Anticipatory Bail


Bail – Bail is written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case (such as a guilty plea or a withdrawal of their charges).

Anticipatory Bail – Bail which is granted before the person even got arrested. A person can apply for the anticipatory bail before arrest at High Court or Session Court as per sec. 438 of Code of Criminal Procedure (CrPC). When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence.[1]

Historical Background 

Anticipatory Bail became part of the CrPC in 1973 after the 41st Law Commission Report (1969). It was added to protect the liberty of the person and  to protect him from unnecessary trauma and defamation of frivolous and false charges and arrest.


  • Some of the time compelling people attempt to embroil their adversaries in bogus cases to disrespect them or for different purposes by getting them kept in prison.
  • Aside from bogus cases, when there are sensible reason for accepting that an individual blamed for an offense isn’t probably going to slip away or abuse his freedom while on Bail, at that point there is no compelling reason to initially submit him to care, make him/her stay in jail and afterward apply for Bail. In such cases, Bail could be allowed before.
  • As discretionary captures (regularly prompting badgering and embarrassment of residents) keep on being an inescapable marvel in the nation, accordingly, the insurance to individuals ought to be given.
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  • Gurbaksh Singh Sibbia Etc vs State Of Punjab,9 April, 1980[2]

It was held that “Sec. 438(1) should be interpreted in the light of Article 21 (protection of life and personal liberty) of the Constitution.”

  1. Granting of anticipatory Bail as a matter of right of an individual should not be limited by time.
  2. The Court could impose appropriate restrictions on a case-by-case basis.
  • Salauddin Abdulsamad Shaikh vs The State Of Maharashtra,11 December, 1995[3]

SC overruled its earlier judgment and held that “granting of anticipatory Bail should be [4]limited by time.

  • Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors,2 December, 2010

SC held that “life/duration of an order granting anticipatory Bail could not be curtailed.

  • Sushila Aggarwal vs State (Nct Of Delhi),29 January, 2020[5]
  1. The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.
  2. The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Application for expectant Bail could be recorded by an individual before the FIR (First Information Report) when the realities clarify there is a considerable purpose behind the capture.

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Redrafting locale to check the accuracy of the conceded Bail lies with the predominant Court on the solicitation of the examining office or the State.

The Court commented that “when Parliament has not thought it suitable to shorten the privileges of the residents and the intensity of Courts in allowing expectant Bails, henceforth, it isn’t in bigger cultural enthusiasm to abridge such powers and breaking point the freedom of residents. The privileges of the residents are essential and not the limitations.”


An application for expectant Bail can be documented in instances of both bailable and non-bailable offenses. While in the previous circumstance, the Bail is allowed as an issue of right, the award of Bail in the last circumstance doesn’t involve right however a benefit and is at the command of the optional intensity of the Court.

Bailable Offense: Sec. 436 of the CrPC sets down arrangement for giving Bail to an individual blamed for any bailable offense under the IPC.

Bailable offenses will be offenses or wrongdoings that are not intense in nature and include: unlawful get together (Sec. 144 of CrPC), installment of pay off during races, manufacture of bogus proof, support in riots, outfitting bogus data, causing passing by carelessness (Sec. 304A), following, criminal maligning, and so forth.

Non-bailable Offense: Sec. 437 of the CrPC sets out the intensity of court to give Bail to an individual blamed for submitting a non-bailable offense under the IPC.

Non-bailable offences are grave and serious offences which include sedition, waging, attempting to wage war against the government, counterfeiting of Indian currency, murder (Sec. 302), dowry death (Sec. 304B), trafficking of a person, rape (Sec. 376), etc.


Factors for Granting Bail

Bailable Offence:
  • If there are sufficient evidence to believe that the accused has not committed the crime or offence.
  • As per the Court, if there are sufficient reasons to conduct further enquiry into the case.
  • If the person is not accused of a crime which is punishable as death, life imprisonment, or imprisonment of up to 10 years or more.
Non-bailable Offence:
  • If the accused is woman or a child.
  • If there is a lack of proper evidence.
  • If there is a delay in registering the FIR by the complainant.
  • If the accused is physically sick.
  • If there is corroboration about personal animosity between accused and complainant.

Conditions Imposed by Court

  • Person shall not leave the country and travel outside the country without the prior permission of the Court.
  • If a Court rejects the anticipatory Bail a person, can be arrested by the police without a warrant.
  • Person shall make himself available for interrogation by a police officer (as and whenever required).
  • Person shall not (directly or indirectly) make any inducement, interference, 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.

[1] Sec 438(1) The Code Of Criminal Procedure, 1973

[2] Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980 AIR 1632

[3] Salauddin Abdulsamad Shaikh vs The State Of Maharashtra, 1996 AIR 1042

[4] Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors, APPEAL NO. 2271 of 2010

[5] Sushila Aggarwal vs State (Nct Of Delhi),2020 SCC SC 98

Author: Mayank Malhtora,
Student School of Law, CHRIST (Deemed to be University) DELHI-NCR

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