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Anticipatory Bail in India


The word Bail is not defined anywhere under Code of Criminal Procedure, 1973, (hereinafter, the “Act”). According to Lex lexicon, Bail means as a security for the appearance of the accused person, as giving which, he is released pending trial for investigation. On the other hand, Anticipatory bail is a direction to release the person on bail, before the person is arrested. Under the Code of Criminal Procedure, 1898 there were no provisions regarding anticipatory Bail. However, the need for the provision was observed in the 41st Law Commission Report, which stated that “there is a necessity for the anticipatory bail because sometimes person tries to implicate their rival in a false cause for revenge with them or other purposes by getting they detained in jail for some days. Anticipatory bail was thus provided under Section 438 of the Code 

Under this provision a person can seek bail in anticipation of an arrest of accusation of a non-bailable offence. An order under Section 438 is a device to secure the individual’s liberty, it neither a passport to the commission of crimes nor a shield against any and all kinds of accusation likely or unlikely. (1) The purpose of anticipatory bail is to protect the accused from the custody in case of false cases. It can be given by the court where the case is very strong for regular bail. Every person has a fundamental right to live with dignity and no person can defame the reputation of another by filing a false case against him. Under Section 438 the provisions regarding Anticipatory Bail is laid down as when “any person has reason to believe that he may be arrested on an 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 consideration inter alia”. In the landmark case of Gurubaksh Singh Sibba vs State of Punjab (2), the Hon’ble Supreme Court opined that Section 438(1) should be interpreted with the Article 21 (Protection of life and personal liberty) of the Constitution. The case laid down the guidelines related to the Anticipatory Bail:

  1. The legislature has conferred very wide discretion on the High court and Court of Session to grant Anticipatory Bail.
  2. The use of the expression “Reason to believe” in Section 438(1) shows that the belief that the appellant may be arrested must be founded on reasonable ground.
  3. Granting of anticipatory Bail as a matter of right of an individual should not be limited by time.
  4. The Court could impose appropriate restrictions on a case-by-case basis.

For the Anticipatory Bail, it is not necessary that the First Information Report (FIR) is registered or not. Before filing of FIR any person can apply for the anticipatory bail in the Court of Session or the High court having jurisdiction for entertaining the application. If the Court of Session rejects the bail, both the Court of Session and High court have concurrent jurisdiction to grant bail. Normally, a person will approach Court of Session and in case of rejection he can approach the High Court as well. In Suresh Basu Deva v State (3), it was held that the Anticipatory Bail could be granted “at any stage” before the arrest of a person. Thus, the recording of FIR is not condition precedent to grant in Anticipatory Bail. 

Another the question that was answered in the case of Parvathi Raj Chauhan V. Union. Of. India (4) was whether cases under atrocities against Schedule caste and Schedule Tribe, the court can grant anticipatory bail or not? It was observed that Anticipatory Bail under Section 438 shall not apply to the cases under Schedule Caste/Schedule tribe (Prevention of Atrocities) Act, 2018.

The Court of Session or the High court can issue interim order in favour of person. If the Interim order is passed then, a notice will be given to public prosecutor and the Superintendent of police. After the interim order has been passed, and the public prosecutor has appeared, the court will pass final order if it thinks fit, and it may also reject the bail. If final order is passed and the alleged accused has been granted anticipatory bail, the court can also impose the following conditions (5):-

  1. The Person cannot leave the country.
  2. The person while giving attendance to the nearest police station where he lives.
  3. He will not temper the evidence.
  4. If a person fails to do the complete condition. The police can detain the person any time.

In the case of S.S Mhetre v. State of Maharashtra & Ors. (6), the court held that the life duration of an order granting anticipatory bail could not be curtailed. In the case of Sushila Agrawal vs NCT of Delhi (7), the court held that anticipatory bail should not be limited to the fixed time period and can continue till the end of Trail. The court can always impose additional restriction if circumstances needed.

While granting bail the Court should examine the seriousness of the case and if the accused person has done breach of any of the conditions mentioned, then police can arrest him. 

Cancellation of Anticipatory Bail: –

In Daulat Ram V. State of Haryana (8), it was held that anticipatory bail could be cancelled under Section 439(2) and the further held in this case that the ground of cancellation in case of bail are: – 

  1. The case turned out to be more serious.
  2. The accused had interfered during the time of investigation.
  3. Tampering with Evidence
  4. Threating or inducing the witness
  5. Anticipatory bail has been issued, illegally or deceitfully.


Anticipatory bail is a direction to release a person on bail, issued before the person is arrested. It is the discretion of the court to grant anticipatory bail to the person.


Anticipatory bail is a direction to release a person on bail, issued before the person is arrested. It is the discretion of the court to grant anticipatory bail to the person. Sometimes a false case might be registered against the accused which might damage his/her reputation. The court will not impose any time limit while granting the anticipatory bail. The court can also impose additional conditions on the accused before granting an Anticipatory bail. If the accused failed to comply with such conditions, then the court can cancel the anticipatory bail and the police can arrest such person, even without warrant.

(1)  Parvinderjit Singh v State (U.T Chandigarh) AIR 2009 SC 502
(2) AIR 1980 SC 1632
(3) 1978 CriLJ 677
(4) 2020 SCC Online 159
(5) Under Article 438(2) of the Code of Criminal Procedure, 1973.
(6) (2011) 1 SCC 694.
(7) 2020 SCC OnLine SC 98
(8) 1995 SCC (1) 349.


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