Anticipatory Bail

All about anticipatory bail in India - Legal aspects - iPleaders

Bail is the security for the appearance of the accused person on giving which he is released pending trial or investigation .

It is basically the process of procuring the release of  the accused charged with certain offences by ensuring his future attendance in the court for trail.

CrPC has classified all offences into Bailable and Non bailable offence-

Bailable offences are those offences or crimes that are not very serious in nature . In such cases bail is a right and the arrested person must be released after depositing the bail with the police.

Ex- Being member of unlawful assembly , taking or giving bribes in elections etc.

Non- bailable offences are those offences which are serious in nature , punishable with imprisonment of 3 years or more. Here, bail is not matter of right  but only a privilege to be granted at the discretion of court.

Ex- Murder,Rape  etc.

Anticipatory bail is a direction to release a person on bail issued even before the person is arrested.

Sec 438 of CrPC lays down the provision on anticipatory bail-

Sec 438(1) : when any person anticipates that he/she may get arrested on an accusation of having commited a non bailable offence , he/she may apply to the High court or Court of session for a direction under this section . the  court may direct (if it thinks fit) that in the event of such arrests, he /she shall be released on bail even before an arrest is made without subjecting him/her to further restraints.

Sec 438(2) : when the high court or session court makes a direction under 438(1) it may lay down certain conditions in the light of facts of particular case, as it may think fit.

Hence when the court grants anticipatory bail what it does is to make an order that in the event of arrest ,a person shall be released on bail. So this becomes operative only on the arrest. There should not be mere fear rather a belief , thus a vague apprehension that someone is going to make an accusation against him , in pursuance of which he may be arrested .Such belief must be founded on some tangible grounds which the court can examine objectively .

Rationale behind anticipatory bail:

Anticipatory bail become part of CrPC in 1973 after the 41st law commission report (1969) recommended inclusion of such provision . The rationale behind inclusion of such provision was-

  • Sometimes influential people because of rivalry imposes false cause for the purpose of disgracing them by getting them in prison for few days.
  • As arbitray arrest leads to harassment and humiliation because of someone’s personal grudge.
  • When 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 so there is no reason to require him to first submit to custody ,remain in prison and then apply for bail.

In[ Gurubaksh singh sibbia v state of Punjab (1980)] case :ruled that sec 438(1) should be interpreted in light of Article 21 i.e. protection of life and personal liberty of the constitution should be put on first sight so that people’s faith in administration of justice should not be shaken.

Factors to be considered while granting anticipatory bail:
  • Nature and gravity of accusation
  • Previous records of applicant
  • Possibility of applicant to flee from justice
  • Where the accusation has been made with the object of injuring or humiliating the applicant having him so arrested.

After looking into all these factors the court may either reject the application or issue an interim order for grant of anticipatory bail.

Conditions imposed by court while it issue anticipatory bail:
  • The person would make himself available for police interrogation when required.
  • The person shall not do any inducement / threat to any person acquainted with the facts of the case so as to stop him from disclosing such facts to court/ public offices.
  • The person shall not leave India without the permission of the court.

The power to grant anticipatory bail rests only in session court/High court.

If a person moves to session court and after being unsuccessful can give fresh approach to High court, but if he moved directly to high court and in the case of rejection of this bail can’t approach the session court with similar application.

The High court/ session court having jurisdiction over the locale of the commission of the offence of which the  person is accused . It is neither the place of residence nor the place of apprehension of arrest give jurisdiction . [Syed zafrul Hassan v state AIR 1986 Pat 194]

Discretion in granting anticipatory bail

The law commission 48th report expressed the view that the power to grant anticipatory bail should be excercised in rare cases. Further the court should record the reason while granting so.The discretion should be exercise with due care and circumspection depending on circumstances justifying its exercise.

Recent Supreme court judgments on anticipatory bail

In gurubaksh singh sibbia v state of punajab – :SC ruled that granting of anticipatory bail as a matter of right of an individual should not be limited by time.

:But the court could impose conditions with a view to strike a balance between individual freedom and police investigational rights .

:bail will be effective till the conclusion of the trail.

Saluddin abdulsamad sheikh v state of maharastra (1995) case: SC overruled its earlier judgement and held that granting of anticipatory bail should be limited by time.

Now because of two divergent views the court had to decide on two questions in Sushila agarwal case:

There is nothing in CrPC that indicates the grant of anticipatory bail should be time bound, however it is discretionary power of court to decide on case .

Cancellation and rejection of anticipatory bail

Court which has power to grant anticipatory bail is also empowered to cancel  the bail but doesn’t have the power to cancel the bail granted by the police.


A large number of pre arrest bail petition by murder,rapist are flooding the high court. Precious time of court is being spent dealing with these petitions. Since this is discretionary power of the court so this is highly abused section of CrPC and been used heinously. The state legislature has powers to amend the code so this also varies from state to state.

Author: Aditi Trivedi,
Faculty of law, Delhi University ,1st year law student

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