Complete guide to anticipatory bail in India under Section 482 BNSS/Section 438 CrPC: Grounds, conditions, duration, landmark judgments, FAQs. Expert legal advice for pre-arrest protection.

What is Anticipatory Bail?

Anticipatory bail is bail granted before arrest. Unlike regular bail, which is sought after a person is taken into police custody, anticipatory bail allows an individual to approach the court for protection in anticipation of arrest. The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab [1980 AIR 1632] defined it as “a direction to release a person on bail, issued even before the person is arrested.” This landmark judgment established that anticipatory bail is not merely a procedural tool but a safeguard of personal liberty under Article 21 of the Constitution.

In Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694), the Supreme Court further clarified that anticipatory bail is “a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.” The Court emphasized that this provision exists to protect innocent persons from harassment through false accusations motivated by personal or political vengeance.

The Sushila Agarwal and others v. State (NCT of Delhi) and Others (AIR 2020 SUPREME COURT 831) judgment reinforced that anticipatory bail under Section 438 CrPC/Section 482 BNSS is rooted in the constitutional right to personal liberty. The Court held that “anticipatory bail is a device to secure the individual’s liberty” and must be interpreted liberally to prevent unnecessary detention of persons who may be falsely implicated in criminal cases.

When you face the fear of arrest in a criminal case, anticipatory bail becomes your legal shield. Let me walk you through everything you need to know about this crucial protection under Indian criminal law.

Difference Between Anticipatory Bail and Regular Bail

Anticipatory bail is granted before arrest when you apprehend that police may arrest you for a non-bailable offence, while regular bail is sought after you’ve already been arrested and are in police or judicial custody. The Supreme Court in State of Rajasthan v. Balchand (1977 AIR 2447) clarified that regular bail under Section 437/439 CrPC (now Sections 480 and 483 of the BNSS) is to secure release from custody, whereas anticipatory bail under Section 438 CrPC (now Section 482 BNSS) is to prevent arrest itself.

Anticipatory bail can only be granted by the Sessions Court or High Court under Section 438 CrPC/Section 482 BNSS, whereas regular bail can be granted by any court including the Magistrate Court depending on the offence. The key distinction lies in timing and jurisdiction; anticipatory bail is preventive protection sought in anticipation, while regular bail is remedial relief sought after detention.

Difference between Anticipatory Bail and Interim Bail

Interim bail is temporary bail granted for a short, fixed period while your regular bail or anticipatory bail application is pending hearing before the court. Courts grant interim bail to provide immediate relief when they need more time to examine your main bail application on merits. The duration is typically 2-4 weeks.

Anticipatory bail, once granted, continues indefinitely until the trial concludes as established in Sushila Aggarwal (supra), whereas interim bail automatically expires on the date specified in the court order. Interim bail is a stop-gap arrangement; anticipatory bail is substantive protection that becomes effective the moment police attempt arrest.

Difference between Anticipatory Bail and Default Bail

Default bail under Section 187 BNSS/Section 167(2) CrPC is your automatic statutory right if police fail to file a chargesheet within the prescribed time limits; 60 days for Magistrate-triable offences or 90 days for Sessions-triable offences. In case of offences under special laws like Terrorists and Disruptive Activities (Prevention) Act 1987(TADA)/Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS)/Unlawful Activities Prevention Act 1967 (UAPA), Sanjay Dutt v. State Through CBI Bombay (1994) holds that if the chargesheet is not filed within the statutory investigation period, the accused is entitled to default bail as a matter of right without proving any grounds. This indefeasible right under Section 167(2) CrPC/Section 187(2) BNSS is lost once the chargesheet is filed.

Anticipatory bail requires you to satisfy the court on multiple grounds including nature of accusation, your antecedents, likelihood of fleeing, and possibility of false implication. Default bail is granted as a matter of right upon filing a simple application showing investigation timeline exceeded, while anticipatory bail is discretionary and involves detailed judicial evaluation of your case circumstances.

Anticipatory Bail under BNSS

Section 438 of CrPC/Section 482 of BNSS 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Code of Criminal Procedure 1973 with effect from July 1, 2024, has renumbered and slightly modified anticipatory bail provisions. What was Section 438 CrPC/Section 482 in BNSS. The fundamental framework remains similar, but understanding the changes helps you navigate the current legal landscape more effectively.

When and How to Apply 

Under Section 482(1) BNSS, when you have reason to believe that you may be arrested on an accusation of having committed a non-bailable offence, you can apply to the High Court or Court of Session for anticipatory bail even before any FIR is registered. The application must demonstrate reasonable grounds for your apprehension of arrest; not mere fear but concrete reasons like a complaint filed against you, police inquiry initiated, threatening communications from the complainant, or similar circumstances that create legitimate belief of imminent arrest as explained in Gurbaksh Singh Sibbia (supra).

Factors Courts Must Consider 

Section 482(1) of BNSS requires courts to inter alia consider specific factors before granting anticipatory bail: the nature and gravity of the accusation, your antecedents including any previous convictions for cognizable offences, the possibility that you may flee from justice, and whether the accusation appears to be made with the object of injuring or humiliating you by having you arrested. Unlike the CrPC Section 438(1A) which was added by 2005 amendment and explicitly listed these factors, BNSS Section 482 has streamlined the language but courts continue to evaluate these same considerations as they are fundamental to bail jurisprudence.

These factors are discussed in greater detail under the heading “Grounds for Anticipatory Bail: Key Factors Courts Consider”.

Conditions Courts Can Impose 

When granting anticipatory bail under Section 482(2) BNSS, courts can impose conditions tailored to your case including: making yourself available for police interrogation whenever required, not directly or indirectly threatening or inducing any person acquainted with the case facts to prevent them from disclosing information, not leaving India without prior court permission, and any other conditions deemed necessary. The Supreme Court in Sushila Aggarwal (2020) emphasized that conditions must be case-specific and reasonable, not routinely imposed in a mechanical manner that defeats the purpose of granting anticipatory bail.

Release Procedure After Arrest 

Section 482(3) BNSS provides that if you are arrested after obtaining anticipatory bail and you are prepared to furnish bail at the time of arrest or while in police custody, you must be released immediately on bail. If a Magistrate later takes cognizance and decides to issue a warrant for your arrest, it must be a bailable warrant in conformity with the anticipatory bail direction granted by the High Court or Sessions Court, ensuring that you are not detained in custody but are released on execution of the bail bond as per the terms specified in the anticipatory bail order.

Who Can Apply for Anticipatory Bail?

Eligibility Criteria for Anticipatory Bail

Any person who has reason to believe they may be arrested for a non-bailable offence can apply for anticipatory bail under Section 482 BNSS. This includes not only the accused person but also suspects under investigation who have not yet been formally named in an FIR. You must demonstrate reasonable grounds for apprehending arrest; this could be a complaint filed against you, police inquiry notices, threatening communications, or media reports indicating investigation against you for a cognizable non-bailable offence that creates legitimate fear of imminent arrest rather than vague anxiety.

Can You Apply Before FIR is Registered?

Yes, you can apply for anticipatory bail even before an FIR is registered, provided you can demonstrate to the court that there are reasonable grounds to believe that you may be arrested on an accusation of a non-bailable offence. The Supreme Court in Gurbaksh Singh Sibbia (supra) categorically held that an FIR is not a condition precedent for filing anticipatory bail; the moment you have credible apprehension of arrest based on a complaint, police inquiry, or threatening communications, you can approach the Sessions Court or High Court seeking pre-arrest protection to safeguard yourself from the humiliation and consequences of custodial arrest.

Which courts can give Anticipatory Bail

Sessions Court vs High Court

Both the Sessions Court (at district level) and the High Court (at state level) have concurrent jurisdiction to grant anticipatory bail under Section 482 BNSS, giving you the choice of which forum to approach. The Hon’ble Allahabad High Court in Ankit Bharti v. State of Uttar Pradesh (2020 SCC OnLine All 1949) confirmed that while both courts possess equal power, the Sessions Court should ordinarily be approached first as a matter of judicial propriety and protocol. However, if compelling reasons exist; such as advocate strikes, Sessions Court closure, or extraordinary circumstances requiring High Court intervention, you can directly approach the High Court.

In Bhadresh Bipinbhai Sheth v. State of Gujarat (AIR 2015 SUPREME COURT 3090), the Supreme Court reiterated that the power to grant anticipatory bail is discretionary and must be exercised judiciously by both forums, with the understanding that the High Court, being the highest court at the state level, has superintendence over all subordinate courts including Sessions Courts. Therefore, if your anticipatory bail is rejected by the Sessions Court, approaching the High Court becomes your next statutory right rather than a matter of special permission or exceptional circumstances.

Why Should you first Approach Sessions Court

Approaching the Sessions Court first gives you two opportunities to secure anticipatory bail; if rejected by Sessions Court, you can approach the High Court as a matter of right, essentially getting two chances at protection. The Delhi High Court in Tarun Jain v. Directorate General of GST Intelligence (Bail Appln. 3771/2021 & Crl.M.A. 16552/2021) observed that this strategy is prudent because High Courts generally prefer that litigants exhaust Sessions Court remedy first unless extraordinary circumstances justify direct filing, and rejection by Sessions Court does not prejudice your High Court application since both are independent proceedings evaluated on their own merits.

When to Directly Approach the High Court

You should directly approach the High Court when exceptional circumstances make Sessions Court approach impractical or inappropriate; such as widespread advocate strikes preventing Sessions Court functioning, natural calamities, threat to your safety in visiting local Sessions Court, or cases involving high-profile accusations where Sessions Court judges may face undue pressure. In Mansi Jimit Sanghvi v. State of Gujarat (R/Cr. MA 13550 of 2022), the Court granted transit anticipatory bail to a Maharashtra resident facing arrest in Gujarat, holding that High Courts can provide such protection in cross-state cases even pre-FIR; to enable safe approach to the competent forum, underscoring their superior position for comprehensive liberty safeguards over district Sessions Courts.

Grounds for Anticipatory Bail: Key Factors Courts Consider

Nature and Gravity of the Accusation

The seriousness of the offence charged against you is the first factor courts examine when evaluating your anticipatory bail application. If you’re accused of heinous offences like murder, rape, terrorism, or large-scale economic fraud, courts tend to be more cautious in granting pre-arrest bail. However, as the Supreme Court clarified in Gurbaksh Singh Sibbia (supra), even in cases punishable with death or life imprisonment, anticipatory bail cannot be denied mechanically; the court must evaluate whether the accusation appears to be false or whether there are reasonable grounds supporting your apprehension of malicious prosecution.

Antecedents of the Accused

Your past criminal record significantly influences the court’s decision on anticipatory bail. If you have a clean record with no previous convictions or pending criminal cases, courts view your application more favorably. Conversely, if you have been previously convicted of cognizable offences or have multiple criminal cases pending, the court will scrutinize your application more strictly. You should submit character certificates from respectable persons, employment records, educational credentials, and any awards or recognitions to demonstrate your law-abiding nature and standing in society.

Possibility of Fleeing from Justice

Courts assess whether granting you anticipatory bail creates a risk that you might abscond and evade trial. Factors courts consider include your roots in the community; permanent residence, family ties, business establishments, immovable property ownership, stable employment, and social connections. If you hold a valid passport with frequent foreign travel history or have liquid assets that can be easily moved abroad, courts may perceive higher flight risk. To counter this apprehension, you can offer to surrender your passport, provide substantial sureties, or commit to appearing before the investigating officer and court whenever required.

Likelihood of Tampering with Evidence or Influencing Witnesses

The court examines whether your release on anticipatory bail might enable you to destroy evidence, fabricate documents, or intimidate witnesses to derail the investigation and trial. This concern is particularly acute in cases involving documentary evidence that you can access or destroy, digital evidence you can delete, or witnesses who are your subordinates or economically dependent on you. To address this ground, you can demonstrate that the investigation is already complete, key evidence has been secured by police, witnesses are independent persons not under your influence, or that you are willing to abide by stringent conditions preventing any contact with case-related persons.

False Implication: Proving Malicious Prosecution

If you can demonstrate that the criminal accusation against you stems from personal enmity, business rivalry, political vendetta, or matrimonial disputes rather than genuine criminal conduct, courts view your anticipatory bail application more sympathetically. You should present evidence of prior disputes with the complainant, history of civil litigation between parties, threatening messages from the complainant, or circumstances showing the FIR was filed to pressurize you in property matters, business dealings, or family disputes. The burden is on you to establish a prima facie case of false implication through documentary evidence rather than mere allegations.

Reason to Believe

The phrase “reason to believe” in Section 482 BNSS is not ordinary fear but requires you to demonstrate concrete, objective grounds that create reasonable apprehension of arrest based on specific facts and circumstances. The Supreme Court in Gurbaksh Singh Sibbia (supra) explained: “The expression ‘has reason to believe’ in Section 438(1) is not the same thing as a person having ‘reason to suspect‘. The grounds for belief must be capable of being founded on facts which are in existence, and not merely on suspicion or conjecture.”

The Hon’ble Supreme Court further elaborated that anticipatory bail cannot be sought on vague, general, or imaginary fears; you must show that an FIR has been filed naming you, or a complaint has been submitted to police against you, or police inquiry has commenced, or there is credible intelligence that an accusation is imminent based on concrete circumstances. Mere possibility or remote chance of arrest is insufficient; you need to establish that arrest is reasonably likely in the foreseeable future based on objective indicators visible to a reasonable person in your situation.

What are the Conditions Imposed by Courts While Granting Anticipatory Bail?

Standard Mandatory Conditions

When granting anticipatory bail under Section 482(2) BNSS, courts typically impose certain standard conditions that you must comply with: you shall make yourself available for interrogation by the police officer as and when required, you shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or police, and you shall not leave India without the prior permission of the court. These conditions are fundamental to ensuring that anticipatory bail does not obstruct the investigation or trial process while protecting your liberty.

Discretionary Conditions Based on Case Facts

Beyond standard conditions, courts have discretion to impose additional conditions tailored to your specific case circumstances. These may include surrendering your passport to prevent foreign travel, reporting to the jurisdictional police station on specified days (weekly or fortnightly), not tampering with any documents or electronic devices relevant to the investigation, not contacting the complainant or witnesses directly or indirectly, informing the court and police about any change in your residential address, not leaving the territorial jurisdiction of the court without permission, refraining from posting about the case on social media, and providing substantial sureties or personal bonds as security.

Bond Amount and Surety Requirements

The court will specify a bond amount that you must execute as security for your compliance with bail conditions; this typically ranges from ₹25,000 to ₹5,00,000 depending on the nature and gravity of the offence, though in serious economic offences or cases involving substantial amounts, bond amounts can be significantly higher. You may be required to furnish personal bonds (your own undertaking) or surety bonds (where respectable persons guarantee your appearance), or a combination of both. The bond is refundable after the case concludes if you’ve complied with all conditions, but can be forfeited if you violate bail conditions or abscond.

What Happens If You Violate Bail Conditions?

If you violate any condition imposed while granting anticipatory bail; such as failing to appear for police interrogation when summoned, leaving India without court permission, threatening witnesses, or tampering with evidence; the investigating agency or prosecution can file an application under Section 483(2) BNSS (previously Section 439(2) CrPC) seeking cancellation of your anticipatory bail. The court will issue notice to you, hear both sides, and if satisfied that you have violated the conditions or misused your liberty, can cancel the anticipatory bail and issue an arrest warrant, resulting in your detention in judicial custody during the trial.

What are the grounds on which Anticipatory Bail application can be cancelled?

When Can Anticipatory Bail Be Cancelled?

Anticipatory bail granted under Section 482 BNSS can be cancelled by the same court that granted it if circumstances change or if you violate the conditions imposed while granting bail. The police or prosecution can file an application under Section 483(2) BNSS demonstrating that you have misused your liberty, failed to cooperate with investigation, or engaged in conduct that defeats the purpose for which anticipatory bail was granted. The court must provide you an opportunity to respond before cancelling the bail.

Cancellation is discretionary and not automatic; the court examines whether the violation is technical and minor or substantial and deliberate. The Delhi High Court in Charu Soneja v. State (NCT of Delhi) [(2022) SCC Online Del 5)] held that cancellation powers must be exercised with caution and reserve, only when supervening circumstances emerge that justify depriving you of the liberty already granted, such as absconding, non-cooperation during investigation, witness intimidation, or evidence tampering that wasn’t apparent when bail was initially granted.

Common Reasons for Cancellation

The most frequent grounds for anticipatory bail cancellation include: absconding or failing to make yourself available for investigation when summoned by police, threatening or attempting to influence witnesses or persons acquainted with case facts, tampering with evidence or documents relevant to the investigation, committing a similar offence while on anticipatory bail demonstrating your propensity to misuse liberty, etc. 

The Hon’ble Supreme Court in Raghubir Singh and Ors. vs. State of Bihar (1987 AIR 149) systematically listed cancellation circumstances: “bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive.”  These grounds enumerated by the Apex Court reflect the court’s concern that anticipatory bail should not become a license for you to obstruct justice or engage in further criminal activity.

It is also crucial to note that the courts also cancel anticipatory bail if subsequent investigation reveals that the offence is far more serious than initially apparent.

What is the duration of Anticipatory Bail?

Supreme Court on duration of anticipatory bail in Sushila Aggarwal Case (2020)

The Supreme Court in Sushila Aggarwal (supra) authoritatively resolved the long-standing confusion about anticipatory bail duration, holding that anticipatory bail, as a general rule, continues till the conclusion of trial and should not be curtailed to a fixed time period. The Court observed that restricting anticipatory bail to a short duration defeats its very purpose of protecting personal liberty and forces the applicant to repeatedly approach the court, causing unnecessary litigation. This five-judge bench judgment overruled earlier inconsistent decisions and established uniform law across India.

The Court emphasized that Section 438 CrPC/ Section 482 BNSS contains no time limitation, and imposing artificial time restrictions amounts to judicial legislation beyond the statute’s text and spirit. The judgment clarified that while the investigating agency can always approach the court for cancellation of anticipatory bail if circumstances warrant under Section 439(2)/Section 483(2) BNSS, the bail order itself should not contain sunset clauses or expiry dates, ensuring that you are protected throughout the investigation, chargesheet, trial, and until final judgment unless bail is specifically cancelled on valid grounds.

Does Anticipatory Bail Expire After 30 Days? (Myth vs Reality)

No, anticipatory bail does not automatically expire after 30 days; this is a widespread misconception that the Supreme Court decisively clarified in Sushila Aggarwal (supra). The confusion arose from an earlier Supreme Court decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra [(1996) 1 SCC 667)] which had held that anticipatory bail should be limited in time, leading many courts to routinely grant anticipatory bail for 30 days or 60 days requiring repeated applications. However, the five-judge bench in Sushila Aggarwal overruled this approach and held that time-bound anticipatory bail is legally impermissible.

The current settled law is that once you obtain anticipatory bail, it remains effective indefinitely until the trial concludes, unless specifically cancelled by the court owing to the circumstances mentioned in the preceding paragraphs. You do not need to file fresh applications every month or approach the court repeatedly; the single anticipatory bail order protects you throughout the criminal proceedings from investigation through trial to final judgment, subject only to your compliance with the conditions imposed while granting bail.

When Does Anticipatory Bail Expire or End?

Anticipatory bail automatically comes to an end upon the conclusion of your trial when the court pronounces final judgment; either acquitting you or convicting you. If you are acquitted, the anticipatory bail naturally terminates as there is no longer any case against you requiring bail protection. If you are convicted, the anticipatory bail also ends because the presumption of innocence no longer applies, though you can apply for regular bail or suspension of sentence pending appeal in higher courts.

Anticipatory bail also lapses if the case against you is dropped before trial; for example, if police file a closure report (chargesheet indicating insufficient evidence) which the Magistrate accepts, or if the complainant withdraws the complaint in a compoundable offence, or if the court quashes the FIR under Section 528 BNSS/Section 482 CrPC, the criminal proceedings end and with them your anticipatory bail. Additionally, if you are arrested and granted regular bail under Section 479 or 483 BNSS/Section 436A or Section 437 and 439 during the trial, some courts take the view that the anticipatory bail merges into regular bail, though legal opinion on this point remains somewhat divided.

What If Your Anticipatory Bail Application is Rejected?

Appeal to High Court (If Rejected by Sessions Court)

If the Sessions Court rejects your anticipatory bail application, you have an automatic right to approach the High Court under Section 482 BNSS as a matter of course without requiring any special leave or permission. The High Court will examine your application afresh on merits and is not bound by the Sessions Court’s reasoning; it conducts an independent evaluation of your case considering the same factors of nature of accusation, your antecedents, flight risk, and false implication grounds. You should file the High Court anticipatory bail application promptly, as every day’s delay increases the risk of arrest.

The High Court can grant you interim protection from arrest during the pendency of your anticipatory bail application before the High Court, ensuring that even though the Sessions Court rejected your application, you are not arrested while the High Court examines your case. The Supreme Court in Ankit Bharti (supra) clarified that rejection by Sessions Court does not create any adverse presumption against you when approaching the High Court, and you can present additional grounds, evidence, or legal arguments that were not adequately considered by the Sessions Court in your fresh High Court application.

Special Leave Petition to Supreme Court (If Rejected by High Court)

If the High Court rejects your anticipatory bail application, your final recourse is filing a Special Leave Petition (SLP) under Article 136 of the Constitution before the Supreme Court. However, SLP is not a matter of right but depends on the Supreme Court’s discretion to grant leave to appeal; the Court examines whether your case raises substantial questions of law, involves grave injustice, or requires Supreme Court intervention to correct manifest error in the High Court’s decision. The Supreme Court typically entertains anticipatory bail SLPs only in exceptional circumstances where serious legal issues arise.

Filing an SLP requires you to demonstrate that the High Court’s rejection was arbitrary, perverse, or violated established legal principles on anticipatory bail, and you should cite Supreme Court precedents that the High Court failed to follow. The Supreme Court can grant you interim protection from arrest while your SLP is pending, ensuring you are not arrested during the brief period the Supreme Court takes to decide whether to admit your SLP for hearing on merits, though obtaining such interim protection in SLPs is increasingly difficult given the Supreme Court’s heavy pendency and reluctance to routinely interfere with High Court bail orders.

Can You File Another Anticipatory Bail Application After Rejection?

Yes, you can file a fresh anticipatory bail application if your earlier application was rejected, provided there is a change in circumstances or new grounds that were not available or not presented in your previous application. Courts generally discourage repeated applications on the same facts and grounds as it amounts to seeking review of the rejection order through backdoor, but if new developments occur; such as completion of investigation, key witnesses turning hostile, emergence of evidence supporting false implication, or subsequent judgments clarifying law in your favor; you can file a fresh application citing these changed circumstances as established in Gurbaksh Singh Sibbai (supra). 

Thereafter, the Hon’ble Supreme Court cautioned against treating fresh applications as a “backdoor review” of the rejection order, which could amount to forum-shopping or abuse of process. Successive petitions on the same grounds are liable to dismissal with costs as held in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]. 

Cases Where Anticipatory Bail is NOT Available

Section 482(4) BNSS/Section 438(4) CrPC: Rape of Women Under 18 Years

Section 482(4) BNSS 2023/ Section 438(4) CrPC explicitly bars anticipatory bail if you are accused of rape of a woman under sixteen years and twelve of age under Section 65 BNS (previously Section 376 IPC), gang rape of a woman under eighteen years under Section 70(2) BNS (previously Section 376DA IPC), or related aggravated sexual offences against minor girls. This absolute bar means that Sessions Courts and High Courts have no discretion to grant anticipatory bail in these categories regardless of how compelling your grounds may be; the legislative intent is to ensure stringent action against sexual crimes targeting minor girls by denying pre-arrest protection to accused persons.

Section 18 under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989: Atrocities Against Scheduled Castes/Tribes

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended in 2018 explicitly prohibits anticipatory bail for offences under this Act, which include various forms of discrimination, violence, and humiliation against SC/ST community members. However, the Supreme Court in Jawed Khan v. State of Chhattisgarh (CRA No. 604 of 2022) carved out a narrow exception; if the allegations appear to be prima facie false, fabricated as an abuse of law, or if no offence under SC/ST Act is made out, the High Court can grant anticipatory bail using its inherent powers under Section 528 BNSS (previously Section 482 CrPC) to prevent abuse of legal process rather than under the specific anticipatory bail provision.

PMLA Cases: Money Laundering Investigations

While Section 45 of the Prevention of Money Laundering Act (PMLA) does not explicitly exclude anticipatory bail, it imposes stringent twin conditions that make securing anticipatory bail in money laundering cases extremely difficult; you must satisfy the court that there are reasonable grounds for believing you are not guilty of the offence and that you are not likely to commit any offence while on bail. The Supreme Court in Directorate of Enforcement v. M. Gopal Reddy [(2023) 3 S.C.R 79)] held that these rigorous Section 45 conditions apply equally to anticipatory bail applications under Section 438 CrPC (now Section 482 BNSS), making pre-arrest bail in PMLA cases available only in the rarest of rare circumstances.

NDPS Act: Narcotic Drugs and Psychotropic Substances Offences

Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act imposes twin conditions similar to PMLA; you must satisfy the court that there are reasonable grounds to believe you are not guilty and that you are unlikely to commit any offence while on bail. These conditions apply to anticipatory bail as well, making it highly challenging to secure pre-arrest protection in drug-related offences. Courts have consistently held that the legislative intent behind Section 37 is to deal strictly with the narcotics menace, and anticipatory bail should be granted only in exceptional circumstances where the accusation appears manifestly false or fabricated. 

UAPA and NIA Act: Terrorism and National Security Cases

The Unlawful Activities (Prevention) Act 1967 (UAPA) and the National Investigation Agency (NIA) Act deal with terrorism, national security threats, and organized crime. While these Acts don’t explicitly bar anticipatory bail, courts apply extremely strict scrutiny when evaluating anticipatory bail applications in such cases given the grave threat to national security and public safety. If you’re accused under UAPA or NIA Act, you face a very high burden of demonstrating that the allegations are completely false and that granting you anticipatory bail poses no security risk whatsoever; in practice, anticipatory bail in terrorism-related cases is granted only in the rarest circumstances.

Anticipatory Bail vs Other Remedies

When to File Anticipatory Bail vs Section 482 CrPC/Section 528 BNSS Quashing Petition

If your primary concern is immediate arrest protection because police investigation is underway and arrest is imminent, file for anticipatory bail under Section 482 BNSS. Conversely, if the FIR against you is patently false, frivolous, or amounts to abuse of legal process where no cognizable offence is made out from the allegations themselves, file a quashing petition under Section 528 BNSS/Section 482 CrPC seeking to terminate the criminal proceedings entirely. 

Regular Bail vs Anticipatory Bail: Which to Choose?

You don’t have a choice between regular bail and anticipatory bail; your situation determines which is applicable. If you haven’t been arrested yet, your only option is anticipatory bail. Once you’re arrested and in police or judicial custody, you can no longer apply for anticipatory bail; you must apply for regular bail. 

Regular bail has the advantage that it can be filed in any court including the Magistrate Court depending on your offence, whereas anticipatory bail is restricted to Sessions Court or High Court only. 

Default Bail Under Section 187 BNSS/Section 167(2) CrPC: Automatic Right

Default bail under Section 187(2) BNSS/Section 167(2) CrPC is your statutory right if police fail to complete investigation and file chargesheet within the prescribed time limits; 60 days from arrest for offences triable by Magistrate, or 90 days for offences triable by Sessions Court. This is called “indefeasible right” meaning if the time expires, you must be released on bail by filing a simple application demonstrating the investigation timeline has lapsed. The Supreme Court in Sanjay Dutt (supra) held that default bail is mandatory and courts have no discretion to refuse it if statutory time limits have expired.

Default bail requires no proof of grounds, no evaluation of your antecedents, no flight risk assessment; mere expiry of the investigation period automatically entitles you to release as the Constitution doesn’t permit indefinite detention without trial. However, default bail is available only after arrest, unlike anticipatory bail which is pre-arrest protection. If you’re in custody and the investigation is dragging beyond the statutory limits, always monitor the timeline carefully and file for default bail the moment 60/90 days expire from your arrest date; the court is bound to grant it as a matter of right rather than discretion.

What is Transit Anticipatory Bail?

Meaning of Transit Anticipatory Bail

Transit anticipatory bail is a temporary form of anticipatory bail granted by the High Court of the state where you currently reside when you apprehend arrest by police of another state where the FIR or complaint has been filed. For example, if you live in Mumbai but an FIR is filed against you in Delhi and Delhi Police may arrest you, you can approach Bombay High Court for transit anticipatory bail which protects you from immediate arrest and gives you time to travel to Delhi and approach Delhi High Court for regular anticipatory bail in the state where the case is registered.

When Do You Need Transit Anticipatory Bail?

You need transit anticipatory bail when you’re physically located in State A but face imminent arrest by police of State B where criminal proceedings have been initiated against you, and you need temporary protection to safely travel to State B and approach the appropriate court there without being arrested during transit. This situation commonly arises in cases involving multiple states; cyber crimes, financial frauds spanning multiple locations, or when complainants file FIRs in their home state even though you reside elsewhere. Transit anticipatory bail prevents police from arresting you while you’re traveling to the jurisdictional court to seek proper anticipatory bail.

How to Apply for Transit Anticipatory Bail

File a transit anticipatory bail application in the Sessions Court or the High Court of the state where you currently reside, explaining that you apprehend arrest by police of another state, that you need temporary protection to approach the jurisdictional court in that state, and that you are a bona fide resident of the current state with no intention to abscond. The High Court will grant transit bail for a limited period with the condition that you must approach the appropriate court in the state where the FIR is registered within that period and seek regular anticipatory bail there, ensuring continuity of protection during the transition.

The Supreme Court in Priya Indoria v. State of Karnataka (2023 INSC 1008) held that Sessions Courts and High Courts can grant transit anticipatory bail despite the FIR being lodged in a different State beyond their territorial limits.

Duration and Limitations of Transit Anticipatory Bail

Transit anticipatory bail is valid only for the limited period specified in the court order, and automatically expires after that period. The Gujarat High Court in Mansi Jimit Sanghavi (supra) granted 3 weeks transit bail specifically for the accused to approach Gujarat High Court for anticipatory bail. This is not a permanent solution; it’s merely a bridge protection ensuring you can travel safely to the jurisdictional state without arrest and approach the proper court there. You must file for regular anticipatory bail in the state where the FIR is registered before your transit bail expires, otherwise you lose protection and can be arrested.

Landmark Supreme Court Judgments on Anticipatory Bail

State of Maharashtra v. Capt. Buddhikota Subha Rao: AIR 1989 SC 2292

The Supreme Court laid down the principle of judicial discipline in successive anticipatory bail applications, holding that when an anticipatory bail application is rejected by one judge, a subsequent application on identical grounds should not be entertained by another judge without substantial change in circumstances. The Court emphasized that successive bail applications should be placed before the same judge (when possible) to prevent abuse of process and forum shopping.

The judgment clarified that fresh anticipatory bail applications can only be filed when there is a substantial change in circumstances that has a direct impact on the earlier decision, not merely cosmetic changes. Between two orders, if there’s only a gap of a few days without drastic changes, judicial discipline and propriety demand that a different judge should not pass an order reversing earlier decisions, as this creates an impression that litigants can avoid unfavorable judges or select favorable ones.

Kalyan Chandra Sarkar v. Rajesh Ranjan: AIR 2004 SC 1866 

The Supreme Court held that although an accused has a right to make successive applications for anticipatory bail, the court entertaining such subsequent applications has a duty to consider the reasons and grounds on which earlier bail applications were rejected. The court must record what fresh grounds persuade it to take a view different from the one taken in earlier applications, and cannot simply ignore previous rejections.

The judgment clarified that subsequent anticipatory bail applications can be filed only when there is a change in the fact situation or in law which requires the earlier view to be interfered with, or where the earlier finding has become obsolete. The Court disagreed with the argument that under Article 21, it is open to an aggrieved person to make successive bail applications even on grounds already rejected by courts earlier, emphasizing that this limited area exists to prevent abuse while protecting liberty.

Arnab Manoranjan Goswami v. State of Maharashtra: AIR 2021 SC 1

The Supreme Court emphasized that “deprivation of liberty even for a single day is one day too many” and courts must preserve the presumption of innocence through anticipatory bail. The Court criticized the practice of lower courts routinely rejecting anticipatory bail applications, noting that High Courts get burdened when courts of first instance decline to grant anticipatory bail in deserving cases, and that common citizens without means languish as undertrials while being unable to approach higher forums.

The judgment stressed that liberty runs through the fabric of the Constitution and courts must ensure criminal law doesn’t become a weapon for selective harassment. The Court expressed anguish that countless citizens’ voices go unheard and directed that courts should grant anticipatory bail in deserving cases rather than forcing applicants through multiple levels of judiciary, describing bail as the “solemn expression of the humaneness of the justice system.”

Kiran v. Rajkumar Jivraj Jain & Anr (2025 INSC 1067)

The Supreme Court ruled that anticipatory bail is absolutely barred under Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989, reaffirming that persons accused of offences under this law cannot ordinarily seek pre-arrest bail under Section 438 CrPC/Section 482 BNSS. The Court emphasized that Parliament intentionally created this bar to protect vulnerable SC/ST communities from intimidation and harassment, citing earlier rulings in State of M.P. v. Ram Krishna Balothia [(1995) 3 SCC 221], Kartar Singh vs. State of Punjab [(1994) SCC 3 569], and Prathvi Raj Chauhan vs. Union of India & Ors. (2020 4 SCC 727) which established that anticipatory bail is a statutory right, not a fundamental one. The bench set aside the Bombay High Court’s order granting anticipatory bail, calling it a “manifest error” and “jurisdictional error” for overlooking the statutory bar.

However, the Court carved out a crucial exception: if the FIR itself shows on its face that no prima facie case is made out and allegations are baseless, courts may exercise discretion to grant anticipatory bail. This “first blush” assessment must be apparent from the very first reading of the FIR, without undertaking detailed evaluation of evidence, holding a mini-trial, or weighing witness testimony. The judgment balanced victim protection with safeguards against frivolous or malicious FIRs, describing Section 18 as furthering constitutional goals of ensuring equality and dignity for Scheduled Castes and Scheduled Tribes while providing a narrow protection against misuse.

Recent Trends: Post-2022 Developments in Anticipatory Bail Law

Recent Supreme Court and High Court judgments from 2022-2025 show several emerging trends in anticipatory bail law. Courts are increasingly scrutinizing economic offence cases with stricter evaluation, as seen in Directorate of Enforcement (supra) applying stringent twin conditions under Section 45 of PMLA to anticipatory bail. In sexual offence cases post-POCSO Act and 2018 amendment to Section 438(4) CrPC/Section 482 BNSS, courts are extremely cautious about granting pre-arrest bail where minor victims are involved, prioritizing victim protection over accused’s liberty in such cases.

Transit anticipatory bail has gained recognition as a legitimate remedy, with multiple High Courts including Bombay, Gujarat, and Delhi granting such protection in 2022-2023 for accused persons facing arrest in different states, as in the Toolkit case where activists were granted transit bail. The concept of “blanket anticipatory bail” covering unknown future offences has been strongly deprecated by the Supreme Court in Directorate of Enforcement v. Niraj Tyagi (2024 SCC OnLine SC 134), clarifying that anticipatory bail must be offence-specific. Courts are also emphasizing the need for detailed reasoning in anticipatory bail orders rather than mechanical grant or rejection, ensuring judicial application of mind to facts of each case.

Conclusion

Anticipatory bail under Section 482 BNSS/Section 438 CrPC stands as one of the most vital protections of personal liberty in Indian criminal law, safeguarding you from the trauma and humiliation of arrest when you face false accusations or are likely to be implicated in non-bailable offences. The Supreme Court’s consistent emphasis in landmark judgments from Gurbaksh Singh Sibbia (supra) to Sushila Aggarwal (supra) has been that while the state’s power to investigate crimes must be respected, your fundamental right to liberty under Article 21 cannot be compromised through arbitrary arrests motivated by malice, vengeance, or abuse of legal process.

If you apprehend arrest, approach the Sessions Court or High Court immediately with a well-drafted application demonstrating reasonable grounds for your apprehension, your clean antecedents, absence of flight risk, and the possibility of false implication. Remember that anticipatory bail doesn’t make you immune from investigation; it simply protects you from custodial arrest while ensuring you remain available for interrogation and trial. Comply meticulously with all bail conditions imposed by the court, cooperate fully with the investigation, and maintain transparency to ensure your anticipatory bail remains effective throughout the criminal proceedings until your case reaches its conclusion.

Frequently Asked Questions About Anticipatory Bail

Can the police arrest me if I have anticipatory bail?

No, police cannot arrest you if you have a valid anticipatory bail order. Section 482(3) BNSS mandates immediate release on bail if police attempt arrest after you’ve obtained anticipatory bail.

What is the difference between anticipatory bail and regular bail?

Anticipatory bail is pre-arrest protection sought before police arrest you, while regular bail is applied for after arrest when you’re already in custody.

Can I apply for anticipatory bail after an FIR is registered?

Yes, you can apply for anticipatory bail even after FIR registration, provided you haven’t been arrested yet. FIR registration doesn’t bar anticipatory bail applications.

Which court can grant anticipatory bail – Sessions Court or High Court?

Both Sessions Court and High Court have concurrent jurisdiction to grant anticipatory bail under Section 482 BNSS. Approach Sessions Court first for strategic advantage.

What are the grounds for granting anticipatory bail?

Courts consider the nature of accusation, your antecedents, possibility of fleeing justice, likelihood of tampering evidence, and whether accusation appears to be false implication.

How long does anticipatory bail last?

Anticipatory bail continues until trial conclusion as held in Sushila Aggarwal (supra). 

What happens if my anticipatory bail application is rejected?

If the Sessions Court rejects, approach the High Court as a matter of right. If the High Court rejects, file a Special Leave Petition in the Supreme Court under Article 136.

Can I get anticipatory bail in rape cases?

No, Section 482(4) BNSS bars anticipatory bail for rape of women under 12 years, 16 years and 18 years. For rape of adult women, anticipatory bail is discretionary but can get difficult.

Can I get anticipatory bail in murder cases?

Yes, anticipatory bail is available in murder cases, but courts scrutinize strictly. You must demonstrate accusations appear false or malicious as per Gurbaksh Singh Sibbia (supra) guidelines.

Is anticipatory bail available in offences against SC/ST Act cases?

No, Section 18 of SC/ST Act bars anticipatory bail. Exception: If allegations appear prima facie false, High Court may grant protection under Section 528 BNSS/Section 482 CrPC.

What is the “reason to believe” test for anticipatory bail?

“Reason to believe” requires concrete grounds for apprehending arrest based on facts, not mere fear. The Supreme Court in Gurbaksh Singh Sibbia (supra) held that belief must be based on existing facts.

Can I travel abroad after getting anticipatory bail?

No, courts typically impose conditions prohibiting foreign travel without prior permission. You cannot leave India without express court approval when on anticipatory bail.

What conditions can the court impose while granting anticipatory bail?

Courts impose conditions like appearing for interrogation when required, not threatening witnesses, not leaving India, surrendering passport, reporting to police station periodically, and providing sureties.

Can anticipatory bail be cancelled after it is granted?

Yes, police can file a cancellation application if you violate conditions, abscond, threaten witnesses, tamper evidence, or misuse liberty granted.

Do I need a lawyer to file an anticipatory bail application?

While not legally mandatory, engaging experienced criminal lawyer is highly advisable. Anticipatory bail applications require proper legal drafting, grounds, and court strategy for success.

What documents are needed for anticipatory bail?

Required documents include: FIR copy (if registered), complaint copy, address proof, employment letter, character certificates, previous court orders (if any), and supporting affidavit with your application.