Anticipatory Bail Under BNSS
An application for anticipatory bail may be moved before the High Court or the Court of Session at any time after a person has a reasonable belief (or ‘reason to believe’) that they may be arrested for a non-bailable offence, and must be filed before the actual arrest.
In a legal landscape increasingly shaped by digital evidence, political pressures, personal grudges, and civil disputes that are strategically framed as criminal cases, anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) emerges as a vital safeguard for individual liberty. This extraordinary remedy empowers citizens to seek protection from arrest even before it occurs—especially when the threat of arrest is rooted in malice, procedural abuse, or undue coercion.
This article outlines the key circumstances under which anticipatory bail may be sought.
Grounds for Anticipatory Bail
1. Grounds Relating to Malicious Prosecution and False Implication:
- Grounds Relating to Malicious Prosecution and False Implication:
Anticipatory bail is often invoked when criminal proceedings are weaponized for personal or political vendetta. Common scenarios include:
- False Accusations: FIRs or complaints filed out of revenge, rivalry, or political grudges, lacking any factual basis.
- Flimsy Charges: Allegations that are exaggerated, unsupported by credible evidence, or inherently improbable.
- Misuse in Family Disputes: Matrimonial or domestic violence cases used to harass or pressure the accused in civil matters.
- Business Squabbles: Criminal complaints arising from civil or financial disagreements, such as breach of contract or money recovery.
- Political Vendetta: Threats of arrest arising from political bias, media sensationalism, or extraneous public pressure, rather than genuine criminal conduct.
These situations reflect a misuse of the criminal justice system, where anticipatory bail acts as a shield against unjust incarceration.
2. Grounds Relating to Individual Liberty and Procedural Justice:
The BNSS reinforces the constitutional guarantee of personal liberty under Article 21. Anticipatory bail may be justified when:
- Protection of Liberty: The applicant seeks to prevent arbitrary or premature arrest.
- Custodial Risks: There is a credible fear of torture, humiliation, or harassment in police custody.
- Professional Actions: The alleged act occurred during the course of official or professional duties, done in good faith.
- Procedural Lapses: Delayed FIRs or irregularities in procedure suggest mala fide intent.
- No Absolute Bar Based on Offence Severity: Unlike older laws, BNSS does not automatically deny anticipatory bail based on the seriousness of the offence, allowing courts to assess each case on its merits.
These grounds emphasize the role of anticipatory bail in upholding procedural fairness and preventing abuse of power.
3. Grounds Relating to Cooperation and Credibility of the Accused:
Courts also consider the applicant’s conduct and credibility:
- Clean Record: No prior criminal history or similar allegations.
- Full Cooperation: Willingness to assist the investigation and appear for interrogation.
- No Flight Risk: Strong community ties, stable employment, and family responsibilities.
- No Tampering Risk: Assurance that the accused will not interfere with evidence or witnesses.
- Absence of Interrogation Necessity: If the case relies on documents and does not require physical custody.
These factors help the court assess whether granting bail would hinder justice or support a fair investigation.
A Word of Caution:
While anticipatory bail under Section 482 of BNSS is a constitutional safeguard against arbitrary arrest, it remains a discretionary remedy granted only after careful judicial consideration of the facts. Courts evaluate each application based on the unique facts, nature, and gravity of the accusation. It is not a blanket immunity but a constitutional safeguard against misuse of arrest powers.
Conclusion:
Anticipatory bail, under the new BNSS law of 2023, is more than just a legal option. It affirms the constitutional commitment to fairness, dignity, and protection against arbitrary state action.
When individuals are wrongly accused, improperly targeted through legal procedures, or face threats for political reasons, they can seek this protection before arrest. It’s a way to safeguard their personal freedom and reputation.
Lawyers, those who champion rights, and indeed all citizens must remain watchful and well-informed. This is crucial to ensure that justice is not only carried out properly but is also clearly perceived as fair by everyone.
