Law Insider India

Legal News, Current Trends and Legal Insight | Supreme Court of India and High Courts

An Introduction to “Anticipatory Bail”

9 min read

Aryan Dhar

The legal system of every country is set up in such a way that it not only is meant to punish the convict/the wrongdoer but to also help him/her to get reformative help, to inculcate him back into the society and to make the whole process smooth. There are several such legal machineries, laws, rules and procedures that come into play to facilitate the same. In this article we will talk about one such mechanism termed as bail.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.


The term “Bail” in simple terms refers to an amount of money given by the accused to a court of law, before the trial procedure takes place, as an assurance of his return for the particular trial procedure. A person, before his trial procedure can be freed from judicial custody on bail, depending on the crime that accused has been charged for and on the discretion of the magistrate.

Bail can be granted not only on the security of cash but also other items such as papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security.


The Indian legal system does not specifically define the term bail in any of its statutes or laws, but the term bailable offence and non bailable offence has been clearly specified under section 2(a) of the Criminal Procedure Code 1973-

” A Bailable offence is one that is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence other than the ones that are bailable”.

The section 436 to 450 of CRPC 1973, sets out the terms for the grant of bail for criminal cases. These sections do not set the amount charged while granting the bail and the same varies from case to case and upon the discretion of the magistrate.

  • Bailable Offences Section 436 of CRPC 1973

Section 436 of CrPC 1973 defines the terms under which a person can be granted bail for bailable offences, in the police station itself or in front of the magistrate. In such cases granting bail is a matter of right of the accused and should be given once the accused is prepared to give the surety. The same can be seen in the case of Rasiklal V/s Kishore Khanchand Wadhwani

“The police officer or the court before whom the accused agrees to give bail, as soon as it appears so that the convicted person is willing to give bail, is obliged to free him on certain conditions, as might be fair to the officer or the court of law/magistrate. Instead of taking bail from him, it would also be open to the officer or the court to discharge such a person on his performance of a bond as provided under sec 436 of CrPC 1973.”.

In cases where the accused have been in custody for a period exceeding their prison sentence a new provision has been introduced for it as per section 436 A of CrPC 1973. Where an accused prisoner, excluding those for whom offence for which death has been prescribed as one of the punishments, has been in jail for a term extending to one half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties.

  • Bail for Non-Bailable Offences

In case of non bailable offences there are two authorities that can grant bail to the accused. 1) the police officer in charge of the case at hand. 2) A court of law (magistrate) (section 439). Even though this section talks about the discretion of the magistrate as well as the officer in charge to grant bail, there are certain restrictions imposed upon the police officer to exercise this power, due to the nature of the power at hand. Only one person in the police station is granted this power, who is the officer in charge of the police station.

The power to grant bail in a non bailable offence is permissive in nature and not obligatory, hence the officer in charge has to give an appropriate reason to exercise such a power. Along with a reason the officer in charge has to make sure that this bail does not impact the trail procedure in any way.

the Legislature has classified the grounds for granting bail for non bailable offences into two types:

(1) those which are punishable with death or imprisonment for life;

(2) those which are not punishable.

In those matters where the accused is presumed guilty of the crime, or has been presumed to be a prime suspect of the crime, then in those cases the police officer in charge cannot grant bail for the same under section 437 of CrPC 1973. In such cases the age, sex, physical ailments or other conditions will not play a part in the officer’s decision-making process, as these matters can be addressed only by the court of law.

An officer- in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.

ANTICIPATORY BAIL- Section 438 of CrPC 1973

This is the third type of bail in the Judiciary’s legal machinery which has been of utmost importance in the Indian Legal system. An anticipatory bail is granted in such circumstances when, if an accused believes that he/she has been falsely accused of a crime or has been denied bail for a crime which is non bailable in nature, then he/she can apply to the High court or the Sessions court to rectify this mistake, and can do so on certain grounds-

1. “The essence and severity of the allegation.

2. The applicant’s record included whether he had ever been detained on conviction by the Court with regard to any criminal act.

3. The applicant’s desire to hide from the trial proceedings.

4. Where the allegation was made for the purpose of harming or intimidating the claimant by arresting him, either dismiss the application immediately or issue an interim order for the grant of anticipatory bail.”

It must also be clearly stated that an anticipatory bail is granted upon the discretion of the court of law/ the magistrate after assessing the facts of the matter and situation at hand, and is not guaranteed to the accused. The presence of the accused seeking the anticipatory bail is obligatory, on the specification of the public prosecutor and if the court of law finds it necessary to do the same.

There are mainly 2 pre-requisites for applying for Anticipatory Bail before the appropriate court of law.

  1. The offence/ crime committed should be of a non bailable nature.
  2. There should be a grave apprehension that the accused will be arrested by the police authorities for such a non-bailable offence.

Once the arrest is made and both the conditions are satisfied, the party can move for an anticipatory bail. This can be seen in the case of Badresh Bilimbi Seth v. State of Gujarat, where a connection has been made between anticipatory bail and article 21 of the constitution.

This case stated anticipatory bail as a pre legal arrest process which directs that if the person in whose favour the anticipatory bail is issued, is thereafter arrested on the accusation in respect of which the bail is issued, he shall be released on bail as per section 438 of CrPC 1973. Thus once both the pre requisites of anticipatory bail has been satisfied, the court can move forward by granting the same to the accused.

Another landmark case of anticipatory bail where two major questions about the duration and the life period of an anticipatory bail was the matter of Sushila Agarwal v. State of Delhi –

  1. Whether the protection granted under anticipatory bail should be given only for a period of time, so that an accused can plea for a normal bail in front of the trial court on its expiry?
  2. Whether the life period of an anticipatory bail should cease to exist at the time the trial commences in the court of law-

Answering the first question the five-judge bench was pleased to unanimously hold that ” the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.”

As per the second question the Hon’ble court held that Normally, the life or length of an anticipatory bail order does not end at the moment and point at which the offender is called by the judge, or when the charges are being framed, but may continue until the trial ends. Also, it is open for it to do so if there are any unique or special characteristics causing the court to restrict the tenure of anticipatory bail.”

Further it should also be stated that if an accused has not cooperated with the investigation or has been an absconder or a proclaimed offender as per section 82 of the Code, should not be granted an anticipatory bail. The same was stated in the Apex court judgement of State of M.P vs. Pradeep Sharma


The High court or the Sessions Court may or may not impose certain conditions while granting anticipatory bail to an accused party. These conditions are stated below-

  • The offender should make himself/herself accessible to the officer in charge for questioning as and when necessary by him/her.
  • The individual should not make any inducement, intimidation or offer, directly or indirectly, to any person familiar with the facts of the matter at hand in order to discourage him/her from disclosing those facts to the court of law or the officer in charge,
  • Without the prior permission of the officer in charge, the accused is not allowed to leave the country.

However, in the case of Siddharam Satlingappa Mhetre it was held that –

certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.  As long as the same is not annulled, an accused is out on bail. Any individual who has been granted bail can be ordered by the High Court or Court of Session to be arrested and committed to custody on an application by the plaintiff or the prosecutor.

Further the distinction between the functioning of an ordinary bail and an anticipatory one can be seen in the matter of Gurbaksh Singh Sibbia v. State of Punjab , The Apex court in this matter held that “The difference between a regular bail order and an anticipatory one is that  the previous one is issued after arrest and thus indicates freedom from police custody, the second is granted in expectation of arrest and is thus applicable at the very moment of detention.”.

Now the question arises that can a subordinate court grant bail, when an interim anticipatory bail has been granted by a higher court. This question was answered in the case of Rukmani mahato v. state of Jharkhand (S.L.P Criminal no.2411 of 2016 dt.03-08-2017)

The Court comprising of Justice Ranjan Gogoi and Justice Navin Sinha explained. “Once a permanent bail is issued by the Inferior Court on the basis of the interim/pre-arrest bail granted by the Superior Court, even though, on complete consideration of the issue, the Higher Court refuses the petition of anticipatory bail, the normal bail given by the Subordinate Court will continue to hold and be held valid, rendering the denial of the interim bail application by the higher court baseless.,”


In conclusion it can be clearly stated that the mechanism of bail is an extremely important aspect of the Indian Judicial system. Even though the term bail has not been specifically described in the Indian law, its application in different situations and its guidelines have been clearly stated so as to grant the same to the accused in those scenarios.

Bail for bailable as well as non bailable offences, along with anticipatory bail for non bailable offences are to be granted to the accused depending upon the matter and scenario at hand along with the discretion of the police officer in charge of the station or the court of law handling the matter at hand. The power of granting bail has been vested to the judiciary and the executive to be exercised carefully and with due diligence, to avoid the misuse of power in certain scenarios.

Thus, each and every type of bail, depending upon the scenario at hand is to be assessed carefully and should be granted after all the conditions for granting the same have been satisfied.