Anticipatory Bail in False Promise of Marriage Cases Under Section 69 BNS – Complete Guide

Any person who has reasonable grounds to believe that they may be arrested for an offence under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS) may apply for anticipatory bail before the competent court. The remedy is preventive in nature and is intended to protect an individual from unnecessary arrest while ensuring that the criminal investigation proceeds in accordance with law.

Contrary to a common misconception, an application for anticipatory bail does not require the applicant to wait until the police arrive to make an arrest. Once there is a genuine and reasonable apprehension of arrest—such as after the registration of an FIR, receipt of a notice from the investigating agency, or other circumstances indicating that arrest is likely—the person may approach the court seeking protection.

The applicant need not establish that arrest is certain or imminent. However, there must be a bona fide apprehension based on objective circumstances. A vague or speculative fear of arrest, unsupported by facts, may not be sufficient to invoke the court’s jurisdiction.

Which Court Can Grant Anticipatory Bail?

An application for anticipatory bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) may ordinarily be filed before:

• The Court of Sessions having jurisdiction over the case; or
• The High Court exercising jurisdiction over the area where the FIR has been registered.

In practice, applicants generally approach the Sessions Court first. If the application is rejected, they may challenge the order before the High Court. However, the law does not create an absolute rule requiring every applicant to approach the Sessions Court before invoking the jurisdiction of the High Court. The maintainability of an application before either court depends upon the statutory framework and the facts of the individual case.

Is Registration of an FIR Necessary?

No. The remedy of anticipatory bail is based on the reasonable apprehension of arrest, not merely on the existence of an FIR.

Although most applications are filed after the registration of an FIR, there may be situations where a person has credible information that criminal proceedings are likely to be initiated and that arrest is reasonably apprehended. In such cases, the court will examine whether the apprehension is genuine and whether the facts justify the exercise of its discretionary jurisdiction.

Can a Person Named in a Section 69 BNS FIR Apply?

Yes. A person named as an accused in a Section 69 BNS FIR may apply for anticipatory bail if they apprehend arrest. The mere registration of an FIR does not disentitle an accused from seeking protection. On the contrary, it is one of the most common situations in which anticipatory bail is sought.

While considering the application, the court does not decide whether the accused is guilty or innocent. Instead, it examines whether the facts justify granting protection from arrest while ensuring that the investigation is not prejudiced.

Can Multiple Accused File Separate Applications?

Yes. If more than one person is named as an accused in the same FIR, each accused may file a separate application for anticipatory bail. Since the role attributed to each accused, the evidence against them, and the necessity of custodial interrogation may differ, the court considers every application on its own merits.

In Section 69 BNS cases, timing is often crucial. Once an FIR is registered or a person receives reliable information indicating a likelihood of arrest, legal advice should be sought without delay. Filing an anticipatory bail application at the earliest opportunity allows the court to consider the request before any arrest is made and ensures that the applicant can participate in the investigation while seeking protection of their personal liberty.

The remedy of anticipatory bail is governed by Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which substantially replaces the earlier Section 438 of the Code of Criminal Procedure, 1973 (CrPC). The provision empowers the High Court and the Court of Sessions to grant bail in anticipation of arrest where a person has reason to believe that they may be arrested on an accusation of having committed a non-bailable offence.

Anticipatory bail is not an immunity from investigation or prosecution. Rather, it is a statutory safeguard designed to protect an individual’s personal liberty against unnecessary or unjustified arrest while ensuring that the investigating agency is able to conduct a fair and effective investigation. If the court grants anticipatory bail, the applicant is protected from being taken into custody in the event of arrest, subject to the conditions imposed by the court.

The remedy reflects the constitutional balance between two competing interests. On one hand, the State has a legitimate interest in investigating criminal offences and bringing offenders to justice. On the other hand, every individual enjoys the constitutional right to life and personal liberty under Article 21 of the Constitution of India, which cannot be curtailed except in accordance with the procedure established by law. Anticipatory bail enables courts to maintain this balance by preventing arbitrary deprivation of liberty without obstructing the criminal justice process.

Unlike bailable offences, where bail is available as a matter of right, anticipatory bail under Section 482 BNSS is a discretionary remedy. The applicant has no automatic entitlement to protection merely because an FIR has been registered or because arrest is apprehended. The court exercises judicial discretion after considering the facts and circumstances of each case and determining whether the grant of anticipatory bail would serve the interests of justice.

While deciding an application under Section 482 BNSS, courts generally consider factors such as:

• the nature and gravity of the allegations;
• the specific role attributed to the accused;
• whether custodial interrogation appears genuinely necessary;
• the applicant’s willingness to cooperate with the investigation;
• the possibility of absconding from justice;
• the likelihood of influencing witnesses or tampering with evidence; and
• the overall interests of justice.

These factors are not exhaustive, nor is any single factor decisive. The court evaluates the cumulative effect of all relevant circumstances before exercising its discretion.

If anticipatory bail is granted, the court may impose appropriate conditions to ensure that the investigation is not hampered. Such conditions may require the accused to cooperate with the investigating officer, appear for questioning whenever required, refrain from influencing witnesses, avoid tampering with evidence, or comply with any other condition considered necessary to secure the proper administration of justice.

In prosecutions under Section 69 BNS, the legal framework governing anticipatory bail assumes particular importance because the offence is cognizable and non-bailable. The court must therefore strike a careful balance between protecting the constitutional right to personal liberty and ensuring that the investigating agency is able to effectively investigate allegations involving a false promise of marriage. The grant or refusal of anticipatory bail ultimately depends not on the mere registration of an FIR but on the judicial assessment of the facts, the necessity of custodial interrogation, and the principles governing the exercise of discretion under Section 482 BNSS.

Section 482 BNSS does not confer an automatic right to anticipatory bail. It entrusts the High Court and the Court of Sessions with the discretionary power to protect personal liberty where arrest is apprehended, while ensuring that the investigation proceeds fairly and effectively. In Section 69 BNS cases, the exercise of this discretion is guided by settled principles of criminal jurisprudence, the facts of the individual case, and the constitutional commitment to safeguarding personal liberty.

Although every application for anticipatory bail is decided on its own facts, the exercise of judicial discretion is not arbitrary. Over the years, the Supreme Court of India has evolved well-settled principles governing the grant of anticipatory bail. These principles continue to apply under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and guide courts while deciding applications arising out of Section 69 BNS prosecutions.

An anticipatory bail hearing is not a trial on the merits of the allegations. The court does not determine whether the accused is guilty or innocent. Instead, it examines whether the applicant deserves protection from arrest while ensuring that the investigation can proceed fairly and effectively.

The following judicial principles frequently guide courts while deciding anticipatory bail applications in false promise of marriage cases.

Principle 1: Anticipatory Bail is a Discretionary Remedy, Not an Automatic Right

Anticipatory bail is an extraordinary statutory remedy intended to protect personal liberty where a person has a reasonable apprehension of arrest for a non-bailable offence. However, the mere registration of an FIR does not automatically entitle an accused to anticipatory bail.

The Court exercises judicial discretion after considering the facts of the individual case, the nature of the allegations, the statutory provisions, and the overall interests of justice. The discretion must be exercised judiciously and not mechanically.

Principle 2: Personal Liberty Is a Fundamental Constitutional Value

While deciding an anticipatory bail application, courts recognise that personal liberty is protected under Article 21 of the Constitution of India. Arrest is a serious intrusion upon individual liberty and should not be treated as an inevitable consequence of every criminal accusation.

The object of anticipatory bail is to strike a balance between two competing interests: the constitutional right of an individual to remain free from unnecessary arrest and the State’s duty to investigate criminal offences effectively. Courts therefore carefully assess whether custodial detention is genuinely required before refusing protection.

Principle 3: Custodial Interrogation Must Be Genuinely Necessary

One of the most important considerations in anticipatory bail proceedings is whether custodial interrogation is genuinely necessary for the investigation.

If the investigating agency can effectively conduct the investigation while the accused remains at liberty and cooperates with the investigation, the necessity for arrest may be considerably reduced. Conversely, if the prosecution demonstrates that custodial interrogation is essential for recovering evidence, confronting the accused with material, identifying co-accused, or preventing interference with the investigation, the court may decline to grant anticipatory bail.

In Section 69 BNS cases, this assessment is particularly important because much of the evidence often consists of documentary and electronic material, communications between the parties, and witness statements. The court therefore examines whether custodial interrogation would meaningfully assist the investigation.

Principle 4: The Court Does Not Conduct a Mini-Trial at the Bail Stage

An anticipatory bail hearing is not intended to determine the truth or falsity of the allegations.

The court does not conduct a detailed appreciation of evidence, assess witness credibility, or decide disputed questions of fact. Those issues are reserved for trial.

Instead, the court makes a prima facie assessment based on the available material to determine whether protection from arrest should be granted. This limited scrutiny ensures that the bail proceedings do not prejudice either the prosecution or the defence before the evidence is fully tested during trial.

Principle 5: The Nature of the Relationship and the Surrounding Circumstances Are Relevant

In prosecutions under Section 69 BNS, courts frequently examine the surrounding factual circumstances while deciding whether anticipatory bail should be granted.

Without expressing any final opinion on the merits of the case, courts may consider factors such as:

• the duration and nature of the relationship;
• the chronology of events;
• the allegations contained in the FIR;
• the material collected during the investigation;
• electronic communications and documentary evidence placed before the court;
• the explanation offered by the applicant; and
• the overall circumstances in which the relationship ended.

This enquiry is limited to assessing whether protection from arrest is appropriate and should not be confused with the final determination of guilt.

Principle 6: Cooperation with the Investigation Favors the Grant of Bail

Courts generally expect an applicant seeking anticipatory bail to demonstrate a willingness to cooperate with the investigating agency.

An applicant who undertakes to appear before the investigating officer whenever required, provide relevant information, and comply with the conditions imposed by the court is ordinarily viewed more favourably than a person who attempts to evade the investigation.

Consequently, courts frequently impose conditions requiring the accused to cooperate fully with the investigation as a prerequisite for the continuance of anticipatory bail.

Principle 7: Bail Orders Must Balance Liberty and Fair Investigation

The ultimate objective of anticipatory bail is neither to shield an accused from investigation nor to facilitate unnecessary arrest. The court must balance the competing interests of protecting personal liberty and preserving the integrity of the criminal investigation.

Accordingly, if anticipatory bail is granted, it is often accompanied by conditions requiring the accused to:

• cooperate with the investigation;
• appear before the investigating officer whenever required;
• refrain from influencing witnesses;
• avoid tampering with evidence; and
• comply with any other condition necessary to ensure a fair investigation.

These conditions enable the investigation to proceed while safeguarding the constitutional rights of the accused.

Judicial Principles in Practice

The Supreme Court’s jurisprudence makes one principle abundantly clear: anticipatory bail is not granted or refused solely because an offence is non-bailable or because serious allegations have been made. The court must undertake a careful judicial assessment of the facts, the necessity of custodial interrogation, the applicant’s conduct, and the interests of justice.

In Section 69 BNS prosecutions, this balanced approach assumes particular significance. Allegations often arise out of personal relationships, involve extensive electronic evidence, and require a detailed appreciation of facts during trial. At the stage of anticipatory bail, the court’s role is therefore limited to determining whether the applicant’s liberty should be protected during the investigation—not to pronounce upon guilt or innocence.

Landmark Supreme Court Decisions

These principles have been shaped by several landmark decisions of the Supreme Court, including:

• Gurbaksh Singh Sibbia v. State of Punjab (1980) – Anticipatory bail is a vital safeguard of personal liberty and must be exercised through sound judicial discretion.
• Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) – Personal liberty occupies a central place in criminal jurisprudence, and arrest should not be routine where the investigation can proceed without custody.
• Sushila Aggarwal v. State (NCT of Delhi) (2020) – Anticipatory bail need not ordinarily be limited by time, and conditions should be tailored to ensure both a fair investigation and protection of liberty.

These decisions continue to guide courts while exercising their powers under Section 482 BNSS, including applications arising from prosecutions under Section 69 BNS.