Bail applications: regular, default and anticipatory bail under the BNSS

Drafting, Pleading and Conveyance · Unit III · Topic 11 of 19 · 6 min read

Which court and which section for each kind of bail under sections 478 to 483 and 187 of the BNSS, the grounds a bail petition should plead, the leading Supreme Court guidance, and a model anticipatory bail petition.

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On this page

1. The provisions
2. What the Supreme Court has said
3. Grounds a bail petition should plead
4. Model: anticipatory bail petition
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Choose the section first. A bail petition fails at the threshold if it is filed under the wrong provision or in the wrong court. Ask: is the offence bailable or non-bailable? Is the client already in custody, or only apprehending arrest? Has the investigation overrun its statutory period? The answers fix the section, and the section fixes the grounds.

1. The provisions

Section 478 (formerly 436 CrPC): in a bailable offence, bail is a right; the police or court must release on bail.
Section 480 (formerly 437): bail in a non-bailable offence by a Magistrate (or by the police officer). The Magistrate cannot release a person where there are reasonable grounds to believe him guilty of an offence punishable with death or life imprisonment, or a repeat offender of the kind described in clause (ii), but the first proviso allows release even then if the person is a child, a woman, or sick or infirm.
Section 483 (formerly 439): the special power of the High Court and Court of Session to grant bail to a person in custody, without the limits of section 480.
Section 482 (formerly 438): anticipatory bail by the High Court or Court of Session to a person who has reason to believe he may be arrested for a non-bailable offence. Section 482(4) excludes it for offences under section 65 and section 70(2) BNS (rape of a woman under sixteen and gang rape of a woman under eighteen).
Section 187(3) (formerly 167(2)): default bail where the charge-sheet is not filed within 90 days (offences punishable with death, life imprisonment or ten years or more) or 60 days (other offences).
Section 479 (formerly 436A): an undertrial who has served half the maximum sentence (one-third for a first-time offender) must be released, except for offences punishable with death or life imprisonment.

2. What the Supreme Court has said

Gurbaksh Singh Sibbia v. State of Punjab, 1980 INSC 68, (1980) 2 SCC 565: anticipatory bail is not to be hedged with conditions not found in the statute; the applicant must show a reasonable apprehension of arrest, based on facts, not a vague fear.
Sushila Aggarwal v. State (NCT of Delhi), 2020 INSC 106, (2020) 5 SCC 1: anticipatory bail need not be limited in time and can continue till the end of the trial, unless the court in a particular case limits it.
Arnesh Kumar v. State of Bihar, 2014 INSC 463, (2014) 8 SCC 273: for offences punishable up to seven years, arrest must satisfy the necessity tests, and a notice of appearance (now section 35(3) BNSS) is the norm.
Satender Kumar Antil v. Central Bureau of Investigation, 2022 INSC 690, (2022) 10 SCC 51: classified offences for bail purposes, reiterated that bail is the rule, and directed that bail applications be decided within two weeks and anticipatory bail applications within six weeks, save for exceptional reasons.

3. Grounds a bail petition should plead

The nature of the accusation and the punishment; whether the offence is triable by Magistrate.
The applicant’s role as stated in the FIR, and why it is weak (no specific overt act, delay, improbability, civil dispute dressed as crime).
Period in custody; completion of investigation; filing of charge-sheet.
Roots in society: residence, family, occupation, property. No risk of absconding.
No criminal antecedents (or explain them).
No likelihood of tampering with evidence or threatening witnesses.
Age, health, gender, dependants.
Willingness to abide by any conditions and to furnish sureties.
For anticipatory bail: the facts showing reasonable apprehension of arrest (a notice, a police visit, arrest of co-accused).
A statement that no other bail petition is pending or has been disposed of in any court on the same facts (or full disclosure of earlier petitions).

4. Model: anticipatory bail petition

Illustrative template, hypothetical facts.

IN THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELAGAVI Crl. Misc. No. ____ of 2026

Petitioner: Sri Ravi S. Gouda, son of Shivappa Gouda, aged about 34 years, agriculturist, residing at Kakati, Belagavi taluk.

Respondent: State of Karnataka, by the Station House Officer, Kakati Police Station, represented by the Public Prosecutor.

PETITION UNDER SECTION 482 OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 FOR GRANT OF ANTICIPATORY BAIL in Crime No. 211 of 2026 of Kakati Police Station, registered for offences punishable under sections 115(2), 351(2) and 329(3) read with section 3(5) of the Bharatiya Nyaya Sanhita, 2023.

The FIR was registered on 12 November 2026 on the information of Sri Prakash B. Naik, who alleges that on 10 November 2026 the petitioner and others entered his land, assaulted him and threatened him.
The petitioner is innocent. There is a pending civil dispute between the petitioner’s family and the informant over the boundary between their lands (O.S. No. 88 of 2026, Senior Civil Judge, Belagavi), in which a temporary injunction has been sought against the informant. The FIR is a counterblast to that suit.
The injury alleged is simple, and the FIR attributes no weapon to the petitioner. The offences are punishable with imprisonment up to one year (section 115(2)), two years (section 351(2)) and three months (section 329(3)), and are triable by a Magistrate.
Apprehension of arrest. On 14 November 2026 police officers visited the petitioner’s house in his absence and told his father that he would be arrested. No notice under section 35(3) BNSS has been issued, though the offences are punishable with less than seven years.
The petitioner is a permanent resident of Kakati, owns agricultural land there, and lives with his wife, two children and aged parents. He has no criminal antecedents. He will not abscond or tamper with evidence.
The petitioner undertakes to appear before the investigating officer whenever required, not to contact the informant or witnesses, and to abide by any conditions under section 482(2).
No other petition for bail on the same facts has been filed in any court.

Prayer. Direct that in the event of his arrest in Crime No. 211 of 2026 of Kakati Police Station, the petitioner be released on bail on such conditions as the Court may impose; and pending disposal, grant interim protection from arrest.

Place: Belagavi. Date: 16 November 2026. Sd/- Advocate for Petitioner.

Filed with: affidavit of the petitioner verifying the facts; certified copy of the FIR; copy of the plaint in O.S. No. 88 of 2026.

Trap. On the model facts, all the offences are punishable with less than seven years. Following Arnesh Kumar and section 35(3), the stronger first argument is that arrest is not necessary at all and a notice of appearance should issue. Anticipatory bail is the fallback. A petition that pleads only “the petitioner is innocent” misses the point.

How this is examined

The syllabus lists the bail application expressly, so the record should contain at least a regular bail petition under section 483 and an anticipatory bail petition under section 482 (3 marks each); a default bail application under section 187(3) is a good third. At the viva expect: the difference between sections 480 and 483; when anticipatory bail is barred; default bail and its periods; Sibbia, Sushila Aggarwal and Antil; and why a bail petition must disclose earlier petitions.