Anticipatory bail was first mentioned in the 41st law commission report, 1969 where the committee was of the opinion that there need to have a provision for protection of accused or any person who is apprehending arrest for an offence which is non-bailable in nature. Therefore, the parliament while enacting criminal procedure code, 1973 took into consideration the recommendation of committee and added a provision under section 438 with a heading ‘direction for grant of bail to person apprehending arrest. ’It is important to refer to sub clause (2) of section 438 which lays down certain conditions that session court or high court may impose while granting anticipatory bail.

Section 438(2) reads as follows-

“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 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.


In the year 1980, Supreme Court cleared the true legal picture of section 438 of Crpc, 1973 in the case of Gurbaksh Singh Sibbia etc. vs. state of Punjab (1980) 2 SCC 565. In this landmark judgment court held that section 438(1) of the act lays down a condition that need to be followed before anticipatory bail can be granted. The applicant must show that he has a ‘reason to believe’ that he may be arrested for a non-bailable offence. The expression ‘reason to believe’ here denotes that the reason or belief must be founded on reasonable ground. Mere fear is not belief and therefore section 438(1) cannot be invoked on the basis of vague and general allegations, the ground must be capable of being examined by court objectively.

Additionally, the court held that since legislature never intended to put unnecessary restriction while granting benefit under section 438 the court should also not lean towards imposing unnecessary restriction. In light of above discussion, the court held that time period for which anticipatory bail s granted should also not be limited since it was never envisaged.

The apex court in the case of Badresh Bipinbai Seth vs. State of Gujarat (2016) 1 SCC 152 gives a liberal interpretation to the aforesaid provision in light of article 21 of the constitution. The apex court held that the section 438 in 1973 act has been conceptualized keeping in view article 21 of the constitution which relates to personal liberty. The court further draws a distinction between ordinary bail and anticipatory bail and explains that while ordinary bail is a tool that can be used after arrest, to release from the custody of police whereas anticipatory bail is granted in apprehension of arrest and is basically effected before or at the moment of arrest. “A direction under Section 438 is therefore intended to confer conditional immunity from the ‘touch’ or confinement contemplated by Section 46 of the Code.”

In P.V. Narasimha Rao & Ors vs. State (Central Bureau of Investigation) & Ors 1996 (39) DRJ 564 the petitioners filed the case for grant of anticipatory bail pursuant to non-bailable warrant issued by court. The court ruled out two paramount considerations that need to be considered at the time of granting bail, which are, likelihood of the accused fleeing from justice and his tampering with prosecution evidence which relate to ensuring a fair trial of the case in the course of justice. Although there is no straight jacket formula and the exercise of this discretionary power will depend largely upon the facts and circumstances of each case in granting or cancelling bail application. There are other over-riding factors that courts need to look upon while granting bail such as nature and gravity of circumstances in which offence is committed; position and status in reference to victims and witnesses; accused chances of repeating the offence and history of case as well as its investigation but the two paramount considerations mentioned above cannot be overlooked.

Later, in 1996 in the case of Salauddin Abdulsamad Shaikh vs. State of Maharashtra (1996) 1 SCC 667, the apex court on the question of ‘tenure of anticipatory bail’ opined that the tenure should be limited for a fixed period. The rationale behind this judgment was that the nature of anticipatory bail is to give accused protection against apprehended arrest and is effected at the time the investigation is incomplete and therefore it is necessary that it shall expire after a duration allowing the court to further deal with the matter on the merit of evidence placed before it after the investigation has proceeded and the charge sheet is submitted.

Finally, in a very recent judgment delivered by Supreme Court in the case of Sushila Agarwal vs. State of Delhi 2020 SCC Online SC 98, the court answered two very important questions posed before it. Firstly, whether the protection granted to an individual under section 438 is limited for a fixed period enabling the person to surrender before trial court and then seek regular bail? Secondly, whether the life of anticipatory should come to an end at the time when the accused is summoned to court?

The apex court was of the opinion that the protection granted under the said provision should not be fixed for a limited period and should be allowed to continue even until the end of trial. However the Supreme Court while answering the second question held that while exercising the discretionary power under section 438 the court, if there appears any special or peculiar features which may necessitates the court to limit the tenure of anticipatory bail, the court is empowered to so.


Section 438 is a procedural provision founded on the principal of personal liberty and therefore it is the duty of court to refrain itself from imposing unnecessary conditions especially when the legislature itself has not imposed any such condition while enacting the provision. The provision stipulates two basic pre-requirements that need to be fulfilled in order to get the relief under the section. The first one relates to the nature of offence for which the bail is sought and that the offence should be non-bailable and secondly that the accused must have a ‘reason to believe’ (not based on vague apprehension) that he/she would be arrested for such non-bailable offence.

– Purti Sharma
Associate advocate/Legal coordinator
ASC Solicitors and Advocates