Since 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the Code of Criminal Procedure. Anticipatory bail, earlier under Section 438 CrPC, is now provided for in Section 482 of the BNSS.
What anticipatory bail is
A person who has reason to believe they may be arrested for a non-bailable offence can apply to the Sessions Court or the High Court for a direction that, if arrested, they shall be released on bail. The court considers the nature of the accusation, the applicant’s antecedents, the possibility of the applicant fleeing, and whether the accusation appears intended to humiliate or injure the applicant.
Leading judgments
- Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565: the power to grant anticipatory bail is wide and should not be whittled down by rigid conditions not found in the statute.
- Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1: a Constitution Bench held that anticipatory bail need not be limited to a fixed period and can continue until the end of trial, though courts may impose conditions in appropriate cases.
- Siddharth v. State of U.P., (2022) 1 SCC 676: the police need not arrest every accused at the time of filing a charge-sheet; arrest should be made only where necessary.
Rights on arrest
- Notice instead of arrest: for offences punishable with imprisonment of up to seven years, the police should ordinarily issue a notice of appearance (now Section 35 BNSS) rather than arrest, unless arrest is necessary for reasons recorded in writing. See Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
- Grounds of arrest: the arrested person must be informed of the grounds of arrest and of the right to bail (Section 47 BNSS).
- Informing a relative: the police must inform a relative or friend about the arrest (Section 48 BNSS).
- Production before a Magistrate: within 24 hours, excluding travel time (Section 58 BNSS).
- Custodial safeguards: the requirements laid down in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, including an arrest memo and medical examination.
In Satender Kumar Antil v. CBI, (2022) 10 SCC 51, the Supreme Court reiterated that bail is the rule and jail the exception, and issued directions to prevent unnecessary arrests.
Key judgments
- Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
- Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1.
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
- D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
- Satender Kumar Antil v. CBI, (2022) 10 SCC 51.
- Siddharth v. State of U.P., (2022) 1 SCC 676.
This article is published for general information only. It does not constitute legal advice or solicitation, and no lawyer–client relationship is created by reading it.