ANTICIPATORY BAIL LAW IN INDIA

INTRODUCTION
Anticipatory bail means an application seeking permission from the court to be released
if arrested by the police, but only for the particular reason against which permission of
anticipatory bail is asked by the accused.
According to section 438 of The Code of Criminal Procedure (CrPC), the High Court and
the Court of Session are empowered to grant anticipatory bail, that is, a direction to
release a person on bail issued even before the person is arrested.
Anticipatory bail cannot be claimed as a matter of right, it is essentially a statutory right
conferred long after the coming into force of the Constitution.

Initially when The Code of Criminal Procedure, 1973 (CrPC) came into force on
April 1, 1974, there was no such provision for the grant of Anticipatory Bail. The High
Courts were of the opinion that, unless a person was under a restraint, that is, in legal
custody, no bail could be granted.1
But the latest order by a Supreme Court vacation Bench comprising Justices Arijit
Pasayat and P P Naolekar said: Now rapists, triple murder accused and the most corrupt
have started seeking anticipatory bail, making the provision one of the most abused
sections of the Criminal Procedure Code. The Bench passed a standard order in all
anticipatory bail petitions- let the accused surrender before the trial court and then seek
bail. However it also asked the trial court to hear the bail petition on the day it was filed
before it.2

There are two types of bails discussed in CrPC, one is Ordinary bail or say regular bail
and the other is Anticipatory bail. The distinction between an ordinary order of release on
bail which comes under section 437 and an order of anticipatory bail as under section 438
is that, the former is granted after arrest and therefore means release from the custody of

1
2

Varkey Paily Madthikudiyil, AIR 1967 Ker 189

Dhananjay Mahapatra, Anticipatory bail law most misused: SC, The Times of India, Patna-Ranchi
National,
10 June 2008, p.6.

1
Electronic copy available at: http://ssrn.com/abstract=1476730

the police, the latter is granted in anticipation of arrest and is therefore effective at the
very moment of arrest.3

BARE ACT DEFINITION

Nothing by the name Anticipatory bail had been defined in The Code of Criminal
Procedure, but the meaning of the term Anticipatory bail can be understood from
section 438, which deals about the procedure of granting bail to a person who is under
apprehension of arrest. This section has been revised
The amending section gives the prosecution maximum opportunity for presenting its case
against the grant of Anticipatory bail.
S.438. Direction for grant of Bail to Person apprehending arrest,4 (1) When 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: (i) the nature and gravity of the accusation;
(ii) 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;
(iii) the possibility of the applicant to flee from justice; and
(iv) 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

3
4

Natturasu v. State, 1998 CrLJ 1762 (Mad).

Section 438 of The Code of Criminal Procedure (Act II of 1974), substituted by the CrPC (Amendment)
Act, 2005 (25 of 2005).

2
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arrest, without warrant the application 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 think fit, including(i) a condition that the person shall make himself available for interrogation by a
police officer as and when required;
(ii) 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;
(iii) a condition that the person shall not leave India without the previous
permission of the court;
(iv) such other condition as may be imposed under sub-section (3) of section 437,
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).

WHO CAN APPLY FOR ANTICIPATORY BAIL?

A person apprehending arrest under warrant issued by Magistrate for remanding him to
custody under s. 2095 can apply for anticipatory bail under s. 438.6 Anticipatory bail has
nothing to do with filing of FIR or charge sheet or issue of warrant of arrest; it is only
concerned with arrest. If the accused anticipates that there are chances of him being
arrested by the police, he can ask the court regarding issue of anticipatory bail, and if the
court is satisfied the bail will be granted o the applicant.
Where the accused apprehends arrest in view of the fact that a non-bailable warrant has
been issued against him on the basis of charge sheet filed against him, he can apply for
anticipatory bail. 7
The discretion of granting anticipatory bail has to be exercised sparingly in appropriate
cases, with due care and caution imposing required conditions.8
When two co-accused have been enlarged on bail the petitioner being similarly placed
should be allowed the benefit of bail. 9 Where one co-accused is acquitted, on that ground
alone the absconding co-accused is not entitled to anticipatory bail. 10 Anticipatory bail to
an accused should not be refused merely because other accused has been granted regular
bail. 11 A second application for anticipatory bail is not barred even if the earlier bail
application was decided on merits or not permitted or dismissed for default.12

Commitment of case to Court of Session when offence is triable exclusively by it.- When in a case
instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and
until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be
produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
6
Natturasu v. State , 1998 CrLJ 1762 (Mad).
7
Bonneswar Dutta, 1998 CrLJ 1383 (1388) (Cal-DB).
8
Narayansingh v. State of M.P., 1996 CrLJ 551 (MP).
9
Sadya v. State of Rajasthan, 1988 (3) Crimes 472 (Raj).
10
Munna Muni Khan v. State of Rajasthan, 1996 CrLJ 831 (Raj).
11
State of Kerela v. K.R.Suraj, 2004 CrlJ 1995 (2000) (Ker).
12
Ganesh Raj v. State of Rajasthan, 2005 CrLJ 2086 (Raj FB).

VALIDITY
Bail granted under this section will be valid and operative for those offences for which it
was granted and such bail bond will continue until it is cancelled.13
Anticipatory bail once granted must be held to be operative till the conclusion of the trial,
or unless it is called off under S. 43914 of CrPC.15 (Anticipatory bail may be cancelled
u/s. 439 (2) if the accused is found to be tampering with prosecution evidence, or new
supervening circumstances arise after the release on bail). 16
But the Supreme Court has held that it is necessary that anticipatory bail order should be
of a limited duration only and ordinarily on the expiry of that duration or extended
duration the court granting anticipatory bail should leave it to the regular Court to deal
with the matter on the appreciation of evidence placed before it after the investigation had
made progress or the charge sheet is submitted.17
The fixation of an outer limit in an anticipatory bail is permissible, but it cannot be
invoked after the arrest of the accused.18

JURISDICTION
As anticipatory bails are granted against arrest and detention, an appropriate court within
whose jurisdiction the arrest takes place or is apprehended will also have jurisdiction to
grant bail to the person concerned. Therefore, the High Court or the Court of Session
having jurisdiction over the place where the arrest is apprehended by the applicant has
jurisdiction to entertain application for anticipatory bail even though the FIR might have
been registered at a place within the jurisdiction of another High Court or Court of
Session.19

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
13
14

15
16
17
18
19

Ramsewak v. State of M.P., 1979 CrLJ 1485.

According to section 439 (2), A High Court or Court of Session may direct that any person who has been
released on bail under this chapter be arrested and commit him to custody.
Natturasu v. State, 1998 CrLJ 1762 (Mad).
Jairam Tiwari v. State of Bihar, 1987 CrLJ 254 (Pat).
Salauddin Abdul Samad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 (668)
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.
Salauddin Abdul Samad Sheikh v. State of Maharashtra, (1996) 1 SCC 667.

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.

It may be however be noted that though section 438 gives concurrent power to the High
Court and the Court of Session, it is normally to be presumed that the Court of Session
would be first approached for the grant of anticipatory bail unless an adequate case for
not approaching the said court has been made out.20 It has also been held that it is not
always necessary that the Sessions Judge should be approached first. 21 Where the petition
for anticipatory bail has been rejected by the Session Court, the petitioner cannot
approach the High Court asking for anticipatory bail on the same grounds. However
revision against the order of rejection was held to be maintainable. 22 The Bombay High
Court has ruled that rejection of an application by the Sessions Court would not be a bar
for the High Court to entertain a similar application based on the same facts.23 But if he
moves the High Court first and his application is rejected he cannot approach the
Sessions Court with a similar application.24
Normally the Supreme Court does not interfere in the matters concerning grant or refusal
of Anticipatory bail, whether by High Courts or Sessions Court.25
Every petition for anticipatory bail should be supported by affidavit. 26
There is no statutory bar in entertaining second anticipatory bail application. It would be
maintainable but it has to be placed before the same Honble Judge.27
FUNCTIONING & APPLICABILITY OF ANTICIPATORY BAIL
The purpose of this section inter alia appears to be to secure that a person anticipating
arrest is not obliged to go to jail till he is able to move the court for being released on

20
21
22
23
24
25
26
27

Usman v. S.I. of Police, (2003) 2 KLT 594.

Balan v. State of Kerala, 2003 (3) KLT 472 (FB).
Zubair Ahamed Bhat v. State of J&K, 1990 Cri LJ 103 (J&K HC).
Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom. HC).
Devidas Raghu Naik v. State of Maharashtra, 1989 Cri LJ 252 (Bom HC).
Chakrawarti Prasad v. State of Bihar, 2002 (1) East Cr C 1201 (SC).
Prafulla Jena v. State of Orissa, 2000 CrLJ 2681 (2684) (MP).
Runu Rey v. State of Assam, 2006 (37) AIC 742 (Gau).

bail. 28 The object which is sought to be achieved by this section is that the moment a
person is arrested, if he has already obtained an order granting anticipatory bail from the
Session Judge or the High Court, he would be released immediately without having to
undergo the rigor of jail even for a few days which would necessarily be taken up if he
has to apply for bail after arrest. So, there is no question of release on bail unless a person
is arrested and, therefore, it is only on arrest that the order granting anticipatory bail
becomes operative.
In respect of non-bailable offences29, all the conditions imposed by S. 43730 are implicitly
contained in this section as well. In order to successfully invoke the jurisdiction under
this section apart from satisfying the conditions under S.437, the applicant must, in
addition make out a special case for securing an order of anticipatory bail which is of an
exceptional type. He must prove that the charge leveled against him is malafide and
stems from ulterior motive. It is for the applicant to prima facie substantiate his allegation
that the charge of serious non-bailable offences against him has been leveled malafide.31
The provision for granting anticipatory bail are not applicable to the offences under
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 vide s.18
thereof. This has been held to be constitutional. 32
Thus Anticipatory bail can be granted in respect of non-bailable offences whether they
are cognizable or non-cognizable offences.33 Moreover granting of anticipatory bails in
case of non-bailable offences are not confined to those non-bailable offences which are
punishable with death or imprisonment for life.
Consideration for grant of anticipatory bail is the same as that of under S. 437 or S. 439.34
A person already on bail (whether ordinary or anticipatory), cannot apply afresh for bail
in respect of the same accusation. 35
28

Natturasu v. State, 1998 CrLJ 1762 (Mad).

According to s. 2 (a) of CrPC, Non-bailable offences are the offences, other than those offence which are
shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in
force.
30
Section 437 of CrPC, points out when bail may be taken in case of non-bailable offences.
31
Mathanthagouda v. State of Karnataka, 1978 CrLJ 1045 (Kant).
32
State of M.P. v Ramishna Balothia, (1995) 3 SCC 221.
33
Suresh Vsudeva v. State, 1978 CrLJ 677 (Del).
34
Ram Swaroop v. State (Delhi Admn), 1986 CrLJ 526.
35
Natturasu v. State, 1998 CrLJ 1762 (Mad).
29

The Court has power to grant anticipatory bail even in cases where either cognizance has
been taken or charge sheet has been filed. 36
Anticipatory bail can be granted even after the Criminal Court has taken cognizance, and
summons of warrant has been issued by the Court.37
Section 438 becomes inoperative only when the accused has been arrested, that is it
cannot be invoked after the arrest of the accused has been done.
The exercise of power under this section is with regard to a specific accusation and
cannot be extended in a blanket fashion to cover all offences which the petitioner may
come to be charged. 38
On an application for grant of anticipatory bail, the investigating agency would be given
reasonable time to file objection to the application. Where the copy of the application was
served on the appellant only in the afternoon the order for bail passed on the next day
would be set aside.39
In case of regular bail there is no provision made in the code, that a complainant or a
third party can intervene and make any submissions independently in opposing the
application for grant of bail or anticipatory bail. 40
The State legislature has the requisite power to make laws to amend the provisions of the
code of Criminal Procedure, 1973, subject to the other provisions of the constitution. 41
So, in effect to it state of Maharashtra and Orissa has substituted section 438 of CrPC by
its own section, West Bengal has only inserted a proviso to sub section-1 of section 438
CrPC. The proviso added by West Bengal and Orissa are almost similar, the difference is
in time of giving notice.
The Orissa Act reads as, where the apprehended accusation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term of not less than
seven years, no final order shall be made on such application without giving the state
notice to present its case.

36
37
38
39
40
41

Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77.

Shamim Ahmed v. State, (2003) 2 CHN 431.
Gurbaksh Singh Sibia v. State of Punjab, AIR 1978 P&H 1.
Union of India v. Yusuf Razak Dhanani, (2003) 8 SCC 908.
Indu Bala v. Delhi Administration, 1991 CrLJ 1774 (Del).
Indra Kumar v. State of Bihar, AIR 1988 Pat 309.

Where as according to the West Bengal Act where the apprehended accusation relates to
an offence punishable with death, imprisonment for life or imprisonment for a term of not
less than seven years, no final order shall be made to such application without giving the
state not less than seven days notice to present its case.
There is even a State where this section does not apply that is Uttar Pradesh which has
omitted section 438.
In Kartar Singh v. State of Punjab, a five judge constitutional bench of Supreme Court
had upheld the constitutional validity of the U.P. law scrapping the operation of
anticipatory bail provision.
The constitutional bench has said that deletion of anticipatory bail provision did not
offend the fundamental rights under Article 14,42 Article 19, 43 and Article 2144 of the
constitution.
FACTORS

CONSIDERED

BY

THE

COURT

WHILE

GRANTING

ANTICIPATORY BAIL.

It has been said by the Supreme Court that, if the proposed accusation appears to
stem not from motives of furthering the ends of justice but from some ulterior
motive, the object being to injure and humiliate the applicant by having him
arrested, a direction for the release of the applicant on Anticipatory bail in the
event of his arrest would generally be made.

The Supreme Court has held that a blanket order45 of anticipatory bail should
not generally be passed and that the court which grants anticipatory bail must take
care to specify the offence or offences in respect of which alone the order will be
effective.46

The Courts in dealing with the application for Anticipatory bail, under section 438
of CrPC is similar to the applications under S. 437 and S. 439. The consideration
governing exercise of discretion for granting anticipatory bail are materially

42

Equality before law.

Protection of certain rights regarding freedom of speech, peaceful assembly, formation of association and
Union, free movement, and to reside and settle in any part of India.
44
Protection of Life and personal liberty.
45
Blanket order means that the applicant shall be released on bail whenever arrested for whichever offence
whatsoever.
46
G.V.Prabhu v. State, 1975 CrLJ 1339, 1340 (Goa JC).
43

different from those of an application for bail. 47 When the accused is admittedly
involved in the offence and when police want the accused for investigation,
application may be rejected.48

Like when the multi-storeyed building put up by a building architect is collapsed

and the applicant is prima facie guilty of such a serious offence, anticipatory bail
cannot be granted.49

The power of Anticipatory bail being of extraordinary nature should be exercised

only in exceptional cases. 50 Anticipatory bail is not to be granted as a matter of
rule, it is granted only when a special case is made out and the court is convinced
that the person is of such a status that he would not misuse his liberty. 51 If a case
for anticipatory bail is made out, it should not be refused merely because the
accused is required in police custody for interrogation.52

Anticipatory bail cannot be granted to a person apprehending arrest for

contravention of Defence of India Rules 1971. 53 Moreover, mere pendency of
cases is not a ground for denying bail. 54

The grant of bail to an accused who has voluntarily surrendered before the Court
cannot be said to be an order for release under this section.55

Anticipatory bails are mostly refused to the people who are not cooperating with
the investigation or it requires custodial interrogation or in any way they are
influencing the evidence of the case, then awarding of anticipatory bails becomes
tough, moreover sometimes the heavy section of crimes like Ss. 302, 307, 376,
120B, 420, 467, 468 etc of IPC, S. 13 of the Prevention of Corruption Act, etc
also results in rejection of the application.

Filing of First Information Report, (FIR) is not a condition precedent for

preferring and disposing an application for anticipatory bail. 56 Filing of a charge-

47
48
49
50
51
52
53
54
55

Adri Dharan Das v. State of West Bengal, 2005 CrLJ 1706 (SC).
Madan Kashinath Amonkar v. State, 1988 (1) Crimes 461 (Bom.).
Tushkar Kanti Ghosh, 1996 CrLJ 1557 (Cal-DB)
Siri Krishna Das v. State of Haryana, 2000 (2) Crimes 529 (P&H).
Lilaram L. Revani v. R.D.Gandhi, 1998 CrLJ 14 (15) (Guj).
Siri Krishna Das v. State of Haryana, 2000 (2) Crimes 529 (P&H).
State of M.P. v. Shantilal, 1976 CrLJ 256 (MP-DB).
Jaichand v. State of Rajasthan, 1991 (3) Crimes 49 (51) (Cal).
State of Assam v. Mobarak Ali, 1982 CrLJ 1816 (Gau-DB).

10

sheet or issuance of a warrant for arrest does not put an end to the power to grant
anticipatory bail. 57

NECESSITY OF ANTICIPATORY BAIL

The necessity for granting anticipatory bail has arisen because sometimes influential
persons try to implicate their rivals in false cases for harassment at the hands of the police
or for the purpose of disgracing them or for any other reason, 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. 58
Anticipatory bail is not to be exercised as if a punishment before trial is being imposed.
The only material consideration in such a situation is whether the accused would be really
available for his trial and whether he is likely to abuse the discretion granted in his favour
by tampering with the evidence. For mere interrogation arrest of the accused is not all
necessary. 59

CONCLUSION
The power of anticipatory bail has to be exercised cautiously and only in exceptional
cases, that is, where the Courts strongly feel that the applicant is being framed in the
charge, and not other wise. An indirect use of the power to grant bail would be an abuse
of the judicial process and would shake the confidence of the general public in the
judiciary. No hard and fast rule should be laid down in discretionary matters like the
grant or refusal, nor can there be inflexible principle governing the exercise or discretion
except that discretion should be exercised judiciously having regard to peculiar facts and
circumstances of each case.

56
57
58
59

Digendra Sarkar, 1982 CrLJ 2197 (Del).

Shammi v. State, 2003 CrLJ 2815 (FB) (Cal).
Vide Law Commissions 41st Report, Vol.I, pp.320, 321, para 39.9.
Sajjan Kumar v. State, 1991 CrLJ 645, 653 (Del)

11

The Court is not expected to conduct a pre-trial of the case and consider the probability of
guilt or innocence, but can certainly look into the material available on record for
exercise of its power. The fact that offence is a serious one is not by itself a good ground
for refusal, if otherwise entitled to.60
A person should be granted anticipatory bail only when the Court is convinced that the
applicant is such a person who would not abscond or otherwise misuse his liberty by
threatening the other party or influencing the case. Anticipatory bail should not be
granted as a matter of rule; it has to be granted only in special cases.

60

R.L.Jalappa v. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant).

12