Anticipatory bail is a direction that if you are arrested, you shall be released on bail. It is sought before arrest, by a person who has reason to believe they may be arrested in a non-bailable case. Since 1 July 2024 the provision is Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which carried forward Section 438 CrPC.
Anticipatory bail versus regular bail
- Anticipatory bail (Section 482 BNSS) is applied for before arrest. If granted, you are protected from custody, subject to conditions.
- Regular bail (Section 480 BNSS) is applied for after arrest, to secure release from custody while the case proceeds.
Where the option exists, acting before arrest is almost always better than reacting after it.
Where you apply
To the Court of Session. If rejected, it can be moved before the High Court. Both have concurrent jurisdiction, but the usual practice is to approach the Sessions Court first.
What the court weighs
- The nature and gravity of the accusation
- Whether the applicant has any prior conviction or is a habitual offender
- Whether the accusation appears to be made to injure or humiliate the applicant
- The possibility of the applicant fleeing from justice
- Willingness to co-operate with the investigation
For offences punishable with up to seven years, the Supreme Court's directions in Arnesh Kumar v. State of Bihar (2014) mean the police cannot arrest mechanically. They must record reasons and follow the notice procedure now in Section 35 BNSS. This is often as useful as the bail application itself, and it is routinely ignored on the ground.
Conditions, and refusal
Usually granted on conditions: availability for interrogation, not tampering with evidence or influencing witnesses, not leaving the country without permission. If refused by both courts, the practical course is to surrender and apply for regular bail, ideally with the surrender planned rather than forced.