Bail — anticipatory, regular and interim

The three situations

Arrest is feared but has not happened. The remedy is anticipatory bail under Section 482 of the BNSS (formerly Section 438 CrPC), filed before the Court of Session or the High Court. The application asks the court to direct that, if the person is arrested, they be released on bail. Interim protection is often sought at the first hearing.

The person has been arrested. The remedy is regular bail. For non-bailable offences, the Magistrate decides under Section 480 BNSS (formerly Section 437 CrPC); the Court of Session and the High Court have wider powers under Section 483 BNSS (formerly Section 439 CrPC). For bailable offences, bail is a matter of right under Section 478 BNSS (formerly 436 CrPC).

A short release is needed for a specific reason — medical treatment, a death in the family, an examination — the court may grant interim bail for a fixed period on conditions.

There is also default bail under Section 187(3) BNSS (formerly Section 167(2) CrPC): if the chargesheet is not filed within 60 or 90 days of the first remand (depending on the offence), the accused becomes entitled to bail on applying for it, and undertrial release under Section 479 BNSS (formerly 436A CrPC) after a prescribed part of the maximum sentence has been spent in custody.

What the court weighs

Bail is the rule and jail the exception, but the discretion is real. The court looks at the nature and gravity of the accusation, the severity of the punishment, the evidence collected so far, the accused’s role, the risk of the accused fleeing, tampering with evidence or influencing witnesses, criminal antecedents, and the stage of the investigation. In economic offences and offences under special statutes (NDPS, PMLA, POCSO, UAPA) the statute itself imposes stricter conditions that the application must address.

For arrests in offences punishable with up to seven years, the Supreme Court’s directions in Arnesh Kumar v. State of Bihar (2014) — now built into Section 35 BNSS — require the police to justify arrest and ordinarily to issue a notice of appearance instead. Whether that procedure was followed is often the first point in a bail hearing. The Court’s guidelines in Satender Kumar Antil v. CBI (2022) on categories of offences and the treatment of accused who cooperated with the investigation are equally important.

How the chambers handles a bail matter

1. Immediate assessment of the FIR, the sections invoked, the stage of investigation and the police station; where the person is already in custody, the remand papers and the next production date.
2. Choosing the forum and the timing — Sessions Court or High Court; whether to seek interim protection first; whether to approach the investigating officer under Section 35 BNSS for a notice of appearance.
3. Drafting an application that answers the specific apprehensions the prosecution will raise, with supporting documents — roots in the community, employment, medical records, the accused’s cooperation, and any prior orders.
4. The hearing, including the reply to the status report and the conditions to be proposed.
5. Compliance — sureties, bonds, passport deposit and reporting conditions — and, where bail is refused, the appeal or the fresh application before the higher court.

The chambers also appears for complainants and victims opposing bail, including under Section 480(1) and the victim’s right to be heard.

Delhi courts

Bail applications in Delhi are heard by the Metropolitan Magistrates and the Sessions Courts at Tis Hazari, Saket, Patiala House, Karkardooma, Rohini and Dwarka, depending on the police station, and by the Delhi High Court on Sher Shah Road. Anticipatory bail applications in Delhi are ordinarily filed first before the Sessions Court.

Documents to keep ready

• FIR copy (downloadable from the Delhi Police website for most offences) or the complaint
• Any notice received from the police, and proof of appearance if you complied
• Identity and address proof, and documents showing employment or business
• Medical papers, if health is a ground
• Copies of earlier applications and orders in the same case

Frequently asked questions

How quickly can an anticipatory bail application be filed in Delhi?

Once the FIR copy and basic documents are available, an application can be drafted and filed within a day, and listed before the Sessions Court in the ordinary course within a few days; urgent mentioning is possible where arrest is imminent. Interim protection is often argued at the first hearing.

Does anticipatory bail continue until the end of the trial?

The Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) (2020) held that anticipatory bail is not limited to a fixed period by default and can continue until the end of the trial, though the court may impose conditions or limit its duration in a particular case.

What is default bail?

If the police do not file the chargesheet within 60 days (or 90 days for offences punishable with death, life imprisonment or imprisonment of ten years or more) from the first remand, the accused has an indefeasible right to be released on bail under Section 187(3) BNSS, provided the application is made before the chargesheet is filed.

Can bail be cancelled?

Yes. The court that granted bail, or a superior court, can cancel it if the conditions are violated, witnesses are threatened, or the accused commits a similar offence while on bail. Compliance with conditions is therefore taken seriously.

Is bail possible in NDPS, PMLA or POCSO cases?

It is harder, because these statutes impose additional conditions (for example the “twin conditions” under Section 37 NDPS Act and Section 45 PMLA), but bail is granted where the material does not satisfy the statutory threshold, on medical grounds, or on the basis of delay in trial.

This page is general information about the area of practice, not legal advice. Last reviewed: 2026-09-22