The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from July 1, 2024. Among the provisions that have seen notable changes is anticipatory bail — the relief sought by a person who apprehends arrest in a non-bailable offence.
What Is Anticipatory Bail?
Anticipatory bail is a direction by the Sessions Court or High Court that in the event of arrest, the applicant shall be released on bail. It is sought before arrest — typically when a person has reason to believe they may be implicated in a criminal case. Under both the CrPC and BNSS, this remains an important protective remedy.
Key Changes Under BNSS
The BNSS retains the core framework of anticipatory bail but introduces some important modifications:
- Duration of interim relief: Under the CrPC, interim anticipatory bail could be granted pending hearing of the main application. The BNSS has introduced clearer timelines for disposing of anticipatory bail applications.
- Conditions of bail: The BNSS continues to allow courts to impose conditions such as surrendering the passport, not leaving the country, making oneself available for interrogation, and not tampering with evidence.
- Offences excluded: Certain offences — particularly those carrying the death penalty or life imprisonment — remain subject to stricter scrutiny for anticipatory bail, similar to the earlier framework.
- Mandatory appearance: The BNSS places greater emphasis on the applicant's appearance before the court when the application is heard.
Factors Courts Consider
Whether granting or refusing anticipatory bail, courts generally weigh the nature and gravity of the accusation, the antecedents of the applicant, the possibility of the applicant fleeing justice, and whether the accusation appears to be made with the intent to humiliate or injure the applicant.
Practical Takeaway
If you apprehend arrest, time is critical. An anticipatory bail application must be filed before the arrest — once arrested in a non-bailable offence, the route changes to regular bail. Early engagement with a lawyer familiar with the specific offence and the applicable court's practice is essential.