How Is Bail Decided in Murder Cases?

Can you get bail in a murder case?

Yes. Murder is a non-bailable offence, which means bail is at the court's discretion, not a right. There is no provision in the Bharatiya Nyaya Sanhita, 2023 (BNS) or the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) that bars bail in a murder case. Courts in Delhi grant bail in murder cases regularly, but usually after looking hard at the evidence and, often, after some time has passed.

The honest picture is this. A bail application filed in the first weeks after arrest, before the chargesheet, in a case with eyewitnesses who name the accused as the person who killed, is likely to be refused. The same accused may get bail two or three years later, once the eyewitnesses have been examined at trial and the trial is still far from over. Most of the real work lies between those two extremes.

Murder under Section 103 BNS replaced Section 302 IPC from 1 July 2024. FIRs registered before that date continue under the IPC and CrPC because of the savings clause in Section 531 BNSS, but the courts apply the same principles to bail under both.

The provisions that apply

Section 103 BNS bail: why the Sessions Court comes first

Section 103 BNS bail cannot ordinarily be granted by the magistrate before whom the accused is first produced. Section 480(1) BNSS stops a magistrate from releasing a person where there are reasonable grounds to believe he committed an offence punishable with death or life imprisonment. The first real bail court in a murder case is therefore the Sessions Court: an Additional Sessions Judge at Tis Hazari, Saket, Patiala House, Karkardooma, Rohini, Dwarka or Rouse Avenue, depending on where the case is.

If the Sessions Court refuses bail, the accused can apply to the Delhi High Court under Section 483 BNSS. This is not an appeal. It is a fresh application, and the High Court considers the case afresh, though it will want to know why the Sessions Court refused. The High Court and the Sessions Court have concurrent power, and in theory a person can go straight to the High Court, but in murder cases the High Court generally expects the Sessions Court to be approached first. See whether you can apply directly to the Delhi High Court for bail for the reasons.

In the High Court, regular bail applications are heard by single judges according to the criminal roster. A later application by the same accused usually goes to the same judge who heard the earlier one, if available. Official case status and cause lists are on the Delhi High Court's own website; this is a private law firm website, not the court's.

What the court weighs in a murder bail application

• The prima facie case. Whether there is reasonable material connecting the accused to the death: eyewitnesses, CCTV, recovery of a weapon, forensic results, a dying declaration.
• The role attributed to the accused. Who struck the fatal blow, who held the victim, who was merely present. The Supreme Court in Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) listed the nature of the accusation and the evidence among the main factors.
• The nature of the evidence. A case resting on direct eyewitness accounts is treated differently from one built on circumstances such as last seen together or recovery.
• The medical evidence. The postmortem report: number and nature of injuries, the fatal injury, the weapon, and whether it fits the prosecution story.
• Risk to witnesses. Whether the accused is in a position to threaten or influence witnesses, especially neighbours, relatives or employees.
• Risk of absconding. Roots in the community, family, a job, property, past conduct while on bail or in earlier cases.
• Criminal antecedents. Other cases, especially of violence. In Neeru Yadav v. State of U.P. (2014), the Supreme Court set aside bail where antecedents were ignored.
• Time in custody and pace of trial. How long the accused has been in jail, how many witnesses have been examined, and how many remain.

Role and evidence: what changes the picture

Many murder FIRs in Delhi name several people. A quarrel over parking, a family property dispute or a fight outside a liquor shop turns violent, and the complainant names everyone he saw. At the bail stage, the court separates the roles. The person said to have stabbed or shot the victim faces the hardest path. Those said to have been present, or to have held the victim, or to have arrived after the fatal blow, often stand a better chance, particularly once the chargesheet shows what the evidence against each of them actually is.

Liability for others' acts comes through common intention under Section 3(5) BNS (old Section 34 IPC) or through the unlawful assembly provisions. The prosecution will say every member shared the intention. At the bail stage, the court looks at whether there is material showing a shared plan, such as arriving together with weapons, or whether the accused was a bystander swept into the FIR.

Circumstantial cases need closer scrutiny. Where the case rests on last seen evidence, a recovery made after a disclosure statement, or call records, the court asks whether the chain is complete enough at the prima facie stage. A recovery from an open place accessible to everyone, or a last seen witness who surfaced weeks later, can weaken the case for custody. A dying declaration naming the accused, on the other hand, carries great weight.

Before Advocate B.K. Singh files a bail application in a murder case, he reads the postmortem report alongside the FIR and the eyewitness statements. A mismatch between the injuries and the story, such as a single wound where the FIR describes repeated blows by five people, is often the most persuasive point a defence has at the bail stage.

Murder or culpable homicide: the charge itself

Not every death caused by violence is murder in law. Culpable homicide not amounting to murder under Section 105 BNS (old Section 304 IPC) covers, among other things, deaths in a sudden fight in the heat of passion without premeditation, and deaths caused under grave and sudden provocation. The punishment is lower, and bail is considerably easier where the facts point that way.

Police in Delhi often register a murder FIR first and leave the question of the exact offence to the chargesheet and the framing of charges. At the bail stage, the defence can argue that, on the prosecution's own story, the case falls under Section 105 rather than Section 103. A single blow with whatever was at hand in a sudden quarrel, with no previous enmity, is the classic example.

Courts will not decide this question finally at the bail stage, and they say so. But a strong prima facie argument that the offence is not murder is a recognised factor in favour of bail, and it often becomes stronger once the chargesheet is filed and the charge is framed by the Sessions Court.

Time in custody and the pace of the trial

Bail in a serious offence is not meant to be punishment before trial. The Supreme Court has said this repeatedly, from Gudikanti Narasimhulu (1978) to Satender Kumar Antil v. CBI (2022). In murder cases, this principle shows up most clearly in long custody. Where an accused has spent several years in jail and the trial is nowhere near its end, the Delhi High Court regularly weighs the right to a speedy trial under Article 21 against the gravity of the charge. Our guide on the Satender Kumar Antil judgment explains how it is used.

There is no fixed number of years after which bail must be given. Section 479 BNSS (old Section 436A CrPC), which provides for release of undertrials who have served part of the maximum sentence, does not apply to offences punishable with death or life imprisonment. So in murder cases, long custody is an argument, not an entitlement. Its weight depends on how many witnesses remain, whether the delay is due to the prosecution or the defence, and whether the key witnesses have already deposed.

That last point matters a great deal. Once the eyewitnesses have been examined and cross-examined at trial, the fear that the accused will influence them largely falls away. Many murder bail applications are filed, and granted, at that stage.

If the police have not filed the chargesheet within 90 days, the accused can claim default bail under Section 187(3) BNSS, whatever the gravity of the offence. The claim must be made before the chargesheet is filed. See what default bail is and when you can claim it.

The victim's family has a voice

The family of the deceased is not a bystander in bail proceedings. In Jagjeet Singh v. Ashish Mishra (2022), the Supreme Court held that victims have a right to be heard at every stage of criminal proceedings, including bail, and it cancelled a bail order partly because the victims had not been heard properly. Delhi courts generally ensure that the complainant or the victim's family is informed of a bail application in a murder case.

The family can oppose bail through the Public Prosecutor or through its own counsel. Its most useful contribution is facts the court may not otherwise have: threats received since the arrest, the accused's influence in the locality, other cases against him, or the real relationship between the parties. A general plea that the crime was terrible adds little, because the court already knows that.

If bail is granted and the accused misuses it, the family can apply for cancellation. Our guide on whether bail can be cancelled after it is granted explains the grounds. A bail order that ignored the gravity of the case or the accused's role can also be challenged before a higher court, as the Supreme Court did in Ajwar v. Waseem (2024).

How a murder bail application proceeds in the Delhi High Court

This is the usual course for a regular bail application under Section 483 BNSS after the Sessions Court has refused bail.

1. Collect the record

   Get the FIR, the Sessions Court's rejection order, the chargesheet if filed, the postmortem report, the nominal roll from jail showing custody period, and the trial court order sheets. The nominal roll is obtained through the jail.

2. Draft the application

   The application sets out the facts, the role attributed to the accused, the weaknesses in the evidence, the custody period, the stage of trial, the accused's background and any earlier bail applications. It must disclose every earlier rejection.

3. File and list

   The application is filed through the High Court's e-filing portal with an affidavit, usually sworn by a family member, and an advance copy to the State's standing counsel. It is typically listed within a week or two.

4. Notice and status report

   On the first date, the court issues notice and calls for a status report from the police, usually within two to four weeks. The IO is often directed to inform the complainant. The status report sets out the evidence, the stage of trial and the accused's antecedents.

5. Hearing

   Arguments are heard, often over two or more dates. The court may call for the trial court record or a report on the progress of trial. The victim's family may be heard.

6. Order

   The court grants bail on conditions, or refuses it, sometimes with liberty to apply again after the material witnesses are examined. A refusal can be challenged before the Supreme Court by a special leave petition.

A step-by-step account of the general High Court bail process, and how long each stage takes, is on our page on bail from the Delhi High Court.

Typical time and cost

Documents to collect

Interim bail and custody parole in murder cases

Even where regular bail is refused, an accused in a murder case may get interim bail for a short period for a specific reason: his own surgery, a parent's serious illness, a child's wedding, or the last rites of a close relative. The court usually fixes a short period, imposes strict conditions and directs surrender on a set date. See our guide on interim bail for medical treatment in Delhi.

Where the court is unwilling to release the accused even briefly, it may allow custody parole: a visit for a few hours under police escort, for example to attend a funeral. This is common where the risk to witnesses is high. Elderly or seriously ill accused have separate arguments for bail on health grounds, covered in our guide on bail on health grounds.

Interim bail must be used exactly for the purpose for which it is given. An accused who overstays, travels elsewhere or contacts witnesses during interim bail will find every later application much harder.

What the defence should avoid

The commonest mistake is filing too soon and too often. A fresh application a month after the High Court refused bail, on the same grounds, is almost always dismissed and leaves a poor impression. Advocate B.K. Singh's practice is to wait for a real change, such as the eyewitnesses being examined or the chargesheet revealing a weaker role, before filing again, because the next bench will ask what has changed since the last order.

The second is overstating the case. Calling a murder FIR completely false, without any material, invites the court to look at the prosecution's best evidence. A measured application that accepts what is clear and challenges what is weak is more persuasive.

The third is family conduct. Relatives who visit the complainant's house to talk about compromise, or who post about the case on social media, damage the accused's chances. Murder is not a compoundable offence, and a settlement does not end the case. Any approach to the victim's family will be presented as an attempt to influence witnesses.

For the victim's family: what you can do

Keep in touch with the IO and the Public Prosecutor so that you know when a bail application is listed. Ask to be informed of the date, and attend, either yourself or through counsel. Prepare a short written note of any threats or approaches since the arrest, with dates, and of any other cases you know of against the accused.

If you are being pressured to compromise or to change your statement, report it to the police in writing the same day and keep the diary number. That record will matter at the bail stage and, later, at the trial.

If bail is granted, ask for a copy of the order and read the conditions. You are entitled to report any breach, and a well-documented breach is the strongest ground for cancellation.

After conviction: bail while the appeal is pending

Once the Sessions Court convicts and sentences the accused to life imprisonment, the question is no longer bail but suspension of sentence. The convicted person files an appeal in the Delhi High Court under Section 415 BNSS (old Section 374 CrPC) and applies under Section 430 BNSS (old Section 389 CrPC) for the sentence to be suspended while the appeal is pending. The tests are stricter than for bail before trial, because the presumption of innocence no longer applies in the same way.

In practice, the High Court looks at whether there is a clearly arguable point that might lead to acquittal or a lesser offence, how long the convict has already served, and how long the appeal is likely to take to be heard. Criminal appeals against life sentences can wait years for final hearing, and that delay, combined with a substantial period already served, is a common ground for suspension. Our page on suspension of sentence during appeal explains the process.

The victim's family can also appeal, for example against an acquittal or a conviction for a lesser offence, and can oppose suspension of sentence. The rules on time limits and leave differ between an appeal by the State and one by the victim.

What to do this week

If a family member is in custody, collect the FIR, the arrest memo, the postmortem report and the order sheets, and request the nominal roll from the jail. Count the days since arrest: if the chargesheet has not been filed and 90 days are near, a default bail claim may be the fastest route. Then decide, with counsel, whether the time is right for a bail in murder case application in the Sessions Court or the High Court, or whether waiting for a change in circumstances will give a better chance. Our page on Delhi High Court bail sets out the overall process.

If you are the victim's family, stay informed of every bail date and record every threat. Juvenile accused are governed by different rules, explained in our guide on bail under the Juvenile Justice Act.

For advice on your own papers or updates on the law on bail in murder cases, contact Advocate B.K. Singh.