Introduction

Under the Code of Criminal Procedure, 1898, there was no provision corresponding to section 438
of the 1973 Code providing for bail in anticipation of arrest. Anticipatory bail was, however,
granted in certain cases under the High Courts’ inherent powers though the preponderant view
negatived the existence of any such jurisdiction.1 The Law Commission in its 41st Report,
recommended the introduction of a provision in the Code enabling the High Court and the Court
of Session to grant “anticipatory bail”. The Commission viewed that “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.2 The words anticipatory bail are neither found in
Section 438 nor in its marginal note. In fact, anticipatory bail is a misnomer as it is not bail
presently granted in anticipation of arrest. When the court grants anticipatory bail, what it does is
to make an order that in the event of arrest, a person shall be released on bail unless a person is
arrested and, therefore, it is only upon arrest that an order granting ‘anticipatory bail’ becomes
operational.3 The expression of anticipatory bail is a convenient mode of conveying that it is
possible to apply for bail in anticipation of arrest.

The legislative history of the provision reveals that the Joint Select Committee of Parliament had
initiated a thought that bail should be made available in anticipation of arrest so that liberty of an
individual may not be unnecessarily jeopardized. The matter was referred to the Law Commission
for consideration about the inclusion of the remedy of grant of anticipatory bail in the Code of
Criminal Procedure, 1973. The Law Commission was enthused to take up the suggestion. It
formulated a draft provision to provide that bail in anticipation of an arrest which ultimately got
enacted as section 438 of the Code.
 Object of Anticipatory Bail

The object of anticipatory bail is to relieve a person from unnecessary apprehension or disgrace.
The sine qua non of this provision is that when any person has a reason to believe that he may be
arrested on an accusation of having committed a non bailable offence, he may apply to High Court
or court of Session. Mere mention of a name in FIR or petition of complaint directed to be treated
as FIR is not a reason for refusal of anticipatory bail.20 Conversely when there is chance of
repetition of offence (here a case under Section 364 read with section 120-B IPC, a growing
menace in the eastern border of Rajasthan) the prayer for anticipatory bail is to be rejected.21 In a
dowry-death case the allegation was that father-in-law, mother-in-law and one son ‘N’ and a girl
student of tender age inflicted mental torture culminating in the suicide of the bride. In view of the
tender age of girl, she was admitted to anticipatory bail.22 In that dowry-death case Rajasthan
High Court rejecting the application for anticipatory bail of others observed unless the person
apprehending arrest shows the arrest is to be made on false basis to defame and humiliate him he
is not entitled to the benefit of section 438 Cr. P.C.23 But relying on Gurbax Singh V. State of
Punjab,24 the Punjab High Court and Kashmir High Court observed malafides of the investigation
agency need not be proved for anticipatory bail.25 Thus lays down the five-members Bench of
Supreme Court it is understandable that if malafides are shown, anticipatory bail should be
granted in the generality of cases. But it is not easy to appreciate why an anticipatory bail must be
rejected unless the accusation is shown to be malafide. This truly, is the risk of framing rules of
judicial construction.26 The purpose of this section interalia appears to be to secure that person
anticipating arrest is not obliged to go to jail till he is able to move the Court for being released on
bail,27 to relieve a person from unnecessary apprehension or disgrace.28 When the Court grants
anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be
released on bail. Manifestly 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. The
object which is sought to be achieved by this section is that the moment a person is arrested, if he
has already obtained an order from the Sessions Judge or the High Court, he would be released
immediately without having to undergo the rigor of jail even for a few days which would
unnecessarily be taken up if he has to apply for bail after arrest.29 In respect of non-bailable
offences, all the conditions imposed by section 437 are implicitly contained in this section as well.
In order to successfully invoke the jurisdiction under this section apart from satisfying the
conditions under section 437, the applicant must, in addition make out a special case for securing
an order of anticipatory bail which is of an exceptional type. He must prove that the charge
leveled against him is malafide and stems from ulterior motive. It is for the applicant to prima
facie substantiate his allegations that the charge of serious non-bailable offence against him has
been leveled malafide.
 Distinction Between Ordinary Bail and
Anticipatory Bail

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas
the former is granted after arrest and therefore means release from the custody of the police, the
latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.43
Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in
whose favour it is issued is thereafter arrested on the accusation in respect of which the direction
is issued he shall be released on bail. A direction under S. 438 Cr.P.C. is intended to confer
conditional immunity from the touch as envisaged by S. 46(1) Cr. P.C. or Confinement.44 Police
custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory
bail constitutes, so to say, an insurance against police custody following upon arrest for offence or
offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail,
it is a pre- arrest legal process which directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the direction is issued, he shall be
released on bail.45 S. 438 and S. 439 Cr.P.C. operate in different fields. It is clear form a bare
reading of the provisions that for making an application in terms of Section 439 of the Code a
person has to be in custody. Section 438 of the Code deals with “direction for grant of bail to
person apprehending arrest”.46 It cannot be said that ‘bail’ and “anticipatory bail” are two entirely
different concepts and “anticipatory bail” can never be equated with ‘bail’. From the collection
and scheme of Cr.P.C. and the language of S. 438 of Cr. P.C. it becomes explicitly clear that the
legislature intended to bring “anticipatory bail” within the category of ‘bail’ and not to treat it as
something different from ‘bail’.47 The distinction between an ordinary order of bail and an order
under Section 438 of the Code is that whereas the former is granted after arrest, and therefore
means release from custody of the Police, the latter is granted in anticipation of arrest and is
therefore effective at the very moment of arrest.48 An ordinary order of bail is distinguished from
an order of anticipatory bail in that the former is granted after the arrest and, therefore, means
release from the custody of the police after having resorted to the provisions of Section 437 of the
Cr.P.C. So far as Section 438 is concerned, the anticipatory bail is granted in anticipation of arrest
and, is, therefore, effective at the very moment of arrest.49 There is not much of difference
between the “bail” and “anticipatory bail”. The only distinction between bail and anticipatory bail
is that whereas the former is granted after arrest and therefore means release from the custody of
the police, the latter is granted in anticipation of arrest and is therefore effective at the very
moment of arrest. As such, the pre-arrest bail and post-arrest bail are one and the same, since both
would relate to the release after arrest. From the collection and scheme of the Cr.P.C. and Section
438 Cr.P.C., it becomes explicitly clear that the legislature intended to bring anticipatory bail
within the category of bail and not to treat it as something different from bail.50 The scope of S.
438 Cr. P.C. is different and distinguishable from the sequence in which an application under S.
437 or 439 Cr. P.C. can be entertained. An application for bail under S. 438 Cr. P.C. can be
entertained when the petitioner satisfies about reasonable apprehension of arrest. That
apprehension expressed by the petitioner can be examined and appreciated if it is filed before
submission of charge sheet inasmuch as after submission of charge-sheet the mode of securing the
attendance of the accused is guided by the Court’s order and at that stage voluntarily or suo motu
police does not take any action to arrest the offender.
 Duration of Anticipatory Bail

The operation of the order passed under sub-section (1) should not be limited in point of time.131
Anticipatory bail once granted must be held to be operative till the conclusion of the trial, unless it
is cancelled under section 439.132 In the under mentioned case.133 The Supreme Court has held
that it is necessary that anticipatory bail order should be of a limited duration only and ordinarily
on the expiry of that duration or extended duration the Court granting anticipatory bail should
leave it to the regular Court to deal with the matter on the appreciation of evidence placed before
it after the investigation has made progress or the charge-sheet is submitted. Anticipatory bail
once granted its duration and effect continues till the conclusion of trial or till it is cancelled.134
Even if a non bailable warrant is issued by a Magistrate, he is to recall it when the accused had
obtained an order of anticipatory bail.
 Sufficiency of Grounds
In a case, the Supreme Court held that the anticipatory bail order granted by the High Court was
not in accordance with law, as the first respondent who had approached the High Court
apprehending arrest in a murder case did not have sufficient grounds for entertaining such
apprehension. He was not an accused named in the FIR and he was not made an accused thus far
in the investigation which was in progress. However, the State was not in a position to rule out the
possibility of the first respondent being involved in the murder case because the materials were
being collected to find out the real culprit of the murder. The Supreme Court observed that the
order under Section 438 Cr. P.C. can be passed only if the High Court is satisfied that the
petitioner has reason to believe that he may be arrested in a non-bailable offence; without
sufficient grounds for the petitioner to believe that he is going to be arrested in the murder case, he
cannot apply for anticipatory bail order under Section 438 of the Code. The Supreme Court held
that thus the application made by the first respondent before the High Court was premature, and
that at such a premature stage it was unnecessary for the High Court to consider the application
under Section 438. The order granting anticipatory bail to the first respondent was accordingly set
aside with liberty given to him to apply for bail or anticipatory bail again at the appropriate state,
and without prejudice to the right and power of the investigating agencies to proceed in the
investigation as per law.40 The apprehension must be reasonable and based on existing facts.
Imaginary accusation or future possible accusations will not be sufficient. On such accusations
which are yet to come there cannot be any reasonable apprehension of an existing threat of arrest.
It is a condition precedent for an application under S. 438 that there must be an existing
reasonable apprehension of arrest on an existing accusation of having already committed a non-
bailable offence prior to the point of time of filing the application. That accusation will have to be
specified in the application and the direction to be sought for is for release in case of arrest in
connection with that accusation
 Nature and Scope

One of the challenges that the law enforcement agencies are facing from the Human Rights
movement is that nobody should be confined in any way unless he is declared guilty. To meet
such posers the bail mechanism in India has been statutorily extended by induction into its fold a
comparatively new concept commonly known as ‘anticipatory bail’. Section 438 of the Criminal
Procedure Code 1973 has been shaped to incorporate this concept. It deals with a situation where
a person having reasonable apprehension that he would be arrested on an accusation of having
committed a non bailable offence seeks to prevent his detention. Such a person can move an
application in an appropriate court, which may grant him an anticipatory bail: The principle that
was being implemented through the provision of anticipatory bail, according to one opinion, is
alien to the concept and purpose of bail because enacting such a provision in the chapter on bail
has produced difficulties. In fact, the Law Commission itself did not lay down in “the Statute
certain conditions under which alone anticipatory bail could be granted”. It said: “We found that it
may not be practicable to exhaustively enumerate those conditions; and moreover, the laying
down of such conditions may be considered as prejudging (partially at any rate) the whole case”.
The task was passed on by the Law Commission to the courts with the pious hope that the
superior courts will undoubtedly, exercise their discretion properly”, in the wake of such matters
as the Commission thought are being accentuated on account of political rivalries.4 The
Commission, in this respect, observed: “In order to ensure that the provision is not put to abuse at
the instance of unscrupulous petitioners, the final order should be made only after notice to the
Public Prosecutor. The initial order should only be an interim one. Further, the relevant section
should make it clear that the direction can be issued only for reasons to be recorded, and if the
court is satisfied that such a direction is necessary in the interests of justice.” 5 Some argue that
the Law Commission has perhaps based its recommendation on a wrong formulation that the
anticipatory bail could be an answer to situations which correspond to Tortious wrongs of
Malicious prosecution, Abuse of legal process, False Imprisonment and the like. The stunted
growth of the law of Torts in India having been unable to meet such mischievous situations did
call for a remedial action particularly in the wake of accentuated political rivalry which has been
“showing signs of steady increase”.6 Such wrongs are being perpetrated in the society, thereby
putting an unnecessary strain on the machinery of criminal justice, besides abusing processes of
criminal law. The remedy, according to them, does not appear to lie in the grant of bail,
anticipatory or otherwise. They claim that bail is not a remedial measure. It is an in-built
mechanism of the administration of criminal justice. Its basic purpose is to settle a custodial
arrangement between the concerned parties viz. the court and the police on the one hand and the
accused on the other to ensure that the person is available to the agencies of criminal justice as
and when his presence is required for purposes of fulfilling the obligations of criminal law and
justice. This is a new provision made on the recommendation of Law Commission. Under the old
Code there was no specific provision for grant of “anticipatory bail”. The view of several High
Courts was that unless a person was under a restraint, i.e. in legal custody, no bail could be
granted. The first part of the section sets out the conditions under which a person can make an
application for anticipatory bail. The second part confers jurisdiction on the High Court or the
Court of Session. Thus the second part can be viewed as strictly jurisdictional; that High Court
and the Court of Session have concurrent jurisdiction. Once a Court is invested with jurisdiction,
that jurisdiction subsists all along unless taken away expressly or by implication. There are no
express words in the section itself, indicating that the jurisdiction is taken away under any
circumstances. It does not appear that by implication even the jurisdiction of either of the Courts
is taken away or put an end to. It seems that the Legislators did not intend to exclude the one or
the other of the two Courts the High Court or the Court of Session. Had it been so intended, the
legislators would have taken care to express that clearly, as they have done in subsection (3) of
section 397 or sub section (3) of section 399 Anticipatory bail cannot be claimed as a matter of
right, it is essentially a statutory right conferred long after the coming into force of the
Constitution. It is not an essential ingredient of Art. 21 of the Constitution.8 Sub-section (1) of
section 438 has been extensively amended by the Cr.P.C. (Amendment) Act 2005 (25 of 2005),
old sub section (1) has been substituted by new sub sections (1), (1A) and (1B), the guiding
factors for grant of bail have been mentioned in the sub section (1), itself. If the Court does not
reject the application for the grant of anticipatory bail, and makes an interim order of bail, it
should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the
question of bail would be re-examined in the light of the respective contentions of the parties; and
(iii) the presence of the person seeking anticipatory bail in the court should be made mandatory at
the time of hearing of the application for the grant of anticipatory bail subject to certain
exceptions. The Court would grant or refuse anticipatory bail after taking into considering the
following factors, namely:- (i) The nature and gravity of the accusation; (ii) The antecedents of
the applicant including the fact as to whether the accused has previously undergone imprisonment
on conviction by a Court in respect of any cognizable offence. (iii) The possibility of the applicant
to flee from justice; and (iv) Where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the application forthwith or issue
an interim order of the grant of anticipatory bail. This amendment in the section will come into
force from the date of its notification. The considerations that weigh with the court in dealing with
applications under this section are similar to applications under section 437 and section 439. But
the nature of the offence is given primary consideration. The guiding principle is that if the Court
can safely opine that if allowed to be free the accused would be wholly indifferent towards the
investigations he need not at all be afraid of the result of the investigation and the trial., the court
can refuse the application.9 When the conduct of the person seeking anticipatory bail was not
inspiring confidence and no attempt to involve in false case to disgrace or malign is made out,
investigation to unearth the conspiracy was pending, it can not be held that exceptional and
special grounds justifying anticipatory bail were made out.10 Allegations of a non bailable
offence against a person and his apprehension that he would be arrested is not sufficient to grant
anticipatory bail. Where in the petitions for anticipatory bail of the accused persons not a whisper
has been made to draw an inference that the object with which power to grant anticipatory bail has
been provided in this section is satisfied the Sessions Judge has not applied judicial mind in
grating anticipatory bail which tends towards abuse of process of the court, it is liable to be
vacated Investigation officer was keen to arrest the accused for three months but collecting
materials; grant of anticipatory bail at that stage the officer has collected some evidence, is not
proper.12 When the accused is admittedly involved in the offence and when police want the
accused for investigation application may be rejected.13 This is an exceptional power and should
be exercised only in exceptional cases and not in general cases. The consideration governing
excise of discretion for granting anticipatory bail are materially different from those of an
application for bail.14 Anticipatory is not to be granted as a mater of rule, should be granted only
when a special case is made out and the court is convinced that the person is of such a status that
he would not misuse his liberty.15 The power of anticipatory bail being of extraordinary nature
should be exercised only in exceptional cases.16 If a case for anticipatory bail is made out, it
should not be refused merely because the accused is required in police custody for
interrogation.17 The wide powers conferred to the higher Courts under section 438 (1) cannot be
invoked on the basis of general allegations. The judicial discretion conferred must be properly
exercised after proper application of mind to decide whether it is a fit case for granting
anticipatory bail or not.18 If at the stage of grant or refusal of anticipatory bail certain aspects of
the case are considered but later if the investigating agency files report under section 169, Cr.P.C.
such a step would not amount to interference with the administration of justice.
 Considerations for Grant of Anticipatory Bail

At the outset, it may be pointed out that as per the amendment carried out in sub-section (1) of S. 439 Cr.
P.C. by Act 25 of 2005 w.e.f. 23rd June, 2006, the following factors are required to be taken into
consideration by the Court before issuing any direction under the said section: (i) the nature and gravity
of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility
of the applicant to flee from justice; and (iv) where the accusation has been made with the object of
injuring or humiliating the applicant by having him so arrested. In regard to anticipatory bail if the
proposed accusation appears to stem not from motives of furthering the ends of justice but from some
ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction
for the release of the applicant on bail in the event of his arrest would generally be made. On the other
hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order
of anticipatory bail he will flee form justice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that
anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides;
and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
There are several other considerations, too numerous to enumerate, the combined effect of which must
weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the
proposed charges, the context of the events likely to lead to the making of the charges, a reasonable
possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that
witnesses will be tampered with and “the large 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.79
The gravity of the offence is an important factor to be taken into consideration while granting
anticipatory bail so also the need for custodial interrogation.80 While considering the question of grant of
anticipatory bail, the Court will accord anxious consideration to the relevant factors such as gravity of the
offence, nature of the accusation, likelihood of absconding, likelihood of tampering with evidence etc.81
While considering the application for anticipatory bail under S. 438 of Cr. P.C., it is not proper to make an
elaborated document of materials collected. Court also shall not try to assess evidence collected by the
prosecution as if it is holding
 Conclusion

The facility of anticipatory bail has won a fair legitimacy in the criminal justice system and
protection of personal liberty, but it is not taken gladly by all. According to the contrary opinions,
as pointed out earlier, the inclusion of a provision for anticipatory bail in chapter XXXIII of the
Code is bound to create confusion in the concept of bail, as well as in the application of principles
of bail. It would perhaps be desirable and appropriate to insert such a provision elsewhere. It
would even have been dealt with separately to meet the type of situations referred to under that
provision, because the provision caters to an entirely different class of persons not termed as
accused and are not under arrest. The system of bail is improvised to curtail, control and abridge
the dominion of authority over an apprehended accused. The mechanism of bail presupposes that
the person seeking bail is an accused who already has been apprehended by police for keeping
him in custody to make him appear before the court at the required time. Once the accused is
brought before the court, police has to obtain its orders for custody of the arrested person. Custody
of the accused person can be given either to the state or to the community. In the first situation,
the accused is remanded to police or to judicial custody as the case may be. Alternatively, he may
be released on bail at his request upon his execution a bond or maybe given in the charge of a
third party coming forward as a surety and furnishing a bail bond. In latter situation the custody of
the accused is deemed to have been given to the self of the accused or to the community. Unlike
an accused who is seeking bail, a person by moving the court for anticipatory bail may not be
present before the court. He can ask for bail even in absentia207 because of a likely apprehension
of his arrest. Thus, the constituents of bail are completely absent in the case of ‘anticipatory bail.
Hence custody of a person seeking bail cannot be had either with the state or the community,
which makes the purpose of bail redundant. The mechanism of bail has been contrived to meet
problems of an apprehended accused, in whose case his interim release is to be secured with an
assurance. The assurance has to be that his presence on an appointed day before the court will be
available, so that the court may discharged its obligation of accomplishing the task to try the
accused which is incumbent upon it as the judicial process. Nothing of the above kind exists when
proceedings for anticipatory bail are invoked. The use of bail mechanism for the purpose intended
to be covered by the term anticipatory bail tantamounts to misuse of the machinery of criminal
justice. In fact, the misuse of bail mechanism is a contraption to cover entirely different situations
unrelated to those arising out of the law of arrest, investigation and trial in a criminal case. Its
misuse is bound to affect the smooth working of the system. The immediate effects are
discernible, firstly that the time of a criminal court is exhausted to consider matters which are yet
to crystallise into mature criminal actions. Secondly, by taking cognizance of such matters and
bringing them within the court’s criminal jurisdiction, the authority of the investigating agency is
likely to be hampered, because the probable accused manages to secure a protective shield in the
anticipation of his arrest. This paves the way for interference by the court in the statutory
jurisdiction of the police. The police has statutory power to investigate into a cognizable offence
without requiring any instructions from a judicial authority. The anticipatory bail has a propensity
to interfere with police power and authority. It even threatens to dismantle the utility of the well
established rule laid down by the Privy Council in King Emperor v. Khwaza Nazir Ahmad:208
Just as it is essential that every one accused of a crime should have free access to a court of justice
so that he may be duly acquitted if found no guilty of the offence with which he is charged, so it is
of the utmost importance that the judiciary should not interfere with the police in matters which
are within their province and into which the law imposes on them the duty to inquire.209 The
Privy Council noted that in India there is a statutory right on the part of the police to investigate
the circumstance of an alleged cognizable crime without requiring authority from judicial
authorities and observed that, it would be an unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The
functions of the judiciary and the police are complementary and the combination of individual
liberty with a due observance of law and order is only to be obtained by leaving each to exercise
its own function.210 Since the concept of anticipatory bail is intended to be a fallout of the value
of personal liberty, an added consequence would be to push the co-equal value of security and
stability to the sidelines. The provision is thus legal anomaly in relation to the established legal
concept of bail. It is a provision more readily available to the affluent but it is definitely
prejudicial to the interests of the administration of the bail process in the administration of
criminal justice system In spite of the given reservations about the anticipatory bail, there exists
another stream of thought, according to which it can be safely observed that the anticipatory bail
mechanism is a necessity. Without it numerous persons may be made to suffer in custody just on
account of some suspicion or a false charge. The experience of courts in evolving useful
precedents in matters of anticipatory bail must not be undervalued.