Pre-emption is better than cure: Anticipatory Bail under S. 438 of Criminal Procedure Code

Varun Gandhi and Sajjan Kumar are among those who have got it whereas many including Raghuraj Puri (father of accused in the recent Citibank scam) and SPS Rathore were less successful when they sought it. When any scam or controversy erupts –especially those in which criminal sanctions are invoked against the alleged perpetrators- it has become the norm for those implicated to seek what is known as anticipatory bail. This post aims to bring to light the substance and law behind this often-misunderstood aspect of procedural law.


What is Anticipatory Bail?

Anticipatory bail -a term not found in any Indian legislation- refers to a pre-arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail.

The ‘anticipatory’ labelling of the order can be misleading as it is not an order which grants a person bail before he is arrested as bail cannot come into effect before a person is arrested. Having said that, the fundamental difference between an order for bail and one for anticipatory bail is that the former is granted only after arrest (and becomes operative subsequently) but the latter is granted before arrest and hence is operative from the moment of arrest.

In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-bailable offence (as under s. 438 of the Criminal Procedure Code). A non-bailable offence is one for which the police if not empowered to release the arrested person on bail (except under certain special circumstance not dealt with here).

What is the law concerning Anticipatory Bail?

The provisions concerning anticipatory bail are to be found in section 438 of the Criminal Procedure Code (CrPC), 1973. The section is reproduced as follows:
“438. Direction for grant of bail to person apprehending arrest.
(1) 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 direction under this section; and that court may, if it thinks fit, direct that in the even of such arrest, he shall be released on bail.

(2) 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 thinks fit, including –
(i) A condition that the person shall make himself available for interrogation by a police officer 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).”

Sub-section (1) of section 438 mainly talks about what anticipatory bail is, who can apply for it (those apprehending arrest for non-bailable offences) and who is to be applied to (the Court of Sessions or the High Court)
Sub-section (2) talks about how the Court issuing an order under s. 438 can attach certain riders to it. These are listed out as ss. 438(2) (i), 438(2) (ii), 438(2) (iii) and 438(2) (iv).
Sub-section (3) empowers:
i. The Police to grant bail if the arrested person is arrested without warrant.
ii. The magistrate to issue a bailable warrant (in light of an anticipatory bail order)

When can an Anticipatory bail be granted?

It can be given when a person apprehends arrest for a non-bailable offence (refer to the First Schedule of CrPC for the list of offences labelled thus). It is given in those circumstances when the court believes that there is a possibility that the accused has been falsely implicated and that his freedom will not hamper the investigation of the crime. Having said that, bail granted under s. 438 may be cancelled at any time if the investigation is hampered or if a condition under the order is violated by the arrested person.
It is important to note that the attendance of the person apprehending arrest is compulsory at the final hearing.

When can an Anticipatory bail be not granted?

There are certain circumstances where applications for anticipatory bail are normally refused. These include:

How to obtain an Anticipatory Bail?

One can avail the provisions of s. 438 by filing an application for the same in the High Court or Sessions Court. If an application in the Sessions Court is rejected, the person may file the same in the High Court, but not vice versa. The application may be preferred to the relevant court in whose jurisdiction the accused was purported to commit the offence or the jurisdiction in which the arrested person apprehends arrest.
The format of the application for anticipatory bail can be observed in the following samples:
Sample 1
Sample 2
It is important to note that when a person is accused of many offences, it is possible that the court may grant bail under s. 438 only to some of those which leaves the door open for the party to be arrested under the others.

What is the need for such a provision?

The main objective behind such a provision is to prevent those falsely implicated in criminal cases to be subject to jail-time. The main factors considered while granting prayers for anticipatory bail are that:

Nowadays, Anticipatory Bail is an important tool in fighting wrongful accusations under s. 498 of the Indian Penal Code.

By Tarun Krishnakumar on January 26, 2011 · Posted in Criminal Law

6 Comments | Post Comment

Praveen@techperk says:

no one should escape from laws, nice to see good suggestions here BTW can you send me your Facebook profile to stay connected

Posted on January 29th, 2011

vinod says:

Can anticipatory bail be granted to any accused U/s: 438 Cr P.C. when the case is registered against on the basis of their own written admission of commission of the offence by the Court U/s: 156(3) Cr.P.C.

Posted on February 20th, 2011

arshad says:

what step should a person can take if police want to arrest and the decision of anticipatory is pending infront of court. is there any law to get safety from police arrest before the decision of anticipatory comes.

Posted on August 19th, 2011

Gayathri Rajan says:

what is the exact difference between filing AB before the High court and Session court under sec 438 Cr.P.C

Posted on September 14th, 2012

Anvita says:

I heard that some new rule has come into effect that no regular bail is required ater taking anticipatory bail

Posted on September 28th, 2012

Atul Agarwal says:

if the decision is pending in an application of anticipatory bail and the police is wanting the arrest then the person can seek interim bail from the same court in which the application for his bail is pending. if the interim bail is granted then the police will be having no authority to arrest the person till the disposal of his bail application.
there is no difference in the bail given by the high court or by the session court. both have same value and same standing.
and there is no such new provision in which if the person is granted AB then he has to take a regular bail.

Posted on April 3rd, 2013