Section 438 of the Code of Criminal Procedure, 1973 (CrPC), which provided for anticipatory bail — the direction for grant of bail to a person apprehending arrest — has been replaced by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This is one of the most searched and litigated provisions in Indian criminal procedure. The new provision makes a significant structural change: it removes the statutory guiding factors that courts were required to consider under CrPC, thereby widening judicial discretion. It also removes the provision allowing police to arrest where interim relief was not granted, and updates the sexual offence exclusions to reference BNS sections instead of IPC.
What changed
| Feature | Section 438 CrPC (Old) | Section 482 BNSS (New) |
|---|---|---|
| Core provision | HC or Sessions Court may direct release on bail if arrested | Same — retained |
| Guiding factors | Statutory factors: nature/gravity of accusation, antecedents, possibility of fleeing, accusation made to humiliate | Removed — no statutory guiding factors |
| Conditions on bail | Court may impose conditions including interrogation availability, no inducement/threat | Retained — conditions in sub-section (2) |
| Interim orders | Court may grant interim anticipatory bail | Not expressly provided in the same terms |
| Police arrest power | If interim relief not granted, police could arrest | Removed — no such provision |
| Restriction on duration | Various state amendments imposed time limits | No time limit specified in BNSS |
| Cross-reference to S.480 conditions | No equivalent | New sub-section 2(iv) — conditions under S.480(3) may be imposed |
| Sexual offence exclusions | IPC sections 376(3), 376AB, 376DA, 376DB | BNS section 65 and section 70(2) |
| Bailable warrant | Magistrate to issue bailable warrant conforming to HC/Sessions direction | Same — retained under sub-section (3) |
Full statutory text
Section 438 CrPC (Old Law) — Key Provisions:
(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
Section 482 BNSS (New Law) — Full Text (verified against Veritect Bare Acts Database):
(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 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.
Key differences
Removal of guiding factors: The most significant change. Section 438(1) CrPC listed four factors the court must consider: nature and gravity of accusation, antecedents, possibility of fleeing justice, and whether the accusation was made to humiliate. Section 482 BNSS removes these guiding factors entirely. The Chhattisgarh High Court has observed that this deletion widens the discretionary power of the court, giving it greater flexibility to assess cases on their individual merits without being constrained by a statutory checklist.
Removal of interim bail provisions: CrPC Section 438(1A) and (1B), which dealt with interim anticipatory bail, notice to the Public Prosecutor, and the obligatory presence of the applicant at final hearing, have no direct equivalent in Section 482 BNSS. This simplifies the procedure — the court may simply direct bail under sub-section (1) without the two-stage interim-and-final hearing process.
Removal of police arrest power: Under CrPC, when interim relief was not granted, the police had a specific power to arrest the applicant. Section 482 BNSS does not contain any such provision. This removal means that the mere filing of an anticipatory bail application, even if not immediately decided, does not trigger a specific statutory authority for the police to arrest.
Updated sexual offence exclusions: The exclusion of certain sexual offences from anticipatory bail now references BNS Section 65 (rape) and Section 70(2) (gang rape) instead of IPC sections 376(3), 376AB, 376DA, and 376DB. The substantive exclusion remains the same — anticipatory bail is not available for these categories of sexual offences.
Conditions retained and expanded: The conditions that may be imposed — availability for interrogation, no threats or inducements to witnesses, and no leaving India without permission — are retained in sub-section (2). A new sub-section 2(iv) adds a cross-reference to the conditions under Section 480(3) BNSS (conditions for regular bail), allowing courts to impose those conditions as if the bail were granted under Section 480. This gives courts a broader and more structured palette of conditions to impose.
Cross-reference to regular bail conditions: Sub-section 2(iv) is a new structural innovation. By incorporating the conditions from Section 480(3) by reference, the legislature has created a unified conditions framework across anticipatory and regular bail. This means conditions such as depositing passport, appearing before the police at specified intervals, or not committing any offence while on bail can be imposed on anticipatory bail orders as well.
No time limit on duration: Unlike some state amendments to CrPC Section 438 that imposed time limits on anticipatory bail, Section 482 BNSS does not prescribe any time limit. Following the Sushila Aggarwal Constitution Bench ruling, anticipatory bail continues until the conclusion of the trial unless the court specifically limits its duration.
What this means for practitioners
For applicants seeking anticipatory bail: The removal of guiding factors broadens the court's discretion, which can work both ways. While the court is no longer bound by a statutory checklist, applicants should still address the traditional factors (nature of accusation, antecedents, flight risk, and malicious intent) in their applications, as these remain relevant considerations even without statutory mandate.
For the prosecution: The removal of the interim bail mechanism and the police arrest power changes the prosecution's strategic position. There is no longer a statutory right to oppose at two stages (interim and final). The prosecution must present its objections comprehensively at the single hearing stage.
For High Courts and Sessions Courts: The wider discretion under Section 482 BNSS comes with greater responsibility for reasoned orders. The Uttarakhand High Court has referred the question of whether Section 482 BNSS overrides state-level restrictions on anticipatory bail (previously imposed through amendments to CrPC Section 438) to a larger bench — an issue that remains to be definitively settled.
For bail conditions: Courts should use the broader condition-setting power under sub-section (2) thoughtfully. The word "including" makes the listed conditions illustrative, allowing courts to craft case-specific conditions such as electronic monitoring, periodic reporting, or restrictions on travel to particular areas.
Judicial interpretation under BNSS 482 (post-July 2024)
The following cases from the Veritect Legal Intelligence database show how courts are actually applying Section 482 BNSS in practice:
Sudesh Sharma v. State of NCT of Delhi (21 November 2024)
Court: Delhi High Court | Judge: Chandra Dhari Singh | Result: Anticipatory bail GRANTED
The petitioner was named in FIR No. 428/2024 for offences under Sections 85/80(2)/3(5) BNS (dowry demand and cruelty leading to suicide). Justice Chandra Dhari Singh granted anticipatory bail under Section 482 BNSS with specified conditions, noting the petitioner's clean record and absence at the time of the incident. This is one of the earliest Delhi HC orders expressly invoking Section 482 BNSS and demonstrates that the wider discretion under the new provision is being used to grant bail in appropriate cases.
Veritect reference: DLHC010644142024_1_2024-11-21
Smt. Manjeet Kaur v. State Govt. of NCT of Delhi (28 January 2025)
Court: Delhi High Court | Judge: Manmeet Pritam Singh Arora | Result: Anticipatory bail DISMISSED
The petitioner sought anticipatory bail under Section 482 BNSS in connection with an NDPS case involving heroin trafficking. The Court held that anticipatory bail under Section 482 BNSS is "an extraordinary power exercised only in exceptional cases where the accused may be falsely implicated or unlikely to misuse liberty." The Court dismissed the application based on evidence linking the petitioner to co-accused through pointing-out memos and mobile records, and noted her non-cooperation with the investigation. This order demonstrates that the removal of guiding factors does not lower the threshold for bail in serious narcotics cases.
Veritect reference: DLHC010968362024_1_2025-01-28
Aftab @ Parveen v. State (15 January 2025)
Court: Delhi High Court | Judge: Manmeet Pritam Singh Arora | Result: Anticipatory bail DISMISSED
The petitioner sought anticipatory bail under Section 482 BNSS in relation to an E-FIR registered under Section 305/3(5) BNS for theft. Despite the petitioner's claim of absence from Delhi on the date of the incident, the Court dismissed the application based on CCTV and CDR evidence placing the petitioner at the scene. This shows that even under the wider discretion of BNSS 482, courts continue to weigh electronic evidence and prima facie case strength in reaching bail decisions.
Veritect reference: DLHC010991912024_1_2025-01-15
Emerging patterns
Based on available post-July 2024 orders, the initial judicial approach to Section 482 BNSS suggests:
- The Sibbia-Sushila Aggarwal framework survives: Courts continue to apply the constitutional principles of broad discretion and protection of personal liberty, even without the statutory guiding factors.
- Serious offences still attract refusal: Removal of guiding factors has not made bail automatic — courts continue to assess the gravity of accusation, flight risk, and evidence strength as practical considerations.
- "Extraordinary power" language persists: At least one Delhi HC judge has characterised anticipatory bail under BNSS as an extraordinary remedy, signalling that courts may develop their own threshold tests in the absence of statutory factors.
Does old case law still apply?
Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565: The Constitution Bench's liberal interpretation of anticipatory bail — that it should not be restricted to exceptional cases and that the provision confers broad discretion on courts — is strengthened by Section 482 BNSS. The removal of guiding factors aligns with the Sibbia principle of wide judicial discretion.
Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1: The Constitution Bench held that anticipatory bail need not be limited to a fixed period and can continue until the conclusion of the trial. This ruling applies fully to Section 482 BNSS, which contains no time limitation. The Court also held that anticipatory bail protection does not end upon filing of the chargesheet — this principle continues to govern.
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152: The Supreme Court's observations that anticipatory bail protects personal liberty under Article 21 and should be available to protect individuals from the indignity of unjust arrest remain the governing philosophy. Section 482 BNSS preserves this protective function.
The Sibbia-Sushila Aggarwal framework — emphasizing broad discretion, no time limits, and continuation until trial conclusion — remains the controlling jurisprudence for Section 482 BNSS. The removal of guiding factors from the statute arguably strengthens this liberal approach.
Frequently asked questions
Is anticipatory bail available for all non-bailable offences under BNSS? For all non-bailable offences except those specified in sub-section (4) — offences under BNS Section 65 (rape) and Section 70(2) (gang rape). For these offences, anticipatory bail is expressly excluded.
Has the removal of guiding factors made it easier to get anticipatory bail? The removal widens the court's discretion in both directions. Courts are no longer bound by a statutory checklist but will still consider relevant factors on a case-by-case basis. The practical impact will depend on how courts exercise this wider discretion.
Can anticipatory bail continue after the chargesheet is filed? Yes. Following Sushila Aggarwal, anticipatory bail can continue until the conclusion of the trial unless the court specifically limits its duration. Section 482 BNSS does not alter this position.
Which court should be approached first — Sessions Court or High Court? Both the Sessions Court and the High Court have concurrent jurisdiction. As a matter of judicial discipline, the Sessions Court should ordinarily be approached first, with the High Court reserved for exceptional circumstances or appeals against Sessions Court refusal.