Anticipatory Bail: Meaning & Procedure to Grant such Bail

By | September 12, 2019
Anticipatory Bail

Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail | Overview


The concept of anticipatory bail has been the by-product of judicial decisions on the interpretation of Sections 496, 497 and 498 of the Code of Criminal Procedure, 1898. The grant of anticipatory bail has now been crystallized into a legal concept in Section 438 of the Code of Criminal Procedure 1973.

This provision precisely explains the meaning and procedure for grant of anticipatory bail under the Code. The genesis of the concept can be traced to the recommendations of the Law Commission, which thought it could be a useful addition to the protection of the rights of a person.

The Law Commission observed that “the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false oases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.”[1]

The Doctrine of Anticipatory Bail

In order to analyse the purpose, nature and scope of the doctrine of anticipatory bail as enshrined in the Code of Criminal Procedure, 1973, it becomes indeed necessary to examine, its legislative history briefly.

Under the previous Criminal Procedure Code, an important question arose whether anticipatory bail could be granted. In Madhya Pradesh v. Narayan Prasad[2], the High Court refused to grant such bail to an accused person because the court relied on the dictionary meaning of bail according to which means bail is to ‘set free’ and anticipatory bail, the person is not under any restriction but is completely free. Bail presupposes custody. If there is no custody, there cannot be any bail.

Further, the court followed the Privy Council’s dictum in Emperor v. Nazir Ahmed[3] wherein the Privy Council stated that the courts should not interfere in the working of the police department if the actions are lawful and with proper authority. If an application of anticipatory bail is allowed by a competent court, it interferes with the function of the police in determining whether the person concerned has or has not committed an offence.

Hence before the new Criminal Procedure Code came into operation there was a conflict of judicial opinion about the power of the court to grant anticipatory bail. The majority view was as shown above a very conservative one. The Law Commission in its 41st report rightly pointed out the necessity for granting anticipatory bail in our country, as it must be in many other countries. “Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days”[4].

The Supreme Court in Balchand v. State of Madhya Pradesh [5] laid down that in order that the provision may not be abused by fraudulent applicants, the courts should issue a notice to the Public Prosecutor of such application before the application is heard and disposed of.

In Balchand, the apex court observed that although § 438 Cr.P.C of the code does not mention any such condition, justice and fair play requires that information should be given to the other party to ensure that the party is able to respond in an ordinate and proper manner to the court’s decision of granting bail.

Further, the Supreme Court laid down that though section 438 of the code does not mention any condition that can be inflicted upon the accused or arrestee, conditions under § 437 Cr.P.C can apply mutatis mutandis to this provision as well. This is because section 438 immediately follows section 437.

Nature and Scope of the Provisions Relating to Anticipatory Bail

It is now necessary to illuminate the very ‘nature and scope of this power’ as envisaged in the code and the regulating principles laid down by the Courts. The power to grant anticipatory bail is of an extraordinary character and must be exercised sparingly and only in exceptional cases. § 438 is an application for anticipatory bail could be made “to the High Court or the Court of Session” and that it could not be made in both the Courts.

The court relied on Amiya Kumar v State of West Bengal[6]. However, some guidelines for the exercise of power under section 438 were ascribed in the words of Bhagwati J. as follows:

Section 438 does not contain unguided or unanalysed powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The words ‘for a direction under this section’ and ‘Court may if it thinks fit direct’ clearly show that the Court has to be guided by a large number of considerations including those mentioned in Section 437 of the Code”[7].

Procedure to grant Anticipatory Bail

The most important consideration for the exercise of judicial discretion under section 438 is the larger interest of the state and the society. The following two conditions are the sine qua non for the exercise of the power of the court under section 438 can be invoked by the petitioner:

  1. There must be an accusation of the petitioner having committed a non-bailable offence. Obviously, this accusation must be an existing one or in any case stemming from the facts already in existence.
  2. There must be reasonable apprehension or belief in the mind of the petitioner that he would be arrested on the basis of such an accusation. The simultaneous existence of both these conditions is a sine qua non for invoking court’s jurisdiction.

Again in Onkar Nath Agrawai v. State[8], it was held that the power under section 438 is not to be exercised in a vacuum but only on the satisfaction of the conditions spelt out in the section itself. The conditions prerequisite for the court’s exercise of its discretion under section 438 of the code is that the person seeking such relief must have a “reasonable apprehension” of his arrest on an accusation of having committed a non-bailable offence.

While dwelling on the meaning of ‘reasonable apprehension’, Barooah, J. of the Calcutta High Court in Shyam Sunder Beriwala v. State, the court observed that for instance, “if an order for investigation is passed by a Magistrate under Section 156 (3) of the Code, the person concerned must necessarily have a reasonable apprehension that he may be arrested though no formal F.I.R. has been filed. In the instant case, even if the police had threatened the petitioners that they may start afresh case against the petitioners, it cannot be said that their apprehension or anticipation of their being arrested is reasonable”[9].

Guidelines to be Followed

In Gurbaksh Singh Sibba v. State of Punjab[10], the Hon’ble Supreme Court bestowed the prerequisites to be followed by the competent Courts while granting anticipatory bail:

  1. Ordinary bail is different from anticipatory bail because the primary one is effective after the person is taken into custody. It means first the person is arrested then released on bail. In the latter, i.e. anticipatory bail, it is operative from the duration of the arrest. It means the person can be released even from getting arrested.
  2. The powers can be exercised by the Sessions Court and High Court and it is a carte blanche power with broad discretion.
  3. The competent courts must use their brain and application of subtle mind and should not allow the Magistrate to decide whether bail should be granted or not under § 437 of Cr.P.C.
  4. Anticipatory bail orders are not blanket orders. The person anticipating detention must have bona fide reasons to believe that he may be arrested by police for an offence. Such belief is sine qua non to the court’s power to grant bail and vague apprehension that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone order will be effective and not a blanket order.
  5. The courts while deciding on the question of anticipatory bail, must conform to the requirements of § 438 Cr.P.C and rules made thereunder. The court may impose conditions as it requires or deems fit to allow the accused to appear before it when required during the trial if any. The court, further, must give notice to the Prosecutor of such application for grant of anticipatory bail but it may give such notice after disposing of the application.
  6. The court cannot restrict the duration of the bail order by specifying any specific time for which it shall be operative.
  7. It has been a common phenomenon that rivals lodge false FIRs and wrong cases to tarnish the image of their opponents or to humiliate them. If it appears to the courts deciding on anticipatory bail that the offence accused of is due to some ulterior motive or hidden conspiracy, the court should allow the bail provided the court ensures to its satisfaction that the person will not flee from justice.
  8. The court held that it is not necessary that an FIR must be lodged against the person desirous of anticipatory bail to prove his apprehension.
  9. An anticipatory bail order has no effect on the power of the police to investigate, i.e. to interrogate the accused, search his place and seize anything that can be incriminating provided it is done lawfully.


  1. V. Kelkar, Lectures on Criminal Procedure, (6th ed. 2017).
  2. N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure, (6th ed. 2018).
  3. Varahabhattla Bhimachenulu, Genesis of the Concept of Anticipatory Bail, Cochin University Law Review, 65-90 (1982).
  4. Balsara, S.D. “Bail Not Jail – Empty the Prisons.” Journal of the Indian Law Institute, vol. 22, no. 3, 1980, pp. 341–350. JSTOR,

[1] Law Commission of India, Forty-first Report, pars 39.9 at 321, (1969).

[2] Madhya Pradesh v. Narayan Prasad, A.I.R. 1963 M.P. 276.

[3] Emperor v. Nazir Ahmed, AIR. 1945 P.C. 18.

[4] Law Commission of India, Forty-First Report, para 39.9 at 321 (1969).

[5] Balchand v. State of Madhya Pradesh,

[6] Amiya Kumar v State of West Bengal 1971 Cri LJ 288(CAL)

[7] Balchand Jain v. the State of M.P., A.I.R. 1977 S.C. 366.

[8] Onkar Nath Agrawal v. State,

[9] Shyam Sunder Beriwala v. State, 82 C.W.N. 428 (1977-78).

[10] Gurbaksh Singh Sibba v. the State of Punjab, AIR 1980 SC 1632.

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Author: Ashish Agarwal

Advocate | School of Law, Christ University Alumnus

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