Bailable vs Non-Bailable Offences Under BNS: A Section-by-Section Guide

Two words decide how the first week of a criminal case goes: bailable or non-bailable. If the offence is bailable, release is a matter of right and the bond can be executed at the police station itself. If it is non-bailable, liberty depends on a judge's discretion and on how well the bail application is prepared. Yet most people facing an FIR cannot say which side of the line their section falls on — because the answer is not written in the section at all.

The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the IPC, defines offences and prescribes punishments. It stays silent on bail. That classification lives in the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — a long table that tags every BNS offence with three labels: cognizable or non-cognizable, bailable or non-bailable, and the court that tries it.

What bailable actually means

In a bailable offence, bail is a right, not a request. Section 478 BNSS (formerly Section 436 CrPC) obliges the officer in charge of the police station, or the court, to release the accused once a bond — with or without sureties — is furnished. There is no discretion to refuse.

In a non-bailable offence, bail is discretionary under Section 480 BNSS (formerly Sections 437 and 439 CrPC). The court weighs the gravity of the allegation, the accused's antecedents, flight risk and the possibility of tampering before deciding. The regular bail post in this series covers how that discretion is exercised in Bangalore courts.

Cognizable is a different question

People use 'non-bailable' and 'serious' interchangeably, and both interchangeably with 'cognizable'. The axes are separate. Cognizable means the police can register an FIR under Section 173 BNSS and arrest without a warrant. Non-cognizable means the police cannot even investigate without a Magistrate's order under Section 174 BNSS.

The two labels usually travel together — grave offences tend to be cognizable and non-bailable. Usually is not always. Kidnapping simpliciter under Section 137(2) BNS is cognizable, so the police can arrest without a warrant, yet the offence is bailable, so release follows on a bond. The reverse combination exists too. Read both columns of the schedule, not one.

Where the answer is written: the BNSS First Schedule

The First Schedule has two parts. Part I classifies every offence under the BNS, subsection by subsection — which matters, because a single section number can straddle the line, as Section 318 shows below. Part II supplies a default rule for offences under other statutes that do not carry their own classification: broadly, offences punishable with three years or more are cognizable and non-bailable, and offences punishable with less than three years are non-cognizable and bailable. Special statutes such as the NDPS Act override this with their own bail regimes.

Common BNS sections, classified

These are the classifications under the BNSS First Schedule for the sections people most often find in an FIR. The old IPC number is given alongside, since that is still how most people search.

• Section 103 BNS (murder, formerly 302 IPC) — cognizable, non-bailable, tried by the Court of Session.
• Section 80 BNS (dowry death, formerly 304B IPC) — cognizable, non-bailable, tried by the Court of Session.
• Section 85 BNS (cruelty by husband or his relatives, formerly 498A IPC) — non-bailable; cognizable when the information is given by the aggrieved woman, a relative by blood, marriage or adoption, or a notified public servant.
• Section 316(2) BNS (criminal breach of trust, formerly 406 IPC) — cognizable, non-bailable, tried by a Magistrate of the first class.
• Section 318(2) BNS (simple cheating, formerly 417 IPC) — non-cognizable, bailable. Up to three years.
• Section 318(4) BNS (cheating and dishonestly inducing delivery of property, formerly 420 IPC) — cognizable, non-bailable. Up to seven years and fine.
• Section 303(2) BNS (theft, formerly 379 IPC) — cognizable, non-bailable, triable by any Magistrate.
• Section 351(2) BNS (criminal intimidation, formerly 506 IPC) — non-cognizable, bailable.
• Section 137(2) BNS (kidnapping, formerly 363 IPC) — cognizable but bailable, tried by a Magistrate of the first class.

The traps inside the table

The subsection decides the classification, not the section. 'Cheating' under Section 318(2) is bailable and the police cannot investigate it without a Magistrate's order; cheating under Section 318(4) is non-bailable and cognizable. Which subsection the FIR cites changes whether the police can arrest at all.

Who reports can also matter. Section 85 BNS is cognizable only when the information comes from the woman herself, a specified relative, or a notified public servant. And within a single offence, facts can shift the punishment: a first-time theft of property worth under five thousand rupees can, on return of the property, be dealt with by community service under the proviso to Section 303(2). For Section 351, note that the aggravated form under Section 351(3) — threats of death or grievous hurt — carries up to seven years; have counsel confirm the classification for the exact subsection in your FIR, since it is treated differently from 351(2).

Non-bailable does not mean no bail

It means bail must be sought and argued. Three routes exist. Regular bail under Section 480 BNSS after arrest, decided on the merits. Anticipatory bail under Section 482 BNSS (formerly 438 CrPC) before arrest, where arrest is reasonably apprehended. And default bail under Section 187(3) BNSS, which arises automatically if the chargesheet is not filed within 60 or 90 days. Courts do grant bail in non-bailable offences on a regular basis; the classification only fixes who decides and on what test.

If an FIR or notice cites sections you are trying to make sense of, WhatsApp them to +91 63637 45780 and we will explain the classification, what it means for arrest and bail, and the options that apply to your situation.