Anticipatory Bail Under BNSS

Anticipatory bail is a crucial legal provision that upholds the fundamental right to personal liberty under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This provision enables individuals apprehending arrest for a non-bailable offence to seek bail in advance, ensuring protection against arbitrary detention.

What is Anticipatory Bail?

Anticipatory bail is a preventive relief provided by courts to individuals who have reason to believe they may be arrested for committing a non-bailable offence. Under BNSS, anticipatory bail serves as a safeguard against undue harassment and aims to balance the interests of justice and personal liberty.

This provision, previously encapsulated under Section 438 of the Criminal Procedure Code (CrPC), 1973, now finds its place under Section 482 of BNSS. It empowers the High Court and the Court of Session to grant pre-arrest bail with specific conditions tailored to prevent the misuse of liberty.

Legal Framework for Anticipatory Bail under BNSS

Application and Forum (Section 482(1))

An individual can apply for anticipatory bail under BNSS if they have a genuine apprehension of arrest for a non-bailable offence. The application for anticipatory bail can be made to:

• The High Court, or
• The Court of Session.

The courts have the authority to direct that the applicant be released on bail in the event of arrest, subject to specific conditions to ensure compliance with legal processes.

Conditions for Granting Anticipatory Bail (Section 482(2))

When granting anticipatory bail, the court may impose several conditions to prevent the misuse of the relief. These conditions include:

1. The applicant must make themselves available for police interrogation as required.
2. They must not, directly or indirectly,
   • Induce,
   • Threaten, or
   • Promise any person related to the case to influence their testimony.
3. The applicant must not leave India without prior court permission.
4. Additional conditions may be imposed as per the provisions under Section 480(3) of BNSS.

Consequences of Granting Anticipatory Bail (Section 482(3))

Once anticipatory bail is granted, if the accused is subsequently arrested without a warrant, they shall be released on bail, provided they are willing to furnish the necessary bail bonds. Furthermore, if the Magistrate decides to issue a warrant, it shall be a bailable warrant in accordance with the court’s directions.

Exceptions to Anticipatory Bail (Section 482(4))

Anticipatory bail under BNSS is not applicable in cases involving heinous offences, such as:

• Section 65: Punishment for rape in certain cases.
• Section 70(2): Gang rape of a woman under 18 years of age.

Principles for Filing Second Anticipatory Bail Application

The courts have laid down specific principles governing the filing of a second anticipatory bail application. These principles were established in landmark cases such as Ganesh Raj v. State of Rajasthan (2005) and Maya Rani Guin v. State of West Bengal (2003). Key takeaways include:

• A second or subsequent bail application can only be entertained if there is a substantial change in facts or law.
• A rejected bail application cannot be refiled based on new circumstances, additional evidence, or health conditions.
• If an application is rejected by the High Court, the applicant may approach the Supreme Court through a special leave petition.

Key Judicial Precedents on Anticipatory Bail

Several landmark cases have established the constitutional validity and scope of anticipatory bail, linking it to Article 21 of the Constitution, which guarantees the right to life and personal liberty.

• Sangeeta Bhatia v. State of NCT of Delhi (2022): Affirmed anticipatory bail as a statutory right.
• Tarun Jain v. Directorate General of GST Intelligence (2021): Reinforced its connection with Article 21.
• Bhadresh Bipinbhai Sheth v. State of Gujarat (2015): Clarified anticipatory bail’s alignment with personal liberty.
• Gurbaksh Singh Sibbia v. State of Punjab (1980): Established that Section 438 CrPC must adhere to Article 21’s fairness standards.

Conditions for Anticipatory Bail under BNSS (Section 480)

Section 480 BNSS lays down the conditions under which bail for non-bailable offences can be granted. The court considers:

• The gravity and nature of the offence.
• The applicant’s criminal history and previous convictions.
• The accused’s age and health conditions.
• Any other justifiable reasons that warrant bail.

The order granting anticipatory bail must be well-reasoned and recorded in writing.

Cancellation of Anticipatory Bail

Anticipatory bail granted under BNSS can be cancelled under Section 483(3) in cases where the accused:

• Violates bail conditions.
• Attempts to influence witnesses.
• Commits additional offences while on bail.

The courts retain the discretion to revoke anticipatory bail based on evolving case circumstances.

Distinction Between Dismissal and Cancellation of Bail

The distinction between the dismissal and cancellation of bail was highlighted in Charu Soneja v. State (NCT of Delhi) (2022):

• Dismissal of bail: Occurs when the court initially rejects the application based on the case’s merits.
• Cancellation of bail: Happens when bail, once granted, is revoked due to violations or new evidence.

Duration of Anticipatory Bail

The Supreme Court in Sushila Aggarwal v. State of NCT of Delhi (2020) clarified that anticipatory bail does not have a fixed time frame and may continue until the completion of the trial, subject to compliance with court-imposed conditions.

Conclusion

Anticipatory bail under BNSS serves as a crucial tool to protect individuals from arbitrary arrests and potential misuse of power. While it upholds the constitutional right to personal liberty, it also ensures that the justice system is not exploited by placing reasonable restrictions and conditions. As the jurisprudence around anticipatory bail continues to evolve, applicants must be well-informed about the legal framework, judicial precedents, and procedural aspects to navigate the process effectively.

Frequently Asked Questions

What is anticipatory bail under BNSS, 2023?

It is a legal provision that allows individuals to seek bail before arrest for non-bailable offences.

What factors are considered under Section 482 BNSS for anticipatory bail?

Nature of accusations, harm or humiliation risks, criminal record, and risk of absconding.

Can anticipatory bail be cancelled?

Yes, under Section 483(3), anticipatory bail can be revoked if conditions are violated.

How long does anticipatory bail last?

It can last until the completion of the trial unless revoked.

What are the forums for filing anticipatory bail applications?

Applications can be made before the Court of Session or the High Court.