Anticipatory bail is a legal recourse sought before an arrest, primarily acting as a pre-arrest bail. Individuals often apply for this when they fear an imminent arrest based on false or fabricated charges. Applications for anticipatory bail can be filed with the Sessions Court, High Court, or Supreme Court. Section 482 BNSS contains the provisions of the anticipatory bail.

Section 482 (1) BNSS:

An individual who believes they might be arrested for a non-bailable offense can petition the High Court or Court of Session for a directive under this section. The court, at its discretion, may issue an order mandating that if the individual is arrested, they shall be released on bail.

Section 482 (2) BNSS:

When the High Court or the Court of Session issues a direction under subsection (1) of Section 482 BNSS, it has the authority to impose conditions on the individual.

These conditions must be relevant to the specific case and may include:

• Requiring the individual to make themselves available for questioning by a police officer as needed.
• Prohibiting the individual from directly or indirectly influencing, threatening, or offering promises to anyone involved in the case to prevent them from sharing information with the Court or police.
• Preventing the individual from leaving India without prior permission from the Court.
• Imposing any other conditions outlined in subsection (3) of Section 480, as if bail had been granted under that section.

Section 482 (3) BNSS:

If a person who has been granted anticipatory bail is arrested without a warrant by a police officer in charge of a station, based on an accusation, offers bail at the time of arrest or while in custody, they must be released on bail. If a Magistrate later decides a warrant is needed, they must issue a bailable warrant in accordance with the court's guidelines.

Section 482 (4) BNSS:

The provisions of Section 480 (1) for anticipatory bail shall not apply to any case where a person is arrested for allegedly committing an offense under section 65(2) BNSS – rape on a woman under 12 years of age or section 70 BNSS – Gang Rape.

The BNSS removes several guiding factors previously considered by courts when determining applications for anticipatory bail. These factors included the severity of the alleged crime, the accused's criminal history, and the likelihood of their absconding. This removal expands the discretion available to courts when handling such applications. Additionally, the BNSS eliminates the requirement for the applicant seeking anticipatory bail to be present at the final hearing and the issuance of the order.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565