How to Get Bail in India: Step-by-Step Legal Guide for 2025
- Legal Associate
- Jun 17
- 15 min read
Introduction & Understanding Bail in Indian Law
The term "bail" is perhaps one of the most commonly heard legal terms, especially in criminal cases. When a person is arrested, the first and most urgent question is - Can I get bail? In India, bail is not merely a legal remedy, but a protection of the fundamental right to liberty under Article 21 of the Constitution. However, understanding the types of bail, the process to apply, and the conditions under which it is granted is essential for both the accused and their families. With frequent changes in judicial interpretations and growing public awareness, navigating the bail process in 2025 demands updated legal knowledge, strategic legal advice, and quick action. Whether you are arrested in a bailable offence, facing threats of arrest in a non-bailable case, or already behind bars, this guide will give you a step-by-step legal roadmap to secure your release.
In this comprehensive post, we will cover:
Types of bail in India (Regular, Anticipatory, and Interim)
Legal grounds and documents required
Which courts to approach
Real case laws that influence bail decisions
What happens after you get bail
Whether you're a layperson or a professional facing a legal crisis, this blog is your go-to reference for how to get bail in India, explained with legal clarity, practical advice, and court-tested strategies.
Types of Bail in India and Their Legal Foundation
The term "bail" is not explicitly defined under the Code of Criminal Procedure, 1973 (CrPC) and now in Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), yet it is an essential mechanism within Indian criminal jurisprudence. Bail is rooted in the fundamental principle that an accused is presumed innocent until proven guilty. The BNSS classifies offences into two categories (bailable and non-bailable) and this classification directly affects the right of an accused to seek bail. The object of bail is to ensure the appearance of the accused before the court when required, without subjecting him to unnecessary detention. The Hon’ble Supreme Court of India has consistently emphasized that bail is the rule and jail is the exception, especially when the accused is not a flight risk, poses no threat to witnesses, and is willing to cooperate with the investigation.
In India, the concept of bail is broadly divided into three categories: Regular Bail, Anticipatory Bail, and Interim Bail. Each serves a distinct legal purpose and is governed by different sections of the BNSS.
Regular Bail
Regular bail refers to the release of an accused from custody after arrest. It is generally applied for when the accused has already been taken into custody and seeks release from judicial detention.
The statutory provisions for regular bail are found in:
Section 480 BNSS: This section applies when a person accused of a non-bailable offence is presented before a Magistrate. It empowers the Magistrate to grant or refuse bail based on various factors, including the nature of the offence and the character of the accused.
Section 483 BNSS: This empowers the Sessions Court and the High Court to grant bail in both bailable and non-bailable offences. These courts exercise wider discretionary powers than Magistrates, especially in grave offences such as those under Sections 302 (murder), 376 (rape), or 307 (attempt to murder) of the IPC which is repaced by BNS.
The courts consider various factors before granting regular bail, including:
Whether there is a prima facie case against the accused.
The gravity of the offence.
The possibility of tampering with evidence or influencing witnesses.
The likelihood of the accused fleeing the jurisdiction of the court.
The antecedents and character of the accused.
For instance, in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004), the Supreme Court held that a court must strike a balance between the need for custodial interrogation and the personal liberty of the accused while considering a bail application.
Anticipatory Bail
Anticipatory bail, as the name suggests, is a preventive legal remedy available under Section 482 BNSS, where an individual apprehends arrest in a non-bailable offence. This provision is unique in that it allows an accused to secure bail before actual arrest.
The landmark case of Gurbaksh Singh Sibbia v. State of Punjab (1980): laid down guiding principles on anticipatory bail. The Supreme Court held that:
“There is no limitation on the court’s power to grant anticipatory bail merely because no FIR has been registered. The existence of a reasonable belief of possible arrest is sufficient.”
Anticipatory bail is generally sought:
When the individual fears a false or motivated FIR.
When there is a history of ongoing family or business disputes.
In politically motivated criminal complaints.
While granting anticipatory bail, the court may impose conditions under Section 482 BNSS, such as:
The accused shall make himself available for interrogation as and when required.
The accused shall not directly or indirectly make any inducement or threat to any witness.
The accused shall not leave India without prior permission of the court.
These conditions aim to ensure that the anticipatory bail does not hamper the investigative process and maintains the integrity of the trial.
Interim Bail
Interim bail is a temporary relief granted for a short period until the court decides the regular or anticipatory bail application. It is not codified separately in the BNSS but is judicially recognized and often granted in situations of urgency.
Interim bail may be granted:
When the final bail hearing is adjourned and the accused is under the threat of arrest.
When the court needs time to hear both parties in detail before making a final decision on the bail application.
When humanitarian grounds exist, such as serious illness, pregnancy, or medical emergencies.
However, interim bail is conditional and lapses upon the expiry of the specified period unless extended by the court. If the accused fails to surrender after the expiry of interim bail or violates any condition, it can prejudice the outcome of the final bail application.
Difference Between Bailable and Non-Bailable Offences
Understanding the distinction between bailable and non-bailable offences is crucial, as it determines the entitlement to bail.
In bailable offences, the grant of bail is a matter of right. As per Schedule I of BNSS, offences that are punishable with imprisonment for less than three years or with fine only are usually bailable. Examples include causing hurt (Section 323 IPC), criminal intimidation (Section 506 IPC), and defamation (Section 500 IPC).
In non-bailable offences, bail is granted at the discretion of the court. These generally involve more serious crimes such as rape (Section 376 IPC), murder (Section 302 IPC), and dowry death (Section 304B IPC).
The police are empowered to grant bail in bailable offences under Section 478 BNSS, whereas for non-bailable offences, the accused must approach the court for bail under Sections 480 or 483 BNSS.
Legal grounds and documents required
Bail is not merely a matter of procedural convenience but a critical aspect of the Indian criminal justice system, rooted in the constitutional guarantee of personal liberty under Article 21 of the Constitution of India. It embodies the legal presumption that every accused person is innocent until proven guilty. Understanding these grounds is essential for both the legal practitioner and the person seeking bail.
In the case of bailable offences, the right to bail is a matter of statutory entitlement. The police officer or the Magistrate is bound to release the person on bail. There is no discretion involved.
For instance, offences like causing hurt (Section 323 IPC) or defamation (Section 500 IPC) are bailable. In such cases, once the arrest is made and the accused is willing to comply with bail conditions (such as furnishing a bond), the police cannot deny bail. This provision ensures that persons accused of minor offences are not unnecessarily detained.
In contrast, non-bailable offences are more serious, including crimes like attempt to murder (Section 307 IPC) or rape (Section 376 IPC). Bail in such cases is not a matter of right but lies within the judicial discretion of the court, in this a Magistrate may grant bail provided:
The accused is not charged with an offence punishable with death or life imprisonment;
There are no reasonable grounds to believe the accused is guilty of such offence;
The accused is not a habitual offender or previously convicted of a cognizable offence.
The court must examine the prima facie case, severity of the offence, possibility of tampering with evidence, and likelihood of the accused fleeing from justice. The objective is to strike a balance between the accused’s liberty and the interests of justice.
Anticipatory bail is a pre-arrest legal remedy, It is granted to a person who has a genuine and reasonable apprehension of arrest in a non-bailable offence. The person must satisfy the court that the apprehension is not imaginary and that custodial interrogation is not required.
The court considers several factors:
The nature and gravity of the accusation;
The antecedents of the applicant;
Whether the applicant is likely to flee from justice;
Whether the accusation appears to be false or maliciously motivated.
If the court is satisfied, it may direct that in the event of arrest, the person shall be released on bail. The concept of anticipatory bail was judicially evolved to prevent misuse of arrest powers, particularly in cases of false implication or political vendetta, as observed in Gurbaksh Singh Sibbia v. State of Punjab.
Documents Required for Filing a Bail Application
The effectiveness of a bail petition depends not only on the legal grounds but also on the completeness and quality of supporting documentation. Courts expect a structured and substantiated application with verifiable details. Below is a list of documents typically required:
Bail Application / Petition
This is the primary document submitted to the court. It must clearly mention:
The section of BNSS under which bail is sought,
The facts of the case in brief;
The grounds for seeking bail;
Details of compliance with earlier summons or arrest, if any;
The undertakings of the accused to abide by bail conditions.
The drafting should be precise and devoid of exaggeration. Citing case laws and legal precedents strengthens the plea.
2. FIR / Case Details
A certified copy of the FIR or its registration number and police station is mandatory. This allows the court to peruse the allegations made and assess the gravity of the offence.
3. Arrest Memo and Remand Copy (if already arrested)
In cases where the accused has been arrested and is applying for regular bail, an Arrest Memo prepared and Remand Application issued by the Magistrate must be submitted to show the legal status of custody.
4. Identity Proof and Address Proof
The applicant must provide a valid photo ID proof such as Aadhaar Card, Voter ID, Passport, or PAN Card. In addition, residential address proof is required to verify that the accused is traceable and unlikely to abscond.
5. Supporting Affidavit
The bail application must be accompanied by an affidavit stating that the facts presented are true to the best knowledge of the deponent. This is a legal affirmation that the bail is sought in good faith and not on frivolous grounds.
6. Surety Documents (if applicable)
If the court imposes a surety condition, then the person standing as surety must provide:
A copy of identity proof;
Income proof (salary slip, bank statement);
In some cases, property documents to ensure the surety can bear the risk of forfeiture.
7. Vakalatnama
This is the document authorizing a legal practitioner to represent the accused in the bail hearing. It must be signed and attested.
8. Medical Reports / Personal Circumstances (Optional)
If the bail is being sought on medical or humanitarian grounds, relevant medical reports, doctor certificates, or personal records (such as age, mental condition, family hardship) may be annexed.
Which Court to Approach for Bail
The choice of forum for filing a bail application depends on the type of bail, stage of the proceeding, and nature of the offence. The Indian judicial hierarchy is well defined in this context.
1. Magistrate’s Court
For regular bail in non-bailable offences not punishable with life imprisonment or death, the Judicial Magistrate First Class is the court of first instance. However, Magistrates cannot grant bail in offences where:
The offence is punishable with death or life imprisonment;
There are reasonable grounds for believing that the accused is guilty.
In such cases, the application must be made before the Sessions Court.
2. Sessions Court
The Sessions Court has wide discretionary powers under:
Section 482 BNSS (Anticipatory Bail); and
Section 483 BNSS (Regular Bail after arrest).
This court is typically approached for:
Serious offences like attempt to murder, sexual assault, NDPS, POCSO, etc.;
When Magistrate Court lacks jurisdiction;
After Magistrate Court has rejected bail.
Sessions Courts also hear appeals against Magistrate orders related to bail.
3. High Court
High Courts have concurrent jurisdiction with Sessions Courts under Sections 482 and 483 BNSS. They are typically approached:
When bail is denied by lower courts;
In sensitive or high-profile cases;
For matters involving constitutional rights, state-sponsored prosecution, or gross miscarriage of justice.
High Courts can also quash FIRs under Section 528 BNSS, and sometimes club such petitions with anticipatory bail applications for holistic relief.
4. Supreme Court of India
The Supreme Court, under Article 136 of the Constitution, entertains special leave petitions (SLPs) against High Court orders. While not a court of first instance for bail, it is approached in exceptional circumstances, such as:
Political persecution cases;
National importance;
Conflicting High Court interpretations.
The Court exercises great caution and sparing use of this power, usually when fundamental rights are at risk.
Landmark Indian Case Laws and Judicial Principles on Grant of Bail
In the Indian legal system, bail jurisprudence has evolved significantly through constitutional interpretations and judicial precedents. Courts have consistently emphasized that bail is not to be denied as a matter of punishment, but granted unless compelling reasons justify incarceration. This section explores the most influential judgments from the Supreme Court and High Courts of India that have shaped bail law, along with the principles courts follow when adjudicating bail matters.
1. Bail as a Fundamental Right Under Article 21 – Liberty vs. Custody
The cornerstone of bail jurisprudence lies in the constitutional guarantee of personal liberty under Article 21 of the Constitution of India, which states:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In Hussainara Khatoon v. State of Bihar (1979), the Supreme Court held that the right to a speedy trial and just bail conditions is a part of the right to life and personal liberty. The Court expressed deep concern over the prolonged incarceration of undertrial prisoners merely due to their inability to furnish bail.
This case became a watershed moment, emphasizing that bail should not be denied merely because the accused is poor, and courts must evolve a just and humane approach.
In Gurbaksh Singh Sibbia v. State of Punjab (1980) – The Foundation of Anticipatory Bail Principles
In this landmark case, a five-judge Constitution Bench of the Supreme Court laid down foundational principles on anticipatory bail under Section 438 CrPC. The Court clarified that anticipatory bail:
Is not restricted to exceptional or rare cases.
Can be granted even when no FIR is registered, if a person has genuine apprehension of arrest.
Cannot be limited by arbitrary conditions unless justified by the facts of the case.
The Court observed:
“The discretion of the court in granting anticipatory bail is not to be exercised arbitrarily, but according to sound legal principles and factual matrix.”
This case remains the bedrock of anticipatory bail law in India and is cited in nearly every such bail petition across courts.
In Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) – Bail Can Be Rejected on Merits Despite Previous Grant
In this case, the accused had been granted bail by the Patna High Court. However, the Supreme Court intervened, ruling that:
Even if bail is granted earlier, it can be cancelled or reconsidered if new facts emerge or if the court finds that material evidence was ignored.
The court must assess whether the accused is likely to misuse the liberty granted by bail, such as threatening witnesses, tampering with evidence, or absconding.
This decision introduced the principle of "reasons must be recorded" while granting or denying bail, and emphasized judicial responsibility in sensitive cases.
In State of Rajasthan v. Balchand (1977) – Bail is the Rule, Jail is the Exception
Justice Krishna Iyer, in this judgment, famously stated:
“The basic rule may perhaps be tersely put as: bail, not jail.”
The case reinforced the presumption of innocence until proven guilty and emphasized that custody must not be used as a form of anticipatory punishment. This philosophy has been echoed in several subsequent rulings and is the guiding light in balancing state power with individual liberty.
In Sanjay Chandra v. CBI (2012) – White Collar Crimes and Bail
This case involved the accused in the 2G spectrum scam. The Supreme Court, while granting bail, held that:
Even in economic offences and high-profile white-collar crimes, bail should not be denied solely because of the gravity of allegations.
The court must consider whether continued detention is necessary for investigation, or whether it would amount to unnecessary hardship.
The Court emphasized:
“The object of bail is to secure the presence of the accused at the trial. The object is not punitive.”
What Happens After You Get Bail?
Getting bail is a significant relief for an accused person. However, obtaining bail does not mean the end of criminal proceedings. It simply ensures the accused’s liberty during the pendency of the investigation or trial. Once bail is granted, several legal, procedural, and practical developments follow. Understanding what happens post-bail is essential for both the accused and the legal practitioner.
I. Compliance with Bail Conditions
When bail is granted whether regular or anticipatory the court imposes certain conditions to ensure that the accused does not abuse the liberty granted. These conditions vary depending on the nature of the offence, the gravity of the charges, and the discretion of the judge.
Common bail conditions include:
Furnishing of Personal and Surety Bonds: The accused must execute a personal bond (usually Rs. 10,000 to Rs. 1,00,000 depending on the case) and submit sureties who are willing to take responsibility for the accused’s appearance in court. The surety may be required to submit documents proving identity, income, and in some cases, property ownership.
Appearance Before Investigating Officer or Court: Courts often direct the accused to report to the concerned police station at regular intervals or to attend all court dates without fail.
Surrender of Passport: To prevent the possibility of absconding, the accused may be ordered to surrender their passport and refrain from traveling abroad without prior permission.
Non-Tampering with Evidence or Witnesses: The accused is restrained from contacting, threatening, or influencing prosecution witnesses or tampering with any documentary evidence.
Restriction from Visiting Certain Places or Individuals: In cases involving family disputes or sexual offences, the accused may be directed not to visit the victim’s residence, workplace, or locality.
Violation of any of these bail conditions may result in cancellation of bail under Section 483 BNSS or under the inherent powers of the High Court under Section 528 CrPC.
II. Release from Custody (in Case of Regular Bail)
If the accused is already in custody (i.e., arrested), then the bail order must be executed promptly. After bail is granted:
The bail bond and sureties must be submitted to the concerned court.
The court verifies the authenticity of the documents and sureties.
Once satisfied, the Release Warrant (Bail Release Memo) is issued.
The warrant is sent to the jail authorities, and the accused is released.
This process can take a few hours to a full day, depending on the workload of the court and the responsiveness of the jail administration.
III. Continuation of Investigation or Trial
It is important to note that grant of bail does not mean closure of the case. The investigation continues, and the police may:
File a chargesheet under Section 193 BNSS if there is sufficient evidence; or
File a closure report (Final Report) if the case is found to be false or lacks evidence.
In the case of anticipatory bail, if charges are eventually filed, the accused must appear before the Magistrate and seek regular bail if required. Once the chargesheet is filed, the court frames charges and the trial begins. The accused, while on bail, must remain available for all court dates and cooperate with the judicial process.
IV. Bail Revocation and Cancellation
The prosecution may at any time file an application for cancellation of bail if:
The accused violates bail conditions;
The accused intimidates witnesses or tamper with evidence;
New facts emerge showing the accused is a threat to the fair trial.
Additionally, in certain special laws like NDPS Act, POCSO Act, or UAPA, stricter standards apply, and bail is more easily revocable upon misuse. The court may issue a non-bailable warrant, forfeit the bail bond, and initiate fresh proceedings to take the accused back into custody.
V. Possibility of Discharge or Acquittal
After being released on bail, the accused has the legal option to move for:
Discharge under Sections 250 or 262 BNSS (depending on court level), if no prima facie case is made out in the chargesheet;
Quashing of FIR or charges under Section 528 BNSS or by Writ Petition before the High Court;
Acquittal, if during the trial the prosecution fails to prove the charges beyond reasonable doubt.
In all such situations, being on bail allows the accused the freedom to prepare an effective legal defence, collect evidence, brief lawyers, and attend court without the stress of custody.
VI. Long-Term Obligations and Records
Even after bail, the stigma of being an accused remains until acquittal. It may affect job opportunities, passport renewals, visa applications, and more. Therefore, it’s advisable that:
The accused maintain regular court appearances;
Comply with legal timelines;
Avoid involvement in any further criminal activity, as fresh FIRs can lead to denial of bail in subsequent cases.
If acquitted, the accused should initiate steps to get the FIR and other criminal records expunged or removed from public databases if applicable, particularly for employment or immigration purposes.
VII. Travel During Bail Period
If the accused needs to travel out of the jurisdiction of the court, or outside India, during the bail period, a written application must be made to the court. The court may impose travel restrictions or grant permission for travel with conditions. Uninformed travel is treated as a breach of bail conditions.
Conclusion: How to Get Bail in India
Securing bail in India is a constitutionally protected relief that serves as a cornerstone of personal liberty. Whether you're seeking anticipatory bail or regular bail a clear understanding of the procedural framework, legal grounds, and appropriate court jurisdiction is essential. This blog has systematically addressed the types of bail in India, the statutory and judicial grounds for grant of bail, key documentation, court hierarchy, and what unfolds after bail is granted, with reference to real Indian case laws that continue to influence decisions.
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