Bail, default bail and undertrial release under the BNSS

Section 2(1)(c) of the BNSS defines a bailable offence as one shown as bailable in the First Schedule, or made bailable by any other law. Every other offence is non-bailable.

For a bailable offence, Section 478(1) says that a person arrested or detained without warrant, or who appears before a court, and who is prepared to give bail, shall be released on bail. If the person is indigent and cannot furnish a surety, the officer or court must discharge him on a bond for his appearance. If he cannot give a bail bond within a week of arrest, the court may presume that he is indigent. A person who broke the attendance conditions of an earlier bond may be refused bail later in the same case (Section 478(2)).

Section 480 of the BNSS governs bail by the police and by courts below the Court of Session. A person shall not be released under it if there are reasonable grounds to believe he is guilty of an offence punishable with death or life imprisonment, or where the offence is cognizable and he has certain earlier convictions. The court may still release such a person if he is a child, a woman, or sick or infirm.

The need for identification, or for police custody beyond the first fifteen days, is not by itself a ground to refuse bail. For offences punishable with death, life imprisonment or seven years or more, the Public Prosecutor must be heard first.

Under Section 480(3), when bail is granted for an offence punishable with seven years or more, or for offences under Chapters VI, VII or XVII of the Bharatiya Nyaya Sanhita, 2023, the court must impose conditions, starting with attendance in accordance with the bond.

Section 483 gives the High Court and the Court of Session power to release any accused in custody and to set aside or modify a Magistrate's conditions. In offences triable exclusively by the Court of Session or punishable with life imprisonment, they must first give notice to the Public Prosecutor unless that is impracticable for recorded reasons. Under Section 483(3) they may also order a person on bail to be arrested and committed to custody.

Under Section 187(2) of the BNSS, a Magistrate may authorise detention for not more than fifteen days in the whole, in parts, during the first forty or sixty days of the detention period.

Section 187(3) caps total detention at ninety days where the investigation relates to an offence punishable with death, life imprisonment or imprisonment of ten years or more, and at sixty days for any other offence. When that period ends, the accused shall be released on bail if he is prepared to and does furnish bail. This is called default bail or statutory bail.

In M. Ravindran v. Intelligence Officer, DRI, a three-judge bench held that once the accused files an application for default bail after the period expires, he is deemed to have availed of the right. The right stays enforceable even if a charge sheet is filed afterwards, while the application is pending. In Shaurya Sunil Kumar Singh v. CBI (2026), decided under Section 187(3), the Supreme Court held that failure to supply a copy of the charge sheet is not a ground for default bail where the charge sheet itself was filed in time.

Section 479 of the BNSS deals with long detention before trial ends. It does not apply to offences punishable with death or life imprisonment.

In Satender Kumar Antil v. CBI (2022), the Supreme Court directed courts to satisfy themselves that the arrest complied with Sections 41 and 41A of the CrPC, and held that non-compliance entitles the accused to bail. Bail applications ought to be decided within two weeks unless the law requires otherwise, and courts must keep Section 440 of the CrPC on sureties in mind.

In Manish Sisodia v. Directorate of Enforcement (2024), the Court granted bail after about seventeen months in custody without the trial starting. It held that the appellant had been deprived of his right to a speedy trial, and repeated that Article 21 applies irrespective of the nature of the crime.

In Vihaan Kumar v. State of Haryana (2025), the Court held that where the grounds of arrest were not communicated as Article 22(1) requires, the court must order release, and this is a ground for bail even where a statute restricts bail.

A bail file usually includes the FIR, the remand orders, the arrest memo and written grounds of arrest, the dates of arrest and of each remand, and proof of address. For default bail, count the days of custody exactly and file the application as soon as the sixty or ninety day period ends without a charge sheet.