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.
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.Non-Bailable
Offence means any other offence.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
, 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
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:
The suggestion for directing the release of a person on bail prior to his
arrest (commonly known as anticipatory bail
) was carefully considered
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
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
- 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,
- the nature and gravity of the 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
- 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,either reject the
application forthwith or issue an interim order for the grant of
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
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-
- 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
- a 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
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
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
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.
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.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
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.
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
, 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.
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
, 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
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.
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.The Courts are expected to take a
lot of care and be extremely cautious in granting Anticipatory bail as it can be
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.
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.
- Firstly, the nature and intensity of the crime with which the accused
has been charged.
- Secondly, if the accused has been earlier been arrested or was convicted
for a cognizable offence by the Court of law.
- Thirdly, if the accused is likely to abscond if not arrested or create
disturbance in the smooth investigation process, then it can be considered
- 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.
Some overriding considerations that the Court must keep in mind while granting
Anticipatory bail has also been laid down in certain cases.
- Firstly, the relationship of the accused and the victim and the accused
and the witness needs to be considered.
- 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
- 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.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.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.
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
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.
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
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.
- Section 2(n) of The Code of Criminal Procedure, 1973 (2 of 1974)
- Section 2(a) of The Code of Criminal Procedure, 1973 (2 of 1974)
- AIR 2000 SC 1023
- Law Commission of India 41stReport, September 1969, ˜The Code of
Criminal Procedure, 1898 Volume I', para 39.9; pp. 320-321
- Subs. by Act 25 of 2005, S. 38
- Added by the Criminal Law (Amendment) Act, 2018
- Chajju Ram v. State of Haryana, 1978 Cri LJ 608 (P&H)
- Onkar Nath Agarwal v. State, 1976 Cri LJ 1142
- Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom)
- Salauddin Abdulsamad Shaikj v. State of Maharashtra, (1996)1 SCC 667
- 1982 Cri LJ 559 (Mad)
- Suresh Vasudev v. State, 1978 Cri LJ 677 (Del.)
- AIR 1980 2 SCC 565
- AIR 1997 SC 3868
- Afsar Khan v State (1992) Cr LJ 1676
- Jitendra Singh v State (1998) Cr LJ 1762 (Mad.)
- Natturasu v State (1998) Cr LJ 1762 (Mad.)
- Gurbaksh Singh Sibbia v State of Punjab AIR 1980 2 (SCC) 565
- Bhagirath Mahapatra v State of Orissa ( AIR 1975 Cr.L.J. 1681) and State
of Maharashtra v Vishwas (AIR 1978 Cr.L.J. 1403)
- Gurbaksh Singh Sibbia v State of Punjab (AIR 1980 2 SCC 565)
- State of Maharashtra v Hanumantrao (AIR 1980 Cr.L.R. 526)
- R.L. Anand (ed) Aiyer & Mitter, Law of Bails