Anticipatory bail is a direction that, if a person is arrested, they shall be released on bail. Since 1 July 2024 it is governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces Section 438 of the Code of Criminal Procedure.
Who can apply
Any person who has reason to believe they may be arrested for a non-bailable offence can apply to the Court of Session or the High Court. An FIR need not have been registered yet, but the apprehension of arrest must be based on concrete facts, not a vague fear.
What courts consider
- The nature and seriousness of the accusation
- The applicant's antecedents, including any previous imprisonment
- The possibility of the applicant fleeing from justice
- Whether the accusation appears to have been made to injure or humiliate the applicant
Courts commonly impose conditions, such as joining the investigation when required, not leaving the country without permission and not contacting witnesses. In Sushila Aggarwal v. State (NCT of Delhi) (2020), a Constitution Bench held that anticipatory bail need not be limited to a fixed period and may continue until the end of the trial, unless the court directs otherwise.
Because the first hearing often decides whether interim protection is granted, the application should set out the facts and documents clearly and be filed without delay.