How do I get bail in Odisha, and when does the Orissa High Court hear it?

The law that applies now

Since 1 July 2024, bail is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973. The offences themselves are now in the Bharatiya Nyaya Sanhita, 2023 (BNS). For an FIR registered before 1 July 2024, older proceedings may still refer to CrPC sections, so check which law the court is applying. The main bail provisions are:

Bailable and non-bailable offences

The First Schedule to the BNSS says whether each offence is bailable. In a bailable offence, a person who is arrested is entitled to be released on bail, by the police station or by the court, on furnishing a bail bond with or without sureties (Section 478). The police officer making the arrest must tell the person that they have this right (Section 47(2)).

In a non-bailable offence, bail is not a matter of right; the court decides. "Non-bailable" does not mean bail can never be granted. It means an application has to be made and heard.

Regular bail: which court to approach in Odisha

1. The Magistrate's court (for example, the court of the Judicial Magistrate First Class or the Sub-Divisional Judicial Magistrate where the case is pending). Under Section 480, the Magistrate can grant bail in most non-bailable offences, but ordinarily cannot where there are reasonable grounds to believe the person is guilty of an offence punishable with death or life imprisonment, or where certain previous convictions exist. Even then, a woman, a child, or a person who is sick or infirm may be released.
2. The Sessions Court of the district, under Section 483. This is the usual next step if the Magistrate refuses bail, and the first court for serious offences triable by a Court of Session.
3. The Orissa High Court at Cuttack, also under Section 483. The High Court's power is concurrent with the Sessions Court, but in practice the High Court generally expects the Sessions Court to have been approached first. A regular bail application in the High Court is filed as a BLAPL case.

A rejected application can be renewed when there is a genuine change in circumstances, such as filing of the charge sheet, a long period in custody, or a co-accused being granted bail on similar facts (parity).

Anticipatory bail (before arrest)

A person who reasonably fears arrest for a non-bailable offence can apply for anticipatory bail under Section 482 to the Sessions Court or the High Court. If granted, the person, if arrested, is released on bail. In the Orissa High Court, an anticipatory bail application is filed as an ABLAPL case, and the usual practice is to move the Sessions Court first.

• The court may impose conditions, such as appearing for interrogation when required, not leaving India without permission, and not contacting or threatening witnesses.
• In Sushila Aggarwal v. State (NCT of Delhi) (2020), a Constitution Bench of the Supreme Court held that anticipatory bail need not be limited to a fixed period and can continue until the end of the trial, unless the court decides otherwise on the facts.
• Anticipatory bail is not available for certain sexual offences against minor girls listed in Section 482 itself.
• If a police notice of appearance under Section 35(3) has been received for an offence punishable with up to seven years, complying with it is important; see what to do if an FIR is registered against you.

Special laws add stricter conditions: see bail in NDPS cases and Section 37 and the SC/ST (Prevention of Atrocities) Act, which bars anticipatory bail except in narrow cases. What happens on arrest and in remand is covered in the rights of an arrested person and police and judicial custody.

What courts consider

There is no fixed formula. Courts commonly weigh:

• the nature and gravity of the accusation and the punishment it carries;
• the material in the case diary supporting it, at a prima facie level only;
• whether the person may flee, tamper with evidence or influence witnesses;
• the person's antecedents, roots in the community and conduct after the FIR;
• the period already spent in custody and how long the trial is likely to take;
• parity with co-accused who have been granted bail; and
• age, health, and family responsibilities.

The Supreme Court has repeatedly said that bail is the rule and jail the exception, notably in Satender Kumar Antil v. CBI (2022). Special statutes, such as the NDPS Act, 1985 and the Unlawful Activities (Prevention) Act, 1967, contain stricter bail conditions that apply in addition to the BNSS.

Default bail when the charge sheet is not filed in time

Under Section 187(3), if the police do not file the charge sheet within 90 days (for offences punishable with death, life imprisonment or imprisonment of not less than ten years) or 60 days (for other offences) of custody, the accused becomes entitled to be released on bail if they apply and are ready to furnish bail. The Supreme Court has called this an indefeasible right, but it must be claimed by an application before the charge sheet is filed. Special statutes can provide longer periods.

Long-detained undertrials

Under Section 479, an undertrial who has been detained for up to half of the maximum sentence for the offence is to be released on bail. For a first-time offender, the period is one-third of the maximum sentence. This does not apply to offences punishable with death or life imprisonment. The jail superintendent is required to apply to the court in eligible cases.

Documents usually needed

• A copy of the FIR, and the charge sheet if it has been filed.
• Certified copy of the order rejecting bail by the lower court, when moving the Sessions Court or High Court.
• Details of the arrest and custody (date of arrest, remand orders).
• Identity and address proof of the accused.
• For sureties: identity and address proof, and proof of solvency, such as a Record of Rights for land (see Record of Rights in Odisha), a salary certificate or other documents the court accepts.
• A vakalatnama in favour of the advocate, and an affidavit where required.

How a bail application moves

1. The application is filed with the documents and the court issues notice to the Public Prosecutor (in the High Court, the State's counsel).
2. The court may call for the case diary from the police.
3. Both sides are heard. The informant or victim may also be heard in some offences.
4. If bail is granted, the bail bond and sureties are furnished before the court named in the order, and a release order is sent to the jail.

Bail can be cancelled by the Sessions Court or High Court if the conditions are broken, for example by threatening witnesses or failing to appear. Attending every date and following each condition is essential.

If you cannot afford an advocate

A person in custody is entitled to free legal services under the Legal Services Authorities Act, 1987, whatever their income. Legal aid counsel are available through the District Legal Services Authority and the High Court Legal Services Committee. See free legal aid in Odisha. Information on criminal matters handled is on the criminal practice area page, and court addresses are listed under courts.

Frequently asked questions

Official sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code)
• Orissa High Court, Cuttack (official website)
• eCourts services: case status and orders
• Odisha State Legal Services Authority
• Supreme Court of India: Sushila Aggarwal (2020) and Satender Kumar Antil (2022)

General information, not legal advice. Every matter turns on its own facts and documents, and the law and official procedures change. Check the current position with the concerned office, or take advice on your own facts, before acting.