Since 1 July 2024, a person who apprehends arrest for a non-bailable offence seeks anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The application lies before the High Court or the Court of Session. The provision carries forward Section 438 of the Code of Criminal Procedure, 1973, but it is not a mere renumbering.
A point of caution first. Section 482 now means anticipatory bail. The inherent powers of the High Court, which practitioners knew as Section 482 CrPC, are now found in Section 528 BNSS.
Which court to approach
The High Court and the Court of Session have concurrent jurisdiction. In Ankit Bharti v. State of U.P., a five-judge bench of the Allahabad High Court held that the High Court may be approached directly in special circumstances, and declined to define them, leaving it to the judge in each case. The High Court continues to apply this approach to applications under Section 482 BNSS.
In Mohammed Rasal C. v. State of Kerala (2025), the Supreme Court said that an application should ordinarily be moved first before the Sessions Court, and that a High Court should entertain one directly only in exceptional cases, for special reasons recorded. It then referred the question to a three-judge bench, which has reserved judgment. Until that bench rules, the Sessions Court remains the ordinary first forum, and a direct application to the High Court must show special circumstances.
What has been left out
Section 438(1) CrPC listed factors the court had to weigh: the nature and gravity of the accusation, the antecedents of the applicant, the possibility of flight, and whether the accusation was made to injure or humiliate. Section 482 BNSS does not repeat that list. The Chhattisgarh High Court has read the omission as widening the court’s discretion, not narrowing it.
The provisions of Section 438 on interim orders, notice to the Public Prosecutor and the applicant’s presence at the final hearing, and the proviso that left the police free to arrest where no interim order had been made, also do not appear in Section 482.
The conditions the court may impose
The court may still impose conditions, including that the applicant makes himself available for interrogation, does not induce or threaten any witness, and does not leave India without permission. Section 482(2) also allows any condition that could be imposed under Section 480(3).
A new statutory bar
Section 482(4) provides that the section does not apply where the accusation is of an offence under Section 65 of the Bharatiya Nyaya Sanhita (rape of a girl under sixteen) or Section 70(2) (gang rape of a girl under eighteen). The text joins the two with “and”. The Gauhati High Court has read it as “or”, so that the bar applies if either offence is alleged. In October 2026 the Bombay High Court at Nagpur held that the bar is not absolute: an application remains maintainable to the limited extent of testing whether the ingredients of those offences are made out on a prima facie reading.
The position in Uttar Pradesh
Uttar Pradesh had amended Section 438 CrPC in 2019 to bar anticipatory bail in certain offences, including those under the NDPS Act. In Sudhir @ Sudhir Kumar Chaurasia v. State of U.P., 2025:AHC-LKO:34988, the Lucknow Bench of the Allahabad High Court held that the State amendment did not survive the repeal of the CrPC, and that Section 482 BNSS governs the field. The question is not settled everywhere: the Uttarakhand High Court has referred a similar question about its own State amendment to a larger bench.
What remains the same
The settled principles continue. In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court held that the power is to be exercised with discretion, not hedged with conditions the statute does not impose, and that the filing of an FIR is not a condition precedent. In Sushila Aggarwal v. State (NCT of Delhi), a Constitution Bench held that protection need not be limited to a fixed period and may continue until the end of the trial, unless the court finds reason to limit it.
The remedy also reaches beyond the penal code. In Radhika Agarwal v. Union of India, the Supreme Court confirmed that a person apprehending arrest under the GST and Customs laws may seek anticipatory bail.
This note states the law as it stands on 15 November 2026. It is general information, not legal advice, and does not create an advocate–client relationship. The law on several of these points is still developing.