By the 41st Law Commission Report,1969 the term, “Anticipatory Bail” was added in order to ensure that the person who has the reason to believe that he might get arrested for a nonbailable offense then, in that case, can apply for anticipatory bail. Section 438 of the CrPC states the direction for grant of bail to a 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 offense, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event 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 think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as 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, be shall be released on bail; and if a Magistrate taking cognizance of such offense 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).
To grant anticipatory bail there are certain things that are considered by the court such as the past criminal record, the nature of the offense, and various other factors. In the case of the Badresh Bipinbai Seth v. the State of Gujarat, the Hon’ble Supreme Court of India stated that section 438 of the CrPC comes under the ambit of Article 21 of the Indian Constitution. Article 21 protects the right to life and liberty. The court further stated that the refusal to grant the anticipatory bail without any sufficient reason is a violation of Article 21 of the constitution. State of M.P vs. Pradeep Sharma (criminal Appeal No.2049 of 2013 dt.06-12-2013), in this case, it was stated,” “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”