When Courts Can Grant Bail In Non-Bailable Offences, Which Court To Approach, Conditions For Release And Legal Remedies Available Under BNSS 2026
NEW DELHI: An accused is arrested for a non-bailable offence, and the family assumes that getting bail is impossible. But does a non-bailable FIR automatically mean that the accused must remain in jail until the trial ends?
Under Indian law, a non-bailable offence does not mean bail cannot be granted. It simply means that bail is not an automatic right, and release depends on the nature of the offence, the evidence, statutory restrictions and judicial discretion.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024, provides legal remedies for obtaining bail in non-bailable offences, including serious criminal cases.
Filing an FIR does not establish guilt, and the seriousness of an allegation alone does not determine whether bail must be refused. Courts examine the facts, applicable legal provisions, and the need for continued detention before deciding a bail application.
WHAT IS A NON-BAILABLE OFFENCE UNDER INDIAN LAW?
Section 2(1)(c) BNSS defines a bailable offence as one classified as bailable in the First Schedule or under another applicable law. Other offences are non-bailable.
The distinction matters.
In a bailable offence, Section 478 BNSS generally provides a statutory right to release on furnishing the required bail or bond.
In a non-bailable offence, the accused may seek release under Section 480 BNSS or Section 483 BNSS, subject to the limitations and conditions prescribed by law.
Offences such as murder, rape and certain serious economic crimes may be non-bailable. However, the applicable charge, its statutory classification and any special enactment must be examined individually.
Non-bailable does not mean non-releaseable. The law expressly provides a mechanism for bail.
WHEN CAN BAIL BE GRANTED UNDER SECTION 480 BNSS?
Section 480 BNSS, corresponding broadly to the former Section 437 CrPC, governs release in non-bailable cases before the authorities and courts specified in that provision.
It permits bail but places important restrictions.
Where reasonable grounds exist to believe an accused committed an offence punishable with death or imprisonment for life, the Magistrate ordinarily cannot grant bail under Section 480(1).
The provision also restricts release in specified circumstances involving previous convictions.
However, the law provides exceptions for a child, a woman, or a sick or infirm person. These exceptions allow the court to consider bail; they do not guarantee release.
For offences punishable with death, life imprisonment, or imprisonment of seven years or more, the Public Prosecutor must be given an opportunity to be heard before the Court grants bail under Section 480(1).
Importantly, Section 480(2) also allows release where reasonable grounds to believe the accused committed a non-bailable offence are absent, although further inquiry remains necessary, subject to the statutory conditions.
The provision therefore requires assessment of the material, not merely repetition of the allegations.
WHICH COURT CAN GRANT BAIL IN A NON-BAILABLE OFFENCE?
The appropriate court depends upon the offence, procedural stage and applicable statute.
Section 480 BNSS governs the powers of the Magistrate and the police authorities within its statutory scope.
Section 483 BNSS, corresponding to former Section 439 CrPC, grants the Court of Session and the High Court special powers to release an accused in custody on bail.
These higher courts may consider applications involving serious offences, including offences punishable with life imprisonment, subject to statutory safeguards.
Section 483 also prescribes notice requirements for specified serious offences and special hearing safeguards for certain sexual offences.
Magistrates’ restrictions cannot be ignored. Nor should the higher court’s wider jurisdiction be mistaken for an unrestricted entitlement to release.
WHAT FACTORS DO COURTS CONSIDER BEFORE GRANTING BAIL?
The seriousness of an allegation is relevant, but it is not the only consideration.
Courts ordinarily examine:
- Nature and gravity of the accusation and the punishment prescribed.
- Prima facie evidence connecting the accused with the alleged offence.
- Criminal antecedents and the conduct of the accused.
- Possibility of absconding or avoiding trial.
- Risk of threatening witnesses or tampering with evidence.
- Cooperation with investigation and the necessity of further custody.
- Length of detention and likely delay in completing the trial.
These considerations flow from established Supreme Court bail jurisprudence, including Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496.
A bail court does not decide final guilt. It determines whether release is legally justified while the proceedings continue.
SUPREME COURT JUDGMENTS THAT PROTECT THE RIGHT TO BAIL
- Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22
The Supreme Court reaffirmed the presumption of innocence and explained that granting bail is ordinarily the rule, while detention is the exception.
Significantly, the accused was not arrested during the investigation but was later taken into judicial custody.
The Court considered his cooperation, conduct and relevant circumstances, and granted bail. The ruling shows that custody must be justified on the facts, not imposed mechanically.
- Satender Kumar Antil v. CBI, (2022) 10 SCC 51
The Supreme Court issued extensive directions regarding bail and unnecessary incarceration.
It reiterated that “bail is the rule and jail is the exception”, subject to the governing statutory framework.
The judgment addressed routine arrests, treatment of accused persons appearing before courts and safeguards against unnecessary pre-trial detention.
Its central message remains relevant under the corresponding BNSS provisions: criminal proceedings do not automatically justify imprisonment before conviction.
- State of Uttar Pradesh v. Anurudh & Anr., 2026 INSC 47
In its judgment dated 9 January 2026, the Supreme Court examined the limits of a court’s jurisdiction while deciding bail.
The matter arose from allegations involving kidnapping and offences under the POCSO Act.
The Supreme Court emphasised that a bail hearing cannot become a mini-trial that conclusively adjudicates disputed evidence.
The Court distinguished the assessment necessary for bail from factual determinations reserved for trial.
Therefore, an accused is not required to establish innocence conclusively merely to seek bail. The Court must also consider the prosecution’s material and legally relevant risks.
- Rambalak v. State of U.P., 2026 INSC 511
On 19 May 2026, the Supreme Court examined the scope of Section 483 BNSS in proceedings arising from rejection of a bail application.
The Supreme Court granted the accused interim bail in November 2025.
The Court later confirmed that order, holding that the High Court, when exercising statutory bail jurisdiction, could not issue broader administrative directions beyond that jurisdiction.
The decision reinforces an important distinction: the power to decide bail must be exercised within its legally defined limits.
WHAT ACTUALLY HAPPENS DURING A BAIL HEARING?
During a bail hearing, the Court examines the allegations, evidence collected during the investigation, the accused’s conduct, and whether continued detention is justified.
In an order dated 29 May 2026, the ASJ/SFTC-02 (Central), Tis Hazari Courts, Delhi, granted regular bail to an accused in FIR No. 421/2025, Police Station Burari, involving allegations under Sections 69 and 209 BNS.
The defence submitted that the accused had cooperated with the investigation, had not been arrested during the investigation and that the chargesheet had already been filed. It also referred to an earlier complaint involving allegations of blackmail and extortion.
After considering the circumstances, including the completed investigation and the accused’s conduct, the Court granted regular bail subject to conditions, finding no demonstrated need for continued custody.
The case highlights an important principle: Even in non-bailable offences, an accused may be granted bail when the facts and evidence do not justify continued detention. Granting bail, however, does not amount to a finding of innocence or a determination of the criminal charges.
CAN ANTICIPATORY BAIL BE GRANTED IN A NON-BAILABLE OFFENCE?
Yes, subject to statutory restrictions.
Under Section 482 BNSS, a person apprehending arrest on an accusation involving a non-bailable offence may approach the Sessions Court or High Court for anticipatory bail.
The Court may impose conditions requiring cooperation with the investigation, restricting interference with witnesses or limiting foreign travel.
However, Section 482(4) excludes anticipatory bail under that provision for accusations involving Section 65 and Section 70(2) BNS.
Special statutes can impose additional restrictions.
In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, a Constitution Bench held that anticipatory bail protection need not invariably be time-bound and may ordinarily continue beyond filing of the charge-sheet, subject to appropriate conditions.
CAN DEFAULT BAIL BE GRANTED IN A NON-BAILABLE CASE?
Yes. Section 187(3) BNSS provides important safeguards where an investigation is not completed within the prescribed period.
The statutory detention periods are ordinarily:
- 90 days for offences punishable with death, imprisonment for life, or imprisonment for a term of ten years or more.
- 60 days for other offences.
Where the applicable period expires without the required investigation report being filed, the accused may claim default bail, provided the statutory right is properly invoked, and the accused is prepared to furnish bail.
This right arises when the investigation is not completed within the prescribed period. It is distinct from regular bail granted after examining the merits.
CAN A PERSON GET BAIL AFTER SPENDING MONTHS OR YEARS IN JAIL?
Section 479 BNSS addresses prolonged detention of undertrial prisoners.
For eligible offences not carrying death or life imprisonment as a prescribed punishment, the provision ordinarily contemplates release after detention extending to one-half of the maximum imprisonment period.
A first-time offender who has never been convicted receives an additional statutory benefit: release on bond after detention of up to one-third of the maximum period, subject to the provision’s conditions.
However, Section 479 includes qualifications, including restrictions on multiple pending offences or cases and specific judicial powers to continue detention.
The calculation also excludes delays attributable to the accused.
The law therefore does not permit Section 479 to be presented as an unconditional release guarantee.
CAN BAIL BE REFUSED DESPITE THESE SUPREME COURT JUDGMENTS?
Yes. Although the Supreme Court has repeatedly emphasised that bail is the rule and jail is the exception, this principle does not guarantee bail in every non-bailable offence.
Courts may reject a bail application based on the seriousness of the allegations, prima facie evidence, criminal antecedents, risk of absconding, likelihood of threatening witnesses or tampering with evidence, and other circumstances justifying continued custody.
Certain special criminal laws impose stricter bail conditions. For example, Section 37 of the NDPS Act requires additional judicial satisfaction before granting bail in specified narcotics offences, including cases involving commercial quantities. Similarly, Section 45 of the Prevention of Money Laundering Act (PMLA) imposes additional conditions for granting bail in money-laundering cases.
These restrictions must be considered alongside the accused’s constitutional right to personal liberty and a speedy trial.
Even after bail is granted, the accused must comply with the Court’s conditions. Threatening witnesses, interfering with evidence, absconding, or misusing the liberty granted may lead to bail cancellation and further detention.
CONCLUSION
A non-bailable FIR can damage a person’s reputation, employment and family life even before the allegations are tested at trial.
For men facing criminal accusations arising from matrimonial or relationship disputes, the consequences can be particularly severe. But the defence cannot succeed merely by alleging misuse of the law. It must establish its case through the FIR, investigation record, relevant documents and applicable precedents.
An accusation is not a conviction. Arrest is not punishment. And non-bailable does not mean bail is legally impossible.
The protection of victims, the integrity of investigations, and the liberty of the accused must all remain part of the judicial assessment.
The objective of criminal procedure is justice through law, not pre-trial punishment.
FAQs
- Can you get bail in a non-bailable offence in India?
Yes. Courts can grant bail under Sections 480 and 483 BNSS, depending on the offence, evidence and statutory restrictions. - Can a murder accused get bail in India?
Yes. Even in murder cases, bail is legally possible if the court finds sufficient grounds for release. - Can police refuse bail in a non-bailable case?
Yes. Police cannot grant bail as a matter of right in non-bailable cases. The accused can approach the appropriate court. - Can an accused get bail after the chargesheet is filed?
Yes. Filing the chargesheet may strengthen a bail plea where further custodial investigation is unnecessary, but it does not automatically grant release. - Can bail be cancelled after being granted by the court?|
Yes. Bail may be cancelled for violating conditions, threatening witnesses, misusing liberty or other legally sufficient grounds.
