A detailed new analysis by Sanjushree Sur and Deepshika Chauhan argues that India’s move from the CrPC to the Bharatiya Nagarik Suraksha Sanhita (BNSS) has shifted anticipatory bail from a carefully balanced protective remedy to a tool that can be inconsistently applied and sometimes misused. The authors trace the history of anticipatory bail through landmark rulings, explain the changes BNSS introduced in 2023, and warn that those changes have important practical consequences for victims, accused persons, and the justice system as a whole.
Under the earlier CrPC framework, anticipatory bail carried built-in procedural checks: notice to the public prosecutor, opportunity for the prosecution to be heard, and explicit criteria courts were meant to weigh when deciding applications. The BNSS retains the remedy but removes many of those codified guardrails. Where the CrPC listed considerations, the BNSS now allows courts to grant relief “if it thinks fit,” a phrasing that critics say opens the door to wider, less uniform judicial discretion. The paper documents several instances in which similarly situated applicants received divergent outcomes, underscoring a rising concern about equal treatment under the law.
The BNSS also narrows the right of anticipatory bail in two narrow categories of sexual offences, while critically it no longer contains the CrPC’s categorical bar on anticipatory bail for offences carrying life imprisonment or death. That omission, together with the retrospective availability of BNSS protections for older offences, has produced case law showing courts sometimes granting anticipatory bail in very serious matters. The paper argues that this combination of added discretion and fewer absolute limits may jeopardize witness safety, allow tampering with evidence, and erode public confidence in speedy justice.
Beyond diagnosis, the authors propose practical reforms. They recommend reintroducing clear statutory criteria so judges have uniform standards to apply, recognizing and codifying transit anticipatory bail, and building stronger monitoring and enforcement mechanisms for bail conditions. The paper looks to foreign examples such as the U.S. Federal Bail Reform Act, the UK’s bail framework, and Singapore’s monitoring practices to suggest measures India could adapt while preserving judicial flexibility where genuinely needed.
The central tension is straightforward: anticipatory bail is designed to protect individuals from arbitrary arrest, but without transparent rules and effective enforcement it can be used to delay investigations or intimidate witnesses. The authors conclude that preserving personal liberty must not come at the cost of obstructing justice. They call for a calibrated legislative fix that restores consistent criteria and procedural safeguards while allowing courts to exercise measured discretion in exceptional cases.
List of Cases : Onkar Nath Agrawal v. State (All. H.C. 1976); Balchand Jain v. State of M.P., (S.C. Nov. 5, 1976); Gurbaksh Singh Sibbia v. State of Punjab, (S.C. Apr. 9, 1980); Narinderjit Singh Sahni v. Union of India and Ors., (S.C. Oct. 12, 2001); Birbal Munda v. State of Jharkhand, (Jhr. H.C. Aug. 13, 2019); Sushila Aggarwal v. State (NCT of Delhi) and Ors., (S.C. May 15, 2018); Abhishek Yadav v. State of U.P., (All H.C. June 4, 2024); Priya Indoria v. State of Karnataka and Ors., (S.C. Nov. 20, 2023); Parisha Trivedi v. State of Chhattisgarh, (C.G. H.C. Sept. 23, 2024); Abdul Hameed v. State of U.P., (All H.C. July 3, 2025); Sudhir v. State of U.P. and Ors., (All H.C. Sept. 30, 2024).
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