Anticipatory bail under Section 482 BNSS: who can apply and how courts decide

Provision

Section 482, BNSS 2023 (earlier Section 438, CrPC 1973)

Who decides

Court of Session or High Court

Applies to

Apprehended arrest for a non-bailable offence

Duration

Ordinarily until the end of trial, unless the court limits it

Who can apply for anticipatory bail?

Any person who has reason to believe that they may be arrested on an accusation of a non-bailable offence. A registered FIR is not a precondition. In Gurbaksh Singh Sibbia v. State of Punjab (1980) the Supreme Court held that the belief must rest on reasonable grounds and not on vague fear, and that the application can be made before an FIR is lodged.

What conditions can the court impose?

Section 482(2) lets the court attach conditions to the order. The usual ones are:

• the applicant must be available for questioning by the police when required;
• the applicant must not induce, threaten or promise anything to a person acquainted with the facts;
• the applicant must not leave India without the court's permission.

A breach of a condition is a ground for the prosecution to seek cancellation of the bail.

When is anticipatory bail not available?

Section 482(4) excludes accusations under Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, which deal with rape of girls below sixteen and twelve and gang rape of a woman below eighteen. Some special laws carry their own bar. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is one, although in Prathvi Raj Chauhan v. Union of India (2020) the Supreme Court held that the bar does not apply where the complaint makes out no prima facie case under that Act.

Does anticipatory bail expire when the charge sheet is filed?

Not by default. A Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi) (2020) held that protection under an anticipatory bail order should not ordinarily be limited to a fixed period and can continue until the end of the trial. A court may still limit the period where the facts of the case call for it.

What does the court look at?

The nature and gravity of the accusation, the applicant's role, earlier convictions if any, the likelihood of the applicant fleeing, and whether the accusation appears to have been made to injure or humiliate the applicant. The court will also hear the public prosecutor before a final order.

This guide states the general legal position in India as on 14 November 2026. It is not legal advice. Time limits and outcomes depend on the facts and on later amendments and judgments. See the disclaimer, and read more on the firm's Criminal Law practice.