Anticipatory Bail under the BNSS, 2023: What Has Changed and What Remains

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force on July 1, 2024, replacing the Code of Criminal Procedure, 1973 (CrPC). For most practitioners, the transition has required careful attention to renumbered provisions, revised timelines, and a handful of substantive changes — particularly in the bail framework.

Anticipatory bail — the relief of pre-arrest bail — is now governed by Section 482 of the BNSS, corresponding to Section 438 of the CrPC. The fundamental structure is preserved: an application may be filed before the Sessions Court or the High Court, and upon arrest the applicant is released on bail subject to such conditions as the court deems fit.

The most significant change under the BNSS is the introduction of an explicit provision allowing courts to impose a condition that the applicant shall be available for interrogation by a police officer for a specified period. This formalises a practice that was already common but ensures that anticipatory bail does not become a shield against legitimate investigative requirements.

Courts continue to apply the well-established factors from Gurbaksh Singh Sibbia v. State of Punjab (1980) in assessing anticipatory bail applications: the nature and gravity of the accusation; the applicant's antecedents; the possibility of the applicant fleeing justice; and whether the accusation appears to be made with the intent to humiliate or injure the applicant by having them arrested.

One area of active litigation post-BNSS concerns the interplay between anticipatory bail and the expanded provisions for handcuffing and transit remand under the new legislation. The Supreme Court has taken cognisance of several matters concerning the manner of arrest and the rights of accused persons, and authoritative pronouncements are expected.

If you are facing imminent arrest or are under investigation, the filing of an anticipatory bail application requires a carefully drafted factual matrix and legal submission. Timing is critical — an application filed after an FIR is registered but before arrest stands in a stronger procedural position than one filed after a Look-Out Notice or Non-Bailable Warrant is issued.