Drafting Guide by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
An anticipatory bail petition is written for a person who is still free. A regular bail petition is written for a person who is already in jail, and by the time it reaches the High Court he has usually been refused at least once.
That single difference changes everything about how the document is built. Your client is not asking a court to prevent something. He is asking it to undo something a court has already declined to undo. The petition therefore has to answer a question the anticipatory bail petition never faces:
"You were refused bail in September. Why should I take a different view today?"
If your petition does not answer that in its first substantive paragraph, it will not be read further. Everything else in this guide is subordinate to it.
Below is a complete annotated model for a High Court regular bail petition, drawn from the format used in the Punjab and Haryana High Court at Chandigarh. Every fact is blank or in square brackets. The commentary explains what each part is for.
Get the Section Right
The bail provisions were renumbered wholesale by the Bharatiya Nagarik Suraksha Sanhita, and two of the new numbers sit next to each other while meaning opposite things.
| Provision | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Bail in a bailable offence | s 436 | s 478 |
| Maximum detention of an undertrial | s 436A | s 479 |
| Bail in a non-bailable offence (Magistrate) | s 437 | s 480 |
| Anticipatory bail | s 438 | s 482 |
| Special powers of High Court / Sessions — REGULAR BAIL | s 439 | s 483 |
| Default / statutory bail | s 167(2) | s 187(3) |
| Inherent powers of the High Court | s 482 | s 528 |
482 is anticipatory. 483 is regular. One digit apart, and a petition filed under the wrong one is asking for relief the petitioner cannot get — anticipatory bail is not available to a person already in custody. Write the section number, then read it back.
Section 479 BNSS: The Ground Most People Are Still Missing
Section 479 is the successor to Section 436A CrPC, and it was changed, not merely renumbered. It now works on two tiers:
- A first-time offender — a person never previously convicted of any offence — who has undergone detention up to one-third of the maximum period of imprisonment specified for the offence shall be released by the court on bond.
- Any other undertrial who has undergone detention up to one-half of the maximum period shall be released on personal bond, with or without sureties.
The one-third tier is new, and for a first-time accused facing a long-sentence offence it can mature much earlier than practitioners expect. Do the arithmetic in every long-custody case: maximum sentence for the gravest section charged, divided by three, measured from the date of arrest. If the client has crossed it and has no previous conviction, that is not merely a ground — it is a statutory entitlement, and it should lead the petition rather than sit at ground number nine.
Section 479 carries its own exclusions and provisos, including for offences punishable with death or life imprisonment and for persons facing proceedings in more than one case. Read the section in full before you plead it, and state expressly which limb you rely on.
The Framework the Court Is Applying
You are not writing into a vacuum. The judge has a settled checklist, and your paragraphs should map onto it.
- State of Rajasthan v. Balchand, (1977) 4 SCC 308 — the origin of the formulation that the basic rule is bail, not jail.
- Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 — the considerations governing bail, and the reminder that deprivation of liberty before conviction is a serious step.
- Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 — the factor list courts actually run through: whether there is a prima facie case, the nature and gravity of the accusation, the severity of the punishment on conviction, the danger of the accused absconding, character and antecedents, the likelihood of the offence being repeated, the reasonable apprehension of tampering with witnesses, and the danger of the trial being prejudiced.
- Sanjay Chandra v. CBI, (2012) 1 SCC 40 — the object of bail is to secure attendance at trial, not to punish in advance; seriousness of the charge alone is not conclusive.
- Union of India v. K.A. Najeeb, (2021) 3 SCC 713 — where an undertrial has suffered prolonged incarceration and there is no likelihood of the trial concluding in reasonable time, Article 21 considerations can prevail even over statutory restrictions on bail.
- Satender Kumar Antil v. CBI, (2022) 10 SCC 51 — the categorised framework and directions on arrest and bail practice.
The Real Battle: Successive Bail Applications
Most High Court regular bail petitions are second or third petitions. The governing principle is short and unforgiving.
A successive bail application is maintainable — there is no bar. But the court will not sit in appeal over the earlier refusal. It will ask what has changed since. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 is the standard reference: the court considering a subsequent application must have regard to the reasons given in the earlier order, and a fresh application must rest on a change in circumstances.
What actually counts as a change in circumstances.
- The passage of substantial further custody since the last order — quantified in years, months and days.
- The trial has not moved. Charges framed but prosecution evidence barely begun; a material witness repeatedly unserved; a forensic report still awaited after repeated adjournments.
- A material witness has resiled or been discredited in the witness box since the last refusal.
- New material on record that was not before the court earlier — a document produced, a report received, a co-accused's position altered.
- A co-accused on parity has since been granted bail by a court of coordinate or higher jurisdiction.
- The Section 479 BNSS threshold has since been crossed.
What does not count: re-arguing the merits of the FIR, restating the same improbabilities, or asserting innocence more forcefully than last time. If the only thing that has changed is the drafting, say nothing and wait.
The Paper-Book
| Document | Note |
|---|---|
| Urgent Application | To the Registrar; ground of urgency is the prayer for regular bail |
| Process Fee / Receipt | As required by the Rules of the High Court concerned |
| Synopsis, Brief Facts, Grounds | The most-read pages in the file. Written last |
| Memo of Parties | Must show "Confined in ______ Jail" and the proclaimed-offender declaration |
| The Petition | Facts, then "BECAUSE" grounds, then prayer |
| Index and Notes | Includes the MP/MLA declaration and the note on affidavit |
| Annexures | FIR (translated), earlier orders, charge order, latest order sheet, new material |
| Vakalatnama | In a legal aid matter, with the Legal Services Committee letter establishing identity |
A practical point often missed: where the petitioner is confined in jail, an affidavit in support is generally not insisted upon, and a note to that effect is placed in the file — the petitioner cannot conveniently swear one from custody. Put the note in; do not leave the registry to guess why the affidavit is absent. Practice varies between High Courts, so confirm at the filing counter.
Model Draft
Urgent Application
IN THE HIGH COURT OF [———] AT [———]
To,CRM-M _______ of 20__
The [Additional] Registrar,
[———] High Court, [———].
[Name of Petitioner]
(Confined in ____________ Jail, ____________)…Petitioner
Versus
State of [———]…Respondent
Sir,
Will you kindly treat the accompanying petition as an urgent one in accordance with [the applicable Rule and Chapter of the Rules and Orders of the High Court]?
The grounds of urgency are: relief of grant of regular bail is prayed for.
Synopsis
SYNOPSIS
The present petition is a [FIRST / SECOND / THIRD] Bail Petition under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (erstwhile Section 439 of the Code of Criminal Procedure, 1973), filed on behalf of the petitioner–accused seeking the concession of regular bail, or in the alternative interim bail, in FIR No. ______ dated __________ registered under Sections __________ at Police Station __________, District __________.
The petition is preferred on account of material change in circumstances, namely [state the change in one sentence — the single most important sentence in the file], coupled with prolonged incarceration of more than ___ years and ___ months, and the fact that the trial is yet to substantially progress.
Write this paragraph first and rewrite it last. On a heavy list, this is what gets read. If a judge finishes the synopsis without knowing what has changed since the last refusal, the petition has failed before the hearing.
Memo of Parties
MEMO OF PARTIES
[Name] son/daughter of [———], resident of [village/town, Police Station, District]
(Confined in ____________ Jail, ____________)…Petitioner
Versus
State of [———]…Respondent
(The petitioner is not a Proclaimed Offender)
Description Block
[SECOND] Bail petition under Section 483 BNSS, 2023 (erstwhile Section 439 CrPC, 1973) before this Hon'ble High Court seeking the concession of regular bail to the petitioner–accused in FIR No. ______, dated __________, under Sections __________, registered at Police Station __________, District __________ (Annexure P-1);
AND/OR
Further seeking the concession of interim bail in the said FIR during the pendency of the present petition;
AND/OR
In the alternative, any other order or direction which this Hon'ble Court may deem fit and appropriate, in the interest of justice.
The Facts
RESPECTFULLY SHOWETH:
1. That the petitioner is a permanent resident of the address given in the memo of parties and, being a citizen of India, craves the indulgence of this Hon'ble Court by filing the present petition.
2. That FIR No. ______ dated __________ under Sections __________ was registered at Police Station __________ against the petitioner [and others] on the statement of the complainant. A true translated copy of the FIR is appended as Annexure P-1.
3. That as per the FIR (P-1), the prosecution case in brief is that [state the allegations neutrally and completely].
4. That the petitioner was arrested on __________ and has been in continuous judicial custody since that date, i.e. for a period of approximately ___ years, ___ months and ___ days as on the date of filing.
5. That the true factual position is that [the defence version, only so far as it is supported by material on record]. A copy of [document] is appended as Annexure P-2.
6. That the petitioner earlier approached the Court of the learned [Additional] Sessions Judge, __________, vide Bail Application No. __________, which was dismissed vide order dated __________. A copy is appended as Annexure P-3.
7. That thereafter the petitioner approached this Hon'ble Court vide CRM-M-__________ , which was dismissed vide order dated __________. A copy is appended as Annexure P-4.
8. That since the dismissal of the aforesaid petition there has been a change in circumstances, namely: firstly, [the new material]; and secondly, the custody of the petitioner has since crossed [period].
9. That the trial in Sessions Case No. __________ will take considerable further time. Charges were framed vide order dated __________ (Annexure P-5). The case is presently fixed for prosecution evidence, and [the FSL report / the material witness / the sanction] is still awaited. A copy of the latest order sheet dated __________ is appended as Annexure P-6.
Paragraph 9 is the paragraph that gets bail granted in long-custody cases, and it is the one most often written badly.
Do not plead "the trial will take time." That is an opinion. Annex the order sheet. The zimni or daily order shows, in the trial court's own hand, that the matter has been adjourned for prosecution evidence on five successive dates, that the forensic report has been called for repeatedly and not received, that two of eleven witnesses have been examined in two years. That is not argument, it is proof — and it converts a plea for sympathy into a documented submission on delay under Article 21. One page of order sheet is worth three paragraphs of adjectives.
The Grounds
The High Court format sets these out as separate "BECAUSE" grounds. Each should be a self-contained proposition, and they should run in descending order of strength — not chronological order.
GROUNDS:
That the petitioner–accused deserves the concession of regular bail on the following grounds:
BECAUSE the present petition is maintainable, there having been a material change in circumstances since the dismissal of the earlier petition vide order dated __________ (Annexure P-4), namely [the change], which goes to the root of the prosecution case and warrants reconsideration.
BECAUSE the petitioner has been in continuous judicial custody since __________, i.e. for more than ___ years and ___ months, and the trial is nowhere near conclusion. Continued incarceration in these circumstances would violate the petitioner's fundamental right under Article 21 of the Constitution of India.
BECAUSE the petitioner is a first-time offender who has undergone detention exceeding one-third of the maximum period of imprisonment specified for the offence charged, and is accordingly entitled to be released under Section 479 of the BNSS, 2023.
BECAUSE the trial is proceeding at a slow pace and is presently fixed for prosecution evidence; even after ___ years of custody the prosecution has examined only ___ of ___ cited witnesses, and essential reports remain awaited, as is evident from the order sheet (Annexure P-6).
BECAUSE [the evidentiary weakness — e.g. the complainant is not an eye-witness; the case rests on circumstantial material; there is no recovery at the instance of the petitioner; no forensic material connects the petitioner]. Suspicion, however grave, cannot take the place of proof, and cannot justify indefinite pre-trial detention.
BECAUSE the petitioner enjoys the presumption of innocence until proven guilty, and it is settled that bail is the rule and jail the exception. Continued detention would operate as pre-trial punishment, which is impermissible in law.
BECAUSE the petitioner has clean antecedents, is not involved in any other case, has deep roots in society and a fixed place of residence, and there is no likelihood of his absconding.
BECAUSE there is not a single allegation, at any stage of the proceedings, that the petitioner has attempted to influence, threaten or win over any witness or to tamper with the evidence in any manner.
Undertakings and Statutory Declarations
That the petitioner undertakes not to leave India without the prior permission of this Hon'ble Court, and further undertakes that he shall not in any manner attempt to influence, threaten or win over the prosecution witnesses or tamper with the evidence.
That the petitioner is ready and willing to abide by all terms and conditions that may be imposed by this Hon'ble Court, including the condition of appearance on each and every date of hearing.
That the petitioner has not filed any such or similar application before the Hon'ble Supreme Court of India, nor is any such application pending before the learned Sessions Court or any other court of competent jurisdiction. The petitioner has never been declared a proclaimed offender by any court of law.
[In a legal aid matter] That as per the instructions received by the Legal Aid Counsel, the petitioner is not involved in any other case or FIR except the present one, and the same may be verified from the learned State Counsel.
That last sentence is a small piece of good practice worth adopting generally. A legal aid counsel is dependent on instructions taken across a jail visit and cannot personally verify antecedents. Saying so, and inviting verification from the State, is more honest than a flat assertion — and a court reads it as candour rather than weakness.
Prayer
It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to:
(i) Allow the present petition and release the petitioner–accused on regular bail in FIR No. ______ dated __________ under Sections __________, Police Station __________;
(ii) In the alternative, grant the concession of interim bail to the petitioner during the pendency of the present petition;
(iii) Exempt the petitioner from filing certified copies of Annexures P-1 to P-__, downloaded / true translated copies having been annexed, in the interest of justice;
(iv) Pass any other order or direction which this Hon'ble Court may deem fit and proper in the interest of justice.
Index Notes That Must Not Be Omitted
- No such or similar case has been filed before this Court or the Supreme Court.
- Whether any sitting or former MP/MLA is involved in the case: YES / NO. This declaration flows from the Supreme Court's directions on the monitoring of cases against legislators, and its omission attracts an objection.
- Identity of the petitioner — in a legal aid matter, established by the Legal Services Committee application or letter filed with the Vakalatnama.
- Whether an affidavit is filed, and if not, the reason — petitioner confined in jail.
- Connected cases, if any.
Five Rules for the Regular Bail Petition
- Lead with the change, not the innocence. On a second petition, the first substantive ground must be what is new. Everything before that is throat-clearing.
- Count the custody precisely. Years, months and days from the date of arrest, stated as at the date of filing. A vague "about two years" invites the State to correct you.
- Prove the delay with the record. Charge order, order sheets, witness tally. Never assert a slow trial without annexing the evidence of it.
- Do the Section 479 arithmetic in every case. Maximum sentence divided by three for a first-time offender. It is a statutory entitlement, not a plea for indulgence, and it is routinely overlooked.
- Attack the evidence, not the complainant. "There is no recovery at the instance of the petitioner" is a submission. "The complainant is a liar" is not.
Filing Checklist
| Before filing |
|---|
| Section 483 BNSS cited — not 482 (anticipatory), not 439 CrPC |
| First / Second / Third petition stated on the description block and in the synopsis |
| Every earlier order — Sessions and High Court — annexed and disclosed |
| Change in circumstances stated in the synopsis and as the first ground |
| Custody computed to the day; arrest date verified against the record |
| Section 479 BNSS threshold calculated and pleaded if crossed |
| Charge order and latest order sheet annexed as proof of trial pace |
| "Confined in ______ Jail" on the memo of parties and cause title |
| Proclaimed offender declaration — verified before signing |
| MP/MLA declaration in the index notes |
| Note explaining absence of affidavit (petitioner in custody) |
| FIR translated and certified; exemption from certified copies prayed for |
| Special statute checked — NDPS s 37, UAPA, PMLA s 45 change the test entirely |
An anticipatory bail petition argues that custody is unnecessary. A regular bail petition argues that custody has gone on long enough, and that something has changed. Keep those two ideas separate in your head and the drafting follows: what is new, how long he has been inside, how slowly the trial is moving, and why none of the reasons for keeping him there survive scrutiny.
Related on Lawizard
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- Section 420 No Longer Exists: Cheating, Criminal Breach of Trust and Misappropriation Under the BNS
- IPC to BNS Section Converter — search any section across both codes
- Attempt, Abetment and Criminal Conspiracy — Sections 45 to 62, BNS 2023
Disclaimer: This is a drafting guide prepared for the assistance of law students, young advocates and candidates preparing for judicial services and the AIBE. The model draft is a template only. All names, facts, figures, dates, offences and particulars are blank or notional, and it does not reproduce, describe or relate to any actual case, client, party or proceeding. Court formats, urgent-application rules, paper-book requirements, declarations, affidavit practice and annexure conventions differ between High Courts and are amended from time to time; before filing, consult the Rules and Orders and current practice directions of the High Court concerned. Statutory provisions and case law are stated in outline for study purposes and must be verified against the bare Acts and the full reports — in particular, Section 479 BNSS contains provisos and exclusions that are not set out exhaustively here and must be read in full before being pleaded, and bail under the NDPS Act, UAPA and PMLA is governed by separate statutory tests not covered by this template. Nothing in this article is legal advice, no advocate-client relationship arises from reading it, and no representation is made that the template is suitable for any particular case. A person in custody should be represented by a lawyer instructed on the actual facts; free legal aid is available through the State and District Legal Services Authorities. Please read our Disclaimer for more details.
