Conditions Apply: What You Need to Know About Anticipatory Bail

With our country heading towards a journey of introducing new and much more stringent laws for its citizens, a real challenge that looks in the eyes of the law-abiding citizens is misuse or abuse of these stringent laws by a notorious element against them. For any law to be implemented, one must look into such possible misuse of any law and its effect on public at large.

Let’s understand this with help of an example. Let us say that X is a law-abiding citizen, is a successful businessman dealing with a lot of clients every day. His business depends on honesty, trust and loyalty as factors that drive the business, and he does have all of them. One day one of his enemies ‘Y’ decide to threaten him with a false lawsuit under Section 318 Bhartiya Nyaya Sanhita (BNS) [Cheating], just to tarnish his reputation and his business. His enemies know that by the time X would be able to poove his innocence in the court of law, he will have to go to prison/ lockup, which would erode the trust of any client he his dealing with in his business and hence his business would not survive. His enemies are happy filing this case against him and are celebrating his future failure.

X on the other hand, knowing the intentions of his enemies, pulls out a UNO reverse card. He files an application under Section 482 BNSS before appropriate court for grant of Anticipatory bail, puts his case forward in the court, tells the intentions of his enemies, mentions his previous conduct to the court. The court grants him the anticipatory bail, hence from now on, in an event of police wanting to arrest X, they will have to immediately release him on bail. Hence no threat of going to the prison/ lockup, and no possible harassment from the police. Now the enemies are stuck with sustaining a false case out of their own pocket, which they know will not yield any result at the end and X’s business does not get affected.

This is the power of an anticipatory bail. A tool made for the law-abiding citizens to ensure that they are not harassed by the law enforcement and they are not susceptible to misuse of power or ill intentions of notorious elements of the society. Let us learn more about the provision:

“Section 482 BNSS: Direction for Grant of Bail to Persons Apprehending Arrest

(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 previous 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 Bhartiya Nyaya Sanhita, 2023.”

Eligibility for Anticipatory Bail

When a person has reason to believe that they might be arrested based on an accusation of committing a non-bailable offense, they can apply to either the High Court or the Court of Session for a direction under Section 482 of BNSS. Essentially, this provision allows individuals to seek anticipatory bail as a preventive measure against potential arrest.

Court’s Role and Discretion

The court has the discretion to grant anticipatory bail if it deems fit. If satisfied with the applicant’s case, the court can direct that in the event of any arrest, the person shall be released on bail immediately. This means that even before the actual arrest occurs, the court can provide protection by ensuring the person’s release on bail. However, this discretion is what is sparingly used by the courts in such cases as giving anticipatory bail in cases motivated by ill intentions of the applicant will further hamper the justice system.

Courts can, in the event of allowing the application, impose certain conditions based on the facts of the case. These conditions can include, but are not restricted to:

Availability for Interrogation: The person must make themselves available for questioning by a police officer when required. Granting of bail does not mean suspension of the case. Hence the court shall make it clear in the order that the accused must provide himself for interrogation or investigation and must also provide any such documents or evidences relevant for the investigation whenever called upon by the investigating officer of the police.
No Inducement or Threats: The person should not directly or indirectly influence any witnesses in his case or dissuade them from disclosing facts to the court or police. Such a conduct will lead to a futile investigation and hence shall be prohibited by the courts.
Travel Restrictions: The court may or may not restrict the person from leaving India without prior permission. In cases the courts feel its necessary for the accused persons to travel abroad during investigation, they might alter provisions accordingly. For example, the courts might ask the accused to take permission from the court or any officer so deputed before leaving the country and or have additional security deposits in place to ensure evasion from the process.
Other Conditions: The court can also impose any other additional conditions similar to those under Section 480.

Upon granting of order under Section 482 BNSS and undertaking to follow the conditions prescribed by the court, if the person is subsequently arrested without a warrant by a police officer and they are willing to furnish bail, they shall be released. If any magistrate decides that a warrant should be issued in the case, it will have to be a bailable warrant in line with the court’s direction under Section 482 BNSS.

Exception to Anticipatory Bail

Notably, Section 482 does not apply to cases involving offenses under Section 65 (Rape) and sub-section (2) of Section 70 (Gang Rape) of the Bhartiya Nyaya Sanhita, 2023. These specific offenses fall outside the scope of anticipatory bail under this provision.

Important Judgments

Courts do use this power cautiously and sparingly and rightly so. In Gurbaksh Singh Sibbia and others. vs. State of Punjab (April 09, 1980), the SC held that an individual must have an appropriate reason to apply for anticipatory bail rather than a mere fear or belief. The five-judge bench observed, “The applicant must show that he has "reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that 'someone is going to make an accusation against him, in pursuance of which he may be arrested.

In another leading judgement of Supreme court in Sushila Aggarwal vs State (NCT of Delhi) the court laid down the following:

Scope of Anticipatory Bail: The judgment clarifies that anticipatory bail can be applied for at various stages, including before an FIR is lodged, or during the investigation, and after the investigation is concluded.
Court’s Discretion: The power to grant anticipatory bail under Section 438 of the Cr.P.C. (Now 482 BNSS), lies with the High Courts or Courts of Sessions, and it is up to these courts to impose conditions based on the case specifics. The judgment states that there is no statutory requirement for anticipatory bail to be time-bound, leaving it to the court’s discretion to decide the duration.
Legislative Intent: The judgment emphasizes that the legislature intended to provide wide discretionary power to higher courts to grant anticipatory bail, reflecting the importance of protecting individual freedom and the presumption of innocence.

Conclusion

In summary, Section 482 BNSS provides for a protective shield for individuals who anticipate arrest due to non-bailable offenses in certain situations. It empowers the Court of Sessions and the High Courts of a state to grant anticipatory bail to such individuals who anticipate arrest in cases where prima facie, their involvement seems to be highly unlikely and/ or the offence feels to be driven by ill intentions, subject to reasonable conditions, thereby safeguarding the rights and liberty of the accused.

__________________________________________________

References:

Section 482 in Bharatiya Nagarik Suraksha Sanhita, 2023

Analysing Anticipatory Bail under the Bharatiya Nagarik Suraksha Sanhita, 2023

__________________________________________________