Anticipatory bail under section 482 of the Bharatiya Nagarik Suraksha Sanhita is the successor to section 438 of the Code of Criminal Procedure, 1973. The substantive jurisprudence has been consolidated by the Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1.
The two questions the Court answered
- Is anticipatory bail time-bound? Generally, no. The protection ordinarily endures until the end of the trial, unless the order itself limits its duration on facts.
- Should anticipatory bail be confined to special circumstances? No. The discretion under section 438 is not to be confined to exceptional cases. It is a constitutional safeguard against arbitrary arrest.
What the Court preserved from Sibbia
The seven principles laid down in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, remain the operating canon:
- The provision is a constitutional safeguard, not an extraordinary remedy.
- A blanket order is impermissible.
- The order must be conditioned, having regard to the nature and gravity of the accusation.
- Duration is a matter of judicial discretion.
- The order is to operate to the satisfaction of the arresting officer in due course.
Drafting the petition: the chamber’s approach
A focused petition under BNSS s.482 will:
- State the apprehension specifically. A vague apprehension is fatal.
- Disclose antecedents fully. Concealment costs the petitioner credibility.
- Lead with the procedural grounds where applicable: failure of section 35(3) BNSS notice, mechanical FIR registration, Arnesh Kumar non-compliance.
- Offer a tight conditions menu, accepting cooperation with investigation as a baseline.
A note on the Sessions / High Court question
In the Bombay High Court, Nagpur Bench, the Court has consistently held that the petitioner is not required to first move the Sessions Court. The choice of forum is a matter of strategy, not jurisdiction. Counsel may move directly where the gravity, the standing of the petitioner, or the nature of the apprehension warrants.
This post is informational. It is not legal advice. The chamber takes briefs only after a conflict-check.