Anticipatory Bail Section 482

Section 482, BNSS 2023 — the substance

(1) Where 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration — (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant, including whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested — either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

(2) When the Court makes a direction under sub-section (1), it may include such conditions in the light of the facts of the particular case as it may think 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 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 sub-section (3) of section 480.

(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.

⚠ The four factors are cumulative considerations, not conditions

The section says the Court may act after taking into consideration the four matters. They are considerations to be weighed, not conditions each of which must be satisfied before relief can be granted.

The fourth is the key to the provision. Where the accusation appears to have been made to injure or humiliate the applicant by having him arrested, that is the paradigm case for the relief — the mischief the section exists to meet.

The second is the most often decisive against. Antecedents showing previous imprisonment on conviction for a cognizable offence weigh heavily, and the section singles that out.

And note what the section does not require: no first information report need have been registered, and the applicant need not show that the case is exceptional or make out a special case beyond the statutory reason to believe.

📖 Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694

Facts: An application for anticipatory bail was refused on the footing that the applicant’s custodial interrogation was necessary and that the offence was grave. The Supreme Court reviewed the law and set out, at length, the considerations relevant to the exercise of the jurisdiction.

Held: The Supreme Court held that the power is a device to secure individual liberty and is neither a passport to the commission of crime nor a shield against any and all kinds of accusation. It set out the matters relevant to the exercise of the discretion: the nature and gravity of the accusation and the exact role attributed to the applicant; his antecedents, including whether he has previously undergone imprisonment on conviction for a cognizable offence; the possibility of his fleeing from justice; the likelihood of his repeating the offence; whether the accusation has been made to injure or humiliate him; the impact of the grant on the investigation; the reasonable apprehension of tampering with witnesses; and a balance between the right of personal liberty and the right of the investigating agency to interrogate. The Court held that custodial interrogation is not to be treated as a ground in itself — the question is whether it is genuinely necessary — and that the grant of anticipatory bail does not obstruct the investigation, the agency retaining its powers under the conditions the section permits.

Ratio: Anticipatory bail is a device to secure liberty, neither a passport to crime nor a shield against all accusation. The Court balances personal liberty against the agency’s right to interrogate, and custodial interrogation is not a ground in itself but must be genuinely necessary.

📖 State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171

Facts: Anticipatory bail was granted to a person who had been declared an absconder and against whom proceedings for proclamation had been taken, he having evaded the process of the Court. The State challenged the order.

Held: The Supreme Court held that a person who is evading the process of the Court, and in particular one who has been declared an absconder or a proclaimed offender, is not entitled to the relief of anticipatory bail. The Court reasoned that the jurisdiction exists to protect a person against the misuse of the power of arrest, and that a person who has himself defied the lawful process — refusing to appear, evading warrants, and compelling proclamation — cannot ask the Court to protect him from the consequences of that defiance. It held that granting the relief in such a case would reward the very conduct the law seeks to prevent, and would render the machinery of proclamation and attachment ineffective. The Court set aside the order, holding that the High Court had failed to consider that the respondent stood declared an absconder.

Ratio: A person who is evading the process of the Court, and in particular one declared an absconder or proclaimed offender, is not entitled to anticipatory bail. The jurisdiction protects against misuse of the power of arrest, not against the consequences of defying lawful process.

⚠ Two practical points

Section 482(1) permits an interim order. The Court may either reject the application forthwith or issue an interim order for the grant of anticipatory bail — so the statute itself contemplates protection pending the final hearing.

And the relief is not available in the excepted offences. The section does not apply to a case involving the arrest of a person on an accusation of having committed the aggravated sexual offences against minors which the Sanhita specifies.

The position stated shortly

1. Anticipatory bail is a direction given before arrest that, in the event of arrest, the person shall be released on bail. It operates on a contingency.

2. Only the High Court or the Court of Session may grant it, and only on a reason to believe that the applicant may be arrested on an accusation of a non-bailable offence.

3. The four statutory factors: the nature and gravity of the accusation; the antecedents, including previous imprisonment on conviction for a cognizable offence; the possibility of fleeing from justice; and whether the accusation was made to injure or humiliate him by having him arrested.

4. They are considerations to be weighed, not conditions each of which must be satisfied. The fourth identifies the mischief the section exists to meet.

5. Section 482(2) permits conditions — availability for interrogation, no inducement, threat or promise to a person acquainted with the facts, not leaving India without permission, and such other condition as section 480(3) allows.

6. The relief is neither a passport to the commission of crime nor a shield against any and all accusation, and the Court balances personal liberty against the agency’s right to interrogate: Siddharam Mhetre.

7. Custodial interrogation is not a ground in itself; the question is whether it is genuinely necessary. The grant does not obstruct the investigation.

8. A person evading the process of the Court, and in particular a declared absconder or proclaimed offender, is not entitled to the relief: Pradeep Sharma.

9. The protection should ordinarily enure without a time limit and may continue till the end of the trial; it does not end on summons or on the filing of the charge sheet, though a court may in the peculiar facts limit it.

10. Section 482(3): on arrest, if the person is prepared to give bail, he shall be released — so the direction converts into an actual release at the moment it is needed.