What is Anticipatory Bail

Anticipatory bail is the statutory remedy that can be invoked in the anticipation of arrest. In some circumstances, it’s also known as pre-arrest bail. This remedy can be invoked when a person suspects or anticipates that he will be arrested at a particular point in time. And the person must have a reasonable apprehension of being arrested for a non-bailable offence that he or she is accused of committing. Anticipatory bail provisions are enumerated under Section 438, the Code of Criminal Procedure.

Why is the Relief of Anticipatory Bail Granted?

The relief of anticipatory bail stems from the legislature’s identification of individual liberties and the chances of abuse of the process of law to humiliate/harass the accused. Section 438 of CrPC contains express provisions for granting of Anticipatory bail and these provisions are explained below for a better understanding:

Section 438 Direction for granting of bail to person apprehending arrest

  1. Any person who has reasons to believe that he may be arrested on suspicion of committing a non-bailable offence may file an application to the Court and Court of Session for a direction under this section, and that Court may, if it thinks fit, order that he be released on bail in the event of such arrest.
  2. When the High Court or the Court of Session issues a direction under subsection (1), it may add such conditions as it considers fit in view of the facts of the case, including:
    • Availability of the accused for interrogation by a police officer as and when required;
    • No inducement to the witness or anyone else to influence the process of investigation;
    • Not to leave the country without the permission of the Court;
    • Other conditions can also be imposed as under sub-section (3) of section 437, CrPC.
  3. 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 accordance with the Court’s direction; and if a Magistrate taking cognisance of such offence decides that a warrant should be issued in the first instance against that person, he or she shall issue a bailable warrant in accordance with the Court under sub-section (1).

Which points shall be incorporated in the application for Anticipatory Bail?

The best criminal lawyers practicing in the different parts of India must consider, reflect, draft, and argue these following points while presenting a petition for anticipatory bail keeping in mind the facts of the case:

  • The nature and seriousness of the accusations;
  • The requirement of custodial interrogation;
  • The recovery to be effected;
  • A prima facie case is one that is founded on an allegation in a police report or a complaint;
  • The criminal antecedents of the accused;
  • The reputation of the accused will be harmed or tarnished if he is arrested;
  • The likeliness of the accused to flee from the country;
  • The chances of the accused to obstruct the investigation;
  • The chances of the evidence being tampered with by the accused;
  • The willingness of the accused to join the process of Investigation;
  • While applying the concession of anticipatory bail, the applicant’s willingness to comply with all the conditions imposed by the Court under section 438, CrPC.

Who can seek Anticipatory Bail?

Any person who has reasonable grounds to suspect that he or she will be arrested on being an accused of a non-bailable offence can apply for anticipatory bail under Section 438, CrPC before the court.

Where to Apply for Anticipatory Bail?

The individual facing arrest can file an anticipatory bail application before the High Court or the Court of Session (in whose jurisdiction the alleged act was committed or the FIR was lodged), requesting that he be released on bail if he is arrested. There are specific categories of offences where the power for grant to anticipatory bail is not available with the Sessions Court

Which Court has a Jurisdiction?

The jurisdiction of Sessions Court and the High Court (in whose jurisdiction the alleged act was committed or the FIR was lodged) are concurrent in so far as the application for seeking relief under Section 438, CrPC is concerned. However, the accepted practice is that the accused approached the Sessions Court first and thereafter, the High Court. Under extraordinary circumstances, the accused can directly approach the High Court for the Anticipatory Bail, and if the High Court gets convinced, it can decide on the merits of the case.

While Granting Anticipatory Bail, the Courts Consider:

Anticipatory bail is a discretionary power guided by the provisions under Section 438, CrPC and the judicial precedents. While granting this relief, the courts consider a few factors to balance equities between the rights of the accused and larger interest of the administration of Justice. Few factors are enumerated below that are considered by the courts:

  • The need of custodial interrogation of the accused;
  • Joining the investigation;
  • The chances of investigation to be influenced by the accused;
  • The nature and gravity of the offence;
  • The prima facie case against the accused;
  • History of accused having committed the offences;
  • The chances of the reputation of accused tarnished if he is arrested;
  • Chances of the accused to flee from the country;
  • Chances of the accused to tamper with the evidence;
  • The accused to cooperate completely with the investigating agency.

Meaning of dismissed as withdrawn and dismissed on merits in Anticipatory Bail:

The procedure for withdrawal and dismissal is applicable on the Sessions Court and the High Court alike.

Dismissed as withdrawn: The accused usually approach the Sessions Court for the relief of Anticipatory Bail and the application can be withdrawn at any stage before concluding the final arguments. If the anticipatory bail application is withdrawn, it can be refiled before the same court after explaining the change of circumstances, and that application can be argued on merits. But, if an application is withdrawn, it cannot be filed before the appellate forum.

Dismissed on merits: If the application is dismissed on merits, it can only be filed before the appellate forum.

What if the Anticipatory Bail Application is Rejected/Dismissed?

In case, the anticipatory bail is dismissed by the Sessions Court, the application against the order can be challenged in the High Court. Where the anticipatory bail application is dismissed by the High Court, the applicant can file Special Leave Petition before the Hon’ble Supreme Court.

Conditions that can be imposed by the court while granting Anticipatory Bail:

  • The applicant shall remain available for questioning by a police officer whenever necessary;
  • The applicant shall not, directly or indirectly, make any temptation, threat, or promise to any person with knowledge of the facts of the charge against him in order to persuade him not to tell the Court or any police officer about them;
  • The applicant will not leave India without the Court’s prior approval; and
  • As well as any other terms set under section 437, subsection (3), as if the bail was granted under that section.


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