Anticipatory Bail u/s 438 of CRPC BY AKSHIT GUPTA @LEXCLIQ

Anticipatory Bail 


This term was first introduced in the 41-law commission of India. This was brought to protect an accused or person to protect against the provision, who think that they can get arrested for an offence which is non bailable in nature they can apply for bailment before getting arrested for the offence they think they can get arrested for. 

Taking into consideration on that report parliament added the provision of pre-bailment under section 438 of crpc with a heading “Direction for grant of bail to person apprehending arrest”. 

Bail is an essential freedom of the accused it is a temporary release of a person on condition of his appearance. According to law the person is to be treated as innocent until proven guilty according to criminal jurisprudence.  

The bail under section 436,437 and 439 can only be provided after arrest only section 438 provides for pre bailment procedure which is also known as anticipatory bail. It refers to a bail granted before arrets. 

Anticipatory bail is concept which is brought with a reason that there is so much competition in market and politics so many a times rivals try to defame someone by accusing their rivals of some heinous crimes in order to humiliate and harass them buy getting them arrested. The person liberty is main right of an individual and it can’t be taken away. 

When a person has a reason to believe that he can get arrested he has to apply under section 438 in high court or court of session for direction to the investigation agency , if get arrested he will be released on bail. 

The supreme court in its landmark judgement Sushila Aggarwal v. State of NCT of Delhi (2020) said that no time limit can be set for anticipatory bail which means it can even extend till after the trial the reason this provision was brought because of fake accusation by rivalries in market. 

There is a necessity by parliament that why accused has to be kept in prison and then he has to apply for bail. In such cases bail could be granted earlier. 

There are 3 types of bail in india : 

  • Interim bail which means bail granted for the short period of time till the application of regular bail and anticipatory bail is pending in the court. 
  • Regular bail means when court directs to release the accused kept in prison but keep him in custody. For such bail application can be filed under section 439, and 437 
  • Anticipatory bail in which it is ordered by the court to release the person even before he is arrested for the offence. For such bailment accused has to file application under section 438. It has to be filed only when the applicant has a reason to believe that he could be arrested for non bailable cognizable offence. 


Criminal amendment bill 2018, added clause to the section 438 as exception to anticipatory bail which means the bail can’t be granted to those of committing rape of a women under the age of 16 years, under 12 years of age or gang rape of 16years, 12 years of age punishable under section 376(3), 376 AB, 376 DA and 376 DB respectively of IPC 1860. 

The Hon’ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat was pleased to hold that:
The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.” 


The court is of the view point that anticipatory bail isn’t the protection to the accused of punishment or try to give shelter or give motivation to other offender that they can be protect under this section the only purpose of introducing this section was to protect the accused from custody by giving pre bailment. There are reason purposed to this section which is necessary to be fulfilled which are: 

  • The offence should be of nonbailable nature  
  • The accused must have a reason to believe that the offence is non bailable and cognizable in nature and not just mere fear of getting arrested. 

If the FIR is filed it isn’t the prerequisite to file the anticipatory bail the anticipatory bail can be filed even after the FIR is filed by police officer. The main aim of the court isn’t to violate the article 21of constitution which protects the liberty and freedom of individual the court was pleased to know that both the section and article are considered before giving judgement in Badresh Bipinbai Seth v. State of Gujarat 





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