What is Anticipatory Bail?


The old Code of Criminal Procedure (amended over the years) did not contain any provision specifically dealing with Anticipatory Bail. The concept of Anticipatory Bail was first brought up by the 41st Law Commission Report of 1969. It was finally incorporated under Section 438 of the Code of Criminal Procedure, 1973.


Section 438 of the Code of Criminal Procedure, 1973 deals with ‘Direction for grant of bail to person apprehending arrest’. This section deals with the concept of Anticipatory Bail. Even though the expression ‘anticipatory bail’ is not explicitly defined under the Code, it is a convenient mode of conveying that it is possible to seek bail even during apprehension of Arrest.

Anticipatory Bail means bail in anticipation of arrest. It is actually a misnomer as the bail is not presently granted by the court in anticipation of arrest, but it is merely an order to release the person on bail in the event of arrest. Therefore, such order becomes operative only on arrest.

It is a legal remedy wherein a person, who has reason to believe that he may be arrested on allegations of having committed a non-bailable offence, can approach the appropriate Court and seek bail in anticipation of arrest.

It is not a ‘blanket order’ in the sense that it should not enable the accused to commit further offences and claim relief from arrest for an indefinite period. Therefore, it should be confined to the offence or incident, for which apprehension of arrest is sought. It cannot operate in respect of future incidents involving commission of an offence.


This section enables the superior courts to grant anticipatory bail i.e. a direction to release a person on bail even before the person is arrested. According to the 41st Law Commission Report, 1969, it was necessary to introduce the concept of anticipatory bail in order to protect people from false implications that in turn taints the person’s reputation.

Ordinary Bail v. Anticipatory Bail

Ordinary Bail- It is granted after arrest and thereby means release from the custody of the police.

Anticipatory Bail- It is granted in anticipation of arrest and is thereby effective at the very moment of arrest. It is a pre-arrest legal process that directs to release the person, in whose favour it has been issued, on bail when he is arrested on the accusation in respect of which the direction was issued.

Apprehension of Arrest

The use of the expression ‘reason to believe’ under sub section (1) of Section 438 shows that the person who seeks anticipatory bail in apprehension of arrest should have reasonable grounds for such apprehension. It should be based on concrete facts and not vague un-spelt apprehensions. Mere fear is not belief. Therefore, the application for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant apprehends his arrest along with his version of the facts.

Power to Grant Anticipatory Bail

Power to grant Anticipatory bail under S. 438 of the Code exclusively vests with the High Court or the Court of Sessions. The Courts have been conferred with wide judicial discretion in this regard and can exercise the same depending upon the facts and circumstances of each case. It is also advisable for the Courts to issue a notice to the Public Prosecutor and obtain facts, even while granting limited interim anticipatory bail.

Conditions for Granting Anticipatory Bail

The Law Commission of 1969 had considered the question of laying down certain conditions under which this bail could be granted, but it ultimately came to the conclusion that such question should be left to the discretion of the Courts. The legislature conferred such wide discretion upon the concerned courts because it was of the opinion that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted. However, certain conditions that Courts may take into consideration were added in the S. 438 itself and those are enlisted below-

  1. Nature and gravity of the accusation.
  2. Antecedents of the applicant including past convictions in cognizable offences.
  3. Possibility of applicant to flee from justice.
  4. Accusation made with the object of injuring or humiliating the applicant.

Application for Anticipatory Bail

Anticipatory Bail can be applied at different stages-

1. No FIR lodged– A person can seek anticipatory bail even if no FIR has been lodged. The filing of an FIR is not a condition precedent for exercising power under S.438.

2. FIR lodged– A person can seek anticipatory bail even after an FIR has been filed provided that he has not been arrested. It is applicable to both pre and post-investigation stages.

The provisions of S. 438 cannot be invoked after the arrest of the person. Therefore, after arrest, an application seeking anticipatory bail is not maintainable.

Conditions imposed during Grant of Anticipatory Bail

The Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)  held that S. 438 of the Code does not compel or oblige the courts to impose conditions limiting the relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc.

The Court, after considering the nature of offence, role of the person, the likelihood of his influencing the course of investigation, tampering with evidence, etc, would be justified in imposing conditions laid under S. 437(3) by virtue of S. 438(2). The following conditions may be imposed-

  1. The person shall make himself available for interrogation by the police officer.
  2. The person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case.
  3. The person shall not leave India without prior permission of the Court.

The special conditions which are to be imposed or not depend upon the facts and circumstances of the case, and subject to the discretion of the court.

The Supreme Court in Sushila’s case, overruled the decisions of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Salauddin Abdulsamad Shaikh v. State of Maharashtra. It was held that there is no bar on imposing restrictive conditions, it depends on the discretion of the Court. It is also not necessary that the grant of anticipatory bail should be time-bound.

Certain Acts bar Anticipatory Bail

The Acts like Maharashtra Control of Organized Crime Act (MCOCA), Unlawful Activities (Prevention) Act, 1967 (UAPA) completely bar an accused from seeking Anticipatory Bail under S. 438 of the Code of Criminal Procedure, 1973. It was also barred under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But in one of the recent judgments of the Supreme Court in Prathvi Raj Chauhan v. Union of India, it was held that such a bar shall not apply unless a prime facie case is made out.

Cancellation of Anticipatory Bail

The police or the investigating agency can move to the Court, which granted of this bail, seeking cancellation of bail under S. 439(2) of the Code. A direction can be passed under S. 439(2) to arrest the accused in violation of any term such as absconding, non-cooperation during investigation, evasion, intimidation of witnesses to influence the outcome of investigation, tampering with evidence, or any other condition that was imposed by the Court during grant of anticipatory bail.


The position of law dealing with Anticipatory bail has become quite explicit. The introduction of this concept in the Code of Criminal Procedure, 1973 has saved many from frivolous claims and accusations. It has been implemented in letter and spirit which has aided the judicial system to fulfill its purpose of serving justice. We should never depart from the fact that “Bail is a Rule, Jail is an Exception”.

This article has been written by Anshika Bansal, 3rd year (6th Semester), BBA LLB student at Vivekananda Institute of Professional Studies, GGSIPU.

Also Read – What is Plea Bargaining?

Law Corner

Leave a Comment