Understanding The Concept Of Anticipatory Bail



  1. Introduction 
  2. Pre-Arrest Bail Under Section 438
  3. Introduction Of Sections 496,4497A And 498
  4. Conditions For Granting Bail
  5. Bail For Non- Bailable Cases 
  6. Circumstances for Termination Of Bail
  7. When Anticipatory Bail Cannot Be Filed 
  8. Article 21 Of The Constitution 
  9. Latest Judgements
  10. Recent Progress
  11. Conclusion 


In the Indian criminal law system, there are three types of bail available under the Code of Criminal Procedure (CrPC), 1973 and they are regular, interim, and anticipatory bail. Anticipatory bail, defined under Section 438 of the Code, is a crucial defence for personal liberty. If someone, let’s call them ‘X’, fears arrest on non-bailable charges, they can seek anticipatory bail from the Court of Session or the High Court. Section 438 of the CrPC focuses on safeguarding personal liberty and the principle of innocence until proven guilty. This article delves into the nuances of anticipatory bail within this framework, offering an in-depth examination of recent changes and a critical assessment of court rulings related to anticipatory bail.

Pre-Arrest Bail Under Section 438

Section 438 primarily deals with pre-arrest bail concerning non-bailable offences. If a person anticipates arrest, they can apply to the Court of Session or High Court for bail. However, lower courts do not have the authority to grant anticipatory bail, this power lies with higher courts.

Under Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005, the court considers several factors before granting anticipatory bail. These factors include the seriousness of the accusations, whether the charges aim to harm or humiliate the applicant, the applicant’s criminal record, and the likelihood of the applicant evading justice.

If the High Court or Court of Session has not issued an interim order or has rejected the anticipatory bail application, the police can arrest the applicant without a warrant based on the accusations. However, if an interim order is granted, the applicant must provide a seven-day notice to the public prosecutor, and the court will make a final decision after addressing the notice.

According to Section 438(1B), the applicant must appear in court when the case is adjudicated, and a final hearing of the application or a final order is passed. The court may also require the applicant’s attendance if deemed necessary in the interest of justice upon the public prosecutor’s request.

Introduction Of Sections 496, 497A And 498

Anticipatory bail emerged due to judicial interpretations of Sections 496, 497, and 498 under the Code of Criminal Procedure (1898), which didn’t originally include provisions for it. Section 496 outlined when bail should be granted, Section 497 discussed bail in non-bailable offence cases, and Section 498 covered the High Court or Court of Session’s authority regarding bail. The idea of anticipatory bail stemmed from recommendations by the Law Commission, viewing it as a valuable safeguard for individuals’ rights. It was first proposed in the 41st Law Commission Report of 1969, paragraph 39.9.

Section 497A was introduced post the 1969 report, focusing on granting bail to individuals arrested for non-bailable offences. These individuals could seek bail from the High Court or Court of Session, which had discretionary power in granting bail. According to Section 204(1), when a magistrate acknowledges an offence, the process of issuance before the magistrate is outlined. Additionally, if a person arrested without a warrant for a non-bailable offence expresses a desire for bail either during the arrest or while in the custody of the officer, they must be released on bail.

The Law Commission, in its 48th Report of 1972, aligned anticipatory bail with the 41st Law Commission’s recommendations. While supporting this provision, the Commission stressed that such power should be used sparingly, reserved for exceptional cases. To prevent misuse, they proposed that granting anticipatory bail should involve notifying the public prosecutor, with the initial order being provisional. Moreover, the provision should explicitly state that this order can only be made after a thorough justification and if deemed necessary for the “interest of justice.” The legal provision for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, was derived from the modified Section 447 of the Code of Criminal Procedure Bill, 1970.

Conditions For Granting Bail

The court may impose certain conditions while granting anticipatory bail:

  1. The individual must be available for questioning by the police when required.
  2. The individual must provide their current residence address, native address, and phone number to the local police station.
  3. The individual must refrain from offering inducement, threat, or assurance to anyone involved in the case to prevent them from disclosing information to the court or police.
  4. The individual must not leave India without court authorization.
  5. Additional conditions under Section 437(3) may also be applied as if the bail were granted under that section.

Bail For Non- Bailable Cases 

Section 437 outlines the scenarios permitting bail in cases of non-bailable offences. An accused or suspected individual may be granted bail if charged with a non-bailable offence, arrested without a warrant by a police officer, or appearing before a court other than the High Court or Court of Session. However, certain conditions apply:

  1. Bail should not be granted if there are substantial reasons to believe the individual has committed an offence punishable by death or life imprisonment.
  2. In cases of a cognizable offence, bail may be granted if the individual has not been previously convicted of a capital or serious offence, or if they are under sixteen, female, sick, or infirm.
  3. Bail may also be considered for other reasons deemed appropriate by the court.
  4. It’s also noted that a witness’s possible identification of the accused during an inquiry should not alone be grounds for denying bail, provided the accused is otherwise eligible and assures compliance with court orders.

If at any stage of the investigation, inquiry, or trial, it becomes apparent that the accused has committed a non-bailable offence but requires further questioning or lacks substantial grounds for belief, Section 446A applies. The court or officer overseeing the case may then choose to release the accused with or without sureties, or on bail, until the inquiry is concluded, based on the circumstances.

Under subsection (1) of Section 437, a person may be granted bail if suspected of an offence punishable by imprisonment for seven years or more, or certain specified offences under the Indian Penal Code. The court can impose conditions to ensure the accused complies with the bond terms, prevent repeat offences, or in the interest of justice.

When an officer or court grants bail to a person, they must provide written justification for their decision. 

A court that has previously granted bail to a person under these subsections may, if deemed necessary, order their arrest and confinement.

If the trial of a person accused of a non-bailable offence by a Magistrate is not addressed within sixty days of the initial evidence-taking date and the accused has been in custody during this period, they must be released on bail to the satisfaction of the Magistrate, unless directed otherwise with reasons documented in writing.

Circumstances for Termination Of Bail 

Any restrictions imposed by a magistrate may be altered or lifted by the High Court or Court of Session. However, this can only occur after notifying the Public Prosecutor of the bail application and providing written reasons for the decision. This provision applies specifically to cases where the accused can only be tried by the Court of Session or faces a potential sentence of life imprisonment.

Additionally, Section 439 grants the High Court or Court of Session extraordinary powers regarding bail. If an accused person is in custody, they must be released on bail if the offence falls under Section 437(3). The court may also impose any necessary conditions for the purposes outlined in that subsection.

When Anticipatory Bail Cannot Be Filed 

Anticipatory bail cannot be filed under the following circumstances:

  1. An accused person cannot seek anticipatory bail if they have already appeared in court, whether through a lawyer or in person.
  2. Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not eligible for anticipatory bail as per Section 18 of the Act. Section 18A further clarifies that anticipatory bail is not applicable until a court passes a judgement, order, or direction.
  3. The Supreme Court has ruled that anticipatory bail is not allowed for economic offences.
  4. Anticipatory bail discretion cannot be applied to offences punishable by death or life imprisonment unless the court is immediately convinced that the charge is false or groundless.

Article 21 Of The Constitution 

Article 21 of the Indian Constitution guarantees that no person shall be deprived of their life or personal liberty except as per established legal procedures. This provision protects individuals’ freedom and rights, ensuring they are not unlawfully detained or arrested, regardless of their status as an “accused,” thereby maintaining the presumption of innocence until proven guilty. Anticipatory bail is a statutory right that ensures the preservation of personal liberty in cases of false accusations, aligning with the legal principle of “innocent until proven guilty.” This concept serves as a crucial defence mechanism for personal liberty.

Latest Judgements

In the legal landscape, recent judgments have clarified important aspects of anticipatory bail:

  1. The Allahabad High Court in Ankit Bharti v. State of Uttar Pradesh (2020) emphasised that while both the High Court and Court of Session can grant anticipatory bail, it’s customary to approach the Court of Session first, with the High Court being a recourse if the initial application is denied. However, direct applications to the High Court are acceptable if they are well-structured and compelling.
  2. The Supreme Court, in Subrata Roy Sahara v. Pramod Kumar Saini (2022), ruled that anticipatory bail inquiries must focus solely on the applicant’s case and pertinent information. It’s impermissible to involve third parties, as it would contravene Order 1 Rule 10 of the Code of Civil Procedure, 1908.

Recent Progress 

Recent court judgments have provided important insights into anticipatory bail:

  1. Gujarat High Court Bench outlined circumstances where anticipatory bail can be revoked, including engaging in criminal activity, obstructing investigation, tampering with evidence or witnesses, threatening witnesses, fleeing the country, or attempting to evade authorities.
  2. The Gujarat High Court also acknowledged the concept of “transit anticipatory bail,” allowing individuals facing arrest to seek time to approach the appropriate court with jurisdiction, even without an FIR filed.
  3. The Allahabad High Court clarified that an anticipatory bail plea remains valid even if a proclamation is issued against the accused after the plea is filed.
  4. The Punjab and Haryana High Court emphasised that anticipatory bail can be dismissed if the defendant attempts to deceive the court by withholding information.
  5. The Kerala High Court ruled that anticipatory bail applications can be considered even if the accused is residing in another country.


The Supreme Court, in the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (1977), established the principle that “Bail is the norm, and custody is the exception.” Anticipatory bail serves as a shield against unjust imprisonment for individuals falsely implicated in crimes. Courts should grant anticipatory bail sparingly, reserving it for cases where the petitioner is clearly being falsely accused. Besides protecting the accused, anticipatory bail also ensures that the individual doesn’t misuse their freedom or evade legal proceedings.


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