Section 482: The Concept of Anticipatory Bail under BNSS

Bare provision of Section 482 : Anticipatory Bail

482. Direction for grant of bail to person apprehending arrest.—(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.

Purpose of Anticipatory Bail

The purpose of anticipatory bail is to ensure that no innocent person faces unnecessary harassment because of a false case. Therefore, any person apprehending arrest may apply for a grant of anticipatory bail.

The concept of Anticipatory Bail

The marginal note of the section begins with direction for the grant of bail to a person apprehending arrest. It specifies that that the person is still not arrested and is apprehending arrest. So, he is applying for anticipatory bail.

Reason to believe

The person must have a valid reason to believe that he may be arrested for an accusation of a non-bailable offence. The High Court or Session Court only grants bail when they are satisfied there are necessary reasons for which a person is apprehending arrest. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, it was held that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds.

Accusation of non-bailable nature

It is an important requisite that anticipatory bail can be taken only for offences which are of a non-bailable nature. It is because for cases of bailable nature Section 478 of BNSS comes into play. In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1. The Constitution Bench confirmed that the only pre-condition for exercise of power under section 438 (Now 482) is that the person should have a “reason to believe that he may be arrested on an accusation of committing a non-bailable offence.”

Discretion of the Court

The High Court or Session Court, hearing a matter of anticipatory bail, has discretion to grant or reject anticipatory bail. The Court grants anticipatory bail considering the nature of the allegation, proximity of the allegation from the actual act from the perspective of a reasonable man, previous criminal antecedents, possibility of escaping court proceedings, chances of tampering with evidence or witnesses, etc. There are no strict guidelines for the Court. Each case must be decided on its merits. In a case involving the single nature of the offence. One co-accused may be granted bail, while the other may be rejected due to the degree of participation and involvement inferred from the FIR.

Court to invoke conditions while granting Anticipatory Bail

The Court granting anticipatory bail may impose conditions, depending on the nature and facts of the case. The condition is listed under Section 482(2). It is perfectly reasonable to give conditions if the situation demands. Any person breaching any of the conditions imposed by the Court. The Anticipatory bail granted may be cancelled on non-fulfilment of any condition imposed by the Court.

Arrest or issuance of warrant after grant of anticipatory bail

Sub-section 3 provides that if a person is arrested without a warrant after the grant of anticipatory bail, he shall be released on bail either at the time of arrest or at any time while in the custody of such officer.

Further, the second part of sub-section 3 provides that if a magistrate decides that a warrant may be issued in the first instance against such a person, he shall issue a bailable warrant in conformity with the anticipatory bail order.

No Anticipatory Bail for the offence under Section 65and Section 70(2) BNS

Anticipatory bail cannot be granted for an offence under Section 65and 70(2), which provides punishment for rape on a woman under sixteen years of age and gang rape where the woman is under eighteen years of age, respectively.