The legal landscape regarding anticipatory bail has undergone significant changes with the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which came into effect on July 1, 2024. Here’s the current position:
Maharashtra Amendment No Longer Applicable
The Maharashtra amendment to Section 438 CrPC is no longer applicable. Recent judicial decisions have clarified that with the repeal of the CrPC and enactment of BNSS 2023, Section 482 BNSS now uniformly governs anticipatory bail across all states, including Maharashtra.
The Allahabad High Court in a recent case Sudhir @ Sudhir Kumar Chaurasia v. State of U.P. & Ors. (Neutral Citation: 2025:AHC-LKO:34988) observed that “with the repeal of the CrPC and the coming into force of BNSS, 2023, the amended Section 482 BNSS has superseded the State amendment” and that “Parliament made a conscious decision to do away with the prohibitions indicated in Section 438(6) CrPC, and that the re-enacted provisions can be said to have been deliberately obliterated by Parliament”.
Key Changes Under BNSS Section 482
Section 482 BNSS differs significantly from the previous Section 438 CrPC:
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Wider judicial discretion: The guiding factors that were mandatory considerations under Section 438(1) CrPC are conspicuously absent in Section 482 BNSS.
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Simplified framework: The proviso to Section 438(1) CrPC and provisions of Section 438(3) and (4) do not find place in Section 482 BNSS
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Uniform application: Unlike the previous system where states could amend CrPC provisions, Section 482 BNSS applies uniformly across India
Constitutional Interpretation
Courts have applied Article 254(2) of the Constitution to resolve the conflict between state amendments and central legislation. The principle established is that “there being a considerable difference in the provisions of anticipatory bail between Act No. 4 of 2019 and Section 482 BNSS 2023… it is the provisions of re-enacted Section 482 BNSS 2023, which shall prevail”.
Conditions Under Section 482 BNSS
The current law under Section 482 allows courts to impose conditions such as:
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Making oneself available for interrogation by police when required
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Not making any threats or inducements to witnesses
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Not leaving India without court’s permission
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Additional conditions similar to those under Section 480(3) as deemed fit by the court
Practical Implications
For Maharashtra specifically:
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The special provisions like mandatory 3-day interim protection under Section 438(4) Maharashtra amendment no longer apply
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Courts now have wider discretion in granting anticipatory bail without the restrictive framework of the Maharashtra amendment
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The uniform provisions of Section 482 BNSS apply to all anticipatory bail applications
The transition reflects Parliament’s intent to modernize criminal law with a uniform framework while maintaining the core principle of protecting individual liberty against unnecessary detention