Section 438 CrPC to Section 482 BNSS: Anticipatory Bail Explained (2026)

In India, anticipatory bail is now granted under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 438 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The text is near-identical, but the exclusion now names Bharatiya Nyaya Sanhita offences and newly bars anticipatory bail for gang rape of a woman under eighteen.

At a glance

Old section	New section	Procedure in one line	Punishment	Cognizable / bailable / triable by	Change type
CrPC s.438	BNSS s.482	A person with reason to believe he may be arrested for a non-bailable offence may ask the High Court or Court of Session to direct that, if arrested, he be released on bail	None: procedural section	Not applicable (procedural). Excluded offences BNS s.65(1), s.65(2) and s.70(2) are all cognizable, non-bailable and triable by the Court of Session (BNSS First Schedule)	Modified

What changed

Identical — sub-section (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 … and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail."
Identical — sub-section (2)(i)–(iii). The Court may include conditions "as it may think fit, including" availability for police interrogation, no inducement, threat or promise to witnesses, and not leaving India "without the previous permission of the Court".
Minor edit — sub-section (2)(iv). "such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section" becomes "… of section 480, …"; the rest of the clause is unchanged.
Minor edit — sub-section (3). A person arrested without warrant on the same accusation "shall be released on bail" if prepared to give bail; a Magistrate issuing a warrant in the first instance must issue a bailable warrant "in conformity with" the direction. The CrPC text prints "confirmity".
Modified and expanded — sub-section (4). The CrPC excluded "sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code". Section 482(4) excludes "section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023". BNS s.65 covers rape of a woman under sixteen (s.65(1)) and under twelve (s.65(2)), matching IPC s.376(3) and s.376AB. BNS s.70(2) covers gang rape of "a woman under eighteen years of age", where IPC s.376DA and s.376DB covered gang rape of a woman under sixteen and under twelve. Gang rape of a woman aged sixteen or seventeen fell under IPC s.376D, which was not excluded; it is now excluded. The connective also changes from "or" to "and"; on a reading, the sub-section still lists the offences it excludes.
Omitted — State amendments. The official CrPC text prints three State amendments to s.438(1): West Bengal Act 47 of 1981 (no final order without at least seven days' notice to the State where the offence is punishable with death, life or not less than seven years); West Bengal Act 25 of 1990 (substituted sub-sections (1) and (1A), requiring disposal "within thirty days", and providing that a pending application is not by itself a bar to arrest); and Orissa Act 11 of 1988 (notice to the State in the same class of cases). The BNSS as enacted contains none of them. Whether any State has since amended s.482 was not traced in the sources read for this page.
Not a change — the 2005 amendment. Section 38 of the CrPC (Amendment) Act, 2005 (Act 25 of 2005) would have substituted a new s.438(1) and added sub-sections (1A) and (1B). It was never part of s.438 in force (see below), so nothing was "dropped" by the BNSS.

Statutory text (relevant extract)

Extract — Section 438(4), CrPC (inserted by Act 22 of 2018, s.22):

Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).

Extract — Section 482(1) and (4), BNSS:

(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. …

(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.

The 2005 amendment that never commenced. Section 38 of Act 25 of 2005 would have required the Court to consider, "inter alia", four factors: "(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant …; (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 …". It would then "either reject the application forthwith or issue an interim order for the grant of anticipatory bail". A proviso would have let the police arrest where no interim order was passed. Sub-section (1A) required "not less than seven days notice" to the Public Prosecutor and Superintendent of Police; sub-section (1B) made the applicant's presence obligatory at the final hearing if, on the Public Prosecutor's application, the Court considered it necessary in the interest of justice. The official CrPC text reproduces s.38 in its Appendix and lists it among the provisions excepted from S.O. 923(E) of 21 June 2006, which brought the rest of the Act into force on 23 June 2006. In Sushila Aggarwal (2020), S. Ravindra Bhat J.'s opinion reproduced s.438 with the note that "the amendment has not yet been brought into force". No later commencement is recorded in the official text.

How it works — the steps

Reason to believe. The applicant must have "reason to believe that he may be arrested" for a non-bailable offence (s.482(1)). Sibbia requires specific facts, not a vague fear; an FIR need not yet exist.
The forum. The application goes to "the High Court or the Court of Session" (s.482(1)). The text names both and sets no order between them.
The exclusion. If the accusation is under BNS s.65 or s.70(2), s.482 does not apply at all (s.482(4)). Regular bail under s.480 or s.483 remains.
The discretion. The Court "may, if it thinks fit" direct release in the event of arrest. No factors are listed; Sibbia refused to read s.437's bars into the section.
Conditions. The Court may impose conditions, including the four in s.482(2); clause (iv) imports the s.480(3) conditions "as if the bail were granted under that section".
On arrest. If arrested without warrant on the same accusation, the person "shall be released on bail" on giving bail; a Magistrate taking cognizance issues a bailable warrant (s.482(3)).
Duration and cancellation. No period is fixed. Sushila Aggarwal holds that protection can continue till the end of the trial unless the court limits it. The power to direct arrest of a person released on bail under the Chapter is in s.483(3) (formerly s.439(2)).

Worked example (the section has no illustrations). A person learns that a complaint accusing him of cheating under BNS s.318(4) (non-bailable) has been lodged. He applies to the Court of Session under s.482, setting out the specific accusation. The Court directs that, if arrested, he be released on bail, subject to joining interrogation when required and not leaving India without permission. When the police later arrest him on that accusation, s.482(3) obliges the officer in charge to release him once he offers bail. If instead the accusation were gang rape of a seventeen-year-old under BNS s.70(2), s.482(4) would shut out the application entirely.

What this means in practice

For the applicant. Plead concrete facts: the specific accusation, why arrest is apprehended, and your side of the story (Sushila Aggarwal, clarification (1)). Be ready to accept the s.482(2) conditions and, through clause (iv), the s.480(3) conditions.
For the prosecution and investigating officer. An anticipatory bail order does not stop investigation (Sushila Aggarwal, clarification (7)). Where an accused violates a condition — absconding, non-cooperation, intimidating witnesses — the police may move the court that granted it for a direction to arrest, which Sushila Aggarwal (clarification (9)) tied to s.439(2) CrPC; the BNSS equivalent is s.483(3).
For the victim. In BNS s.65 and s.70(2) cases anticipatory bail is unavailable; any bail application is regular bail, where s.483 requires notice to the Public Prosecutor and the informant's presence.
For the court. Where the offence is later found graver than the one for which protection was given, Prahlad Singh Bhati holds the earlier grant does not carry over to the graver charge.
An open point. Section 482(4) names BNS offences. Neither BNS s.358 nor BNSS s.531 contains words reading those references as including the corresponding IPC offences. How s.482(4) applies to an accusation under IPC s.376DA or s.376DB made after 1 July 2024 is not settled by the text, and no judgment on it was read for this page.

Judgments that still matter

Section 482(1)–(3) repeats s.438(1)–(3) as it stood in force. On a reading of the text, judgments construing those words remain relevant to s.482. None of the judgments below construes s.482 itself.

Gurbaksh Singh Sibbia & Ors. v. State of Punjab, [1980] 3 S.C.R. 383 (1980 INSC 68), decided 9 April 1980. A five-judge Constitution Bench (judgment of the Court by Y.V. Chandrachud C.J.) substantially set aside a Punjab and Haryana High Court Full Bench that had confined s.438 to exceptional cases. "We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1) of the Code." The applicant's belief must rest on reasonable grounds capable of objective examination; "the filing of a First Information Report is not a condition precedent"; the section "cannot be invoked after the arrest of the accused"; a "blanket order" should not generally be passed; and "The normal rule should be not to limit the operation of the order in relation to a period of time." The reported text carries no paragraph numbers. Why it matters now: every one of these points turns on words s.482(1) repeats.

Prahlad Singh Bhati v. N.C.T., Delhi and Anr., [2001] 2 S.C.R. 684, decided 23 March 2001. The accused had interim anticipatory bail in a case registered under IPC ss.306 and 498A; a charge-sheet was later filed for murder. K.T. Thomas and R.P. Sethi JJ. held: "The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder." With the change in the nature of the offence the accused becomes disentitled to the liberty granted for the minor offence. The reported text carries no paragraph numbers. Why it matters now: a s.482 direction, like a s.438 direction, is tied to the accusation it covers.

Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., [2020] 2 S.C.R. 1 (2020 INSC 106), decided 29 January 2020. A five-judge bench answered a reference in concurring opinions by M.R. Shah J. and S. Ravindra Bhat J., with Arun Mishra, Indira Banerjee and Vineet Saran JJ. agreeing. The joint final conclusions hold that protection under s.438 "should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time" (answer (1)), and that it does not end when the accused is summoned or charges are framed "but can continue till the end of the trial" (answer (2)); a court may still limit it where special features require. Bhat J. (para 56) reasoned from the s.438(4) exclusion: "Parliament's omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into by this court". The Court overruled the decisions that had imposed time limits as a rule, and the observations in Siddharam Satlingappa Mhetre that no restrictive conditions at all could be imposed (clarification (12)). Why it matters now: s.482 carries the same open text and a comparable express exclusion, now wider.

Which law applies to your case

BNSS s.531(2)(a) provides that an "application" pending immediately before the BNSS came into force is disposed of under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a s.438 application pending on 30 June 2024 continues under the CrPC, including its s.438(4) exclusion; an application first made on or after 1 July 2024 is made under s.482. For offences committed before that date, BNS s.358(2) provides that the repeal of the IPC does not affect any penalty or punishment incurred under it, which may be imposed "as if that Code had not been repealed"; on a reading, the IPC therefore remains the source of the offence. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 438 CrPC? Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 438 of the Code of Criminal Procedure, 1973 from 1 July 2024. Sub-sections (1) to (3) repeat Section 438 as it stood in force, apart from the cross-reference to Section 480(3) and the spelling of conformity. The exclusion in Section 482(4) now names BNS offences.

Which offences are excluded from anticipatory bail under Section 482(4) BNSS? Section 482 does not apply to any case involving arrest on an accusation under Section 65 BNS (rape of a woman under sixteen, or under twelve, years of age) or Section 70(2) BNS (gang rape of a woman under eighteen years of age). The CrPC excluded IPC Sections 376(3), 376AB, 376DA and 376DB, which covered gang rape only of a woman under sixteen. Gang rape of a woman aged sixteen or seventeen is therefore newly excluded.

Does Section 482 BNSS list factors the court must consider? No. Section 482(1) says the Court may, if it thinks fit, direct release on bail, and lists no factors. Section 38 of the CrPC (Amendment) Act, 2005 would have added four factors, an interim-order stage and notice to the Public Prosecutor, but the official CrPC text lists it as excepted from the 2006 commencement notification, and in Sushila Aggarwal v. State (NCT of Delhi) (2020 INSC 106) the Supreme Court noted it had not been brought into force. None of those words appears in Section 482.

How long does anticipatory bail last? Section 482 fixes no period. In Sushila Aggarwal v. State (NCT of Delhi) (2020 INSC 106) a five-judge bench held that protection under Section 438 CrPC should not invariably be limited to a fixed period and can continue till the end of the trial, though a court may limit it where special features require. Section 482 BNSS uses the same words, so on a reading of the text the same analysis applies.

Can anticipatory bail be sought before an FIR is registered? Yes. In Gurbaksh Singh Sibbia v. State of Punjab (1980 INSC 68) the Constitution Bench held that filing of a First Information Report is not a condition precedent to the power under Section 438, although the applicant must show specific facts giving reason to believe that he may be arrested. Section 482(1) BNSS keeps the words reason to believe.

Can anticipatory bail be sought after arrest? No. Sibbia held that Section 438 cannot be invoked after the arrest of the accused for the offence for which he is arrested; he must then seek bail under Section 437 or Section 439, now Sections 480 and 483 BNSS. Section 482(1) still applies only to a person who has reason to believe that he may be arrested.

What happens if a person with anticipatory bail is arrested? Under Section 482(3) BNSS, if he is arrested without warrant by an officer in charge of a police station on the same accusation and is prepared to give bail, he shall be released on bail. If a Magistrate taking cognizance decides that a warrant should issue in the first instance, he shall issue a bailable warrant in conformity with the direction of the Court.

Sources

Acts and sections read: BNSS 2023 ss.480, 482, 483, 531 and the First Schedule (Gazette CG-DL-E-25122023-250884); BNS 2023 ss.65, 70, 318, 358 (Gazette CG-DL-E-25122023-250883); CrPC 1973 s.438 with its footnote and West Bengal and Orissa State amendments, and the Appendix extract of the CrPC (Amendment) Act, 2005 including s.38 and the S.O. 923(E) exception note (original India Code text); IPC 1860 ss.376(3), 376AB, 376D, 376DA, 376DB.
Judgments read (Veritect judgment corpus, full text): Gurbaksh Singh Sibbia v. State of Punjab (1980_3_383_420_EN.md); Prahlad Singh Bhati v. N.C.T., Delhi (2001_2_684_690_EN.md); Sushila Aggarwal v. State (NCT of Delhi) (2020_2_1_131_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 438 CrPC vs Section 482 BNSS — Anticipatory Bail