Anticipatory Bail


Earlier we examine provisions on bail. Anticipatory bail has come to the part of code of criminal procedure in1973 when the latter was replaced by the older code of 1898. The 41st law commission report of 1969 recommended the inclusion of the supply of the anticipatory bail.

The section 438 of the code of criminal procedure talks about the Anticipatory bail. Which empowers the supreme court and therefore the Court of Session to grant anticipatory bail that’s direction to release an individual on bail issued even before an individual is arrested.

The word anticipatory bail isn’t defined within the code as just like the word arrest and therefore the bail under the code.

S. 438 of the Code of Criminal Procedure, 1973, states down the law on anticipatory bail as- “When a person has reason to believe that he could also be arrested on an accusation of getting committed a non-bailable offence, he may apply to the supreme court or the Court of Session for a direction under this section; which Court may, if it thinks fit, direct that within the event of such arrest, he shall be released on bail.”

In the Gurbaksh Singh Sibbia vs State of Punjab case[1], a five-judge Supreme Court bench led by then judge Y V Chandrachud ruled that S. 438 (1) is to be interpreted within the light of Article 21 of the Constitution (protection of life and private liberty).


1. to guard the life and liberty of the appellant.

2. to guard from the unnecessary trauma, defamation of frivolous false charges and arrest.

3. The person is formed to be released on bail even before he’s arrested.

4 -important conditions of this section

1. The accused should cooperate in the investigation,

2. No tampering with the evidences,

3. Not influencing the witnesses and,

4. to not leave the country without the prior permission of the court.

It is a blessing in disguise for a few as like for the political parties who try to border the opponent or rival party of the form of government of the country for a mere explanation for vote. In today’s world, anything can happen to anyone. Everyone has their own way of dealing and cracking the items.


• The SC recently ruled that anticipatory bail granted to an individual “should not invariably” be limited to a hard and fast period and will continue till the top of the trial.

• However, the adjudicating court can limit its period just in case of “special or peculiar features”.

• It said that anticipatory bail needn’t normally end when an accused is summoned by the court or charges are framed against him.

• Imposing a deadline on anticipatory bail isn’t proper as the denial of bail amounts to deprivation of Article 21.

• An application for anticipatory bail should be supported by concrete facts, not vague allegations.

• A plea for anticipatory bail is often filed even before the registration of a primary information report.

• The lower courts needn’t wait to hear the version of the prosecution before granting anticipatory bail, counting on the seriousness of the threat.

• While granting anticipatory bail, courts need to consider the character of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice.

• But restrictions to be imposed are often done only on a case-to-case basis.

• The grant of protection shouldn’t be “blanket” but confined to specific offence or incident that relief from arrest is sought.

• It is open for the police to manoeuvre court for the arrest of the accused if there’s any violation of bail conditions.

[1] 1980 AIR 1632, 1980 SCR (3) 383