What is Anticipatory Bail?

Anticipatory bail is a pre-arrest bail granted to a person who is in anticipation an apprehension of arrest. As a form of preventive relief, it serves the purpose to make sure that no one is arrested and kept away from his/her fundamental rights but for being held guilty. Provided under section 438 of the Code of Criminal Procedure, a person can move the Court of Sessions or the High Court if he/she has sufficient reason to apprehend that he/she may be arrested in lieu of a non-bailable offence.

What are the factors responsible?

Further, as it is a settled principle of law that nothing can be done arbitrarily and hence, there are certain factors that have to be kept in mind while granting bail under section 438 of CrPC-

a.       Nature and seriousness of accusations,

b.      Previous conviction,

c.       The possibility of the applicant to flee from justice,

d.      If accusations have been made to injure/humiliate the applicant

The section by way of sub-section two also provides for illustrative conditions that may be put upon the applicant while granting anticipatory bail. Imposition of such conditions make sure that a balance is struck between the two contrasting objectives i.e. maintain individual right to public policy of the state to grant investigational power to the police.

Supreme Court on Anticipatory Bail

In the case of Sushila Agarwal v. State of Delhi, the Constitutional Bench of the apex court held that there can be no time limit set for the Anticipatory Bail by the court granting the same. The five-judge bench was pleased to unanimously hold that " the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time."

The Hon'ble Supreme Court in the case of Badresh Bipinbai Seth v. State of Gujarat held that "The provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail 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."

Hence, we can see that anticipatory bail is a mechanism to balance the need of police investigation vis-à-vis individual right and freedom. Courts should nonetheless be aware and vigilant while granting anticipatory bail because the outcomes are impactful on the general safety of the society.


·         Code of Criminal Procedure.

·         The Constitution of India.

·         Sushila Agarwal v. State of Delhi 2020 SCC OnLine SC 98.

·      Badresh Bipinbai Seth v. State of Gujarat (2016) 1 SCC 152.

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