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

January 26th, 20117:31 pm @    

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:

  • For offences/contraventions under certain specific statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971.
  • The provisions of s. 438 are normally refused to those accused of particularly heinous offences like murder and rape.

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:

  • The full and free investigation of the offence should not be hampered.
  • The accused must not be subject to harassment and unjustified detention.

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

Article by

Tarun Krishnakumar is a I year undergraduate student of law at the National Law School of India University (NLSIU), Bangalore. He is interested in a diverse range of legal and non-legal areas from Consumer Protection to technology and everything in between.

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