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A brief analysis of Anticipatory Bail under Section 438 of The Code of Criminal Procedure 1973

Law can be broadly categorized into two types, substantive and procedural law. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with thesubstanceof the matter. Procedural law provides theprocessthat a case will go through (whether it goes to trial or not).

The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Even though both are affected by Supreme Court opinions and subject to constitutional interpretations, each serves a different function in the criminal justice system.

Before going into insights of anticipatory bail let us know some points to reach to what does it really mean. Our first consideration here is to know the meaning of offence. An offence is defined as an act or omission made punishable by any law for the time being in force.[1]

Offence within its ambit includes bailable and non-bailable offence. Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other Law for the time being in force.[2]Non-Bailable Offence means any other offence.[3]The law of bails constitutes an important branch of procedural law.

The term bail has not been defined in the code. But broadly it means temporary release of an accused person on some kind of security for his appearance. An undertaking is being taken to ensure presence during the trial and to submit to the jurisdiction and judgment of the Court.

In Sunil Fulchand v/sUnion of India[4], the Supreme Court stated:  The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties.

In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him.Bail is of two kinds basically, regular bail and anticipatory bail. This research article attempts to throw light on the concept of anticipatory bail and its significance.

Anticipatory Bail

Anticipatory bail is literally applied for ˜in anticipation of arrest'. It is a direction to release a person on bail, issued even before the person is arrested. If the accused has a reason to believe that he or she may be arrested on accusation of having committed a non-bail able offence then he or she has the right to apply for an anticipatory bail in the Sessions Court or High Court.

One may apply for anticipatory bail after learning about a criminal complaint made against them to the police by their wife, or by any threats made by his family against themselves and their family. It is also important to know whether, in cases where the FIR has been filed, the offence is bail able or non-bail able. While in the former bail in granted as a matter of right, the grant of bail in the latter is based on several contingencies.

Historically, the Code of Criminal Procedure, 1898 (old Code) did not contain specific provision corresponding to Section 438 of the present Code of 1973. Under the old Code, there was a sharp difference of opinion among various High Courts on the question whether a Court had inherent power to make an order of bail in anticipation of arrest. The preponderance of view, however, was that it did not have such power.

The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant anticipatory bail.

It observed in para 39.9 of its report (Volume I) that[5]:
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as anticipatory bail) was carefully considered by us.

Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.

Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Section 438 CrPC  Direction to grant of bail to person apprehending arrest

  1. Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely-
  1. the nature and gravity of the accusation;
  2. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
  3. the possibility of the applicant to flee from justice; and.
  4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

    Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

    1A. Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

    1B. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
2. When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
  1. a condition that the person shall make himself available for interrogation by a police officer as and when required;
  2. 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;
  3. a condition that the person shall not leave India without the previous permission of the Court;
  4. such other condition as may be imposed under Sub-Section (3) of section437, as if the bail were granted under that section.

3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).

4. Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section376or section376ABor section376DAor section376DBof the Indian Penal Code.[7]

The object of arrest and its detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the release of the accused person on bail are aimed at ensuring the presence of accused at his trial but without unreasonably and unjustifiably interfering with his liberty.

Concurrent Jurisdiction of High Court And Sessions Court

According to Section 438(1) an application for anticipatory bail can be made to the High Court or Court of Session; however, normally it is to be presumed that the Court of Session would be first approached for the grant of anticipatory bail unless an adequate case is made out for straightaway approaching the High Court directly without first coming before the Court of Session.[8]

The full Bench of Allahabad High Court has, however, taken the view that a bail application under Section 438 may be moved in the High Court without the applicant taking recourse to the Court of Session.[9]If the application filed in the Court of Session for anticipatory bail is rejected, the applicant can again approach the High Court under Section 438(1) as there is no bar to do so.[10]

The opinions expressed by Supreme Court in some of the cases seem to favour the view that the question of granting anticipatory bail to any person who is allegedly concerned with the offence must for all practical purposes be considered by the courts within whose territorial jurisdiction such offences could have been perpetrated.[11]

Reasonable Apprehension of Arrest For A Non-Bailable Offence

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

In the case of E. Joseph v. Collector of Customs[12], it was observed that if the offence is non-bailable, it is immaterial for the purpose of Section 438 whether the offence is cognizable or non-cognizable, or whether it is one under the IPC or under any other law like the Customs Act, 1962. Section 438 does not require that the offence in respect of which the anticipatory bail is asked for has been registered with the police. The filing of FIR is not a condition precedent to the exercise of the power under Section 438.[13]

The use of the expression reason to believe shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere fear is not belief for which the reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to be make an accusation against him, in pursuance of which he may be arrested. If the apprehension continues even at the stage of committal of proceedings, there is nothing in Section 438 to debar such person from applying for anticipatory bail in case of his apprehended commitment in custody.

Wide Discretion In Granting Anticipatory Bail

In the Gurbaksh Singh Sibbia v State of Punjab[14], in the year 1980, the Supreme Court held that the discretion of granting Anticipatory bail must be used more objectively and the higher courts have the power to correct this discretion if the need arise.

A dual protection has been provided to this system so that there is no misuse if the discretion and the process. In the case of Directorate of Enforcement v P.V. Prabhakar Rao[15]the Supreme Court held that Anticipatory bail can only be granted by a High Court or a Sessions Court only after they have exercised their power of judicial discretion properly.

The court, be it for Ordinary bail under Section 437 and Section 439 of the Code or an Anticipatory bail under Section 438, is required to exercise their discretionary power wisely and not arbitrarily. The granting of the bail should be based on reasonable grounds. There are no guidelines or processes given by the Code based on which the Court should exercise their discretionary power. But as a result of that the courts cannot take arbitrary steps in granting bail.[16]

The Section 438 of the Code is very wide and does not limit the power of the Courts in any way. So even when a person has a threat of arrest for being accused of a non-bailable offence based on which he/she makes an application for Anticipatory bail, the Court has the power and the discretion to grant or not grant Anticipatory bail.

The court needs to exercise this power in a judicial manner and keeping in mind the aim of the Section and also considering the loopholes of the system simultaneously.[17]The Courts are expected to take a lot of care and be extremely cautious in granting Anticipatory bail as it can be easily misused.[18]

The High Court or the Sessions Court cannot grant an Anticipatory bail in a critical case where the police needs to take the accused in the custody and question him/her as a part of an investigation to get crucial information about the case.[19]

But again that does not disqualify the fact that the granting of Anticipatory bail is a judicial discretion and it is only after the accused has made it evident to the court that there is a reasonable ground to exercise such discretion that the court can grant the bail and not otherwise.

The Court has the burden to make sure that the applicant's liberty and the investigation process of the Police are not clashing with one another and a proper balance is maintained. This Section relating to Anticipatory bail cannot be invoked mechanically. A line in the section quoting, if it thinks fit and the Sub-section (2) of the Section when read together says that to grant an Anticipatory bail there must reasonable grounds that are evidently visible.

What All Considerations to Keep in Mind While Granting Anticipatory Bail

Section 438 of the Code was amended in the year 2005 and it came to effect in 2006. After the amendment the Sub-section (1) of 438 listed the considerations that need to be kept in mind while granting Anticipatory bail.
  1. Firstly, the nature and intensity of the crime with which the accused has been charged.
  2. Secondly, if the accused has been earlier been arrested or was convicted for a cognizable offence by the Court of law.
  3. Thirdly, if the accused is likely to abscond if not arrested or create disturbance in the smooth investigation process, then it can be considered or not.
  4. Fourthly, whether the accusation was made with mala fide intention and only to defame the applicant or if the accused is actually liable of commission of such alleged offence and the accusation was to achieve justice.[20]
Some overriding considerations that the Court must keep in mind while granting Anticipatory bail has also been laid down in certain cases.

  1. Firstly, the relationship of the accused and the victim and the accused and the witness needs to be considered.
  2. Secondly, whether the accused is likely to commit the same offence again or some other offence to harm the victim and the witnesses must be kept in mind.
  3. Thirdly, the history of the case and that of the investigation.

No Blanket Order of Anticipatory Bail

If a direction is issued under Section 438(1) to the effect that the applicant shall be released on bail, whenever arrested for whichever offence whatsoever, such direction would amount to blanket order of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which no concrete information cab possibly be had. Such a blanket order of anticipatory bail cannot be contemplated under Section 438 of CrPC.

Public Prosecutor and Notice of Anticipatory Bail

In two cases the Court held that the notice of Anticipatory bail before granting it to the applicant should be given to the Public Prosecutor. Although this has not been laid down in Section 438 of the Code.[21]But later in a judgment the Supreme Court held that Anticipatory bail can be granted to an applicant even without a notice to the Public Prosecutor. But in case of any dispute regarding the granting of Anticipatory bail, the notice of the bail must be given to the Public Prosecutor and the Advocate of the Government and the grating of the bail should be examined again.[22]But if the Public Prosecutor has not been given the required scope to oppose the Anticipatory bail application then even after granting the bail, it can be quashed.[23]

Canceling of an Anticipatory Bail

Although Section 439 of the Court does not talk about cancelling of a bail because it is assumed that the Court which has granted the Anticipatory bail will recall it or even cancel it if the need arise for the same. The same is applicable for Anticipatory bail also. But being a special provision it should in no way be misused. The power to cancel a bail is basically derived from the overriding power given to the High Court and it can only be exercised if the High Court believes it is essential in order to provide justice to the parties involved.

The Idea of Anticipatory Bail Lacks the Elements of Bail Process

The idea of Anticipatory Bail has over time become very popular in the Criminal Justice System and is considered as a way of protecting the liberty of an individual. But not everyone has accepted this idea well.

Introducing the Anticipatory bail in the Code creates a lot of confusion in the entire system of granting bail and applying for bail. The elements of bail are completely absent in the concept of Anticipatory bail. This is because in a normal bail the custody of the person is either with the State or the community. Also the accused is initially kept in the custody of the police and then released after a bail bond has been executed by a third party surety.

The custody of the person who is applying for Anticipatory bail is a reason of confusion because he/she is neither in the State's custody nor in any other custody. Also the presence of the accused is not even required for granting of bail in case of Anticipatory bail because even a threat of arrest can lead to granting of bail to the applicant.[24]

Concluding Remarks
Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.

Although the power to release on anticipatory bail can be described as of an extraordinary character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail.

No straight jacket formula can be prescribed for universal application in cases of anticipatory bail as each case has to be considered on its own merits and in its facts and circumstances. Personal liberty being a very precious fundamental right should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner.


  1. Section 2(n) of The Code of Criminal Procedure, 1973 (2 of 1974)
  2. Section 2(a) of The Code of Criminal Procedure, 1973 (2 of 1974)
  3. Id.
  4. AIR 2000 SC 1023
  5. Law Commission of India 41stReport, September 1969, ˜The Code of Criminal Procedure, 1898 Volume I', para 39.9; pp. 320-321
  6. Subs. by Act 25 of 2005, S. 38
  7. Added by the Criminal Law (Amendment) Act, 2018
  8. Chajju Ram v. State of Haryana, 1978 Cri LJ 608 (P&H)
  9. Onkar Nath Agarwal v. State, 1976 Cri LJ 1142
  10. Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom)
  11. Salauddin Abdulsamad Shaikj v. State of Maharashtra, (1996)1 SCC 667
  12. 1982 Cri LJ 559 (Mad)
  13. Suresh Vasudev v. State, 1978 Cri LJ 677 (Del.)
  14. AIR 1980 2 SCC 565
  15. AIR 1997 SC 3868
  16. Afsar Khan v State (1992) Cr LJ 1676
  17. Jitendra Singh v State (1998) Cr LJ 1762 (Mad.)
  18. Natturasu v State (1998) Cr LJ 1762 (Mad.)
  19. ibid
  20. Gurbaksh Singh Sibbia v State of Punjab AIR 1980 2 (SCC) 565
  21. Bhagirath Mahapatra v State of Orissa ( AIR 1975 Cr.L.J. 1681) and State of Maharashtra v Vishwas (AIR 1978 Cr.L.J. 1403)
  22. Gurbaksh Singh Sibbia v State of Punjab (AIR 1980 2 SCC 565)
  23. State of Maharashtra v Hanumantrao (AIR 1980 Cr.L.R. 526)
  24. R.L. Anand (ed) Aiyer & Mitter, Law of Bails

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