Anticipatory Bail

what is anticipatory bail

An application for bail is made when the accused is arrested and seeks relief to be released from the custody on furnishing some security. Anticipatory bail is, however, a different situation, which is the person making an application for bail even before being arrested. Section 438 of the Criminal procedure code was added by the amendment act of 2005 to the act. This amendment was made on the recommendation of the 41st Law Commission Report.


Section 438 deals with anticipatory bail which is an application filed by a person who apprehends to be arrested with regard to a non-bailable offence. Such an application after being approved protects the person from arrest at the sole discretion of the court. It protects the person from being arrested in a particular case. However, such protection cannot be passed for an unlimited time, if so, it is liable to be set aside.

Purpose:  The purpose of having such a provision of bail before the arrest is to protect the accused from unnecessary disgrace and harassment in case, the accusation is false. It is a temporary relief granted to a person. No humiliation should be caused to the person at the same time preserving the faith of the people in the judicial system.

In the case of Balchand Jain v. State of Madhya Pradesh[1], the court highlighted that the power has to be exercised carefully and only in exceptional cases.


The case of Adri Dharam Das v State of West Bengal,[2] explained that an interim order protecting from arrest would interfere with the investigation and therefore the expression used is “reason to believe” is used to indicate that there should be an apprehension of arrest based on reasonable grounds. Such grounds must be capable of being examined. Mere fear of the applicant is not sufficient for such an application to be made.


While granting anticipatory bail, the court must take into consideration the personal liberty of the applicant on one side and the interest of investigation on the other side as it affects the interest of the public at large.

The following factors are taken into consideration, as laid down in the case of Mohammad Masood v State of Karnataka[3]:

  1. The nature and seriousness of the offence;
  2. The severity of the offence;
  3. Nature of the evidence collected so far;
  4. Character and behaviour of the accused;
  5. The probability that the accused might go absconding;
  6. Probability and possibility of the repetition of such crime;
  7. The likelihood of tampering and influencing the pieces of evidence and the witnesses respectively;
  8. The interest of the people and the state.

After considering the factors, if the court is satisfied that such liberty shall not be misused and all the due process of law shall be followed, then it will grant an application of anticipatory bail. After having an anticipatory bail, the person can be released immediately after arrest.


An applicant can make an application in the court of session and being unsuccessful there can move to the High Court for the same. Under the section, the courts have a wide discretionary power. There can be no strict universal application of these rules. Thus, it varies based on the facts of the case and remains unguided. The court on an application received by the prosecution can also cancel the bail and order for the arrest of the person, i.e. cancellation of bail.

The court ought to give a reason for its discretion of granting or not granting such bail. The guidelines, in this case, was reiterated, when the high court exercises power without reason, the Apex court needs to interfere to avoid any failure of justice.

The validity of anticipatory bail: An anticipatory bail is not under the blanket jacket of release for an indefinite period. Anticipatory bail becomes effective at the very moment when a person is arrested, and the person is free from the arrest until the bail is cancelled. Anticipatory bail validity is from the day the arrest is made to the day till which court grants permission or the day it is cancelled.

Application for anticipatory bail for an offence under section 498A: There is no express provision which provides for not granting an interim release from arrest. However, the thing of consideration is the statement of reason which has to be offered. In the case of Raghuvir Saran Agarwal v State of UP[4], the anticipatory bail was granted by the High Court in case of dowry death but was without any statement of reason, the Apex court intervened and set the same aside because the High Court didn’t provide a proper reason.


Anticipatory bail is simply aimed to grant protection to the applicant who may be inducted in a false case. This power vested with the court is an extraordinary power and needs to be used cautiously, and the ultimate aim of the judicial system should be to meet the ends of justice and to protect the interest of the people.

[1] AIR 1977 SC 366

[2] AIR 2005 SC 1057

[3] 2002 CrLJ 1760 (HP)

[4] (1998) 8 SCC 617


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