Section 482 BNSS and the wider anticipatory-bail discretion: a Chhattisgarh High Court reading

The Bharatiya Nagarik Suraksha Sanhita, 2023, replaced the Code of Criminal Procedure, 1973 on 1 July 2024. As one of the principal structural changes, anticipatory bail — which had occupied §Section 438 CrPC since 1973 — was re-housed in §Section 482 BNSS. The framework of grant — the court's power, on apprehension of arrest, to direct that the applicant be released on bail in the event of arrest — was carried over. What was not carried over was the statutory list of factors the court was required to consider before granting the relief.

In a judgment in late September 2024, Goutam Bhaduri, J. of the Chhattisgarh High Court read the omission as a deliberate legislative choice — and as one that widens, rather than narrows, the discretion of the court. The reading has rapidly become the leading early authority on the section, and it is the analytical framework against which most early BNSS anticipatory-bail applications are being decided.

The drafting difference, side by side

The starkest way to see what the BNSS did is to set out the relevant text side by side.

Section 438(1) CrPC (the relevant proviso) — "When the High Court or the Court of Session makes a direction under sub-section (1), it shall take into consideration the following factors, namely:— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to 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."

Section 482(1) BNSS — The provision retains the framework of grant but omits the four enumerated factors. The court's discretion is not, in terms, structured by the statutory list.

The omission is not absentmindedness. The Joint Committee report and the legislative history of the BNSS indicate that the drafters considered and chose not to carry the factors over.

The Chhattisgarh High Court's reading

Goutam Bhaduri, J. read the choice as widening the discretion. The reasoning, in the form in which it has been reported, has three connected propositions.

The statutory list was a constraint, not a guide

The first proposition is doctrinal. The CrPC list, even though framed as factors the court was required to "take into consideration," operated in practice as a constraint on the discretion. Where the factors weighed against grant — strong antecedents, serious accusation, flight risk — the court's room for relief was structurally limited. The deletion of the list removes that structural constraint and returns the discretion to a more general standard.

The general standard remains the constitutional one

The second proposition is the constitutional grounding. Anticipatory bail under either Section 438 CrPC or Section 482 BNSS exists in the shadow of Article 21 — the right to life and personal liberty. The constitutional considerations that bear on whether arrest should precede the determination of guilt are not statutory factors; they are constitutional ones. The deletion of the statutory list does not reduce the importance of the constitutional considerations; if anything, it brings them more squarely into the analytical centre.

The discretion is wider, but not unstructured

The third proposition is the practical answer. The discretion is widened, but it is not now an unstructured discretion. The principles articulated in earlier authorities — particularly Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 — continue to supply the doctrinal framework within which the discretion is exercised. The court must still consider whether the apprehension of arrest is reasonable, whether grant of anticipatory bail would frustrate investigation, and whether the protection sought is genuinely required.

What changes is the weight the four CrPC factors carry. They are no longer the statutory checklist; they are factors that may, in a given case, be relevant or irrelevant.

Why this matters in practice

For practitioners pleading or opposing anticipatory bail under the BNSS, the doctrinal shift has three operational consequences.

For the applicant

The pleadings have more analytical room. Under the CrPC, an applicant with strong adverse factors — a serious accusation, antecedents, a residence outside the jurisdiction — was facing a statutory list that weighted the application against grant. Under the BNSS, the applicant can argue that the absence of the list invites the court to consider the constitutional and proportionality dimensions of the arrest question more directly. The argument is not that the adverse factors are irrelevant; it is that they are no longer doctrinally privileged over the constitutional considerations that bear on liberty.

For the applicant's bar, this means:

• Front-loading the constitutional argument. The plea should foreground the Article 21 considerations rather than treating them as an afterthought. The discretion, the bar should argue, must be exercised consistently with the constitutional protection of liberty.
• Engaging adverse factors substantively, not procedurally. Where adverse factors exist, the answer is not to invoke the deletion of the list but to engage the substance — explaining the antecedent, addressing the seriousness of the accusation, demonstrating absence of flight risk. The deletion gives the court room to weigh; the bar must provide the weighing material.

For the prosecution

The structure of opposition has also shifted. Under the CrPC, the prosecution could rely substantially on the statutory list — invoking each factor in turn and arguing that the cumulative weight excluded relief. Under the BNSS, that argument is weaker. The prosecution must now invoke the substantive concerns directly — the integrity of investigation, the possibility of evidence-tampering, the practical consequence of grant — rather than relying on the statutory checklist's accumulated weight.

For the bench

The exercise of discretion now requires a more substantive engagement with the facts of each case. The CrPC list, while not foreclosing discretion, had the practical effect of structuring the court's reasoning around four named factors. The deletion places the responsibility for structuring the reasoning more squarely on the court itself.

The bar's expectation, post-Chhattisgarh-HC, is that:

• High Courts and Sessions Courts will develop, through case-law, the substantive framework that the deletion has created room for.
• The framework will likely look more like the Gurbaksh Singh Sibbia / Siddharam Satlingappa Mhetre (2011) line — emphasising the constitutional considerations and the proportionality of arrest — than the post-1980 CrPC practice that grew up around the statutory factors.
• The reasoning in individual orders will become longer and more substantive, as the absence of a statutory checklist places the burden on the order to explain the reasoning rather than to invoke a structured factor analysis.

What survives from the CrPC line of authority

The Chhattisgarh High Court's reading is explicit on this point, and the bar should be too: the doctrinal architecture built under Section 438 CrPC does not simply disappear with the change of code. The case law that interpreted the four factors continues to be persuasive on what each factor means in substance — what counts as a "serious accusation," what kind of antecedent weighs against grant, what circumstances suggest flight risk, what kind of conduct in earlier proceedings indicates risk of influencing witnesses.

What changes is the doctrinal status of the factors. Under the CrPC, they were statutory considerations the court was required to take into account. Under the BNSS, they are matters that bear on the exercise of discretion — and the relative weight given to them depends on the facts of the case and the constitutional framing of the analysis.

The line of cases to watch

The Chhattisgarh reading is the early leading authority, but it will not be the final word. The bar should track:

• Supreme Court engagement with the section. When the Supreme Court takes up an anticipatory-bail matter under Section 482 BNSS, the doctrinal posture of the apex court will be the framework against which the High Court readings are then re-evaluated.
• Cross-High Court variance. Different High Courts may, in their reading of the section, give differing weight to the deletion of the statutory factors. Some may treat it as a substantive widening; others may treat it as a stylistic re-housing of a substantively unchanged provision. The variance is part of what will be resolved at the apex level.
• The "compelling reasons" line. The Chhattisgarh reading is broadly consistent with the line of authority that treats anticipatory bail as a relief that must be granted where the circumstances warrant — rather than as a relief to be denied unless the applicant clears specific statutory hurdles. The further development of this posture will affect how the section is operationalised across jurisdictions.

The bottom line

Section 482 BNSS replaces Section 438 CrPC — but without the statutory factors. The Chhattisgarh High Court's reading of this drafting choice — that the discretion is widened, not constrained — is the most consequential early interpretation, and it sets the analytical framework for the early BNSS anticipatory-bail jurisprudence. For the applicant's bar, the doctrinal shift creates room to plead the constitutional and proportionality considerations more directly. For the prosecution, the analytical work is now more substantive. For the bench, the exercise of discretion requires more explicit reasoning. Until the Supreme Court takes a position, the Chhattisgarh framework is the working law of Section 482.

Verify against the reported judgment and against the early case law developing in other High Courts. The Supreme Court has not, as of writing, decided a substantive Section 482 BNSS anticipatory-bail matter that would supersede the High Court line.