Section 438 of Crpc – Anticipatory Bail

Section 438 of CrPC talks about anticipatory bail but the word “anticipatory bail” have not been defined in the Code. “Anticipatory bail” means bail in anticipation of arrest. The expression “anticipatory bail is a misnomer as it is not bail presently granted in anticipation of arrest. 

When the court grants anticipate bail, it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and therefore, it is only on arrest that the order granting anticipatory bail becomes operative.

Objective of Anticipatory Bail

Under the Code of Criminal Procedure of 1898, there was a conflict of judicial opinion about the power of court to grant anticipatory bail. Some High Courts were of the view that the court could grant such bail but the majority was that there was no such power in the court. The law commission therefore in its forty-first report recommended introduction of a provision to grant :anticipatory bail”and stated :

The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases 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. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Ambit and Scope of Section 438 of Crpc

Section 438 empowers a High Court and a Court of Session to grant anticipatory bail. It is not as if bail is presently granted by the Court in anticipation of arrest. But it means that in the event of arrest, a person shall be enlarged on bail.

This power is extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or Otherwise misuse his liberty while on bail” that such power can properly be exercised.

This power being rather unusual in nature, is entrusted only to the higher echelons of judicial service, namely a Court of Session and a High Court. It is a power exercisable in case of an anticipated accusation of non-bailable offence and there is no limitation as to the category of non-bailable offence in respect of which the power can be exercised by the appropriate court.

Bail and anticipatory bail : Distinction

The distinction between an ordinary bail and anticipatory bail is that whereas the former is available and granted after arrest, and therefore, means release of a person from the custody, the latter is available and granted in anticipation of arrest and is, therefore. effective at the very moment of arrest.

Again, there is no warrant for reading into Section 438 of crpc anything to limit the discretion of the court by invoking the considerations mentioned in Section 437(1). The discretion has to be exercised judicially a High Court or Court of Session considering the facts and circumstances of each case.

Requirements for Anticipatory Bail

Before power under Section 438 is exercised, the following conditions must be full filled:

Judgement on Anticipatory bail
  • The petitioner must have‘ ‘reason to believe” that he may be arrested The expression “reason to believe” shows that such belief must be founded on reasonable grounds and mere “fear” is not “belief”. A vague apprehension in the mind of the petitioner that someone is going to make an accusation against him pursuant to which he will be arrested is not enough. Such belief must be capable of being examined by the court objectively. Whether or not the belief of the applicant is reasonable depends upon the facts and circumstances of each case. 
  • Such arrest must be in respect of a non-bailable offence. If the offence is non-bailable, it is immaterial whether the offence is cognizable or non-cognizable. Likewise, it is irrelevant whether it is one under the Indian Penal Code or any other law for the time being in force. There 1s no restriction on granting anticipatory bail merely because the offence is not punishable with death or imprisonment for life. Again, filing of FIR is not a condition precedent to the Exercise of power. Even in absence of FIR power can be exercised by the court.

Anticipatory Bail Cost or Consideration

No extra cost you have to pay for bail, only the court fee and miscellaneous amout will be charged. but As seen above, relevant considerations governing the discretion of the Court in granting anticipatory bail are materially different from granting bail to a person who is arrested in the course of investigation or a person who is convicted and his appeal is pending. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court, therefore, must be cautious and circumspect in exercising such power. When a person is accused of a serious offence, such as murder, exceptional and compelling circumstances must be made out for granting bail.

Bail and anticipatory bail

The nature and seriousness of the charges, the context of the events leading the making of the charges, likelihood of the presence of the accused not being secured at the trial, a reasonable apprehension that witnesses may be tampered with and the larger interests of the public or the State are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. Status in life, affluence or otherwise are hardly relevant considerations while granting prayer for anticipatory bail.“

There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of Justice, any more than there can be a presumption that the former are not likely to commit crime and the latter are more likely to commit it.

Anticipatory Bail Jurisdiction

Section 438 CRPC confers concurrent jurisdiction of granting anticipatory bail on High Court and Court of Session. The power being unusual in nature, is entrusted only to the higher echelons of judicial service. Some High Courts have taken the view that ordinarily,a Court of Session must first be moved by an applicant. It is, however, submitted that when concurrent power is conferred on the High Court as well as on Court of Session, no such restriction can be read in 438 Crpc. Again, some High Courts have held that after the Court of Session rejects an application, an applicant cannot move the High Court for the same relief unless the circumstances have changed. It is submitted that this view is also erroneous.

Presence of applicant

In several cases, after dismissal of application for anticipatory bail, the applicants used to abscond or avoid arrest. Sometimes, applications for anticipatory bail were filed without affidavit of the applicant and at times, application was moved though the applicant was out of India. It was difficult thereafter to arrest such accused even if anticipatory bail was refused. An express provision has, therefore, been made in Section 438 Crpc that the court may direct the applicant to remain present in court. It is also provided that in case the court rejects the application of the applicant for anticipatory bail, he can be attested forthwith.

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Condition under section 438 of crpc

The High Court and the Court of Session to whom the application for anticipatory bail is made can impose such conditions as the case may warrant. The conditions mentioned in Section 438(2) are merely illustrative and not exhaustive. The Court while granting anticipatory bail must remember that the investigation has not yet been completed and, ere,ore it is the duty of the court to ensure that the investigation should not be hampered or interfered with in any manner.

The Court, however, cannot impose a condition other than warranted by law. Thus, no direction can be Issued to the effect that the applicant if arrested should be released on bail provided he produces the alleged stolen property before the investigating officer. Such order can be set aside by the High Court in revision or by exercising inherent powers.

Time period and Duration

An order of anticipatory bail passed under Section 438(1) of crpc need not be limited in point of time. The court may, however, limit the operation of the order and direct the applicant to obtain an order of bail under Section 437 or Section 439 of the Code within that period.” An order of anticipatory bail does not enure till the end of trial, but must be for a limited duration till the trial court has necessary material before it to pass such orders as it thinks fit. Grant of unconditional blanket protection is untenable and liable to be set aside.

It may, however, be stated that in Siddnath v. State of Maharashtra, the Supreme Court held that the order granting anticipatory bail for a limited period directing the accused to surrender and apply for regular bail is contrary to legislative intent as also inconsistent with the law laid down by the Constitution Bench in Gurbaksh Singh.

How to get Anticipatory Bail – Procedure

Section 438(3) is really a “machinery provision” for working out an order passed under Section 438(1). It envisages a situation where the Court decides to proceed against the accused who has been granted anticipatory bail. All subsequent steps must be in confirmity with the order issued by the Court under CrPC 438(1).

Anticipatory bail info graphic
Anticipatory bail infographic procedure

Successive applications

A second application after rejection of the first one under “Section 438 CrPC” is maintainable if there are additional facts, further developments and/or different considerations.


Though there is no specific provision in Section 439 of Crpc regarding cancellation of bail, it is implicit that the Court which grants anticipatory bail is entitled upon appropriate consideration to cancel or recall that order. Thus, an order of anticipatory bail granted by Court of Session can be recalled or cancelled by that Court or by the High Court. But an order passed by the High Court cannot be cancelled by the Court of Session.

 Notice to Public Prosecutor

There is no provision in Section 438 of Crpc for issuing notice to the Public Prosecutor and hearing by the Court before granting anticipatory bail. However, as held by the Supreme Court in Our Baksh Singh v. State of Punjab, a 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, issue notice to the Public Prosecutor by making it returnable and may pass final order after hearing both the sides.

Judgement on Anticipatory bail under Section 438 of Crpc

Chanda Erappa v. State,

The High Court of Karnataka  rightly observed:

“It is true that Section 438 CrPC confers concurrent jurisdiction in the matter of grant of anticipatory bail on the High Court and the Court of Session. The section says that a person may apply either to the High Court or to the Court of Session. It is no doubt true that in the absence of any contraindication, the construction suggested by the learned Advocate General that both the forums were not available and the party concerned has to choose one of the forums and once having chosen and taken a decision before one forum, he cannot, for the same relief, approach the other forum, would have to be upheld But in our opinion, there 13 an indication to the contrary in the provisions, of the Code. For instance, Section 397 of the Code confers concurrent revisional power both on the High Court and the Court of Session. Sub-section (3) of that provision expressly provides that a party could approach either of the courts, but could not approach one after the another. The Parliament which imposed such a condition while confer, ring concurrent jurisdiction under Section 397 of the Code, has omitted to my pose such a condition in Section 438 of the Code. 

Is anticipatory bail available in U.P?

Yes, it is available to all the citizens of India across all the states of India.

Can anticipatory bail be granted without F.I.R?

Yes, it can be granted, but you have to prove before the court that, you have fear from some or your apprehension is reasonable and trustworthy.

Can anticipatory bail be cancelled?

Yes, It can be cancelled by the court if court thinks that you will abscond from the state.

How much time it takes to get anticipatory bail?

There is nothing mentioned about the time limit, its depend on you that how can you convince the judge.

438 crpc

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