Friday, 4 February 2022





The term anticipatory bail is now defined under criminal procedure code 1973. Whereas this term was firstly defined under 41st Law Commission Report 1969 where the said commission felt the need to provide a protection provision for the accused or any other person who has a belief that he/she may get arrested for a non-bailable offence. Following this the parliament also felt that such provision is needed therefore it added a provision of pre-arrest bail under section 438 of criminal procedure code 1973. The following provision is named as “Direction for grant of bail to person apprehending arrest. “ 


The origin of the bail dates back to medieval times when the first recorded drafted constitution was adopted in 1215 by King John of England and was referred to as the Magna Carta as known today. 

The concept was taken from clause 39 of magna carta which states that "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do except by the lawful judgement of his equals or by the law of the land." From the said clause it can be understood that no person can be restricted unless o final judgement is passed in accordance to the law of land. Older criminal procedure code 1898 did not have the provision for anticipatory bail. As we have seen above that the clause for pre arrest bail was added for the first time in new version of criminal procedure code 1973 after this term was mentioned in 41st Law Commission Report 1969.


(1) When any person has reason to believe 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 Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(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:

i. a condition that the person shall make himself available for interrogation by a police officer as and when required,

ii. 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,

iii. a condition that the person shall not leave India without prior permission of the court,

iv. 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 while 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).

Where the accused or any other person has a reasonable reason to believe that he/she may get arrested for a non-bailable offence then they can request the high court or to the session court to ask the investigating agency to release them on bail in case of arrest. In this kind of bail a person is released on bail even before he is been arrested. 

Anticipatory bail is granted to person very cautiously after examining the situation therefore there are listed some circumstances under which it may be granted that are:

  1. Where it may be assumed that applicant may be detained on unreasonable ground

  2. Allegation made with a false intent or to harm or humiliate the person

  3. Where ambiguous statements are said against the claimant

  4. First report on information does not include the accuse name 

Whereas it is not always the case there are some situations where it can be rejected as well for example if there is a chance that prima facie argument can be made in which claimant was charged, where it may be believed that the investigation can get influenced by the applicant etc. 


Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. Thus, this paper dealt with how administration done in various States in India regards to Anticipatory Bail.

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