Anticipatory bail is a bail that is granted by the court when apprehension of arrest seems to happen under a false accusation. In Lyman’s language, it is also known as a pre-arrest bail. Anticipatory Bail is exercised under Section 438 of Criminal Procedure Code,1973. The High Court of Calcutta explained the law behind giving anticipatory bail: “The law of bail must strike a balance between two conflicting demands: on the one hand, society's right to be shielded from the risks of being exposed to the misadventures of a person convicted of committing a crime, and on the other hand, the accused's presumption of innocence unless proven guilty.”

Explanation of Anticipatory Bail:

Assume Rohan and Roshni are a couple living in Capital Delhi. They've been dating since April of 2019. Rohan isn't entirely committed to his relationship. He told her (Roshni) one day that he no longer loved her. She told Rohan after a few days that she wanted all of his assets, including his company, but Rohan refuted her words, but she went on saying that if he didn't give her his entire property, she would sue him for aggressive harassment and attempt of rape in court. As a result, attempting to rape is a non-bailable crime (bail cannot be granted). So, if Rohan is afraid of being arrested for the false accusation, he may apply for Anticipatory bail in the High Court or Court of Session. Anticipatory Bail can only be granted before getting arrest by the police officer.

Rationale behind the concept: -

Anticipatory bail become a part of the Criminal Procedure Code,1973 under 41st Law Commission report in 1969 suggested to insert the provision of Anticipatory Bail in criminal law. Sometime some person wants to implicate their paragons in false cases for the purpose of disgracing or to lower his/her reputation, for other purpose by getting them detained in jail. If false cases have been filed in a Court, he/she has been sued under any non-bailable offence then that person can apply for anticipatory bail only if there is an apprehension of the arrest. Anticipatory bail can only be granted before getting arrest, after getting arrested by the Police Officer only regular bail can be granted to the accused.

Section 438 of Criminal Procedure Code (CrPC),1973 divided into four sub-sections

Section 438(1)

If there is any person who has a valid reason to believe that may be he will be arrested by a police officer on the accusation of a false case, committing a non-bailable offence, he may move to the High Court or Court of Session for anticipatory bail, if the arrest occurs he shall be released on bail.


Aman Baisla Suicide Case

There was a lady named Neha Jindal. She was the former business partner of Aman Baisla. Later on, they both separated in the year 2018. Neha Jindal then started working with a Haryanvi singer named Sumit Goswami. Neha borrowed 2.5 lakhs rupees from Aman and then 50,000, besides giving the reason of her mother’s sickness. She sent him the report for the proof that her mother is ill. Here, Aman was running out of money because he was in debt. One day, he went to Neha to remind her to return his money back as soon as possible but Sumit Goswami threatened and harassed him with violence. Neha emotionally blackmailed Aman when he asked to return his money back. When she came to meet Aman recently, she tore her clothes inside his car and threatened to file a case of false molestation and attempt of rape (section 376 and 511 Indian Penal Code,1860) case against him if he did not give her more 10 lakh rupees by October.

In this particular situation, Aman should have moved to the High Court or Court of Session for anticipatory bail. But he hanged himself in his office in the apprehension of society, family, and his friends. Before committing suicide, he shared a video, of 30 minutes on Instagram. In that video he told how Sumit and Neha had tortured and violently harassed him. Aman Baisla had explicitly shown substantial proof supporting his statements with bona fide documents of the accused Neha Jindal and Sumit Goswami, "In the "Last Truth" series of videos he posted on Instagram before his suicide, he posted audios, videos, and a screenshot of messages in the form of evidence. "In a culture where it takes years to get justice to a rape victim, he will be viewed as an outcast."

The Court takes the following four factors into consideration before granting the Anticipatory Bail

(1) Nature and seriousness of the offence: -

The Court will look after the nature of the case that the case is serious or not to grant the anticipatory bail.

(2) Previous Conviction: -

"The applicant's antecedents, including whether he has ever served time in jail since being convicted by a court of any cognizable offence."

(3) Possibility to flee from justice: -

It means that a man who hasn't done any crime does need to run away from the Court.

(4) An object of accusation is to injure or humiliate the applicant: -

If the accusation had injured or humiliated the applicant by having him so arrested either rejection of the application forthwith or he has to issue an interim order for the grant of the bail or the court will grant the interim bail.

Interim Bail

Interim Bail is a temporary bail that may be granted for the time till the application for anticipatory bail is pending before the Court. When Interim Order is granted, the Court shall forthwith-

(a) Minimum seven days’ notice

(b) Copy of the interim order

(c) Public prosecutor & Superintendent of Police

(d) Reasonable opportunity of being heard

(e) Final hearing of the application

In Shivraj Krishnappa Gandge V. State Of Maharashtra, 2010 case Court said that, If the Public Prosecutor applied to the court that direction to be given to the applicant to remain present in the Court at the time of final hearing then if the Court considers such presence, necessary, give such direction to the applicant.

Section 438(2)

When the High Court or the Court of Session issues a direction under sub-section (1) of Section 438, it may contain such conditions as it deems appropriate in light of the facts of the case, including: -

(a) Applicant shall be available for interrogation when required.

(b) Applicant shall not make any inducement, threat or, promise to any witness.

(c) Applicant shall not leave India without prior permission from the Court.

(d) Such other conditions as required for the grant of bail.

Section 438(3)

If such person is arrested without a warrant by a Police Officer in charge of a Police Station on such allegation and willing to give bail either at the time of arrest or at any time while in the custody of such officer, he or she shall be released on bail and if a Magistrate is taking the cognizance of such offence determines that a warrant should be issued in the first instance against that person, he or she shall be released on bail.

Clarification- Anticipatory Bail does not shield or protect the applicant against arrest, it just enables such applicant to get immediate bail.

Section 438(4)

This sub-section states about exceptional circumstances, where the application for granting Anticipatory Bail under section 438 of Criminal Procedure Code,1973, will not be entertained. Those circumstances have been given below-

(a) Raping a woman under age 16

(b) Raping a woman under age 12

(c) Gang Raping a woman under age 16

(d) Gang Raping a woman under age 12

Gurubaksh Singh Sibbia V. State of Punjab, 1980

Fact- The petitioner, "During the Congress regime, Gurbaksh Singh Sibbia was the Punjab Government's Minister of Irrigation and Power.". He and a few others were being accused of corruption and abusing their positions of authority. The minister, as well as the other appellants, apprehend of the arrest. Under Section 438(Crpc) of the statute, the appellants sought anticipatory bail. A case was heard in the Punjab High Court.

Judgment of the Hon’ble Supreme Court- The Supreme Court dismissed the appeals and special leave cases that had been filed. The Supreme Court ruled that the right to issue Anticipatory bail should be exercised more critically and that higher courts have the authority to correct this discretion if necessary. This procedure has been given dual safeguards to ensure that the discretion and mechanism are not abused. The constitutional court overturned the Full Bench's decision and established the following guidelines for exercising discretionary power:

(1) Reason to believe u/s 438(1), Mere ‘fear’ is not ‘belief’

(2) Anticipatory bail is a device to secure an individual’s liberty. It is neither a passport to commit a crime nor a shield against the accusation.

(3) The Court may impose condition with a view to strike balance between ‘Individual’s right to personal freedom’ & ‘investigation right of Police Officer’.

(4) Anticipatory bail can be granted even after filing of F.I.R.

(5) No Anticipatory bail can be granted after arrest.

(6) Anticipatory bail will be effective till the conclusion of the trial.

(7) The Court-making Anticipatory Bail can cancel or recall it.

(8) Nature and seriousness of proposed of charges to be kept in mind.


The Full Bench’s decision of limiting section 438 use only to exceptional cases citing its extraordinary character was hampering with the deliverance of justice and equality before the law. " Learned judges of High Courts and Sessions Courts can make wise decisions, due to their wise experience." and even if they make a decision that is violative "It may be subjected to judicial review and amendment under Article 21.". But the rule of Anticipatory bail is completely diverse from a regular bail.

Who is entitled? 

Any person apprehending arrest on false accusation may apply for granting Anticipatory Bail. The Court cannot make any discrimination. In a recent case of Anil Kumar Singh V. State of Bihar,2020, Hon’ble Supreme Court observed that “holding high office does not entitle one to get Anticipatory Bail.

Is Anticipatory Bail limited to a fixed time period?

(1) In Gurubaksh Singh V. State of Punjab,1980, It was held that Anticipatory Bail will be effective till the conclusion of the trial.

(2) In Salauddin Ahmedsamad Sheikh V. State of Maharashtra,1996, It was held that it will be the discretion of the court to pass any restriction regarding Anticipatory Bail.

There are many other contradictory statements given by the Hon’ble Supreme Court in its different judgment regarding the time limit of Anticipatory Bail. Contradictory questions were further referred to the Constitutional Bench comprising of five judges of the Supreme Court in the Sushila Aggarwal case.


 Finally, the provisions of Section 438 of the Criminal Procedure Code,1973 should not be misconstrued as containing classified information that must be dealt with extreme caution. The hazardous and dangerous consequences that are likely to emerge as a result of the use of Section 438 are undoubtedly addressed by a wise exercise of judicial authority. Neither grant nor rejection can be based on rigid rules.

The word "reason to believe," according to Justice Chandrachud (former CJI), means that the apprehension must be based on rational grounds, not just a "belief" or "fear." The explanation for this is that if an anticipatory bail application is filed without any grounds for detention, the court will become overburdened by needless cases and applications. This has a negative impact on performance. Mahatma Gandhi once said “To deprive a man of his natural liberty and to deny him the ordinary amenities of his life is worse than starving the body; it is starvation of the soul, the dweller in the body.”   

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