Court has said repeatedly that bail is the rule and jail the exception, and that pre-trial detention should not be a punishment. In *Satender Kumar Antil v. CBI* (2022), the Court asked investigating agencies and courts to avoid needless arrests and to treat bail applications with a clear framework of categories of offences.
Factors usually weighed:
- The seriousness of the allegation and the punishment prescribed.
- Prima facie material against the accused.
- Risk of flight, tampering with evidence or influencing witnesses.
- The accused’s criminal history, age, health and family ties.
- Time already spent in custody and the likely time for trial.
Courts may impose conditions: surrender of passport, reporting to the police station, not leaving the city, and not contacting witnesses. Conditions must be reasonable and connected to the purpose of bail.
What is default bail under Section 187 BNSS?
Default bail, also called statutory bail, arises when the police do not file the final report (charge sheet) within the period allowed after the first remand.
- 60 days where the offence is punishable with imprisonment of less than ten years.
- 90 days where the offence is punishable with death, life imprisonment or imprisonment of ten years or more.
If the charge sheet is not filed in time, the accused has an indefeasible right to be released on bail, provided he applies and is ready to furnish bond. The right is lost once the charge sheet is filed before the application is made. An incomplete charge sheet filed only to defeat the right does not stop the clock, according to Supreme Court rulings.
Two points need attention:
- The BNSS says “ten years or more”, whereas the old Code said “not less than ten years”. High Courts have read the phrase differently for offences with a maximum of ten years, and the question is still unsettled. Claim the earlier date and be ready to argue the classification.
- Under Section 187(2), police custody of up to 15 days can now be taken in parts, but it must be sought within the first 40 or 60 days. This does not extend the default bail period.
Special laws such as the NDPS Act and UAPA have their own longer periods.
Release of undertrial prisoners: Section 479 BNSS
Section 479 gives relief to persons who have spent long periods in custody awaiting trial. An undertrial who has served half the maximum sentence for the offence is entitled to be released on bond. A first-time offender becomes eligible after one-third of the maximum sentence. The section does not apply to offences punishable with death or life imprisonment, and the jail authorities must move the court when the person becomes eligible. Time lost because of the accused’s own delay is not counted.
Step-by-step procedure
- Collect the FIR, remand order, arrest memo and the case diary details your lawyer can obtain.
- Prepare the bail application with grounds, personal details, residence proof and surety documents.
- Ask for notice to the Public Prosecutor and, where required, the complainant or victim.
- Argue the application. If it is dismissed, file before the higher court.
- On release, furnish the bond and sureties and follow every condition strictly.
If arrest has not yet happened, consider anticipatory bail under BNSS Section 482. Knowing your rights at the time of arrest also matters, as explained in our guide on arrest and detention rights under BNSS.
Cancellation of bail
The prosecution or the complainant can ask the court to cancel bail if the accused violates a condition, threatens witnesses, commits a fresh offence or misuses liberty. The High Court and the Sessions Court can also set aside an order granting bail if it was passed without considering relevant material. The text of the Sanhita is available on India Code.
Frequently Asked Questions
What is the difference between regular bail and default bail?
Regular bail is granted at the court’s discretion after weighing the facts of the case. Default bail is a statutory right that arises when the investigation is not completed and the charge sheet is not filed within 60 or 90 days.
Which sections of the BNSS deal with bail?
Section 478 covers bailable offences, Section 480 non-bailable offences, Section 482 anticipatory bail, Section 483 the special powers of the High Court and the Sessions Court, Section 187 default bail, and Section 479 release of long-term undertrial prisoners.
Can default bail be refused if the charge sheet is filed after my application?
Not if you applied after the period expired and before the charge sheet was filed, and you were ready to furnish bail. Courts have held that filing the application on expiry is enough, even if the court decides it later.
Is there a fixed amount for bail bond?
No. The court fixes a reasonable amount having regard to the offence and the accused’s means. An excessive bond amount can defeat the purpose of bail.
What happens if I break a bail condition?
The prosecution can apply for cancellation, and the court may send you back to custody. Compliance with every condition, including reporting dates, is essential.
Can the High Court grant bail directly?
Yes, under Section 483 BNSS the High Court has wide powers. In practice, the usual route is to approach the Magistrate or Sessions Court first, unless there is a special reason.
Do I need a lawyer for a bail application?
A well-drafted application with correct sections, case law and documents greatly improves the chance of success, so legal assistance is strongly advised.
This article is general legal information and not a substitute for advice on your specific case. Consult an advocate before acting.
