Anticipatory Bail


After commission of an offence, accused is arrested by the police for the reason that he can be made available easily at the time of trial and can be punished. But if this can be achieved without keeping the accused in custody then personal liberty of accused is safeguarded and interest of justice is also secured.

The Law Commission of India, in its 41st Report, reiterated the importance of the provision of anticipatory. It was done with purpose of protecting the innocent and virtuous people from getting trapped into the accusations of false cases and that no rival implicates the person in frivolous cases.

Meaning and definiton

Before understanding the meaning of the anticipatory bail, it is pertinent to first comprehend the meaning of bail’. According to Black’s Law Dictionary, ‘bail’ is described as procuring “the temporary release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.”

In the case of Supt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhary,1973, the Calcutta High Court explained the principle behind giving bail: The law of bails has to interlock two conflicting demands, first is shielding the society from the hazards of being exposed to the misconduct of a person alleged to have committed a crime; and on the other, the fundamental principle of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.

In Anticipatory Bail, a person attempts to obtain a bail in expectation of an arrest or accusation of having committed a non-bailable offence. In simple words, it can be said that the person is released on bail even before the arrest is made.

In Indian Criminal Law, the term anticipatory bail is provided in CrPC u/s 438(1), however, it is no where defined in the code. Section 438 of CrPc is a procedural provision concerned with personal liberty of each individual alleged to have commit an offence, is entitled to the benefit of the presumption of innocence. Under Section 438 it’s provided that only the Sessions Court and High Court have the jurisdiction to grant this bail.

What factors Sessions/High Court considers while entertaining an anticipatory bail application?

  1. Nature  and gravity of the accusation
  2. Antecedent of the applicant including the facts related to his previous crimesheet whether he’s a history sheeter or has been tried or convicted by court in case of an cognizable offence.
  3. Possibility of the applicant to flee/run
  4. Whether false accusation has been made with object of defaming, injuring or humiliating the applicant

After scrutinizing these factors, courts have an option of either granting or rejecting the anticipatory bail or pass an interim order for the same.

In case if it’s rejected then the police officer in charge has absolute right to arrest the person without the warrant and where the interim order is granted by the court, it is obligatory for the applicant to serve 7 days notice to the public prosecutor and it’s only after his hearing the application is rejected or accepted.

What are the mandatory conditions attached to section 438, CrPC i.e. granting of anticipatory bail ?

The section mandates that all pre-arrest bail would have at least three conditions affixed to it ::

  • The accused should cooperate in investigation viz. he should make himself available for interrogation whenever required.
  • He should not tamper with evidence in anyway or try to influence, threaten or dissuade the witness from disclosing any facts.
  • He should not leave the country without prior permission of the court.

What is the importance of anticipatory bail?

  • This bail provides an opportunity to a person, who having the reasonable belief of apprehension, approaches the court of law in order to protect his fundamental right of life and liberty.
  • It serves to be a blessing where the rival parties in the political system of the country try to falsely charge the opposition for mere cause of vote.
  • In the Gurbaksh Singh Sibbia vs State of Punjab case,1980, a five-judge Supreme Court bench ruled that S.438(1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).
  • It prevents a person from getting unnecessarily defamed through false allegations.


 No doubt that this provision of anticipatory bail has been inserted for the protection of the rights of Indian citizens but now-a-days it is heavily misused by the influential people and the criminals with high networks and contacts with politicians. It has now become a wide tool to linger the proceedings of the court and wasting the judicial time. It has now become the most abused section of CrPC. The discretionary power vested with the high courts and sessions courts is being repeatedly invoked by persons accused of heinous offences. Due to this, process of justice is being hampered and interrupted because of these repetitive offenders as they have very well learnt the skill of vandalizing the legal system by exploiting such provisions whose sole motto was to serve the citizens with the best level of rights and its protection.

As it is an established principle that discretion vested in the court, in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the jurisdiction under section 438 Cr.P.C. should be exercised by the court in a wise and careful manner which by their long training and experience they are ideally suited to do. Thus, courts through their prudence and experience, can reduce up the cases of misapply regarding this provision of anticipatory bail.

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