Anticipatory Bail, and the Special Powers of the Higher Courts

In one line

One section lets a man ask for bail before he is arrested; the other gives the two higher courts a wider bail power than any Magistrate has.

In exam wording: section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the High Court and the Court of Session to direct that a person apprehending arrest on an accusation of a non-bailable offence be released on bail in the event of arrest, and section 483 confers on those Courts special powers regarding bail.

Why the law has this at all

An arrest is not only a step in an investigation. It is a humiliation, it costs a man his job and his standing, and once he is in custody the burden of getting out is his.

That does not matter much where the arrest is necessary. It matters a great deal where the accusation is false and was made in order to produce exactly that humiliation, which happens in property disputes, in matrimonial quarrels and in political and business rivalries. In those cases the injury is done at the moment of arrest, and a bail order the next week does not undo it.

Anticipatory bail meets that problem in the only way it can be met: in advance. The Court does not stop the arrest, and it does not stop the investigation; section 482(2)(i) expressly lets it require the man to make himself available for interrogation. What it does is guarantee that the arrest, if it comes, will not be followed by custody.

Because the power is capable of misuse in the other direction, the Sanhita fences it. It belongs only to the High Court and the Court of Session. It is exercisable only where there is reason to believe an arrest may come on a non-bailable accusation. Conditions may be attached. And in two classes of case, section 482(4), it does not exist at all.

Some words this chapter uses

Anticipatory bail is the working name; the Sanhita's own heading is "Direction for grant of bail to person apprehending arrest".

A bailable warrant in section 482(3) is a warrant with an endorsement that the person be released on furnishing bail.

The informant in section 483(2) is the person who set the case in motion.

Section 482: bail in anticipation of arrest

Sub-section (1), the power. 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.