JMIA Law Student's Guide to Anticipatory Bail

JAMIA MILLIA ISLAMIA
ANTICIPATORY BAIL
SUBMITTED TO Dr. ASAD MALIK
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Acknowledgement
Firstly, I would like to express my profound sense of gratitude towards the almighty for
providing me with the authentic circumstances which were mandatory for the completion of
my project.
I feel myself highly delighted, as it gives me incredible pleasure to present an assignment

work on “ANTICIPATORY BAIL”.
I would like to enlighten my readers regarding this topic and I hope I have tried my best to
pave the way for bringing more luminosity to this topic.
I am grateful to Dr. Asad Malik who has helped me to venture this project as well as the
library of Faculty of Law, Jamia Millia Islamia.
I would like to thank all concern for their interest in providing me a good back up material.
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TABLE OF CONTENTS
1. Introduction…………………………………………………………………………......
2. Meaning…………………………………………………………………………………
3. Object…………………………………………………………………………………...
4. Condition Precedent for making application……………………………………………
5. Bail and Anticipatory Bail: Distinction……………………edit
here……………………………
6. Forum…………………………………………………………………………………...
7. Consideration……………………………………………………………………………
8. Notice to Public Prosecutor……………………………………………………………..
9. Blanket Order…………………………………………………………………………...
10. Cancellation of Anticipatory Bail……………………………………………………….
11. Conclusion………………………………………………………………………………
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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 bails 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.
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 presumptions that the former are more likely to commit a crime and the later are
more likely to commit it. Lord Russell said “It was the duty of magistrate to admit accused
person to bail, whenever practicable, unless strong grounds for supposing that such person
would not appear to take their trial .It was not the poorer class who did not appear, for, their
1
Mangi Lal Vs. State 1952 Cr. L.J. 1425, State of Gujrat v. Govindlal Monilal Shah, AIR 1966 Guj. 146, State Vs.
Kailash, AIR 1953, ALL. 98, State Vs. Om Parkash, 1973 Cr.L.J. 824 (H&P)
2
Law Commission of India, 41st Report on the Code of Criminal Procedure Vol.I P.311(1969)
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circumstances were such as to tie them to the place where they carried their work .They had
not the golden wings with which they fly from justice.
Section 438 of Code of Criminal Procedure 1973, makes provision enabling the superior
courts to grant anticipatory bail i.e. a direction to release a person on bail issued even before
the person is arrested. The Law Commission considered the need for such a provision and
observed:
“The necessity for granting anticipatory bail arises mainly because sometimes influential
person try to implicate their rivals in false causes 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.”
MEANING
The word “anticipatory bail” is not found in Section 438 or 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 to make an order that in 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 bails” becomes operative.
It has also been held that anticipatory bail cannot be granted to a person to do something
which is likely to be interpreted as commission of a crime even if the offender intended it as
something in exercise of his rights. The expression “anticipatory bail” is convenient mode of
conveying that it is possible to apply for bail in anticipation of arrest. The Section, however,
makes no distinction whether the arrest is apprehended at the hands of the police or at the
instance of the magistrate. The issuance of warrant by the Magistrate against a person
justifiably gives rise to such an apprehension and well entitles a person to make a prayer for
anticipatory.3 Issuance of summon for appearance also entitles an accused to apply for
anticipatory bail.4 Section 438 empowers the High Court and the Court of Session to grant
3
Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)
4
Puran Singh v. Ajit Singh, 1985 Cri LJ 897 (P&H)
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anticipatory bail i.e. a direction to release a person on bail issued even before the person is
arrested.
OBJECT
Under the old Code 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 view 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 to first to submit
to custody, remain in prison for some days and then apply for bails.”
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. 5
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.6
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.7
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.
5
Purna Chandra, Re. 1975 Cr. L.J.1815: 79 Cal. WN 890.
6
Harji v. State of Rajashthan, 1983 Cr.L.J.1938: 1982 Raj.LW 6261980 WLN 719
7
Ashok Kumar v. State of Rajashtan,1981 Raj.Cr.C.272:1980 Cr.LR (Raj)581;1980 Raj.LW 267.
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P.C.8 But relying on Gurbax Singh V. State of Punjab,9 the Punjab High Court and Kashmir
High Court observed malafides of the investigation agency need not be proved for
anticipatory bail.10
Thus lays down the five-member 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.11
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, 12 to relieve
a person from unnecessary apprehension or disgrace.13 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.14
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. 15 Consideration for grant
of anticipatory bail is the same as that of under section 437 or section 439. Commenting upon
the provision, the Law Commission, in its Forty-eighth Report observed “We agree that this
8
Ibid
9
(1980) 2 SCC 565: 1980 SCC (Cri) 465
10
Pawan Chand Gupta v. State of Punjab 1980 Punj LR 694, 1980 Cr. LT 247, Punj; Kunjlal Vs. State 1980 Cr.LT
350 (J&K).
11
Ibid.
12
Samabhai Vs. State of Gidanot, 1977 Cr.LJ 1523 (Guj), Nathunasu Vs. State 1998 Cr.LJ 1762 (Mad)
13
Lilarani I.Revani Vs. R.D. Gandhi, 1998 Cr.L.J. 14 (15) (Guj).
14
Balchand Jain Vs. State of MP, AIR 1977 SC 366
15
Mathangonda Vs. State of Karnataka 1978 Cr. L.J. 1045 (Kant).
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would be a useful addition, though we must add that it is only in very exceptional cases that
such a power should be exercised.”
AMBIT AND SCOPE/NATURE
Section 438 empowers a High Court and a Court of Sessions 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 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.16
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
16
Balachand Jain v. State of MP, AIR 1977 SC 366
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(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.17 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.”18
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”.19 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.20
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
17
Ld. Para 39.9.pp 320-21: see also the Law Commission of India, 48th Report para 31(1972)
18
Ibid.
19
Ibid.
20
Varkey Paily Madthitudiyil AIR 1967 Ker. 189; Narayen Parshad AIR 1963 MP 276
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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 Article 21 of the
Constitution.21 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:-
1. The nature and gravity of the accusation,

2. 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.
3. The possibility of the applicant to flee from justice; and
4. 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
21
State of MP v. R. K. Balothia 1995 Cr. L.J.2076, AIR 1995 SC 1198 (1995) 3 SCC 221: 1995 SCC (Cri) 439
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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.22 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 cannot be held that exceptional and
special grounds justifying anticipatory bail were made out.23
Allegations of a non bailable offence against a person and his apprehension that he would be
arrested are 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.24
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. 25
When the accused is admittedly involved in the offence and when police want the accused for
investigation application may be rejected.26
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.27
Anticipatory is not to be granted as a matter 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.28 The power of anticipatory bail being of extraordinary nature should
be exercised only in exceptional cases.29
22
K.Narayana Sivam Vs. State of A.P. 1980 Cr. L.J.588 (AP)
23
Kasturchand Ramlal Vs. State of Maharashtra 1981 Cr. L.J.1328 (Bom)
24
Suresh Chandra Gin Vs. State of Orissa 1988 (3) Crimes 428 429 (on).
25
State Vs. Yoginder Kumar, 1985 Cr.L.J.685 (Del).
26
Madan Kashinath Aniankar Vs. State 1988 (1) Crimes 461 (Bom).
27
Md. Abdul Sattar Vs. State of Assam 1986 (1) Crimes 263, 265 (Gau)Lila Rain I.Rewani Vs. R.D. Gamdhi 1998
Cr.L.J. 14 (15) (Guj), Adni Dharan Das Vs. State of West Bengal 2005 Cr.L.J.1706 (SC)
28
Lilarani L. Revani Vs. R.D. Gamdhi, 1998 Cr.L.J. 14 (15) (Guj).
29
Siri Krishan Das Vs. State of Haryana 2000 (2) Crimes 529 (P&H).
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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. 30 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.31
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.32
MALIMATH COMMITTEE REPORT
Malimath committee has observed in its report that the provision as to anticipatory bail has
been misused by rich and influential people. The committee however opined to retain the
provisions subject to two conditions:
1. Public prosecutor should be heard by the court before granting an application for
anticipatory bail and
2. Petition for anticipatory Bail should be heard only by the court of competent
jurisdiction.
It may be stated that section 438 (1), as amended by the Code of Criminal Procedure
(Amendment) Act, 2005 now provides for hearing of Public Prosecutor before granting an
application for anticipatory bail.
BAIL AND ANTICIPATORY BAIL: DISTINCTION
The distinction between an ordinary bail and an 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 is active at the very
moment of arrest.
Again, there is no warrant for reading into Section 438 anything to limit the discretion of the
court by invoking the considerations mentioned in Section 437(1). The discretion has to
exercise judicially by a High Court or Court of Session considering the facts and
circumstances of each case.
30
Ibid.
31
Natturasu Vs. State, 1998 Cr.L.J. 1762 (Mad)
32
Satish Sharma Vs. State of Gujrat AIR 2003 SC 648(2002) 10 SCC 323: 2003(1)Cr
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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.33
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. 34 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.35
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”.36
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’.37
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
33
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1637
34
Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 at pp. 970-71
35
36
Nirmal Jeet Kaur v. State of M.P., (2004)7 SCC 558 at p. 562
37
Pijush Kanti Dey v. State, 1985 Cri LJ 1664 at p. 1666 (Cal)
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the Police, the latter is granted in anticipation of arrest and is therefore effective at the very
moment of arrest.38
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.39
There is not much of difference between the “bail” and “anticipatory bail”.nThe only
distinction between bail and anticipatory bail is that whereas the former nis 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 nsame, 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.40
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.41
DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST

UNDER SECTION 438 CR. P.C
38
D.K. Ganesh Babu v. P.T. Manokaram, 2007 Cri LJ 1827 at p. 1828 : AIR 2007 SC 1450 : (2007)4 SCC 434 :
(2007)2 SCC (Cri) 345.
39
Bimaladak v. State, 1997 Cri LJ 1969 at p. 1971 (Cal) : 1997 Cal Cri LR 72
40
Natturasu v. State, 1998 Cri LJ 1762 at p. 1765 (Mad)
41
Hemanta Kumar Nayak v. State of Orissa, 2000 Cri LJ 3267 at p.l 3271 (Ori)
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1. When any person has reason to believe that he maybe arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or the
Court of Session for a direction under this section; and that Court may, if it thinks fit,
direct that in the event of such arrest, he be released on bail and that court may taking
into consideration inter alia following factors namely: -
a. the nature and gravity of the accusation;
b. 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;
c. the possibility of the applicant to free from justice, and
d. 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 for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not
passed any interim order under this sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without
warrant, the applicant on the basis of the accusation apprehended in such application.
(1-A) Where the Court grants an interim order under sub-section (I) it shall forthwith cause a
notice being not less than seven days’ notice, together with a copy of such order to be served
on the Public Prosecutor and the Superintendent of Police, with a view to give the Public
Prosecutor a reasonable opportunity of being heard when the application shall be finally
heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of
final hearing of the application and passing of final order by the Court, on an application
made to it by the Public Prosecutor, the Court considers such presence necessary in the
interest of justice.
2. When the High Court or the Court of Session makes a direction under sub section (1)
it may include such conditions in such directions in the light of the facts of the
particular case as it may think fit, including : -
a. a condition that the person shall make himself available for interrogation by a
police officer as and when required;
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b. a condition that the person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
police officer;
c. a condition that the person shall not leave India without the previous
permission of the Court;
d. such other condition as may be imposed under sub section (3) of Section 437,
as if the bail were granted under that section.
3. If such person is thereafter arrested without warrant by an officer in charge of a police
station on such accusation and is prepared either at the time of arrest or at any time in
the custody of such officer to give bail, he shall be released on bail; and if a
magistrate taking cognizance of such offence decides that a warrant should be issued
in the first instance against that person, he shall issue a bailable warrant in conformity
with the direction of the court under sub section (1).
Cr. P. C. (Amendment) Act 2005 (25 of 2005) – Sub-section (1) of the S. 438 has been
substituted by the new sub-sections (1) (1A) and (1B). This amendment in the section will
come into force from the date of its notification.
ANTICIPATORY BAIL CANNOT BE GRANTED AS A MATTER OF RIGHT
Anticipatory bail cannot be granted as a matter of right nor should it be lightly granted. And,
in offences like murder, dowry death, for example, which are punishable with death or
imprisonment for life and for imprisonment which may extended to life, anticipatory bail
ought not to be granted unless some very compelling circumstances are made out.42
APPREHENSION OF ARREST NECESSARY FOR ANTICIPATORY BAIL
For anticipatory bail, it is trite knowledge that S. 438 of Cr. P.C. is made applicable only in
the event of there being an apprehension of arrest, and where the accused is inside the prison
bars upon arrest against cognizable offences, the question of relieving the accused from
unnecessary disgrace and harassment would not arise.43
Section 438 of the Cr. P.C. contemplates an application to be made by a person apprehending
arrest of an accusation of having committed a non-bailable offence. It is indicative of the fact
42
Manoj Agarwal v. State of Chhattisgarh, 2003 Cri LJ 3519 at p. 3522 (Chhattis)
43
Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3825 : (2002)2 SCCC 210
15 | P a g e
that an application for anticipatory bail is pivoted on an apprehension of arrest which invites
the exercise of power under Section 438 Cr. P.C.44 The key words in S. 438 Cr. P.C. are
“When (sic. Where) any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence….” These words when understood in
proper perspective would mean a person must have a genuine apprehension regarding his
arrest and it has to be based on accusation pertaining to non-bailable offence. 45 An
apprehension of arrest on accusation is the sine qua non for taking recourse to S. 438 Cr. P.C.
an Accusation may exist before a case is registered by the police.
Thus the apprehension must be based on real belief and the arrest must be imminent. Studied
in this light it becomes crystal clear that place of apprehension of arrest has importance. As a
condition precedent to its application, S. 438 Cr. P.C. makes it incumbent that there must be
an existing accusation of having already committed a non-bailable offence. On such an
accusation there must be reason to believe that applicant may be arrested. A mere
apprehension of arrest will not suffice. That must be on the basis of an accusation of having
committed a non-bailable offence.
That means 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 the 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. Protection under S. 438 could be claimed only
against specified accusation and not against possible arrest in general against unspecified
existing accusations or accusations likely to arise in future. What is contemplated is not a
blanket protection. If that be so anybody could approach the Court and request that he may be
directed to be released whenever and wherever in connection with any case and under the
cover of such an order any offence could be committed with the assurance that he will be
released if arrested. That is not what the section contemplates. So also the Court also could
grant the relief only as against arrest in connection with existing specified accusations. It is
true that in order to invoke the provision it is not necessary that a case has already been
44
Bimaladak v.State, 1997 Cri LJ 1969 at pp. 1970-71 (Cal) : 1997 Cal Cri LR 72
45
Sachindra Mahawar v. State of M.P., 2000 Cri LJ 637 at p. 640 (MP)
16 | P a g e
registered or even first information has been lodged. But the Court must be satisfied that there
is a reasonable chance of arrest in connection with some specified accusation.46
Application under S. 438 of the Code is actually made on apprehension of arrest. In other
words, it is only the apprehension of arrest which invites exercise of power under S. 438 of
the Code. The direction that may be given on such application is that in the event of his
arrest, the applicant shall be released on bail.47 An analysis of S. 438 Cr. P.C. discloses that a
person invoking the jurisdiction of the Court must have the reason to believe that he is likely
to be arrested on an accusation of having committed a non-bailable offence.48
Apprehension of Arrest by Police or Other Authorized Person The provisions of S. 438 Cr.
P.C. are applicable to an apprehended arrest whether to be made by a police officer in charge
of a police station or by any person who is authorized in law to effect arrest.49
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 Hig
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
46
Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1113 (Ker) : 1985 Mad LJ
(Cri) 263
47
T. Madhusoodan v. Supdt. Of Police, 1992 Cri LJ 3442 at p. 3444 (Ker)
48
K. Rajesekhara Reddy v. State of A.P.¸1999 Cri LJ 1933 at p. 1934 (AP)
49
Suresh Vasudeva v. State, 1987 Cri LJ 677 at p. 683 (Del)
17 | P a g e
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.50
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.51
NO ANTICIPATORY BAIL ON MERE GENERAL ALLEGATION
Merely because wide powers are conferred to the higher Courts, Section 438(1) of Cr. P.C.
cannot be invoked on the basis of a general allegation. Though it is a device to secure the
individual’s liberty, the Courts should not allow it to be used as a passport to the commission
of crimes or as a shield against all kinds of accusations. However, if an application for
anticipatory bail is made to the High Court or the Court of Session, the Court should apply its
own mind to the question and decide whether a case has been made out for granting such a
relief and that it could not leave the question for the decision of the Magistrate concerned on
the bail application under Section 437 of the Code, as and when an occasion arises because
such a course would defeat the very object of Section 438 of the Code.52
CONDITION PRECEDENT FOR MAKING APPLICATION
Before an application may be moved under this section-
1. There must exist reasonable ground for the applicant to believe that he may be
arrested,
2. Secondly, there must be accusation of a non-bailable offence against him. The use of
expression “reason to believe” shows that belief that the applicant may be so arrested
must be founded on reasonable ground. Mere „fear‟ is not belief, for which reason it
is not enough for the applicant to show that he has some short of a vague
50
Jaswantbhai M. Sheth v. Anand V. Nagarsheth, (2000)10 SCC 7 at pp. 7-8
51
Thayyanbadi Meethal Kunhiraman v. S.I. of Police, Panoor, 1985 Cri LJ 1111 at p. 1113 (Ker) : 1985 Mad LJ
(Cri) 263
52
Nattursau v. State, 1998 Cri LJ 1762 at p. 1767 (Mad)
18 | P a g e
apprehension that someone is going to make an accusation against him, in pursuance
of which he may be arrested. The grounds on which the belief of the applicant is
based that he may be arrested for non-bailable offences must be capable of being
examined by the court objectively. Vague and general allegations are not enough.
It was held in the case of Joginder alias Jindi v. State of Haryana, that a petition for
anticipatory bail under Section 438 Cr.P.C. in relation to bailabe offence is misconceived as
Section 438 of Cr.P.C . related to non-bailable offences. It was further observed that use of
expression “reason to believe” in Section 438 shows that the apprehension must be founded
on reasonable grounds and grounds must be capable of being examined. It requires the mere
fear of being arrested is not sufficient a sufficient ground. It was also held that a blanket order
that applicant shall be released on bail whenever he is arrested for whichever offence
whatsoever cannot be passed. It was also pointed that direction under Section 438 is to be
issued at pre-arrest stage but it becomes operative only after arrest. The Court cannot restrain
arrest. An interim order restraining arrest if passed while dealing with application under
Section 438 would amount to interference in investigation and therefore such an order cannot
be passed under Section 438. According to sub-section (3) of this section if a person, who has
been granted anticipatory, is arrested without by an officer in charge of a police station and
he is prepared, either at the time of arrest or at any time while in the custody of such officer,
to give bail, he shall be released on bail.
CONSIDERATIONS
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 extrudes 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
serious offence, such as murder, exceptional and compelling circumstances must be made out
for granting 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:
19 | P a g e
1. the nature and gravity of the accusation;
2. 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;
3. the possibility of the applicant to flee from justice; and
4. 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
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.54
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.55
53
54
Bharat Chaudhary v. State of Bihar, (2003)8 SCC 77 at pp. 78-79 : AIR 2003 SC 4662 SCC (Cri) 1953.
55
Somabhai Chaturbhai Patel v. State of Gujarat, 1977 Cri LJ 1523 at p. 1524 (Guj) : (1977)18 Guj LR 131.
20 | P a g e
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 a pre-trial. All that it has to see
is whether accused have not roots in the society.
The overriding considerations in granting such bail shall be56
1. Nature and gravity of the circumstances in which the offence is committed

2. The position and status of the accused with reference to the victim and the witnesses;
3. Likelihood of the accused fleeing from justice;
4. Likelihood of the accused repeating the offences, and of tampering with the
witnesses;
5. History of the case as well as of its investigation and other relevant grounds, which in
view of so many variable factors cannot be exhaustively set out.
The consideration which weighs with the Court while granting bail either under S. 438 or
439, Cr. P. C. is:57
a. The nature and gravity of the circumstances in which the offence is committed;
b. The position and the status of the accused with reference to the victim and the
witnesses;
c. The likelihood of the accused fleeing from justice;
d. The likelihood of the accused of repeating the offence;
e. The likelihood of the accused of jeopardizing his own life being faced with a grim
prospect of possible conviction in the case;
f. The likelihood of the accused of tampering with witnesses;
g. The history of the case as well as of his investigation; and
h. Other relevant grounds which may apply to the facts and circumstances of a particular
case.
The possibility of false implication of an accused, the chances of the accused misusing his
liberty if released on bail, and the possibility of the accused absconding and thus making
himself not available for the purpose of investigation, are some of the circumstances and
56
M. Krishnappa v. State of Karnataka, 1992 Cri LJ 2648 at pp. 2650-51 (Kant).
57
Sajjan Kumar v. State, 1991 Cri LJ 645 at p. 653(Del).
21 | P a g e
factors which ought to be borne in mind by the Court when called upon to determine the
question of grant or refusal of anticipatory bail.58
According to S. 437 of Cr. P. C., different considerations, come into play when any person is
accused of a non-bailable offence and there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life. Regarding all
other offences the matter has been left to the discretion of the Court concerned. Bail should
not be refused as a matter of punishment. A person accused of an offence, howsoever
heinous, has to be considered as innocent till he is proved to be guilty. While considering the
question regarding grant or refusal of bail, several circumstances, including the seriousness of
the offence, the possibility of the accused to abscond, or the chances of his tampering with
the witnesses or misusing his liberty, as well as the prima facie nature of the evidence
available on the record, have been considered by the Court as relevant considerations. There
considerations are also relevant for the purpose of deciding the question of grant of
anticipatory bail. Besides these, the background and the circumstances which persuaded the
Law Commission to recommend the introduction of the provision of anticipatory bail in the
statute book have also to be borne in mind.59
The grant of blanket anticipatory bail cannot be read into S. 438 Cr. P. C. The said power is
not unguided or uncancalised, but all the limitations imposed in the preceding S. 437 Cr. P.
C. are implicit therein and must be read into S. 438 as well. In addition to the limitations
imposed in S. 437, the petitioner must further make out a special case for the exercise of the
power to grant anticipatory bail which is of an exceptional type. He must prove that the
charge leveled against him is mala fide and stems from ulterior motive. Mere allegation of
mala fides by an offender and a vehement claim of innocence put forward by him are
manifestly insufficient for arriving at such a conclusion by the Court. The burden of
establishing the mala fides is on the person alleging it. It is for the petitioner to prime facie
substantiate his allegation that the charge of the serious non-bailable offence against him has
been leveled mala fide.60
In respect of non-bailable offences, all the conditions imposed by s. 437 of the Code are
implicitly contains a prohibition to grant bail in all cases where there appear reasonable
grounds for believing that the offender has been guilty of an offence punishable with death or
58
Bansi Lal v. State of Haryana, 1978 Cri LJ 472 at p. 476(P & H)
59
Ibid, at p. 477(P & H).
60
Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 at p. 1045 at p. 1046 (Kant) : ILR (1978)1 Kant 905.
22 | P a g e
imprisonment for life. The nature and the seriousness of the charge be itself, therefore, is one
of the important considerations for the non-release of an accused person on bail. Therefore,
where the nature of the charge is so serious as to be punishable with death or imprisonment
for life, it would normally be inapt to exercise the power of the grant of anticipatory bail at
the very threshold of the investigation unless the Court at that very stage is satisfied that such
a charge is false or groundless.61
There cannot be an inexorable formula in the matter of granting bail. The facts and
circumstances of each case will govern the exercise of discretion in the matter of grant of
bail. While seeking bail in anticipation of his arrest under S. 496 of J & K Cr. P. C. (of 1989
Smvt.) a person accused of the commission of a non-bailable offence, must in addition to
satisfying the conditions detailed in S. 497 of the Code make out the existence of a special
case requiring the High Court or the Court of Session to exercise its discretion to admit him
to bail.62
For the Court while granting bail in non-bailable offences, it becomes necessary to consider
the nature of offence, gravity and seriousness of it, the person as also the age, sex and
physical conditions of an accused and this consideration will not be possible unless the
accused person apprehending his arrest discloses the nature of an offence under which he
apprehends the arrest.63
In application under S. 438, Cr. P. C. also, The same considerations weigh with the court
which are relevant for grant of bail, but with this difference that the nature of the offence has
to be given primary consideration. The likelihood of misusing liberty during the investigation
in serious offences punishable with death or imprisonment for life is greater, as interfering
with the witnesses before they are examined by the investigating officers is not so difficult as
interference after their examination by the investigating officers. When the offence alleged is
serious it is not unlikely that the person accused would be tempted to interfere with the fair
course of investigation. The very seriousness of the offence alleged issufficient ground to
reasonably believe that the accused may misuse his liberty by interference with the evidence
that may be available in the case if possible, or by absconding if tampering is not possible. In
such serious cases where the offence alleged is punishable with death or imprisonment for
life, the discretion under S. 438, Cr. P. C. shall not be exercised unless the Court at that very
61
Mahanthagouda v. State of Karnataka, 1978 Cri LJ 1045 at pp. 1046-479Kant) :ILR (1978)1 Kant 905
62
Kali Dass v. S.H.O. Police Station Reasi, 1979 Cri LJ 345 at p. 353 (J P& K).
63
Rameswak v. State of M. P., 1979 Cri LJ 1484 at p. 1488 (MP) : 1979 Jab LJ 573 (MP) : 1980 MPLJ 100.
23 | P a g e
stage is satisfied that the charge appears to be false or groundless. The guiding principle is
whether, on a consideration of all the facts and circumstances of the case as available at that
very stage, the Court can safely opine that, if allowed to be free without being detained in the
jail, the accused would be wholly indifferent towards the investigation as he need not at all
the afraid of the result of the investigation and the trial, if any, following the investigation.64
An order for anticipatory bail, being an extraordinary remedy, can only be passed, if apart
from the conditions mentioned in Section 437 of Cr. P. C., there is a special case made out for
passing an order. The words under Section 438 “for a direction under this Section” and
“Court may, if it thinks fit, direct” clearly shoe that the Court has to be guided by a large
number of considerations including those mentioned in Section 437 of the Code.65
Broadly stated, the two basic principles which must be kept in view while considering the
question of grant of anticipatory bail are
a. that there should be no likelihood of the accused absconding, and

b. that there should be no likelihood of the accused misusing his liberty.
Apart from the above two basic principles, which have to be kept in view while granting bail
either post-arrest or pre-arrest, Court have also to take into account
a. the nature and seriousness of the accusation,

b. the nature of the prosecution evidence,
c. the severity of the likely punishment in case the prosecution succeeds and
d. the status of the accused. While examining the nature of prosecution evidence for this
purpose, detailed examination of evidence and elaborate documentation should be
avoided. Broad circumspection is enough.66
While granting or rejecting an application for anticipatory bail under Section 438 of Cr. P. C.
there are various considerations, such as the nature or seriousness of the proposed charges, a
reasonable possibility of the applicant’s presence not being secured, the reasonable possibility
of the offence being repeated for larger interest of public or State, the combined effect of
which must weigh with the Court. Where the accused was charged with abducting a person
for ransom, it was held that the Court would be justified in rejecting the application for
anticipatory bail because the abduction of person for ransom was a growing menace
64
K. Narayanswamy v. State of A. P., 1980 Cri LJ 588 at p. 592(AP)
65
Kasturchand Ramlal Badjate v. State of Maharashtra, 1981 Cri LJ 1328 at p. 1331 (Raj)
66
Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 at pp. 1812-13 (Bom).
24 | P a g e
especially in areas where the said incident took place. It was also held that the criminals who
preyed on the community or violated its fundamental values by their repressive and
aggressive conduct and imperiled the average citizen’s sense of security and confidence in
law and order should not be given the benefit of Section 438 of Cr. P. C. especially when
there was danger of repetition of the act.67
While considering the application for grant of anticipatory bail the nature of seriousness of
the proposed charges and the context of the events likely to lead to the making of the charges
are relevant considerations. When a person is accused of be offence of forgery and cheating
involving a huge amount the court has to be careful and circumspect in entertaining such an
application. The court can also ill-afford to ignore the contention of the State that the
petitioner has been making himself scarce and that number of documents are yet to be
recovered and evidence is yet to be collected and further that the investigation is at a crucial
stage. Such frauds and acts of cheating have to be taken seriously as they tend to affect the
larger interest of the public and so also the State. Status in life, affluence or otherwise are
hardly relevant considerations for anticipatory bail especially in a case like the one mentioned
above.68
The approach of the Court in considering an application for bail either under Section 438 or
Section 439 of the Code is to take into consideration the twin aspects of concern for personal
liberty of the individual and protection of process of investigation and public interest.69
Whether in a given case custodial interrogation would be more desirable or not, or what
should be the ground for refusing or granting a pre-arrest bail, cannot be subject to
mechanical application but mist depend upon the facts and circumstances of each case.
Where the apprehension of tampering with the evidence or influencing the witnesses is
reasonable, as may appear from the attending circumstances, it would be relevant ground for
refusing to issue direction under Section 438, Cr. P. C. but not in all cases, irrespective of the
attending circumstances.70
The exercise of the power to grant anticipatory bail should be restricted to exceptional cases,
whose facts satisfy the conditions which are applied by thecourts while considering
applications for bail in case of non-bailable offences.
67
Harji v. State of Rajasthan, 1983 Cri LJ 1938 at p. 1939 (Raj).
68
Subhash Chanana v. State, 1994 Cri LJ 2370 at p. 2373(Del)
69
Surendra Kumar v. State of M.P., 1995 Cri LJ 1517 at p. 1519(MP)
70
State of Gujarat v. Dipak Jaswantlal Sheth, 1999 Cri LJ 162 at p. 169 (Guj)
25 | P a g e
Ordinarily, the Judiciary should not interfere with the police in matters which are within their
province and into which the law imposes upon them the duty of enquiry. The power to
interfere with the discretion of the police at the very earliest stages of an investigation would,
therefore, require to be exercised with utmost care. Merely because it is alleged that the
petitioner apprehends arrest on a false accusation and that such arrest will be a cause of
disgrace and dishonour to him, the court will not be justified in granting anticipatory bail.
The court has both a right and a duty to satisfy itself that the apprehension is reasonable. If
the court chooses to accept the allegations made in the petition without applying its mind and
examining the materials available with the police, the court will be failing to discharge its
duty. In order to ensure that the provisions of section 438, Cr. P. C. are not put to abuse at the
instance of unscrupulous petitioners, notice of the application for anticipatory bail should be
given to the Public Prosecutor, though the section in term does not say so.71
The same tests are to be applied by the court while considering an application for anticipatory
bail, which are applied by the courts while considering applications for bail in case of non-
bailable offences. In addition, the court must be satisfied that the arrest and detention of the
petitioner would be not from motives of furthering the ends of justice in relation to the case,
but from some ulterior motive, and with the object of injuring the petitioner. In order to
ensure that the provisions of Section 438, Cr. P. C. are not put to abuse at the instance of
unscrupulous petitioners, notice of the application for anticipatory bail should be given to the
Public Prosecutor, though the section in terms does not say so. With a view to avoid the
possibility of the person hampering the investigation, the court granting anticipatory bail may
impose such conditions as it thinks fit. One of the pre-condition for granting anticipatory bail
is the apprehension of being arrested in a non-bailable offence.72
In exercising the discretion for the grant of pre-arrest bail, the Court also has to bear in mind
the complications involved in the investigation of alleged offences which might have been
committed in the garb of commercial transactions. Generally the investigation would always
be hampered and handicapped without custodial interrogation of the accused persons and the
possibility of destruction or loss of important documentary evidence in such cases cannot be
ruled out. The harassment or humiliation likely to be suffered by the person accused of
serious offences has to be weighed against the likely effect of pre-arrest bail on the
investigation, the other co-accused person, the victims of the offences and the public in
71
Bagoratji Mahapatra v. State, 1975 Cri LJ 1681 at p. 1683 (Ori)
72
Madan Mohan Behera v. State, 1988 Cri LJ 1574 at p. 1575(Ori)
26 | P a g e
general. When serious offences are disclosed and involvement of an accused person is prima
facie, established, the Court would be loath to lean in favour of grant of pre-arrest bail in
absence of any other overriding considerations.73
Grant of anticipatory bail cannot be refused merely because the applicant failed to establish
political or other enmity. Section 438 of Cr. P. C. covers cases in which falsity of charge is
not established provided of course, there is no possibility of the accused absconding or
misusing his liberty.74
FORUM
Section 438 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 echelons of
judicial service. Some High Courts have taken the view that ordinarily, a Court of Sessions
must be first moved by an applicant. It is, however, submitted that when concurrent power is
conferred on the High Court as well as on the Court of Session, no such restriction can be
read in Section 438. Again, some High Courts have held that after the Court of Sessions
rejects an application, an applicant cannot move the High Court for same relief unless
circumstances have changed. It is submitted that this view is erroneous.
In the case of Chandra Erappa v. State, the High Court of Karnatka rightly observed:
“ Of course , there can be no doubt as that in the hierarchy, Court of Session is

subordinate to the High Court; a party who makes an application under Section 438
of the code before the Sessions Court could approach the High Court, if his
application had been rejected by the Court of Session, but not vice versa. In other
words, if the party chooses to file an application under Section 438 of the Code
before the High Court and it is rejected, he cannot thereafter approach the court of
Session under the same provision and on the same grounds”
NOTICE TO PUBLIC PROSECUTOR
There is no provision in Section 438 for issuing notice to public prosecutor and hearing by
the court before granting anticipatory bail. However as held by the Supreme court in the case
of Gur 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
73
Natvarbahi Pitamberbhai Patel v. State of Gujarat, 2004 Cri LJ 215 at p. 221 (Guj)
74
Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 at p. 1812 (Bom)
27 | P a g e
there are circumstances justifying ex parte interim order, the court may pass final order after
hearing both sides.
It may, however may be stated that sub-section (1A) of section 438 as amended by the Code
of Criminal Procedure (Amendment) Act, 2005, now expressly provides that before finally
deciding an application for anticipatory bail, the court will hear the Public Prosecutor.
Before granting anticipatory bail notice to Public prosecutor should be given although section
438 Cr. P.C. 1973 in terms does not say so. 75 Supreme Court said without notice to Public
Prosecutor anticipatory bail may be granted; but notice should be issued to the public
prosecutor or the Government Advocate forthwith and the question of bail should be re-
examined in the light of respective contentions of the parties. 76 When no sufficient
opportunity is given to Public Prosecutor to oppose the prayer of anticipatory bail, the order
granting anticipatory bail is liable to be quashed.77
An order of bail can be passed without notice to the Public Prosecutor. But notice should be
issued to him or the Government Advocate forthwith and the question of bail should be re-
examined in the light of the respective contentions of the parties. 78 As a matter of abundant
caution notice may be given to the complainant also.79 On an application for grant of
anticipatory bail, the investigating agency would be given reasonable time to file objection to
the application. Where the copy of the application was severed on the appellant only in the
afternoon the order for bail passed on the next day would be set aside.80
CONDITIONS
The high court and the court of sessions to which 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, therefore, it is the duty
of the court to ensure that the investigation should not be hampered or intervened with in any
manner.
75
Bhagirath Mahapatra v. State of Orissa, 1975 Cr. L.J.1681: 41 Cut. LT 619, State of Maharashtra V. Vishwas,
1978, Cr. L.J. 140
76
Gurbax Singh Vs. State of Punjab, (1980) 2 SCC, 565, 1980 SCC (Cri) 465, AIR 1980 SC 1632: 1980 Cr. L.J. 1125
77
State of Maharashtra v. Hanumantrao, 1980, Cr. L.R. 526
78
Gurbaksh Singh Sibia Vs. State of Punjab, AIR 1978 P&H 1: 1978 Cr.LJ 20 Gurbaksh Singh Sibia Vs. State of
Punjab, AIR 1980 SC:1632 (1980) 2SCC 565:1980 Cr.LJ 1125; State of Assani Vs (Dn) Bnolen Gogoi, AIR 1998 SC
143:1999 SCC (Cri) 403.
79
Chandnakant Chandulal Bhansali v. Srikant Shrikrishna Johsi, 1993 (2) Crimes 389 (Bom)
80
Union of India v. Yusuf Razak Dhanani (2003) 8 SCC 908: 2003 SCC (Cri) 1963: 2003 Cr.LJ 4560 (4561) (SC)
28 | P a g e
The court however, cannot impose a condition other than warranted by law. Thus, no
direction can be issued to 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.
DURATION
An order of anticipatory bail passed under Section 438(1) need not to be limited in the point
of time. The Court may, however, limit the operation of the order and direct the applicant to
obtain an order under Section 437 or Section 439 of the code within that period. An order of
anticipatory bail does not ensure till the end of trial, but must be for a limited duration till the
trial courts 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.
The operation of the order passed under sub-section (1) should not be limited in point of
time.81 Anticipatory bail once granted must be held to be operative till the conclusion of the
trial, unless it is cancelled under section 439.82
In the under mentioned case.83 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.84 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.85
PROCEDURE
Section 438(2) 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
81
Genbaksh Singh Sibl.ia Vs. State of Punjab AIR 1980 SC 1632 (1980) 2 SCC 565:1980 Cr.L.J. 1125
82
Nattunasu Vs. State, 1998 Cr. L.J. 1762 (Mad)
83
Saluddin Abdul Samad Shaikh Vs. State of Maharashtra (1996) 1 SCC 667 (668): AIR 1996 SC 1042: (1966) 1
SCC 667
84
B. L. Verma Vs. State of M. P. 1979 Cr. L.J. (NOC) 190 (MP) ILR 1979, MP 748: 1979 Jab LJ 419.
85
Puran Chand Gupta Vs. State of Punjab 1980 Punj. LR 694, 701
29 | P a g e
accused that has been granted anticipatory bail. All subsequent steps must be in conformity
with the order issued by the Court under Section 438(1).
BLANKET ORDER
A blanket order of anticipatory bail is an order which serves as a blanket to cover or protect
any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely
regarding which, no concrete information can possibly be had. Such a blanket order of
anticipatory bail should not generally be granted. Since the section requires the applicant to
show that he has “reason to believe” that he may be arrested, such belief must be formed only
if there is something tangible to go by on the basis of which it can be said that the applicant’s
apprehension is genuine. Normally, therefore, a direction should not be issued under Section
438(1) to the effect that the applicant should be released on bail “whenever arrested for
whichever offence whatsoever.” A blanket order of anticipatory bail is bound to cause serious
interference with both the right and the duty of the police in the matter of investigation
because, regardless of what kind of offence is alleged to have been committed by the
applicant and when, an order of bail which comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from arresting the applicant even if he
commits, say, a murder in the presence of the public. Such an order can then become a
charter of lawlessness and a weapon to stifle prompt investigation into offences which could
not possibly be predicated when the order was passed. Therefore, the court which grants
anticipatory bail must take care to specify the offence or offences in respect of which alone
the order will be effective.
RULES FOR EXERCISING DISCRETION
In the case of Guru Baksh Singh v. State, the Full bench of Punjab and Haryana High Court
laid down certain principles as to when anticipatory bail should be granted under Section 438
of the Code. Reversing the decision of the High Court, the Supreme Court laid that Court has
to decide the cases coming before it after considering the facts and circumstances without
laying down a cast iron rule or adopting straight jacket formula. The court must be left free to
grant or refuse bail by exercising discretion judicially in the light of facts and situations
placed before it.
In the matter of grant of anticipatory bail, the Supreme Court observed that discretion ought
to be permitted to remain in the domain of discretion, to be exercised objectively and open to
30 | P a g e
correction by the higher courts. The safety of discretionary power lies in this twin protection
which provides a safeguard against its abuse.86
The order contemplated under S. 438 of the Code is to be granted or refused by the High
Court or a Court of Session, after exercising its judicial discretion wisely.87
While the Court exercises its discretion, whether it is under S. 437 or 438 or 439, Cr. P.C., it
shall exercise the same properly and not in an arbitrary manner. The discretion exercised
shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the
discretion. Merely because, norms are not prescribed for the Court to exercise discretion
under Ss. 437, 438 or 439 Cr.P.C. that does not mean the discretion shall be left to the whims
of the Court.88
Though the powers for grant of anticipatory bail are very wide, the judiciary discretion must
be properly exercised after proper application of mind to decide whether it is a fit case for
granting anticipatory bail or not.89
Section 438 Cr. P.C. itself is widely worded and does not engraft any limitations on the
power of the Court in case a person who has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence makes an application invoking the
powers of the Court for a direction granting anticipatory bail. Even so, the powers have to be
exercised in a judicial manner with the end in view that whilst the object of the provision is
served pitfalls in the situation are eschewed.90
If a custodial interrogation in a serious case is required by the investigating agency for

unearthing the important materials, the High Court or the Sessions Court should not normally
grant anticipatory bail. Therefore, the wide powers vested with the High Court or the Court of
Session would invite the wise exercise of judicial discretion. Every kind of judicial
discretion, whatever may be the nature of the matter, in regard to which it is required to be
exercised, has to be used with a due care and caution.91
86
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p 1642 : 1980 Cri LJ 1125 : (1980)2 SCC 565 :
1980 SCC (Cri) 465
87
Directorate of Enforcement v. P.V. Prabhakar Rao, (1997)6 SCC 647 at p. 649 : AIR 1997 SC 3868 : 1997 SCC
(Cri) 978
88
Afsar Khan v. State, 1992 Cri LJ 1676 at pp. 1679-80 (Kant) : ILR 1992 Kant 2894
89
90
Jintendra Singh v. State, 1998 Cri LJ 1762 at p. 1767 (Mad)
91
31 | P a g e
A close look at Section 438, Cr. P. C., demonstrates that grant of anticipatory bail is a matter
of judicial discretion and the Court must be satisfied that a fit case has been made out for
exercise of such discretion. The Court has to make an effort to strike a balance between the
individual’s right to personal freedom and the investigational rights of the police. The
provisions of Section 438, Cr. P.C., are not to be applied mechanically. The phraseology “if it
thinks fit” available in the body of the section reading with sub-section (2) thereof is
indicative enough that such order on the face of it must show the reasons for granting
DISCRETION TO GRANT ANTICIPATORY BAIL NEED NOT BE CONFINED TO

EXCEPTIONAL CASES ONLY
With regard to a proposition laid down by a High Court saying that the power conferred by
Section 438 Cr. P.C. is “of an extraordinary character and must be exercised sparingly in
exceptional cases only”, a Constitution a Bench of the Supreme Court that it may perhaps be
right to describe the power as of an extraordinary character because ordinarily the bail is
applied for under S. 437 or S. 439. These Sections deal with the power to grant or refuse bail
to a person who is in the custody of the police and that is the ordinary situation in which bail
is generally applied for. The Supreme Court further observed that but, this does not justify the
conclusion that the power must be exercised in exceptional cases only, because it is of an
extraordinary character. All discretion has to be exercised with care and circumspection,
depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and
subject the wide power conferred by the legislature to a rigorous code of self-imposed
limitations.93
It may be pointed out that in an earlier case of Balchand Jain v. State of M.P.,94 the Supreme
Court had held that the power of granting anticipatory bail is somewhat extraordinary in
character and it is only in exceptional cases that such power is to be exercised. Explaining
and distinguishing the said decision, a Constitution Bench of the Supreme Court in the
aforesaid case of Gurbaksh Singh Sibbia v. State of Punjab,95 held that the question as
regards the interpretation of Section 438 Cr. P.C. did not at all arise in that case, and that the
92
Ganesh Raj v. State of Rajasthan, 2005 Cri LJ 2086 at p. 2092 (Raj) (FB)
93
Gurbaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632 at p. 1645 : 1980 Cri LJ 1125 : (1980)2 SCC 565 :
1980 SCC (Cri) 465
94
AIR 1977 SC 366 at pp. 368-69 : 1977 Cri LJ 225 : (1976)4 SCC 572 : (1977)2 SCR 52 : 1976 SCC (Cri) 689 (Per
BHAGWATI and GUPTA. JJ.)
95
AIR 1980 SC 1632 at pp. 1645-46 : 1980 Cri LJ 1125 : (1980)2 SCC 565 : 1980 SCC (Cri) 465
32 | P a g e
said case was mainly concerned with Rule 184 of the Defence and Internal Security of India
Rules, 1971, and whether S. 438 applied in such a situation. The Supreme Court held that the
observations made in the said Balchand Jain case regarding the nature of the power conferred
by S. 438 and regarding the question whether the conditions mentioned in S. 437 should be
read into S. 438 cannot therefore be treated as conclusion on these points which arose directly
for its consideration. The Supreme Court agreed that the power conferred by S. 438 is of an
extraordinary character in the sense that it is not ordinarily resorted to like the power
conferred by Ss. 437 and 439. The Supreme Court also agreed that the power to grant
anticipatory bail should be exercised with due care and circumspection but beyond that, the
Supreme Court refused to agree with the observations made in the said Balchand Jain case in
an altogether different context on an altogether different point. Therefore, in effect, what the
Constitution Bench of the Supreme Court has held in the Gurbaksh Singh Sibbia case is that
while the power of granting anticipatory bail is somewhat extraordinary in character, it is not
correct to say that only in exceptional cases that such power is to be exercised.
SUCCESSIVE APPLICATION
A second application after rejection of the first one under Section 438 is maintainable if there
are additional facts, further developments and/or different considerations.
CANCELLATION OF ANTICIPATORY BAIL
Neither Section 438 nor any other section in the Code makes any clear provision as to
whether the order granting anticipatory bail can be cancelled even before the regular bail is
actually granted. However it has been held that when Section 438 permits the making of an
order and the order is made for granting anticipatory bail, it is implicit that the court making
such an order is entitled upon appropriate consideration to cancel or recall the same. 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.
Anticipatory bail granted by the High Court can only be cancelled by it and not by the
Magistrate or the Session Judge.96 By and large the following legal principles amongst others,
would be relevant in the matter of consideration of the question of cancellation under section
96
Bolai Mistry v. State, 1977 Cr.LJ 492 (Cal-DB)
33 | P a g e
439 (2) by the High Court of anticipatory bail granted under section 438 or of bail granted
under section 439
1. by the Sessions Judge. Normally, very cogent and overwhelming grounds or

circumstances are required to cancel the bail already granted.97
a. An order granting anticipatory bail under section 438 or bail under section 439
(1) is amenable to appellate provisional scrutiny and may be cancelled if it
was made in arbitrary or improper (and not judicial) exercise of the
discretionary power or was made without application of mind or without
consideration of all relevant circumstances or was based upon irrelevant
considerations or was vitiated by any basic error of law or was otherwise
perverse.
2. An order granting bail may be cancelled in case new of supervening circumstances
arise after the release on bail such as abuse of the liberty by hampering the
investigation or tampering with witnesses or by committing same or similar offence
but existence of any supervening circumstance following the grant of anticipatory bail
or bail is not the only criterion for cancellation of such bail.98
3. Although the discretionary power to cancel bail is extraordinary and is to be exercised
sparingly, nevertheless, it is meant to be exercised in appropriate cases, however few
those cases might be.
4. Order granting anticipatory bail or bail must not tantamount to interference with
efficient exercise of statutory functions when dealing with economic offences such as
those under the FEAR.
5. Advantage of custodial interrogation should be taken into account in granting
anticipatory bail or bail.
Where an accused was enlarged on bail in the event of his arrest for offences alleged under
sections 289, 337 and 304-A IPC, but about 33 days later the offences were altered to
sections 302 and 307 IPC,99 for about a year since grant of bail accused has not violated any
of the conditions of bail and police have not filed charge sheet even after lapse of a year and
two months and in the absence of cogent and overwhelming circumstances cancellation of
anticipatory bail is not justified.
97
Mahant Chand Nath Yogi v. State of Haryana AIR 2003 SC 18: (2003) 1 SCC 326:2003Cr.LJ 76(82) (SC) Subi
endu Mishra v. Subrat Kumar Misra, AIR 1999 SC 3026
98
A. K. Murumu v. Prasenjit Choudury 1999 Cr.LJ 3460 (3468) (Cal-DB)
99
Uttaranchal v. State of J & K, 1989 (2) Crimes 626, 630 (J&K-DB).
34 | P a g e
An improper grant of bail is one of the circumstances for cancellation of the same. 100 Where
accused in gang-rape influential and rich was granted anticipatory bail not on merits but on
other considerations was not taking interest in the investigation, anticipatory bail was
cancelled.101 Where there were serious allegations of dowry death and the investigation was
in progress, the anticipatory bail granted was liable to be cancelled. 102 Where anticipatory bail
was granted by the Sessions Judge turning down the request of the police to grant reasonable
time to recover property without giving reasons, was cancelled. 103 Merely because the
accused has not controverted the allegations made in the petition for cancellation of bail
would not be ground for cancellation of anticipatory bail.104
Anticipatory bail may be cancelled under section 439 (2) if the accused is found to be
tampering with prosecution evidence.105 When this section permits or making of an order and
order is made granting anticipatory bail, it is implicit that the court making such an order is
entitled upon appropriate consideration to cancel or recall the same. It is not necessary for
such purposes to find out any further specific provision conferring power of cancellation.106
The cancellation of anticipatory bail already granted can be ordered only when the accused
has interfered with the course of justice by tampering with the evidence or has misused or
abused his privilege.107 Very cogent and overwhelming circumstances are necessary for an
order seeking cancellation of bail.108 Where accused facing prosecution under sections 406
and 498A IPC have been released on bail, bail would not be cancelled merely because articles
of stridhan have not yet been returned.109 A reasoned and well considered order granting
anticipatory bail would not be cancelled by the High Court by mere observation that bail has
been obtained by dubious means.110
100
Suresh Chandra Gin v. State of Orissa, 1988 (3) Crimes 428 (On)
101
Court on its own motion Vs. Sanjay, 1995 Cr. L.J. 1824 (P&H)
102
Kitniben v. State of Gujarat, 1992 Cr. L.J 1994 (Guj)
103
Gabriel Joseph Vs. Fero Gulain Sarvar Khan, 1992 Cr.LJ 458 (Bom)
104
Sanmnukha Swamy V. State of A.P. 2001 (2) Andh LT (Cri) 131 (132):2002 Cr.LJ NOC 277 (MP)
105
Jairam Tiwari Vs. State of Bihar, 1987 Cr.L.J. 254 (Pat)
106
State of Maharashtra v. Vishwas, 1978 Cr.LJ 1403,1405 (Bom-DB)
107
Vishwanath Tiwari Vs.State of Bihar, 1988 Cr.LJ 333 (Pat).
108
Rajan Mahajan Vs. State, 2002 Cr.LJ 2433 (2434) (Del); Bhagirath Singh Vs. State of Gujarat, AIR 1984 SC
372:1984 Supp.SCC 372:1984 Cr.LJ 160
109
Rajan Mahajan Vs. State, 2002 Cr.L.J. 2433 (234) (Del)
110
Mahant Chand Nath Yogi V. State of Haryana, AIR 2003 SC 18 (2003) 1 SCC 326: 2003 Cr.L. J. 76 (81), 82) (SC)
35 | P a g e
Where the High Court had refused anticipatory bail and the Supreme Court had refused to
interfere with the order of refusal passed by the High Court, anticipatory bail subsequently
granted by the Sessions Judge was cancelled.111
CONCLUSIONS
It is submitted that the following observations of Chandrachud CJ in Gurbak Singh v.

State lay down correct law regarding exercise of power to grant anticipatory bail under
Section 438 of the code, therefore are worth quoting:
“It cannot be laid down as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be actuated mala fides; and equally, that
anticipatory bail must be granted if there is no fear that the applicant will abscond. There
are several others 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 the making of
charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a
reasonable apprehension that the witness will 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.”
Thus it can be said that there may be situations where arrest and detention may be unjustified
and these powers are sometimes misused. Therefore, a duty is cast on the court in such
situations to examine the facts carefully and to ensure that no prejudice is caused to the
investigation. It is delicate balance whereby the liberty of the citizen and the operation of the
criminal justice system have both to be equally safeguarded. Where it is pointed out that the
action is mala fide or tainted the courts are required to do justice by preventing harassment
and unjustified detention. The court has to keep in mind while deciding an application for
anticipatory bail the nature and seriousness of the proposed charges and the larger interests of
the public or the state.
111
Dharampal Vs. State of Punjab (2002) 1 P&H 477 CrLJ 1621 (1623) (P&H)
36 | P a g e

JMIA Law Student's Guide to Anticipatory Bail

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JAMIA MILLIA ISLAMIA

SUBMITTED TO Dr. ASAD MALIK

I feel myself highly delighted, as it gives me incredible pleasure to present an assignment

The object of anticipatory bail is to relieve a person from unnecessary apprehension or

AMBIT AND SCOPE/NATURE

1. The nature and gravity of the accusation,

MALIMATH COMMITTEE REPORT

BAIL AND ANTICIPATORY BAIL: DISTINCTION

DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST

ANTICIPATORY BAIL CANNOT BE GRANTED AS A MATTER OF RIGHT

APPREHENSION OF ARREST NECESSARY FOR ANTICIPATORY BAIL

NO ANTICIPATORY BAIL ON MERE GENERAL ALLEGATION

CONDITION PRECEDENT FOR MAKING APPLICATION

Before an application may be moved under this section-

The overriding considerations in granting such bail shall be56

1. Nature and gravity of the circumstances in which the offence is committed

a. that there should be no likelihood of the accused absconding, and

a. the nature and seriousness of the accusation,

“ Of course , there can be no doubt as that in the hierarchy, Court of Session is

NOTICE TO PUBLIC PROSECUTOR

RULES FOR EXERCISING DISCRETION

If a custodial interrogation in a serious case is required by the investigating agency for

DISCRETION TO GRANT ANTICIPATORY BAIL NEED NOT BE CONFINED TO

CANCELLATION OF ANTICIPATORY BAIL

1. by the Sessions Judge. Normally, very cogent and overwhelming grounds or

It is submitted that the following observations of Chandrachud CJ in Gurbak Singh v.

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