When to Apply for Regular Bail

Regular Bail under BNSS, 2023

Regular bail is the usual way someone who has been arrested and is being held by the police or courts can get out for a period of time. Since the person is already in custody and not free, this type of bail provides the legal means for their release. It follows specific rules outlined in Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), allowing them to be free while their case is still being looked into or decided in court. It grants legal permission to remain out of jail while the case is being adjudicated. The procedure and conditions for granting regular bail are governed by Sections 480 and 483 of the BNSS.

For example, if Mr. A is arrested for theft and asks a Magistrate to be released while the police investigate, he is applying for regular bail under the rules specified in the relevant laws (like Sections 480 and 483 of the BNSS).

It is distinct from:

• Anticipatory Bail – sought before arrest (to prevent arrest)
• Interim Bail – temporary relief pending disposal of regular/anticipatory bail

Relevant Law:

• Governed by Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

When Is It Suitable to Apply for Regular Bail?

1. After Arrest and While in Custody:

• Regular bail can be applied only after the accused has been arrested and is either in police custody or judicial custody.
• The application is generally made before the Magistrate Court (for offences triable by it) or the Sessions Court/High Court/Supreme Court (for graver offences).

2. When the Offence Is Bailable:

• Under Section 478 BNSS, bail in bailable offences is a matter of right.
• The court must release the accused upon furnishing the required bond and surety.

3. In Case of Non-Bailable Offences:

• Under Sections 480 and 483 BNSS, bail is discretionary and depends on judicial assessment of:
  • Nature and gravity of the offence
  • Possibility of flight risk
  • Potential for tampering with evidence or influencing witnesses
  • Health, age, and antecedents of the accused
  • Stage of the investigation

Right Occasions to File a Regular Bail Application:

Understanding the right timing is crucial to improving the chances of securing bail. Courts are more inclined to grant bail in the following situations:

1. Immediately After Arrest:

• When the accused is produced before a Magistrate within 24 hours of arrest (as required under Article 22(2) of the Constitution and Section 58 BNSS).
• Bail may be sought at this first production, especially if:
  • The offence is bailable, or
  • The accused has strong grounds for release (e.g., weak evidence, no criminal record).

2. After Completion of Police Custody:

• Once police custody remand ends, and the accused is placed in judicial custody, it is a common and appropriate stage to apply for bail.
• The court assesses whether continued detention serves any further investigative purpose.

3. After Filing of the Charge Sheet:

• A highly suitable stage to apply for bail.
• Once the charge sheet is filed, investigation is deemed complete, and the likelihood of the accused tampering with evidence is reduced.
• Courts often view continued detention as unjustified unless the offence is grave or there are aggravating factors.

4. When Investigation or Trial Is Delayed:

• Bail can be sought when:
  • The investigation is unreasonably prolonged, or
  • The trial has not commenced despite long custody.
• Courts consider such detention violative of Article 21 (Right to Liberty).

5. On Humanitarian or Medical Grounds:

• Bail may be applied for when the accused suffers from serious illness, pregnancy, old age, or other health conditions requiring treatment outside custody.

6. Upon Change of Circumstances:

• If an earlier bail application was rejected, a fresh bail application can be filed upon change in circumstances, such as:
  • New evidence or witness statements
  • Delay in filing the charge sheet
  • New legal precedent favouring bail
  • Long incarceration without trial progress

7. When Co-Accused Have Been Granted Bail:

• Courts often consider parity — if co-accused in a similar role are granted bail, it strengthens the applicant’s claim for release.

8. When the Offence Is Triable by a Magistrate:

• For offences punishable with less than 7 years, bail is generally favoured (Satender Kumar Antil v. CBI, 2022).

9. When the Accused Is a First-Time Offender:

• Courts consider lack of prior record as a mitigating factor.

10. When Cognizance Is Taken but Trial Is Yet to Begin:

• Bail may be granted to avoid excessive pre-trial detention.

11. When the Case Is Based on Documentary Evidence:

• If documents are already seized, risk of tampering is low.

12. When the Accused Is a Child or is a Woman or is Sick or Infirm:

• Section 480 BNSS provides special consideration for children, women, sick or infirm.

13. When the Accused Is Cooperating with Investigation:

• Voluntary appearance and compliance with summons strengthen bail claims.

14. When Allegations Are Prima Facie False, Weak or Vague:

• Bail may be granted to prevent misuse of criminal process.

15. When Entitled to Default Bail:

• Under Section 187(3) BNSS, if the charge sheet isn’t filed within 60/90 days, bail becomes a right.

16. Availability of Witnesses:

• Availability of witnesses means people are ready to testify in your case. This helps show you’re cooperating with the trial and makes it easier to ask for bail.

17. Requirement for child care:

• Requirement for child care means the accused has dependent children needing attention. Courts may consider this as a valid reason for bail, especially when no one else can provide necessary support.

18. Prolonged Trial Date:

• Prolonged Trial Date refers to a situation where the scheduled trial date is far in the future. The delay is known in advance, often due to court backlog or procedural scheduling.

19. Delay in Trial:

• Delay in Trial means the trial has already started or been scheduled, but it’s not progressing—due to repeated adjournments, incomplete proceedings, or slow investigation.

Key Judicial Precedents (2023–2025):

Procedure for Applying for Regular Bail:

The process for applying for Regular Bail follows a clear, hierarchical, and mandatory step-by-step procedure:

1. Drafting and Filing the Application:

The defense counsel drafts a formal bail application and files it with the appropriate court-typically starting with the Magistrate’s Court or the Court of Sessions. The competent court depends on the severity of the offense and the case’s current stage.

2. Stating the Grounds for Release:

The application must clearly articulate the compelling grounds for granting bail.

Key arguments often include:

1. The accused has no previous criminal record.
2. The accused has a history of cooperating with the investigation.
3. The accused poses a low flight risk (i.e., they won’t abscond).
4. There is a prolonged delay in the trial or excessive pre-trial detention.

3.Serving Notice to the Prosecution:

A formal notice (a copy of the application) must be served to the Public Prosecutor (PP) or the prosecuting agency. This step is mandatory, as it allows the State to prepare and present its opposition to the bail request.

4.The Court Hearing:

Both the defense counsel and the Public Prosecutor attend the hearing to present their oral arguments, counter arguments, and cite relevant case laws to support their positions. The court thoroughly considers the facts, evidence, and likelihood of the accused tampering with witnesses or evidence.

5. Court Order and Conditions:

The Court then pronounces its final order:

Granting Bail: The court imposes specific conditions, such as furnishing a Surety Bond or a Personal Bond, surrendering the passport, or reporting regularly to the police.

Rejecting Bail: The court rejects the application with clear, reasoned grounds, often citing the gravity of the offense or the risk of the accused interfering with justice.

Systemic Strain on Statutory Bail Safeguards:

India’s criminal justice framework faces increasing strain in upholding statutory protections for personal liberty, particularly in the context of pre-trial detention. Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) guarantees an “indefeasible right” to default bail when the charge sheet is not filed within 60 or 90 days—extended to 180 days or more under special statutes like the UAPA or NDPS. However, this safeguard is often rendered ineffective in practice.

Sometimes, when the police or investigating agency are required by law to file a charge sheet (a document listing the evidence and accusations against an accused person) within a fixed time limit, they don’t actually complete their investigation in time. Instead of admitting the delay, they file an incomplete or preliminary charge sheet right before the deadline expires.

This means they technically follow the rule (because a charge sheet has been filed), but in reality, the investigation is still unfinished — so the accused’s right to default bail (bail granted when the charge sheet isn’t filed on time) is lost.

Once that happens, the accused can no longer rely on the automatic right to bail and must instead apply for regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). In such cases, the court decides based on factors like the seriousness (“gravity”) of the offence, the accused’s background, and the risk of influencing witnesses or fleeing.

Because these factors are subjective — meaning they depend on the judge’s opinion — and because serious offences often make courts more cautious, this process can delay bail for months or even years.

In short:

• The police file an incomplete charge sheet just to meet the deadline.
• This cancels the accused’s automatic right to bail.
• The accused must then seek regular bail, which depends on the court’s discretion.
• The seriousness of the crime often leads to delays or rejection of bail.

Prosecutorial submissions frequently cite ongoing investigations, national security concerns, or potential evidence tampering to justify extended custody. While these considerations may be legitimate in specific contexts, their routine invocation risks diluting the constitutional guarantee of liberty and a speedy trial under Article 21.

Judicial responses to such cases often reflect a complex balancing act between individual rights and broader public interest. In some instances, courts have deferred to prosecutorial narratives, resulting in prolonged detention despite statutory entitlements. This trend underscores the need for clearer procedural safeguards and consistent judicial scrutiny to prevent erosion of legal rights.

The cumulative effect of procedural ambiguity, administrative delay, and interpretive discretion can turn the right to bail into a prolonged legal uncertainty. Addressing these challenges requires a renewed commitment to constitutional principles, procedural integrity, and timely adjudication.

Conclusion:

Regular bail is an important part of the right to personal freedom. It is usually requested after a person is arrested, especially when the investigation is finished or the charge sheet has been filed, meaning there is no further need for police custody.

Bail requests become stronger when detention has gone on for too long, seems unfair, or when the accused is not likely to run away or interfere with evidence. A change in circumstances or serious humanitarian reasons can also support a bail plea. Courts aim to balance the person’s right to liberty with the need for justice, ensuring that bail is not denied as a way to punish someone before trial and that continued detention is allowed only when truly necessary.