In short: Section 482 of the BNSS, 2023 is the anticipatory bail provision — the successor to Section 438 CrPC. It allows a person who apprehends arrest on an accusation of a non-bailable offence to apply to the Court of Session or the High Court for a direction that, in the event of arrest, he shall be released on bail. Sub-section (2) sets out the conditions a court may attach; sub-section (3) covers arrest without warrant; and sub-section (4) bars anticipatory bail altogether for offences under Sections 65 and 70(2) of the BNS.
Anticipatory bail is a direction given in advance: if this person is arrested on this accusation, release him on bail. Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 carries that power. It replaced Section 438 of the Code of Criminal Procedure, 1973 on 1 July 2024. The Court of Session and the High Court hold the power concurrently. At Jodhpur almost every application goes to the Sessions Judge first, and reaches the Rajasthan High Court only if it fails there or if the case has a reason to start higher.
(1)When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2)When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including— (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail were granted under that section.
(3)If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).
(4)Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
Sub-section (4) refers to Sections 65 and 70(2) of the Bharatiya Nyaya Sanhita, 2023 — the offences of rape of a woman under sixteen years and gang rape of a woman under eighteen years. · यह धारा हिंदी में पढ़ें →
Read the two sections side by side and sub-sections (1), (2) and (3) are the same words. The cross-reference in clause (iv) of sub-section (2) moved from Section 437(3) CrPC to Section 480(3) BNSS, which is the matching provision on mandatory bail conditions. The real change is in sub-section (4). Section 438(4) CrPC listed Sections 376(3), 376AB, 376DA and 376DB of the Indian Penal Code. Section 482(4) BNSS lists Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, which are the same offences renumbered: rape of a woman under sixteen, rape of a woman under twelve, and gang rape of a woman under eighteen.
So the test, the forum and the conditions are what they were in 1973. What changed around the section matters more. Section 35 BNSS now limits arrest itself, and Section 173(3) BNSS allows a preliminary enquiry before an FIR in a band of offences. Both are discussed below, because they decide whether an application is needed at all.
The words are "reason to believe that he may be arrested". Three points follow from them.
First, no FIR is needed. In Gurbaksh Singh Sibbia v. State of Punjab (1980) a Constitution Bench held that registration of a case is not a condition precedent; what is needed is a belief founded on reasonable grounds, not a vague fear. A written complaint to the police, a notice to appear, or a threat of a complaint with the facts spelt out is enough to move. A bare "they may do something" is not.
Second, the offence must be non-bailable. For a bailable offence Section 478 BNSS gives bail as of right at the police station, so Section 482 has no work to do.
Third, arrest must be a real prospect. Section 35(1)(b) BNSS says that for an offence punishable up to seven years the police may arrest without warrant only if arrest is necessary for one of five listed reasons, and the officer must record those reasons in writing. Where arrest is not required, Section 35(3) obliges the officer to issue a notice to appear instead, and Section 35(5) says a person who complies with that notice shall not be arrested for that offence unless the officer records reasons why he ought to be. Section 35(7) adds that a person above sixty years or infirm, accused of an offence punishable with less than three years, cannot be arrested without prior permission of an officer not below Deputy Superintendent of Police. A person holding a Section 35(3) notice and attending on it is often safer than he thinks. The court will ask why he needs more.
There is one more clock. Section 173(3) BNSS lets the officer in charge, with permission of a Deputy Superintendent of Police, hold a preliminary enquiry for up to fourteen days before registering a case for a cognizable offence punishable with three years or more but less than seven. During those fourteen days there is no FIR yet, and an application founded on the complaint alone is possible if the facts are concrete.
Both courts have the power. Neither sub-section says which comes first. Practice at the Rajasthan High Court is settled: the Sessions Court is approached first, and the High Court on refusal or where the case has a reason to start there, such as a question the Sessions Judge cannot conveniently decide, or an accused who is a resident of another State and faces several cases. A direct application at the High Court is not barred, but the Bench will ask why the Sessions Court was bypassed, and the answer must be on the record.
At the principal seat at Jodhpur the application is registered as an S.B. Criminal Miscellaneous Bail Application under Section 482 BNSS. It is heard by a Single Bench. If arrest is imminent an urgent listing is sought, and the court commonly grants interim protection with a direction to join the investigation and lists the matter after the State files a reply with the case diary.
The order of forums also decides the papers. In the Sessions Court the application is filed with the FIR, the applicant's affidavit of facts and antecedents, and a copy of any notice received. At the High Court the refusal order of the Sessions Judge is added, and the grounds answer that order paragraph by paragraph.
Section 482 does not list factors. The factors come from Sibbia and from thirty years of practice after it: the nature and gravity of the accusation; the applicant's antecedents, including whether he has earlier been in custody on conviction; the possibility of his fleeing; and whether the accusation is made with the object of injuring or humiliating him by having him arrested. Two further points carry weight at Jodhpur in practice. The first is parity: a co-accused on the same footing who already has bail. The second is the stage of investigation: once the charge-sheet is filed without arrest, the need for custodial interrogation has usually gone, and the court says so.
The court also asks what custodial interrogation would add. Where the evidence is documentary, a bank record or a registered deed, the answer is usually nothing, and that is a strong ground. Where the recovery of a weapon or of money is pending, the State presses for custody and the application is harder.
Section 482(2) lists three conditions by name: availability for interrogation, no inducement or threat to any person acquainted with the facts, and no leaving India without permission. Clause (iv) imports Section 480(3), which applies where the offence is punishable with seven years or more or falls under Chapter VI, VII or XVII of the BNS, and requires three further terms: attendance under the bond, no similar offence, and no tampering with evidence. In practice the order reads like a standard set: report to the investigating officer on fixed dates, surrender the passport where flight is a live concern, do not contact the complainant.
The bond is governed by Section 484 BNSS: its amount is fixed with regard to the circumstances of the case and shall not be excessive, and the High Court or Court of Session may reduce a bail amount demanded by a police officer or Magistrate. Section 485 requires the bond and the sureties' bonds to carry the conditions. Section 486 requires every surety to declare before the court how many persons he already stands surety for. A surety who hides an earlier bond risks the bail itself.
Breach of a condition is a ground for cancellation. Section 483(3) BNSS allows the High Court or Court of Session to direct that any person released on bail under Chapter XXXV be arrested and committed to custody. The protection is real, but it is conditional in both directions.
Sub-section (3) does two things. If the police arrest the person without warrant on that accusation and he is prepared to give bail, the officer in charge shall release him on bail; the direction binds the station. And if a Magistrate taking cognizance decides to issue a warrant in the first instance, it shall be a bailable warrant in conformity with the direction. The order therefore travels with the case into the trial court.
Does it lapse when the charge-sheet is filed? No. In Sushila Aggarwal v. State (NCT of Delhi) (2020) a Constitution Bench held that anticipatory bail need not be limited to a fixed period and does not end automatically on the filing of the charge-sheet or on summons; unless the granting court writes in a time limit, the protection continues until the end of the trial. A well-drafted order asks for exactly that.
If anticipatory bail is refused and the person is arrested, the remedy moves to regular bail under Section 480 before the Magistrate or under Section 483 before the Sessions Court or High Court. The arithmetic of custody then matters: Section 187(3) BNSS gives default bail after sixty days in custody for most offences and ninety days where the offence is punishable with death, life or ten years or more, if the charge-sheet is not filed by then.
The statutory bar in sub-section (4). No anticipatory bail for an accusation under Section 65 BNS (rape of a woman under sixteen, or under twelve) or Section 70(2) BNS (gang rape of a woman under eighteen). For regular bail in those cases Section 483(1) adds a second proviso: notice of the application to the Public Prosecutor within fifteen days of receipt of the notice, and Section 483(2) makes the presence of the informant or a person authorised by him obligatory at the hearing.
SC/ST (Prevention of Atrocities) Act, 1989. Section 18 says nothing in Section 438 of the Code applies to an accusation under that Act, and Section 18A(2), inserted in 2018, repeats the bar "notwithstanding any judgment or order or direction of any Court". Courts have examined whether the FIR discloses an offence under the Act at all, and where it does not the bar does not operate; where it does, no Section 482 application lies. The remedy against a Special Court order granting or refusing bail is an appeal to the High Court under Section 14A(2) of that Act, to be filed within ninety days under Section 14A(3), with an outer limit of one hundred and eighty days. That appeal, not a fresh bail application, is the route at Jodhpur.
NDPS Act, 1985. Section 37(1)(b) bars release on bail for offences under Sections 19, 24 and 27A and for offences involving commercial quantity unless the Public Prosecutor has been heard and the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to offend while on bail. The section does not name anticipatory bail, but these twin conditions apply to it, and for a commercial quantity pre-arrest relief is rarely granted.
Economic offences. Section 482 applies, but Section 45 of the Prevention of Money-Laundering Act carries its own twin conditions and the Enforcement Directorate is a separate arresting agency, so a PMLA accusation is worked separately from the predicate offence.
How these applications are actually moved, how urgency is sought and what a family should gather before the first hearing is set out in our guide to bail matters in the Jodhpur courts. The five kinds of bail under the BNSS, with default bail and the Section 479 half-sentence rule, are compared in Hindi at ज़मानत के प्रकार और प्रक्रिया.
Which court at Jodhpur takes which kind of matter, and what papers to carry to a first meeting, is set out on the page on advocates in Jodhpur and the forums there.
Can I apply for anticipatory bail before an FIR is registered?
Yes. Section 482(1) BNSS speaks of reason to believe that one may be arrested, not of an FIR. In Gurbaksh Singh Sibbia v. State of Punjab (1980) the Supreme Court held that registration of a case is not a condition precedent, provided the apprehension rests on concrete facts. A complaint to the police, a Section 35(3) notice or a preliminary enquiry under Section 173(3) is enough to found an application if the accusation feared is spelt out.
Should the application be filed in the Sessions Court or directly in the High Court?
Both courts have concurrent power under Section 482 BNSS. At Jodhpur the settled practice is the Sessions Court first and the Rajasthan High Court on refusal, or where a reason to start higher is on record. A direct application is not barred, but the Bench asks why the Sessions Court was bypassed.
Does anticipatory bail end when the charge-sheet is filed?
No. In Sushila Aggarwal v. State (NCT of Delhi) (2020) a Constitution Bench held that the protection need not be limited in time and does not lapse on the filing of the charge-sheet or on summons. Unless the granting court writes in a time limit, it continues until the end of the trial, and Section 482(3) BNSS requires a Magistrate issuing a warrant in the first instance to make it bailable.
Is anticipatory bail available in SC/ST Act or NDPS cases?
Section 18 and Section 18A(2) of the SC/ST (Prevention of Atrocities) Act bar it where the FIR discloses an offence under that Act; the remedy against a Special Court order on bail is an appeal under Section 14A(2) within ninety days. In NDPS matters Section 37(1)(b) applies its twin conditions to offences under Sections 19, 24, 27A and to commercial quantity, so pre-arrest relief is rarely granted there.
What conditions does the court usually impose?
Section 482(2) BNSS names three: availability for interrogation, no inducement or threat to witnesses, and no leaving India without permission. Clause (iv) imports the Section 480(3) conditions for offences punishable with seven years or more. Courts commonly add passport surrender and fixed reporting dates. Breach allows cancellation under Section 483(3).
Which offences are excluded by Section 482(4) BNSS?
Accusations under Section 65 of the Bharatiya Nyaya Sanhita (rape of a woman under sixteen years, and under twelve years) and Section 70(2) (gang rape of a woman under eighteen years). In those cases only regular bail can be sought, with notice to the Public Prosecutor under the second proviso to Section 483(1) and the informant's presence under Section 483(2).