Anticipatory bail -- pre-arrest protection sought when a person fears arrest on an accusation of a non-bailable offence -- is now governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the old Section 438 of the Code of Criminal Procedure, 1973, with effect from 1 July 2024.
Anticipatory bail -- BNSS Section 482
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) allows a person who apprehends arrest on
an accusation of a non-bailable offence to apply to the Sessions Court or High Court for a direction that, if
arrested, they be released on bail. Courts weigh factors including the nature and gravity of the accusation,
the applicant’s antecedents, the likelihood of the applicant fleeing, and whether the accusation is made
to injure or humiliate the applicant by having them arrested -- broadly the same considerations developed
under the old CrPC Section 438, since the BNSS largely retains the substance of the anticipatory bail
provision.
A state-specific nuance worth noting
Some states had, over the years, amended CrPC Section 438 to restrict or bar anticipatory bail for specific
categories of offences within that state. Because the BNSS is a fresh central enactment rather than a simple
renumbering of the CrPC, courts in at least some cases have held that state-specific restrictions tied to the
old Section 438 do not automatically carry over to BNSS Section 482 unless separately re-enacted -- meaning
anticipatory bail may now be more available in a given state than it was under the old CrPC regime there.
This is a genuinely substantive point, not just a numbering change, and should be checked against current
state amendments (if any) to the BNSS.
Regular bail and default bail
Regular bail in non-bailable offences is governed by BNSS Sections 478-484. “Default bail” or
“statutory bail” -- the right to be released on bail if the police fail to file a chargesheet
within the prescribed period (60 or 90 days depending on the offence) -- was previously CrPC Section 167(2)
and is now BNSS Section 187, with the substantive right largely preserved. For an NRI accused who is out of
India when a case is registered, engaging counsel promptly to monitor investigation timelines is particularly
important, since default bail is a right that must be actively claimed before the chargesheet is filed --
it is not something the court grants automatically once the deadline passes, and a short delay in applying
can mean losing the entitlement even though the statutory period has expired.
Can an NRI apply for anticipatory bail in India while living abroad?
An application for anticipatory bail under BNSS Section 482 is typically filed through an advocate before
the relevant Sessions Court or High Court in India; physical presence of the applicant in India for the
hearing itself is generally not required at the anticipatory-bail stage, though courts may impose specific
conditions -- this is a case-specific procedural question best confirmed with counsel handling the matter.
Did anticipatory bail become easier to get after the BNSS replaced the CrPC?
In substance, the anticipatory bail test itself is largely unchanged -- but in some states that had
specifically restricted anticipatory bail under the old CrPC Section 438, courts have held those
state-specific restrictions do not automatically apply to the new BNSS Section 482, which can make
anticipatory bail more accessible there than before, subject to how each state responds with its own BNSS
amendments.
What is default/statutory bail and when does it apply?
Default bail under BNSS Section 187 (previously CrPC Section 167(2)) is the accused’s right to be
released on bail if the investigating agency fails to file a chargesheet within the statutory period -- 60
days for most offences, 90 days for offences punishable with death, life imprisonment, or imprisonment of 10
years or more -- provided the accused applies for it before the chargesheet is actually filed.
