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  • Section 438 of Criminal Procedure Code, 1973 states Guidelines for granting bail to someone who anticipates being arrested.
  • An application can be filed before High Court and Sessions Court.
  • Anticipatory bails are only provided in cases of non-bailable offences, according to Section 438 of the Criminal Procedure Code, 1973.


Any individual can file an application under this section to the High Court or the Court of Session, if they have reason to believe they may be arrested on suspicion of committing a crime for which there is no provision for bail. If the court deems it appropriate, it may order that the individual be released on bail in the occurrence of such an arrest.

Courts did not have the authority to issue bail ahead of an arrest under the previous Criminal Procedure Code. It was incorporated into the 1973 code amendment. The Law Commission of India's 41st Report first proposed the idea of anticipatory bail to defend innocent civilians who feared being accused of a crime or detained by police and arrested on the basis of a false allegation, which is a common occurrence when political parties are trying to discredit one another for political purposes.


When submitting an application for anticipatory bail, you must address it to the court in which you are doing so and include information about the case, the parties or individuals involved, the FIR number, the respected provisions in the report and the police station where the application was submitted. You proceed to the body of the application after finishing the head, informing the court of the circumstances and stating that the case is untrue and fake while "most humbly submitting to the court."

You have been wrongfully accused of something, and you are being set up for some reason. You agree to comply with the investigation by showing up whenever the police ask you to, to refrain from leaving the country without the consent of the court, and, most significantly, to refrain from tampering with the witnesses or the evidence in the case. The final step is a prayer in which you ask for permission to post bail in the event of a future police arrest in consultation with.


As per the provision the application has to file before the arrest, here the matter of fact is before getting arrested and not before or after the FIR or complaint has been filed against you. Therefore under the CrPC's Section 438 a person might apply for an anticipatory bail in advance to avoid being arrested if such a complaint is filed. If they believe or anticipate that they will be arrested for an offence on the grounds of false or trumped-up allegations.

The court has the discretion to give the person anticipatory bail if it sees proper. An anticipatory bail must meet two requirements:-

  1. There must be a reasonable suspicion that the defendant will be charged with a crime and taken into custody
  2. The alleged offence must not be one for which a bail bond is available.

The extent of the power under section 438 of the Criminal Procedure Code was discussed in detail by the Hon. Supreme Court Constitution Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565], where the bench stressed the significance of the judicial independence in the matter of anticipatory bail and how often courts inaccurately used it. Although the Supreme Court has not established any broad rules on when to exercise the authority granted to it, by Section 438 of the Criminal Procedure Code to release an accused person, it has been established in several cases that the certain circumstances should be taken into account.

The issue under this case was whether a person can seek for anticipatory bail only because of some dread was the key question before the court. The accused must provide evidence of their apprehension of terror through facts and happenings. In this case, the court ruled that a person cannot request anticipatory bail based only on fear or conviction. This simply implies that the dread or belief needs to be supported by evidence. Additionally, the Court ruled that anticipatory bail is not a guaranteed right and that it may be restricted by the courts on an individual basis. The court further stated that anticipatory bail should not include a time limit since personal liberty rights should not be subject to limitations.


  • Any evidence that would indicate beyond a reasonable doubt that the accused committed the crime.
  • The allegations' nature, their seriousness or weightage, or the harshness of the sanction in the case of a conviction.
  • Additional risks that the accused would evade the legal system or whether the accused has ties to the community.
  • Habitual offender status;
  • Potential for accused to obstruct an impartial inquiry or trial
  • Possibility of witness or evidence tampering; case required in-person questioning.
  • There is one more statistic concerning the chance of recurrence.
  • The anticipatory bail cannot be provided after the arrest is made.


Applications for anticipatory bail are typically denied under specific conditions. The anticipatory may be denied in cases where the applicant would need to be interrogated in a jail or prison, there is a chance that a weapon will be recovered from the accused, or there is a chance that an evidentiary item will be found, directly demonstrating the relationship between the accused and the crime.

There is always an exception to the rule, and in cases where the applicant is in a situation to demonstrate that the charge alleged is prima facie not created out as per the substances of the respective Provisions of anticipatory bail would be applicable. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Defence of India Rules, 1971, have made the clauses that indicate that the provisions of anticipatory bail would not be applicable to the offences described in these The courts are exceedingly careful when granting anticipatory bail for crimes including murder, rape, dacoity, and economic offences.

Today, anticipatory bails are seldom granted in instances involving economic offences because of fears that the evidence, witnesses, and other relevant factors may be tampered with. In fact, the tendency in these situations is that they are worse than murders and rapes. Anticipatory bail would be equivalent to disgracing the law in cases involving offences covered by the MCOC Act and the Defence of India Rules.

for violations of particular laws such the Defence of India Rules, 1971 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Those accused of exceptionally serious crimes like murder, rape, and other sexual offences typically do not get the benefits of s. 438.


Section 439 states special powers of the Sessions and the High court regarding the bail procedure. Upon any constraint imposed by a Magistrate while releasing any individual on bail, the High Court or even the Court of Session may order that individual, who is alleged of an offence and in custody, be granted bail. however, if the crime is of the character stated in sub-section (3) of section 437, it may also impose any condition that it deems essential for the purposes stated in that sub-section.

Unless it is determined, for reasons to be documented in writing, that it is not practical to give such notice, a notice of the application for bail must also be sent to the Public Prosecutor.

After the amendment section 439 A has been added which specifies the circumstances where the Court should provide bail based upon the reasons provided by the accused and the finding of the courts such as having no reasonable grounds that the accused is guilty or the person is of unsound mind or any exceptional case.

The non-applicability of the application under both the section were elaborated under the case law of Shreesha Sasithota Prabhakaran Vs The State Of Karnataka

The issues raised here was If KPIDFE Act offences are combined, whether the application filed under Sections 438 and 439 of the CrPC is maintainable.

The Court observed that the petitioner has access to an appeal process under the 2004 Act. But the petitioner insisted that he does not disagree with the Special Court's decision. The court disagreed with this reasoning. The Court concluded that any decisions relating to the KPIDFE Act must be taken by the Special Court and must be subject to appeal under Section 439 of the CrPC since bail is now being sought for offences that fall under both the IPC and the KPIDFE Act of 2004. The KPIDFE Act's legislative constraint is not applicable to Section 439 of the Cr.P.C., contrary to the petitioner's assertion.

It was observed that Section 19 of the Act had a superseding effect and provided that in the event of a disagreement between any provisions of this Act and those of any other Act, the provisions of this Act would prevail. It also referred to Section 18 (2) of the Act, which states that Section 438 of the Criminal Procedure Code's criteria do not extend to the provisions of this Act and forbids anticipatory bail provision.

The court reached the conclusion that the petition under Sections 438 or 439 of the Cr.P.C. cannot be sustained when offences specified by the KPIDFE Act are added after carefully examining all the relevant evidence.

The KPIDFE Act's Section 16 provides the sole means of redress, which is filing an appeal. According to Section 16 of the KPIDFE Act, the petition was consequently denied, and the petitioners were permitted to file an appeal.


The Supreme Court concluded that Section 438 CrPc should be flexibly read in consideration with Article 21 of the Indian Constitution, which guarantees freedom of life and personal liberty, in the landmark decision of Badresh Bipinbai Seth v. State of Gujarat (2015). The Court held that the two clauses needed to be read together since breaking Section 438 would also violate the basic rights guaranteed by Article 21 of the Indian Constitution. Additionally, it was held that no limits should be included in any clause dealing with personal freedom.

However this was overruled in the recent 2020 ruling of SushilaAggarwal v. State (NCT of Delhi) (2020), the Supreme Court changed its strategy and overturned its past judgements, holding that anticipatory bails must not be time-bound. Additionally, it was decided that an anticipatory bill might remain in effect until the trial came to an end. The courts may, however, shorten it if they deem it essential. The court further emphasised that the bail claim must be supported by verifiable evidence and a justifiable suspicion of arrest.

As a result, ambiguity must be prevented at all costs, and imprecise claims cannot support any application. The Court demands that the application be supported by factual justification that can be impartially assessed by the courts. The court emphasised that significant variables such the accused's involvement, the possibility that he or she tampered with the evidence, the offense's character, and other circumstances must be given due weight.


Unquestionably, it was a good idea to include anticipatory bail in the Criminal Procedure Code, 1973. The essential right to life and personal freedom guaranteed by Article 21 of the Indian Constitution includes anticipatory bails as a key element. Nevertheless, it is crucial to make sure that this privilege does not obstruct the course of an inquiry. Both must always be in harmony with one another. The same has been constantly repeated by Indian courts.

The courts have also made sure that anticipatory bail is not abused and that it is consequently need to be accompanied by conditions. The first is that dread should not be anticipated on ill-defined reasons. The fear must be justified and demonstrated in court. The legislature's objective makes it quite obvious that the courts have such discretionary authority to choose whether or not to accept a request. The phrase "as it sees appropriate" indicates how the legislature intended to give the judges this authority. This instils in the judges a sense of duty to exercise this authority carefully.

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