Quick answer
Anticipatory bail is a direction by the High Court or the Court of Session that, if a person is arrested on an accusation of a non-bailable offence, he shall be released on bail. It is governed by Section 482 of the B.N.S.S. (old Section 438 CrPC) and can be sought before any arrest by a person who has reason to believe he may be arrested. The court may impose conditions, and the section does not apply to accusations under Section 65 or Section 70(2) of the B.N.S. Under Sushila Aggarwal v. State (NCT of Delhi) (2020), such protection need not normally be limited in time and may last till the end of the trial.
The law
Section 482 B.N.S.S. (Direction for grant of bail to person apprehending arrest):
- Section 482(1): a person who has reason to believe he may be arrested on an accusation of a non-bailable offence may apply to the High Court or the Court of Session; the court may, if it thinks fit, direct that in the event of arrest he shall be released on bail.
- Section 482(2): the court may impose conditions, including that the person (i) makes himself available for interrogation by the police when required, (ii) does not induce, threaten or promise anything to a person acquainted with the facts so as to stop him disclosing them, (iii) does not leave India without the court's previous permission, and (iv) any condition that may be imposed under Section 480(3).
- Section 482(3): if the person is later arrested without warrant on that accusation and is prepared to give bail, he shall be released on bail; if a Magistrate decides to issue a warrant, it must be a bailable warrant in line with the direction.
- Section 482(4): the section does not apply to an accusation under Section 65 B.N.S. (rape of a woman under sixteen or under twelve years of age) or Section 70(2) B.N.S. (gang rape of a woman under eighteen years of age).
Anticipatory bail and regular bail compared
| Point | Anticipatory bail | Regular bail |
|---|---|---|
| Timing | Before arrest, on reasonable apprehension of arrest | After arrest, when the person is in custody |
| Offences | Non-bailable offences | Bailable offences (as of right) and non-bailable offences (at the court's discretion) |
| Court | Only the High Court or the Court of Session | Magistrate, Court of Session or High Court, depending on the case |
| Main B.N.S.S. provision | Section 482 | Sections 478 to 480 and 483 |
The leading case
Sushila Aggarwal v. State (NCT of Delhi), Supreme Court of India, Constitution Bench of five judges, 29 January 2020 (decided under Section 438 CrPC). Following Gurbaksh Singh Sibbia v. State of Punjab (1980), the Court held that protection under anticipatory bail need not invariably be limited to a fixed period, though a court may impose a time limit or other conditions where the facts call for it. It also held that the life of an anticipatory bail order does not normally end when the accused is summoned or charges are framed; it can continue till the end of the trial. The applicant's apprehension of arrest must be based on concrete facts, not vague allegations.
Example
After a bitter family dispute, Neha learns that her in-laws have filed a complaint accusing her of a non-bailable offence, and she has concrete reason to fear arrest. She applies to the Court of Session under Section 482 B.N.S.S. The court grants a direction that, if arrested, she shall be released on bail, on conditions that she joins the investigation when called, does not contact or threaten witnesses, and does not leave India without permission. If the police arrest her, she must be released on furnishing bail.
Old law and current position
Section 482 B.N.S.S. replaces Section 438 of the old CrPC. Old Section 438(1), as amended in 2005, listed factors for the court to weigh (such as the gravity of the accusation and the applicant's antecedents); Section 482(1) does not reproduce that list. The old exclusion in Section 438(4) (Sections 376(3), 376AB, 376DA and 376DB IPC) now refers to Section 65 and Section 70(2) B.N.S. Anticipatory bail is not a certificate of innocence. For the full bail chapter, see B.N.S.S.: Complete Notes.
Exam point
Section 482 B.N.S.S.: only the High Court or Court of Session may direct release on bail in the event of arrest for a non-bailable offence; not available for Section 65 or Section 70(2) B.N.S.; under Sushila Aggarwal (2020) it is not normally time-bound and can last till the end of trial.
