Law On Anticipatory Bail

Criminal law is the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders. There are two types of laws; procedural law and the substantive law. Substantive Law is the written or statutory law and Procedural Law is the law which deals with enforcement of substantive law. The procedural law for the criminal proceeding is defined under the Code of Criminal Procedure (CrPC).

Before going into the insights of the topic, the matter which comes into consideration is what is an anticipatory bail? In simple words, anticipatory bail means a stay order on the arrest of the accused. Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions regarding the Anticipatory Bail. The Hon’ble Supreme Court has held that “Anticipatory bail is a court directive in which a person is granted bail before he is arrested, i.e. the accused person will not be arrested in this case. Under the Criminal Law of India, any person can apply for anticipatory bail on the possibility of being arrested for a non-bailable offense. It may be noted that the court can grant conditional advance bail after the hearing and this bail can continue till the police is investigated. In the year 1980, in the case of Gurbaksh Singh Sibbia v. State of Punjab, a five-judge bench of the Supreme Court had said that section 438 (1) should be interpreted keeping in mind the Article 21 of the Constitution. According to the Supreme Court, the plea relating to anticipatory bail should be based on solid evidence and not on vague or general allegations and the application should contain all the necessary facts related to the crime and the proper arrest of the applicant should also be clearly answered in the application.


Section 438 of the Code reads as under:-

“Direction for grant of bail to person apprehending arrest”

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely

  • The nature and gravity of the accusation;
  • The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
  • The possibility of the applicant to flee from justice; and.
  • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. […]

The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that: – “Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds, on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.”

Procedure for the Anticipatory Bail- In which court should the anticipatory bail petition is presented?

This is an important question that is known to very few people. Most lawyers also say that whether a procedure should be followed or not, first submit the application in the small court, if rejected, appeal to the court above it, but in the case of anticipatory bail, it is not mandatory to follow this procedure. The accused is free to present his plea in the District Court or High Court. And may submit an anticipatory bail petition wherever he wants. No anticipatory bail petition is dismissed in the High Court on this basis as it was not submitted before the District Court earlier. Both the courts i.e. Session Court and High Court can hear the anticipatory bail petition and if the judge feels that the police have registered a wrong case then he is free to give the benefit of anticipatory bail to the accused. Although there are no provision in Section 438 for issuing notice to the Public Prosecutor but it was held by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjaba notice should be issued to the Public Prosecutor or the Government advocate before passing final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the court may pass such order, issuing notice to the Public Prosecutor by making it returnable and may pass final order after hearing both the sides.” After the 2005 amendment it is compulsory for the court to hear the Public Prosecutor. Justice Yashwant Verma of Allahabad High Court said that the provision of anticipatory bail has been implemented under the guarantee of personal freedom and unnecessary harassment as provided in the Constitution. After hearing the matter if the court is satisfied then the anticipatory bail is granted with the accused with some conditions.

  • A condition that the person shall make himself available for interrogation by a police officer as and when required;
  • 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;
  • A condition that the person shall not leave India without the previous permission of the Court;
  • Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

The Supreme Court had arranged in the case ‘Sumit Mehta v. Sarkar (2013) 15 SCC 570’ that it would have been the court’s responsibility to maintain a balance between personal liberty and police investigation rights while exercising powers vested under Section 438 of the CrPC . The purpose of imposing such conditions should be to eliminate the possibility of influencing the investigation. Thus any condition, which makes no reference to the fairness or justification of the investigation or hearing, cannot be an expression under the law and the court should exercise its authority with great restraint. “We also clarify that while granting anticipatory bail, courts are required to consider the nature and seriousness of the charges, the antecedents of the petitioner, such as his earlier involvement in such crimes and the petitioner’s escape from justice. Take into consideration and consider aspects. It is also the duty of the court to ensure that the charges against the applicant are not made to hurt his reputation or to arrest and degrade him? It is not necessary to mention here that the court is obliged to impose appropriate conditions under sub-section two of section 438 of the Code. ”

As mentioned, there is no fixed procedure for anticipatory bail. As the police have registered the case and the accused is in danger of being arrested. Therefore, it is advisable to hire best criminal lawyer. Once decided, the Lawyer would draft an anticipatory bail mentioning the reasons for the bail application and your version of the facts surrounding the matter. When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case as fit, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made in the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court.

What is the validity of an Anticipatory Bail?

Recently, the Supreme Court, in one of its judgments, said that no time limit can be set for the Anticipatory Bail and it can continue till the end of the trial. That anticipatory bail granted to accused on apprehension or threat of arrest should not be restricted by time, saying it was not in larger societal interest to limit the power related to liberty of citizens. It is said that such pre-arrest bail can continue even till the end of trial.


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