Key points
- Anticipatory bail is now under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 438 CrPC).
- In Delhi, apply first to the Sessions Court; the Delhi High Court can be approached directly in urgent or serious cases.
- Courts weigh the seriousness of the allegation, the need for custodial interrogation and the risk of the accused absconding or tampering with evidence.
Step by step
- Obtain the FIR or complaint
Download the FIR from the Delhi Police website or obtain a copy from the police station. If no FIR exists but arrest is apprehended, gather the complaint, notices or communications that show the apprehension is real. - Prepare the application
Draft an application under Section 482 BNSS setting out the accused's version, the reasons the allegations are false or exaggerated, and the accused's roots in society, along with an affidavit and annexures. - File before the Sessions Court
File in the Sessions Court having jurisdiction over the police station. The court usually issues notice to the State and may grant interim protection from arrest pending the reply. - Argue on the hearing date
The prosecution files a status report. Counsel argues on the merits, the absence of any need for custodial interrogation and the accused's willingness to cooperate. - Comply with conditions
If granted, bail typically requires joining the investigation, not contacting witnesses, surrendering the passport and not leaving the country without permission.
What anticipatory bail is
Anticipatory bail is a direction under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 that a person who apprehends arrest for a non-bailable offence shall be released on bail if arrested. It is sought before arrest and is meant to protect personal liberty where the allegation is doubtful, the offence is not grave, or custody is not needed for the investigation.
Where to file in Delhi
The Sessions Court for the district in which the police station falls is the normal first forum. The Delhi High Court has concurrent jurisdiction and is approached directly where the matter is urgent, where a coordinate bench has already dealt with connected cases, or where the offence carries a heavy punishment.
What the court considers
The Supreme Court's guidance in Sushila Aggarwal v. State (NCT of Delhi) (2020) confirms that anticipatory bail need not be time-limited and that the court should look at the nature and gravity of the accusation, the applicant's antecedents, the possibility of the applicant fleeing, and whether the accusation appears to be made to injure or humiliate the applicant. The court will also ask whether custodial interrogation is actually necessary.
Timelines and interim protection
Applications in the Sessions Court are usually listed within a day or two, and the court often grants interim protection on the first date while calling for a status report. The final hearing typically follows within two to four weeks depending on the court's board.
Frequently asked questions
Can anticipatory bail be filed before an FIR is registered?
Yes. A reasonable apprehension of arrest for a non-bailable offence is enough. The application should explain the basis of the apprehension, such as a complaint to the police or a notice received.
Is anticipatory bail available for all offences?
No. Some statutes exclude it, for example certain offences under the SC/ST (Prevention of Atrocities) Act, and courts are reluctant to grant it in serious economic offences or where the accused has evaded the investigation.
How long does anticipatory bail last?
Unless the court limits it, the protection continues until the end of the trial. The court can, however, impose a time limit or direct the accused to seek regular bail after charge sheet in appropriate cases.
Related practice area: Criminal Defence
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.