Anticipatory Bail:

Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions
regarding the Anticipatory Bail. The words “anticipatory bail” have not been defined
in the code. The expression “anticipatory bail” is a misnomer and the order becomes
operative only on arrest.
“ The provision states that, whenever any person believes that he may be arrested on
an accusation of having committed a non-bailable offence he may apply to the High
Court or the Court of Sessions for the same. Mere fear is not a belief and it should be
based on reasonable grounds. “ The Supreme Court held the above in the landmark
judgement of Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.
In the event of such arrest a person shall be released on bail; and that Court may, after
taking into consideration, inter-alia, the following factors, grant him bail-
 The nature and gravity of the accusation;
 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;
 The possibility of the applicant to flee from justice; Rajitram Mourya v. State of
Madhya Pradesh, (2018) 12 SCC 2061 and.
 Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested.
Right to life and personal liberty is an important right granted to all the citizens by the
Constitution and bail should be made available in anticipation of arrest so that liberty
of an individual may not be unnecessarily jeopardized.
An Applicant can approach the Courts within whose jurisdiction he apprehends his
arrest. It is irrelevant that the alleged offence has been committed outside the
jurisdiction of such Courts. If the Courts do not have territorial jurisdiction it may yet
grant Anticipatory Bail for a short term with adequate safeguards for approaching the
Court having jurisdiction to entertain such application after considering the facts and
circumstances involved therein.
The court has to take into consideration all the necessary factors that may be
important while considering the grant of anticipatory bail, in the landmark judgement
of, Ashish Gopaldas v. State of Maharashtra, (2015) 16 SCC 364 the Supreme Court
held that the wife was murdered after seven years of marriage and at a plae far away
from the accused, hence no reasonable nexus can be drawn in consideration to arrest.
The accused was granted anticipatory bail.
Illustration: For instance, Mr. A got married to Ms. W. After their marriage the
things were not smooth between them. Ms. W then filed a case against him under
section 489(A) of Code of Criminal Procedure, 1973. He had a reasonable
apprehension that he could be arrested so he moved to the court for grant of an
“anticipatory bail”.
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In the above case the accused had taken huge loans from the bank and were not returning the loan
taken hence an FIR had been lodged against them, the Court refused to grant them anticipatory bail.
Obligations on a person released on Anticipatory Bail:
 The person will make him/herself available for interrogation by the police as and
when required by them,
 The individual shall not directly or indirectly make any threat, promise or offer
any bribe to any person who is connected to the case or knows facts about the
case, so as to keep them quiet or to get them to change their report of facts to the
court or the police, Fekan Yadav v. Satendra Yadav, (2017) 16 SCC 775.
 An assurance that the person shall not leave India without prior permission from
the court.
The difference between Ordinary Bail and Anticipatory Bail is that ordinary bail is
granted after arrest has been made while anticipatory bail is made before the actual
arrest is made. It becomes effective as soon as the arrest is made.