ANTICIPATORY BAIL PROVISION IN INDIAN

LAW
INTRODUCTION
Anticipatory bail means an application seeking permission from the court to be released if
arrested by the police, but only for the particular reason against which permission of anticipatory
bail is asked by the accused.
According to section 438 of The Code of Criminal Procedure (CrPC), the High Court and the
Court of Session are empowered to grant anticipatory bail, that is, a direction to release a person
on bail issued even before the person is arrested.
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.
Initially when The Code of Criminal Procedure, 1973 (CrPC) came into force on
April 1, 1974, there was no such provision for the grant of Anticipatory Bail. The High Courts
were of the opinion that, unless a person was under a restraint, that is, in legal custody, no bail
could be granted.1
However it also asked the trial court to hear the bail petition on the day it was filed before it.2

1. Varkey Paily Madthikudiyil, AIR 1967 Ker 189

2. Dhananjay Mahapatra, Anticipatory bail law most misused: SC, The Times of
India, Patna-Ranchi
National, 10 June 2008, p.6.

There are two types of bails discussed in CrPC, one is Ordinary bail or say regular bail and the
other is Anticipatory bail. The distinction between an ordinary order of release on bail which
comes under section 437 and an order of anticipatory bail as under section 438 is that, 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.3

S.438. Direction for grant of Bail to Person

apprehending arrest, 4
(1) When any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail: and that
court may, after taking into consideration, inter alia, the following factors, namely: (i) the nature and gravity of the accusation;
(ii) 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;
(iii) the possibility of the applicant to flee from justice; and
(iv) 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:

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3. Natturasu v. State, 1998 CrLJ 1762 (Mad).

4. Section 438 of The Code of Criminal Procedure (Act II of 1974), substituted by the
CrPC (Amendment)
Act, 2005 (25 of 2005).

(1A) Where the Court grants an interim order under sub-section (1), 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.
(1B) 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, if 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 subsection (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 the previous 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 issue in the first instance against that
person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection(1).

WHO CAN APPLY FOR ANTICIPATORY BAIL?

A person apprehending arrest under warrant issued by Magistrate for remanding him to custody
under s. 2095 can apply for anticipatory bail under s. 438.6 Anticipatory bail has nothing to do
with filing of FIR or charge sheet or issue of warrant of arrest; it is only concerned with arrest. If
the accused anticipates that there are chances of him being arrested by the police, he can ask the
court regarding issue of anticipatory bail, and if the court is satisfied the bail will be granted o
the applicant.
Where the accused apprehends arrest in view of the fact that a non-bailable warrant has been
issued against him on the basis of charge sheet filed against him, he can apply for anticipatory
bail.7 The discretion of granting anticipatory bail has to be exercised sparingly in appropriate
cases, with due care and caution imposing required conditions.8

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5. Commitment of case to Court of Session when offence is triable exclusively by
it.- When in a case instituted on a police report or otherwise, the accused appears or
is brought before the Magistrate and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall(a) Commit the case to the Court of Session;
(b) Subject to the provisions of this Code relating to bail, remand the accused to
custody during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any,
which are to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of
Session.
6. Natturasu v. State , 1998 CrLJ 1762 (Mad)
7. Narayansingh v. State of M.P., 1996 CrLJ 551 (MP).

When two co-accused have been enlarged on bail the petitioner being similarly placed
should be allowed the benefit of bail.9 Where one co-accused is acquitted, on that ground alone
the absconding co-accused is not entitled to anticipatory bail.10 Anticipatory bail to an accused
should not be refused merely because other accused has been granted regular bail.11 A second
application for anticipatory bail is not barred even if the earlier bail application was decided on
merits or not permitted or dismissed for default.12

VALIDITY:
Bail granted under this section will be valid and operative for those offences for which it was
granted and such bail bond will continue until it is cancelled.13
Anticipatory bail once granted must be held to be operative till the conclusion of the trial, or
unless it is called off under S. 43914 of CrPC.15 (Anticipatory bail may be cancelled u/s. 439 (2) if
the accused is found to be tampering with prosecution evidence, or new supervening
circumstances arise after the release on bail).16
But 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 had made progress or the charge
sheet is submitted.17 The fixation of an outer limit in an anticipatory bail is permissible, but it
cannot be invoked after the arrest of the accused.18

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13. Ramsewak v. State of M.P., 1979 CrLJ 1485.
14 According to section 439 (2), A High Court or Court of Session may direct that any person who has
been released on bail under this chapter be arrested and commit him to custody.
15 Natturasu v. State, 1998 CrLJ 1762 (Mad).

16 Jairam Tiwari v. State of Bihar, 1987 CrLJ 254 (Pat).

17 Salauddin Abdul Samad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 (668)
18 Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632.

JURISDICTION
As anticipatory bails are granted against arrest and detention, an appropriate court within whose
jurisdiction the arrest takes place or is apprehended will also have jurisdiction to grant bail to the
person concerned. Therefore, the High Court or the Court of Session having jurisdiction over the
place where the arrest is apprehended by the applicant has jurisdiction to entertain application for
anticipatory bail even though the FIR might have been registered at a place within the
jurisdiction of another High Court or Court of Session.19
Where the Court grants an interim order under sub-section (1), 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.
It may be however be noted that though section 438 gives concurrent power to the High Court
and the Court of Session, it is normally to be presumed that the Court of Session would be first
approached for the grant of anticipatory bail unless an adequate case for not approaching the said
court has been made out.20 It has also been held that it is not always necessary that the Sessions
Judge should be approached first.21
Where the petition for anticipatory bail has been rejected by the Session Court, the petitioner
cannot approach the High Court asking for anticipatory bail on the same grounds. However
revision against the order of rejection was held to be maintainable.22
__________________________________________________________________

19. Salauddin Abdul Samad Sheikh v. State of Maharashtra, (1996) 1 SCC

667.

20. Usman v. S.I. of Police, (2003) 2 KLT 594.

21 Balan v. State of Kerala, 2003 (3) KLT 472 (FB).
22. Zubair Ahamed Bhat v. State of J&K, 1990 Cri LJ 103 (J&K HC).

The Bombay High Court has ruled that rejection of an application by the Sessions Court would
not be a bar for the High Court to entertain a similar application based on the same facts.23 But if
he moves the High Court first and his application is rejected he cannot approach the Sessions
Court with a similar application.24 Normally the Supreme Court does not interfere in the matters
concerning grant or refusal of Anticipatory bail, whether by High Courts or Sessions Court.25
Every petition for anticipatory bail should be supported by affidavit.26 There is no statutory bar in
entertaining second anticipatory bail application. It would be maintainable but it has to be placed
before the same Honble Judge.27

FUNCTIONING & APPLICABILITY OF ANTICIPATORY

BAIL
The purpose of this section inter alia appears to be to secure that a person anticipating arrest is
not obliged to go to jail till he is able to move the court for being released onbail.28 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 granting anticipatory bail from the Session 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 necessarily be taken up if he has to apply for bail after arrest. So, 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.

________________________________________________
23. Jagannath v. State of Maharashtra, 1981 Cri LJ 1808 (Bom. HC).
24. Devidas Raghu Naik v. State of Maharashtra, 1989 Cri LJ 252 (Bom HC).
25. Chakrawarti Prasad v. State of Bihar, 2002 (1) East Cr C 1201 (SC).

26. Prafulla Jena v. State of Orissa, 2000 CrLJ 2681 (2684) (MP).
27. Runu Rey v. State of Assam, 2006 (37) AIC 742 (Gau).
28. Natturasu v. State, 1998 CrLJ 1762 (Mad).

In respect of non-bailable offences29, all the conditions imposed by S. 43730 are implicitly
contained in this section as well. In order to successfully invoke the jurisdiction under this
section apart from satisfying the conditions under S.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 andstems from ulterior motive. It is for the
applicant to prima facie substantiate his allegation that the charge of serious non-bailable
offences against him has been leveled malafide.31
The provision for granting anticipatory bail are not applicable to the offences under Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 vide thereof. This has been
held to be constitutional.32 Thus Anticipatory bail can be granted in respect of non-bailable
offences whether they are cognizable or non-cognizable offences.33 Moreover granting of
anticipatory bails in case of non-bailable offences are not confined to those non-bailable offences
which are punishable with death or imprisonment for life.

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29. According to s. 2 (a) of CrPC, Non-bailable offences are the offences, other
than those offence which are shown as bailable in the First Schedule, or which is
made bailable by any other law for the time being in force.
30. Section 437 of CrPC, points out when bail may be taken in case of non-bailable
offences.

31. Mathanthagouda v. State of Karnataka, 1978 CrLJ 1045 (Kant).

32.

State of M.P. v Ramishna Balothia, (1995) 3 SCC 221.

33. Suresh Vsudeva v. State, 1978 CrLJ 677 (Del).

It is clarified that this power has to be exercised sparingly in

those cases where it is absolutely warranted and justified, Justice
Sikri said.

A seven-Judge Bench of the Allahabad High Court in Smt. Amravati and Ors. V. State of U.P.
(2005) Cri.L.J. 755,, while interpreting the provisions of Sections 41, 2(c) and 157(1) CrPC as
well as the scope of Sections 437 and 439, held that even if cognizable offence is disclosed, in
the FIR or complaint the arrest of the accused is not a must, rather the police officer should be
guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ
1981 before deciding whether to make an arrest or not.

Justice Katju, taking note of "hardships" caused to the general public in UP in the absence of
anticipatory bail provision, said, "I make a strong recommendation to the UP Government to
immediately issue an Ordinance to restore the provision for anticipatory bail by repealing
Section 9 of the UP Act No. 16 of 1976 and empowering the Allahabad High Court as well as
Sessions courts in UP to grant anticipatory bail." The said legal provision was contained in
Section 438 CrPC but was deleted in UP by Section 9 of the UP Act No. 16 of 1976.

It would also do so when there is any exceptional or extraordinary

reason for doing so. Shyam Sachdev v. State. Contra view in Shiv
Prasad v. State of Rajasthan.

Test to determine whether there has been an abuse of any court are:1. See whether a bare statement of facts of case would be sufficient to
convince HC if it is a fit case for interference at intermediate stage.
2. Whether in the admitted circumstances it would be a mock trial if
case is allowed to proceed.
Reasons HC can interfere:
1. Long lapse of time
2. Failure or impossibility to supply to accused, copies of police
statements and other relevant documents- grounds for other relevant
documents- grounds for HC to quash proceedings against accused.
To secure ends of justice
The SC in Madhu Limaye v. Maharashtra AIR 1978 SC 47 and also in
Amarnath v. Haryana(1977) and Jadhav v. Shankarrao Pawar(1983) has
held the following principles would govern the exrcise of inherent
jurisdiction of the HC:
1. Power is not to be resorted to if there is specific provision in code for
redress of grievances of aggrieved party
2. It should be exercised sparingly to prevent abuse of process of any
Court or otherwise to secure ends of justice
3. It should not be exercised against the express bar of the law
engrafted in any other provision of the code.

Recent case laws

Kishan Lal v. Dharmendra Bafna [2009 (9) 768]
Here the Parties related to each other being members of the same
family. Dispute was relating to a farm house. Both parties lodged FIR. In
case filed against appellant his mother and sister, he was convicted.
Final reports were prepared twice for the case filed by appellant
against his mother and sister. Deputy Superintendent of police on the
second report sought to obtain legal opinion of public prosecutor who
was asked to complete the investigation and submit an appropriate
report to the court. A petition was filed under Sec 482 of CrPC against
order of further investigation, which was dismissed by the HC. The
issue was whether
i) HC was justified in observing that valid grounds existed for granting
bail to petitioners and
ii) HC was right in issuing directions for grant
iii) of exemptions from personal appearance
The SC held both in negative and remitted the matter to the HC.
State of Punjab v. Pritam Chand & Ors. [2009 (2) 457]
Powers possessed by the HC under 482 CrPC are very wide requires
great caution in its exercise. Court must be careful to see that its
decision in exercise of this power is based on sound principles. Inherent
power should not be exercised to stifle a legitimate prosecution. In the

instant case Complainant was married to Appellant 1. Appellant left for

U.S.A in 1999. A case under Sec 498 I.P.C and S 4 of Dowry Prohibition
Act was filed. Complaint was treated as FIR and investigation was
undertaken. On completion of investigation charge sheet was filed. A
divorce petition was filed by Appellant in 2001, which was granted ex
parte. According to appellants, complainant remarried subsequently.
Appellant filed petition under sec 482 before the HC for quashing of
complaint. HC dismissed the petition, and this was subsequently
challenged in SC. It was held that HC was not justified in dismissing the
petition filed by the appellants.

Section 438 was added to the Code of Criminal Procedure

in the year 1973, in pursuance to the recommendation
made by the 41st Law Commission, but in the State of
Uttar Pradesh by Section 9 Criminal Procedure (Uttar
Pradesh)

Amendment

Act,

1976,

Section

438

was

specifically omitted, the legality of which came up for

consideration before the Constitution Bench of this Court
in Kartar Singh v. State of Punjab (1994) 3 SCC 569 and
the Court held that the deletion of the application of
Section 438 in the State of Uttar Pradesh by Section 9 of
the above mentioned Amendment Act does not offend
either

Article

Constitution

of

14,

Article

India

and

19
the

or

Article

State

21

of

Legislature

the
is

competent to delete that section, which is one of the

matters enumerated in the concurrent list, and such a
deletion is valid under Article 254(2) of the Constitution of
India.

The trinity i.e. liberty, equality and fraternity always

blossoms and enlivens the flower of human dignity. One of
the gifts of democracy to mankind is the right to personal
liberty. Life and personal freedom are the prized jewels
under Art.19 conjointly assured by Art.20(3), 21 and 22 of
the

Constitution

and

Art.19

ensures

freedom

of

movement.
The modem social evolution is the growing need to keep
individual to be as free as possible, consistent with his
correlative obligation to the society. According to Dr.
Ambedkar

in

his

closing

speech

in

the

Constituent

Assembly, the principles of liberty, equality and fraternity

are not to be treated as separate entities but in a trinity.
They form the union or trinity in the sense that to divorce
one from the other is to defeat the very purpose of
democracy. It would be pertinent to mention here that in light of
above mentioned statements and cases, the High Court would not
be incorrect or acting out of jurisdiction if it exercises its power
under Art.226 to issue appropriate writ or direction or order in
exceptional cases at the behest of a person accused of an offence
triable under the Act or offence jointly triable with the offences
under the Act.

DRAFT OF DOCUMENT FOR STAY ON ARREST

(INSPITE OF ANTICIPATORY BAIL) IN UTTAR

PRADESH UNDER SECTION 482 OF CODE OF

CRIMINAL PROCEDURE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 146 OF 2014
[Arising out of SLP (Crl.) No.7439 of
2013)

Km. Hema Mishra

.. Appellant

Versus

State of U.P. and Others

..

Respondents
INDEX
S.R.

PARTICULARS

NO.

PAGE
NO.

NOTICE OF MOTION

URGENT APPLICATION

MEMO OF PARTIES

CRIMINAL MAIN PETITION FOR QUASHING D

OF FIR NO.---- DATED-------U/S 419,420 0F

IPC----- U/S 482 OF CRPC

ALONGWITH

AFFIDAVIT
5

COPY OF FIR NO----- DATED-----

COPY OF DEMAND DRAFT

VAKALATNAMA

APPELLANT
___________________
THROUGH
ADVOCATE
__________________
PLACE_________
DATE__________

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 146 OF 2014
[Arising out of SLP (Crl.) No.7439 of
2013)

Km. Hema Mishra

.. Appellant

Versus

State of U.P. and Others

Respondents

NOTICE OF MOTION

Sir,

..

The enclosed petition in the aforesaid matter is being

filed on behalf of the petitioner and is likely to be listed
on___________ or any day, thereafter. Please take notice
accordingly. Issue any appropriate order for quashing and
setting aside the FIR NO.______ DATED______.
APPELLANT
THROUGH
ADVOCATE