Anticipatory Bail in Uttar Pradesh under Section 482 BNSS

What it is

Anticipatory bail is a direction that in the event of arrest, the person named shall be released on bail. It is applied for before arrest, by someone who has reason to believe he may be arrested for a non-bailable offence.

Since 1 July 2024 the governing provision is Section 482 of the Bharatiya Nagarik Suraksha Sanhita. Before that date it was Section 438 of the Criminal Procedure Code, and cases registered before that date continue under the old provision.

Who can apply, and when

The requirement is a reasonable apprehension of arrest for a non-bailable offence, founded on concrete material. That material might be:

• An FIR that names the applicant
• A complaint that has been forwarded for investigation
• A notice under Section 35 BNSS requiring appearance before the investigating officer
• Credible information that an FIR is about to be registered

An FIR is not a precondition. But a vague or generalised fear is not enough — the courts have consistently held that the apprehension must be based on something the court can see.

The timing is decisive. Once arrest has occurred, an application under Section 482 does not lie at all. The remedy then is regular bail under Sections 480 and 483 BNSS, which is a different application heard on different considerations.

Which court

Section 482 BNSS confers concurrent jurisdiction on the Court of Session and the High Court.

The ordinary course is to move the Sessions Court first. If the application is rejected there, the High Court may be approached — for matters from Bareilly and the surrounding districts, that is the Allahabad High Court at Prayagraj, not the Lucknow Bench.

Going directly to the High Court is competent but unusual, and the court will generally ask why the Sessions Court was not approached.

What the court weighs

There is no fixed formula, but the considerations that recur are:

1. The nature and gravity of the accusation — the more serious the offence, the more the court hesitates.
2. The antecedents of the applicant, including any previous conviction for a cognizable offence.
3. The possibility of the applicant fleeing from justice.
4. Whether the accusation appears to have been made to injure or humiliate the applicant by having him arrested.
5. The need for custodial interrogation — this weighs heavily. Where the investigation genuinely requires recovery or confrontation, the court is reluctant.
6. The stage of the investigation and whether the applicant has cooperated.

The Supreme Court’s decision in Gurbaksh Singh Sibbia v. State of Punjab remains the foundation, and Sushila Aggarwal v. State (NCT of Delhi) settled that anticipatory bail need not be limited to a fixed period.

Documents to bring

• A copy of the FIR, if registered, or the complaint
• The Section 35 BNSS notice, if one has been served
• Proof of identity and residence
• Any document showing the applicant’s roots in the community — employment, property, family — which goes to flight risk
• Medical records, if the applicant’s health is relevant
• Anything showing the background of the dispute, particularly where the allegation appears to arise from a property or matrimonial quarrel

What happens at the hearing

Notice goes to the Public Prosecutor. The court calls for the case diary and hears both sides. It may:

• Grant anticipatory bail, on conditions
• Grant interim protection and issue notice, deciding finally later
• Reject the application

Where interim protection is granted, it is important to understand that it is exactly that — interim. It lapses if not continued.

If it is refused

• Where the Sessions Court refuses, the High Court may be moved.
• Where the High Court refuses, a petition for special leave lies to the Supreme Court, though that is an exceptional course.
• If arrest follows, the application that remains is regular bail under Section 480 or 483 BNSS.

A note on Section 35 BNSS notices

For offences punishable with imprisonment up to seven years, the Supreme Court in Arnesh Kumar v. State of Bihar directed that police should not arrest automatically, and should first issue a notice to appear. That notice is now under Section 35 BNSS.

If such a notice is received, attending is generally advisable — failure to comply is itself a ground for arrest. Take advice before attending, take the notice with you, and do not sign a statement you have not read. Receiving a notice does not remove the option of applying for anticipatory bail.

Related

• Criminal defence practice
• IPC to BNS section mapping
• District Court, Bareilly