Bail in a Rape Case (Section 64 BNSS / Section 376 IPC): What the Law Actually Allows

Rape under Section 64 of the BNSS — formerly Section 376 of the IPC — is a non-bailable offence. Bail is not a legal right for the accused. It is granted only at the discretion of the court.

Is Bail Possible in a Rape Case?

Yes, bail is legally possible, but it is not guaranteed. A non-bailable offence means the police cannot grant bail at the station — only a court can. The accused or their family must file a bail application before the Sessions Court or the High Court.

Which Court Can Grant Bail?

For serious offences like rape, bail applications are heard by the Sessions Court in the district where the case is registered. If bail is denied there, the accused can approach the High Court. The Supreme Court can also be approached in exceptional circumstances.

What Does the Court Look At?

The court’s decision is not arbitrary. Judges typically consider:

• The seriousness of the charge and the evidence on record
• The safety of the survivor and the risk of intimidation
• Whether the accused might tamper with evidence or influence witnesses
• The criminal antecedents of the accused
• The likelihood of the accused fleeing before trial

No single factor is decisive. The court weighs all of them together.

Does the Prosecution Get a Say?

Yes. Before bail is decided in a case of this nature, the prosecution — representing the state — must be given an opportunity to be heard. The survivor or her representatives may also have the right to be heard in certain circumstances. This is a key procedural step families often do not know about.

Are There Cases Where Bail Is Even Harder to Get?

Yes. The law provides for stricter bail conditions in aggravated rape cases — for example, where the victim is a minor, where the accused holds a position of trust or authority, or where the offence involves gang rape. In these situations the bar for bail is higher, and the specific provisions that apply should be confirmed with a lawyer based on the exact facts of the case.

What Should a Family Do First?

If a family member has been arrested in a rape case, the single most important step is to engage a qualified criminal lawyer immediately — before the bail application is drafted. The strength of a bail application depends heavily on how it is framed and what it addresses.

Rihaai connects families to vetted lawyers who handle bail matters. Find a lawyer through Rihaai →