A person who apprehends arrest for a non-bailable offence can seek a direction that, if arrested, he shall be released on bail. Since 01.07.2024 this power is in Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces Section 438 of the Code of Criminal Procedure.
Which court
The application lies before the Court of Session or the High Court. The usual practice is to approach the Sessions Court first; the High Court can be approached if relief is refused there or in exceptional circumstances.
What the court looks at
- the nature and gravity of the accusation and the role attributed to the applicant;
- the applicant's antecedents, including any earlier conviction;
- the possibility of the applicant fleeing from justice;
- whether the accusation appears to have been made to injure or humiliate the applicant.
How long protection lasts
In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, a Constitution Bench held that anticipatory bail need not be limited to a fixed period and can continue till the end of the trial, unless the court in a particular case limits it. The court may impose conditions such as joining investigation, not leaving the country without permission and not contacting witnesses.
Arrest is not automatic
For offences punishable with imprisonment up to seven years, the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 required the police to record reasons for arrest and to issue a notice of appearance in appropriate cases. That notice is now under Section 35 BNSS. Where such a notice is issued and complied with, arrest may not be necessary at all.
Documents to keep ready
- a copy of the FIR or complaint, if available;
- any notice received from the police;
- documents showing the background of the dispute, such as earlier complaints or civil litigation.
This article is general information on the law as it stood when written. It is not legal advice. Every service matter turns on its own service record, rules and orders, which should be examined before any step is taken.