Anticipatory Bail, and the Special Powers of the Higher Courts

Three conditions are inside those words and all three are examinable. The apprehension must be of an arrest, not merely of an accusation. The accusation must be of a non-bailable offence. And the applicant must have reason to believe, which is more than a vague fear.

Sub-section (2), the conditions. When such a direction is made, the Court may include such conditions in the light of the facts of the particular case as it thinks fit, including:

(i) that the person shall make himself available for interrogation by a police officer as and when required; (ii) that he 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 them to the Court or to any police officer; (iii) that he shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under section 480(3), as if the bail were granted under that section.

Sub-section (3), what happens on arrest. If he is thereafter arrested without warrant by an officer in charge of a police station on that accusation, and is prepared, at the time of arrest or at any time while in that officer's custody, to give bail, he shall be released on bail. And if a Magistrate taking cognizance decides that a warrant should issue in the first instance against him, he shall issue a bailable warrant in conformity with the Court's direction.

Sub-section (4), the exclusion. 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.

Those are the offences of rape of a woman under sixteen years of age and gang rape of a woman under eighteen. For them the section simply does not exist.

Note how sub-section (3) makes the direction self-executing. The arresting officer does not send the man to a Magistrate to ask; the man is released on bail by the officer. And where the process is by warrant, the Magistrate must issue a bailable one.

Section 483: the special powers

Sub-section (1), the two directions. A High Court or Court of Session may direct:

(a) that any person accused of an offence and in custody be released on bail; and where the offence is of the nature specified in section 480(3), it may impose any condition it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing a person on bail be set aside or modified.

First proviso, notice to the Public Prosecutor. The Court shall, before granting bail to a person accused of an offence triable exclusively by the Court of Session, or which, though not so triable, is punishable with imprisonment for life, give notice of the application to the Public Prosecutor, unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Second proviso, the fifteen days. The Court shall, before granting bail to a person accused of an offence triable under section 65 or section 70(2) of the Bharatiya Nyaya Sanhita, 2023, give notice of the application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

Sub-section (2), the informant's presence. The presence of the informant, or of any person authorised by him, shall be obligatory at the time of hearing of the application for bail to a person under section 65 or section 70(2) of the Bharatiya Nyaya Sanhita.

Sub-section (3), re-arrest. A High Court or Court of Session may direct that any person released on bail under this Chapter be arrested and committed to custody.

Do not confuse section 483(3) with section 480(5). Section 480(5) lets the Court that released him order his arrest; section 483(3) lets the High Court or Court of Session order the arrest of any person released on bail under the Chapter, including by a Magistrate.

A worked example

A property dispute produces a complaint against Sameer alleging cheating and criminal intimidation, both non-bailable in the way the case is put. He learns that the police intend to arrest him.

What can he do? Apply to the High Court or the Court of Session under section 482(1). A Magistrate cannot grant this.

What must he show? That he has reason to believe he may be arrested on an accusation of a non-bailable offence.

What may the Court order? That in the event of such arrest he shall be released on bail, with conditions: that he make himself available for interrogation, that he not induce, threaten or promise anybody acquainted with the facts, that he not leave India without the Court's previous permission, and any condition available under section 480(3).

The police then arrest him. He is released on bail by the officer in charge if he is prepared to give bail at the time of arrest or while in custody, section 482(3). He does not need a fresh order.

The Magistrate decides to proceed by warrant instead. He shall issue a bailable warrant in conformity with the direction, sub-section (3).

Change the accusation to an offence under BNS section 65. Then section 482 does not apply at all, sub-section (4), and no anticipatory bail can be granted.

Now a different situation. Sameer has been arrested in another case and is in custody; the Magistrate has refused bail, or has granted it on a condition he says is impossible.

What now? Section 483(1). The High Court or Court of Session may direct his release on bail, clause (a), or set aside or modify the Magistrate's condition, clause (b).

The offence is exclusively triable by the Court of Session. Then notice must go to the Public Prosecutor before bail, unless the Court records in writing that notice is not practicable, first proviso.

The offence is under BNS section 70(2). Then notice to the Public Prosecutor within fifteen days of receipt of notice of the application, second proviso; and the presence of the informant, or a person authorised by him, is obligatory at the hearing, sub-section (2).

Sameer is released and then interferes with a witness. The High Court or Court of Session may direct that he be arrested and committed to custody, sub-section (3).

Distinctions

What this does NOT mean

Anticipatory bail is not a bar to arrest. The person may still be arrested; what the direction secures is his release on bail when that happens.

It is not a bar to investigation. The Court may require him to make himself available for interrogation as and when required.

It is not available from a Magistrate. Only the High Court and the Court of Session may grant it.

It is not available at all in two classes of case. Section 482(4) excludes accusations under BNS section 65 and section 70(2).

And section 483 is not an appeal. It is an independent power in the higher Courts, exercisable over a person in custody, over a Magistrate's conditions, and, by sub-section (3), over a person already at liberty on bail.

Quick revision

• 482(1): a person with reason to believe he may be arrested on an accusation of a non-bailable offence may apply to the High Court or Court of Session, which may direct that in the event of arrest he shall be released on bail.
• 482(2): conditions may include availability for interrogation, no inducement, threat or promise to a person acquainted with the facts, not leaving India without permission, and any condition under section 480(3).
• 482(3): on arrest without warrant he shall be released on bail by the officer if prepared to give bail; a Magistrate issuing process shall issue a bailable warrant in conformity with the direction.
• 482(4): no anticipatory bail on an accusation under BNS section 65 or section 70(2).
• 483(1): the High Court or Court of Session may release on bail a person accused and in custody, imposing section 480(3) conditions where applicable, and may set aside or modify a Magistrate's condition; notice to the Public Prosecutor where the offence is exclusively triable by the Court of Session or punishable with life, unless impracticable for reasons in writing; and within fifteen days in BNS s.65 or s.70(2) cases.
• 483(2): the informant's presence, or that of a person authorised by him, is obligatory at the hearing in those cases.
• 483(3): those Courts may direct that any person released on bail under the Chapter be arrested and committed to custody.

Test yourself

1. Who may grant anticipatory bail? Only the High Court or the Court of Session, section 482(1).

2. What must the applicant show? That he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.

3. Name three conditions the Court may impose. That he make himself available for interrogation by a police officer as and when required; that he not directly or indirectly make any inducement, threat or promise to a person acquainted with the facts so as to dissuade him from disclosing them; and that he not leave India without the Court's previous permission, section 482(2).

4. In which cases is anticipatory bail wholly unavailable? Where the accusation is of an offence under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, section 482(4).

5. What happens when the person is actually arrested? If arrested without warrant by an officer in charge of a police station and prepared to give bail at the time of arrest or while in custody, he shall be released on bail; and a Magistrate issuing process in the first instance shall issue a bailable warrant in conformity with the direction, section 482(3).

6. When must notice be given to the Public Prosecutor under section 483? Before granting bail to a person accused of an offence triable exclusively by the Court of Session, or, though not so triable, punishable with imprisonment for life, unless the Court records in writing that notice is not practicable; and in cases under BNS section 65 or section 70(2), notice within fifteen days of receipt of notice of the application.

7. Can the High Court cancel bail granted by a Magistrate? Yes. Section 483(3) empowers a High Court or Court of Session to direct that any person released on bail under the Chapter be arrested and committed to custody.