Anticipatory Bail application

By Team Legal Helpline India, April 20, 2019

A brief write up on Anticipatory Bail Application by legal expert.

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The provisions of bail under the Indian laws are contained in Section 437, 438 and 439 of the Code of Criminal Procedure. Anticipatory bail application can be filed under Section 438 of CrPC seeking the release of the applicant in the event of his arrest. Anticipatory Bail Application can be filed before the Court of Session, High Court but not before the court below the court of the session or before the court of Magistrate. The provisions of Section 438 of the CrPC are as under:

438. Direction for grant of bail to person apprehending arrest:

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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including:

a condition that the person shall make himself available for interrogation by a police officer as and when required;

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;

The condition that the person shall not leave India without the previous permission of the Court;

such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

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, be 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).

Anticipatory bail and regular bail are two different legal prepositions. The landmark judgment on the distinction is the famous case of Gurbaksh Singh Sibbia v. State of Punjab, the relevant observations made by the Supreme Court of India are as under:

“The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences.  An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest  order of bail, it  is a  pre-arrest  legal process which directs that if the person in whose favor it is issued  is  thereafter  arrested  on  the  accusation  in respect of  which the  direction  is  issued,  he  shall  be released on  bail.”

It is not necessary that an FIR is registered before the filing of the Anticipatory Bail Application, the apprehension of arrest or detention can be a ground of anticipatory bail application. The court can consider and pass orders in this regard. An anticipatory bail application can be filed and anticipatory bail granted even after the FIR is registered but the applicant has not been arrested. The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused has to seek the remedy under Section 437 or Section 439 of the Code of Criminal Procedure.


An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor under very urgent circumstances. The notice should be issued to the Public Prosecutor or to the Government advocate simultaneously. In such event  the question of bail should be re-examined in the light of respective contentions of the parties.

The ad-interim order too must conform to the requirements of the Section and suitable conditions can be imposed on the applicant even at that stage. The provisions of Section 437 and 438 are different and distinct as the court of Magistrate exercises its powers under Section 437 at the first instance.

It has been held in several cases that if the anticipatory bail application is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. While considering the anticipatory bail application, the court of the session or High Court cannot leave the question for the decision of the Magistrate concerned under Section 437  of the  Code. Such a course will defeat the very object of Section 438. In a way, Anticipatory bail application is on a better legal footing as compared to the bail application under Section 437 of CrPC.

The Supreme Court has defined the anticipatory bail application and the import of the same under Indian laws. Supreme Court has explained that Anticipatory bail is the temporary release of the accused from the custody of police either with or without surety. The words anticipatory bail has not been defined in the CrPC. The expression “anticipatory bail” is a misnomer and the order of anticipatory bail becomes operative after the arrest of the accused. The anticipatory bail under crpc provides that a person who has a reasonable belief that he may get arrested for a non-bailable offense then he may apply to sessions court or the high court to get a direction for grant of anticipatory bail under section 438 of Code of Criminal Procedure.

The court while considering the Anticipatory Bail Application may consider the following factors –

Nature and gravity of accusation,

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,

The possibility of the applicant to flee from justice, and

Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

After considering all these aspects and the facts of the case, the court may either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

If the sessions court or the high court does not pass any interim order under Section 438 of CrPC on the anticipatory bail application or does not grant the anticipatory bail then the police officer has the authority to arrest such person without a warrant on the basis of the accusation apprehended in such application.

Post amendments of 2005 in the criminal laws, it is mandatory to hear Public Prosecutor in the case of Anticipatory Bail. If the sessions court rejects the anticipatory bail application, then the application for anticipatory bail can be filed in High Court.

While considering the anticipatory bail application, the court can put certain conditions and restrictions while granting anticipatory bail. These conditions and restrictions are as follows:

i) The applicant of the Anticipatory bail application shall join the investigation and attend the investigation proceedings as and when directed by the investigating agency, the police or the court. 

ii) Applicant of the anticipatory bail application shall not tamper with the evidence in any manner.

iii) Applicant would not intimidate the witnesses of the case.

iv) The applicant of the anticipatory bail shall not run away from the jurisdiction of the court or leave the country. In such circumstances, the court may impose the condition of depositing the passport of the accused person.

Anticipatory bail application can be filed when the FIR has been registered. If a notice of arrest has been issued by the Investigation Officer of the case, then the Anticipatory Bail Application may be filed before the court of Sessions. 

If no FIR registered, still Anticipatory Bail Application can be filed and the court after seeking the version of police and Public Prosecutor may pass appropriate orders even granting anticipatory bail to the applicant or the accused persons or even the suspected persons. Such bail can be on several conditions to be imposed by the court of Sessions or the High Court. 


Section 439(2)of CrPC deals with cancellation of anticipatory bail. Though there is a specific provision in the code of criminal procedure but under law the court which has the power to grant the anticipatory is also empowered to cancel bail or recall the order related to bail upon appropriate consideration of facts. Anticipatory bail should not be abused in any manner as it is a special privilege given to a person who is under reasonable apprehension of his arrest. The power to cancel the regular or anticipatory bail can be invoked only when the court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Though the power conferred under Section 438 of the Code can be described as an extraordinary in character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances.

Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.

The grounds which can be taken in Anticipatory Bail Application besides the merits of the FIR can be other grounds which may mainly contain the following:

• Arrest being for ulterior motives such as humiliation and unjustified harassment.

• Irreparable injury to reputation & liberty.

• Otherwise a fit case for bail before arrest.

• Physically surrender before the court.

• Motivation of police on police on political consideration.

No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR. The court in its wisdom can also impose other conditions and eventualities in the interest of justice.

While considering all these aspects, we may sum up that society has a vital stake in both of the interests, namely, personal liberty of an individual and the investigational power of the police. The Court is to strike a balance between the two while deciding anticipatory bail application under section 438 of the Code of Criminal Procedure, 1973.

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