Anticipatory Bail Under Section 482 BNSS (Old 438)

If you've searched for "Section 482" lately and got two different answers, you're not imagining it. Since 1 July 2024 the number means two things. In the Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 482 is anticipatory bail, the provision that used to be Section 438 of the CrPC. The old CrPC 482, the High Court's inherent powers used to quash FIRs, is now Section 528 of the BNSS.

So when someone says "file a 482", ask which one they mean. This post is about anticipatory bail: what it is, what changed in the new Code, and how an application goes in court.

What anticipatory bail is

It's an order you get before you're arrested. The court directs that if the police arrest you for the offence you've named, you'll be released on bail. You still have to join the investigation. You just don't spend days in custody while it happens.

Once you've been arrested, it's too late for this section. Then you apply for regular bail, under Section 480 of the BNSS before the magistrate or Section 483 before the Sessions Court or High Court.

What changed from CrPC 438

Very little, and that's worth knowing because a lot of commentary online suggests otherwise. Put the two sections side by side and the wording is almost the same:

• The court can still attach conditions, and the cross-reference now points to Section 480(3) of the BNSS instead of CrPC 437(3).
• The bar on anticipatory bail in the gravest sexual offences stays. The old 438(4) listed IPC 376(3), 376AB, 376DA and 376DB. The new 482(4) lists Section 65 of the BNS (rape of a girl under 16 or under 12) and Section 70(2) (gang rape of a girl under 18).

The case law built up under Section 438 still applies, which is the more useful point. Sibbia, Sushila Aggarwal and the rest are read into Section 482 the same way.

One thing to check: if the FIR was registered before 1 July 2024, Section 531 of the BNSS decides which Code governs the case, and High Courts haven't all read it the same way. Look at what your own High Court has said before you choose the section in the heading of the application.

Who can apply, and to which court

Anyone who has "reason to believe" they may be arrested for a non-bailable offence. The belief has to rest on facts you can show the court: a complaint someone has filed against you, a police notice, an FIR naming you, a threat put in writing. A general worry that someone might complain one day won't do.

You can apply to the Sessions Court or the High Court. Both have the power. In practice most lawyers go to the Sessions Court first, and many High Courts expect that unless there's a good reason to skip it. If the Sessions Court refuses, you can then approach the High Court.

Conditions the court can impose

Section 482(2) lists the usual ones:

• You make yourself available for questioning by the police when they need you.
• You don't threaten, pressure or make promises to anyone who knows the facts of the case.
• You don't leave India without the court's permission.
• Any other condition the court could impose on regular bail under Section 480(3).

Courts often add their own: reporting at the police station on set days, surrendering a passport, staying in a particular city. Read the order carefully. Breaking a condition is the quickest way to lose it.

How long the protection lasts

In Sushila Aggarwal v. State (NCT of Delhi) (2020), a five-judge bench of the Supreme Court held that anticipatory bail doesn't have to end on a fixed date or when the chargesheet is filed. It can run until the end of the trial. A court can still limit it to a period if the facts of a case call for that, and some orders do.

It doesn't stop the investigation. The police can still question you, search premises and file a chargesheet. What they can't do is keep you in custody against the court's order.

What goes into the application

• The FIR, complaint or police notice that makes you fear arrest, or a clear account of the facts if there's nothing in writing yet.
• Your side of the story, briefly. The court isn't deciding guilt here, so don't argue the whole case.
• Why custody isn't needed: you have a fixed address, a job or business, family here, no past cases, and you'll cooperate.
• Whether you got a notice to appear under Section 35(3) of the BNSS (the old Section 41A notice) and whether you went. For offences punishable up to seven years, the Supreme Court said in Arnesh Kumar v. State of Bihar (2014) that arrest shouldn't be automatic, and showing you answered the notice helps.
• An affidavit supporting the facts.

The court usually issues notice to the public prosecutor, and often asks the police for the case diary before the final hearing. If there's real urgency, ask for interim protection on the first date.

When it's usually refused

Courts look at how serious the accusation is, whether you have a record, whether you might run, and whether you might tamper with evidence or witnesses. A case where the police need to recover something from you (money, documents, a weapon) is the classic one where custodial questioning wins over protection. Anticipatory bail is also barred outright for the offences listed in Section 482(4).

You can look up any old section number in the IPC to BNS converter to see where it sits in the new Codes. That matters here, because the offence in the FIR decides both whether the offence is bailable and whether Section 482(4) shuts the door.

Questions people ask

This is general information, not legal advice. Bail depends on the facts of each case, so speak to a lawyer before you apply.