Anticipatory Bail- Section 438, Code of Criminal Procedure

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The motive behind arrest or detention of an accused person is to secure his appearance at the time of the trial and to ensure that in case he is found guilty, he is present there to receive the sentence.

But if his presence at the trial can be assured by any other means then detaining such a person will be unjust and against his right of personal liberty.

To safeguard these rights, the code of criminal procedure lays down several provisions such as issuing of summons as and when the person is required to be present at the court, the arrest of an accused under a warrant or without a warrant or releasing the accused on bail.

The moment an accused is put into arrest or detention, he is deprived of his right to freedom and personal liberty which are guaranteed under part III of the constitution.

Release on bail is absolutely crucial for the accused because if he is denied bail, even though he is presumed innocent until proven, he will be subjected to the dreadful conditions of jail life, he will lose his job and most importantly won’t be able to prepare for his defence efficiently.

Releasing an accused on bail is not possible in all the cases of arrest and the court looks upon the facts and circumstances of each case before it grants bail. The legislature has also made provision for certain cases where the individual can request a bail even before he is arrested and such bail is called anticipatory bail.

In the cases where an individual has an apprehension that he might get arrested, he applies for bail at the competent court before an actual arrest takes place.

Section 438 of CrPC makes provisions enabling the superior court to grant anticipatory bail. The object behind this provision is to protect people from false and malicious prosecution. There are instances where out of rivalry and competition, cases are filed against an individual which lead to serious consequences.

Therefore, to protect and prevent such scenarios, the concept of anticipatory bail was added in the code.

What does anticipatory bail mean?

The words anticipatory bail are not mentioned in Section 482 nor they are defined anywhere in the code. When the court grants anticipatory bail, what it does is that it makes an order that in the case of arrest, a person shall be released on bail.

Therefore, there will be no question of release on bail unless a person is arrested and it is only on arrest the order of anticipatory bail becomes operative.

Initially, when “The Code of Criminal Procedure, 1973” (CrPC) came into force on April 1, 1974, there was no such provision for the grant of Anticipatory Bail. The High Courts were of the opinion that, unless a person was under restraint, that is, in legal custody, no bail could be granted (Varkey Paily Madthikudiyil, AIR 1967 Ker 189)


As anticipatory bails are granted against arrest and detention, an appropriate court within whose jurisdiction the arrest takes place or is apprehended will have jurisdiction to grant bail to the person concerned even though the FIR might have been registered at a place within the jurisdiction of another High Court or Court of Sessions.

According to section 438(1), an application for anticipatory bail can be made to the high court or the sessions court. However, it is normally assumed that the sessions court is first approached in the matters of anticipatory bail unless any case is made out not to approach that court.

The petitioner can approach the High Court directly without first coming to the Sessions Court but if the petition is rejected by the high court, the petitioner cannot approach the sessions court against the order of the high court.

It was held in the case of Zubair Ahamed Bhat v. State of J&K 1990 that if the petition for anticipatory bail has been rejected by the Session Court, the petitioner cannot approach the High Court asking for anticipatory bail on the same grounds but the revision of rejection order of Sessions Court is maintainable in High Court.

The words “may it think fit” mentioned in sec 438(1) and absence of any specific restraints in Section 438 clearly indicate that the legislature has conferred very wide discretion on the High Court and the Court of Sessions to grant anticipatory bail.

These courts in the exercise of their jurisdiction can grant anticipatory bail if they consider it fit to do depending on the facts and circumstances of the case.

Supreme court stated that:

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally be made.

On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice; such an order would not be made… There are several other

considerations, too numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the

proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial… which the court has to keep in mind while deciding an application for anticipatory bail. i

Reasonable apprehension of arrest

Section 438 (1) confers on the High Court and the Court of Session the power to grant anticipatory bail if the individual has reason to believe that he might be arrested for a non- bailable offence.

If the offence is non-bailable, then it is immaterial whether the offence was cognizable or non-cognizable and it is not necessary to see what is the defined punishment. Section 438 does not make it mandatory that the offence for which anticipatory bail has been applied is registered with police or not.

The filing of FIR is not a condition precedent and mere reason to believe the apprehension of arrest is enough to file for anticipatory bail.

Similarly, they can refuse bail as per their discretion.

In the case of K. Rajasekhara Reddy v. State of A.P, it has been held that the filing of an

F.I.R. and registration of a crime by the police is not a condition precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such.

There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under S. 438 of Cr. P.C.

The use of the expression “reason to believe it” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere fear is not a belief and it is not enough for the applicant to show that he has some vague apprehension that he is going to get arrested.

The grounds on which the applicant’s belief is rested that he might be arrested should be capable of being examined by the court and it is then the court can believe whether the applicant had reasonable grounds and the bail can be granted.

Conditions imposed while granting Anticipatory Bail

The High Court or the Court of Session may impose conditions as mentioned in section 438(2) while granting anticipatory bail. The conditions mentioned in the section are only illustrative and the court may impose other conditions to create a balance between the right to freedom of an individual and investigational rights of the police. Some of the conditions

Mentioned in the section are that the person shall make himself available for interrogation by a police officer as and when required; or a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, or a condition that the person shall not leave India without the previous permission of the Court.

No blanket order of Anticipatory Bail

If a direction is issued by the court under section 438(1) that the applicant shall be released on bail for whichever offence and whenever such a direction by the court will be said as blanket order.

Such an order of the court will cover all the offences and illegal allegations about which there is no information at the time of passing order. Section 438 does not provide for such an order and it states that applicant must have reasonable grounds of apprehension of arrest relating to a non-bailable offence at that particular time when he applied for the anticipatory bail.

The Supreme Court in the case G.V.Prabhu v. State, 1975, has held that a ‘blanket order’ of anticipatory bail should not generally be passed and that the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.

Validity of Anticipatory Bail

There is nothing mentioned in section 438 that suggests the order of Anticipatory Bail shall be effective to a certain period or it gets expired after a time limit.

As soon as the order of Anticipatory Bail has been passed, it is understood that person has got bail and it shall be effective till the end of the trial unless it is called off under S. 439 of CrPC if the accused is found to be tampering with prosecution evidence, or new supervening circumstances arise after the release on bail.

In Mhetre case, the Supreme Court disapproved of the practice of smaller bench making observations that anticipatory bail should be of limited period and on expiry of the duration, the court granting Anticipatory Bail should leave it to the regular court to deal with the matter at hand.

In Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., the Supreme court observed that there can be no time limit set for the Anticipatory Bail by the court granting the same.

“The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should insure in favour of the accused without any restriction on time.” ii

Anticipatory bail is a power vested to the High Courts and the Court of Session to safeguard the fundamental right enshrined under Article 21 of the constitution but it should be used with a lot of care.

Granting bail under Section 438 is special and only in special circumstances, such bail should be granted. If the courts release orders for anticipatory bail without examining the facts of the case, it will lead to lawlessness and it will become easier for the accused to influence the case by tampering with evidence, threatening witnesses etc.

In Siri Krishna Das v. State of Haryana, 2000, the court held that the power of Anticipatory bail being of extraordinary nature should be exercised only in exceptional cases. Anticipatory bail is not to be granted as a matter of rule, it is granted only when a special case is made out and the court is convinced that the person is of such a status that he would not misuse his liberty.

If a case for anticipatory bail is made out, it should not be refused merely because the accused is required in police custody for interrogation.



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