Anticipatory Bail

What is Anticipatory Bail?

Anticipatory bail refers, as the name suggests, is the conditional/provisional release of a person held under legal custody. It is important to note here, that anticipatory bail is merely a statutory right. Thus, it cannot be considered as something that is permissible to be claimed as a matter of right. Further, under anticipatory bail, one can only seek protection by way of release in respect of the specific reason in connection with which anticipatory bail was sought in the first place.

The expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest.  It is submitted that when a competent court grants “anticipatory bail”, it makes an order that in the event of arrest, a person shall be released on bail. It is submitted that 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.

Anticipatory bail, as it stands today, was not present in the Code of Criminal Procedure, 1898, and courts had no authority to grant pre-arrest bail. The provision was formally introduced with Section 438 in the Code of Criminal Procedure, 1973, based on the recommendations of the 41st Law Commission Report (1969). The Commission emphasized the need to prevent abuse of arrest powers by influential persons seeking to harass rivals through false criminal charges. It recommended allowing High Courts and Sessions Courts to grant anticipatory bail, with discretion and conditions tailored to each case. This led to the inclusion of Clause 447 in the 1970 CrPC Draft Bill, eventually becoming Section 438 in the final Act of 1973.

Official Definition of Anticipatory Bail

Anticipatory Bail as defined in Legislations

BNSS vis-à-vis Cr.P.C.

1. S. 438, Cr.P.C. [Repealed]

Section 438(1) allows a person who has reason to believe that he may be arrested for committing a non-bailable offence, to apply before the High Court or the Sessions Court seeking a direction that in event of such arrest he be released on bail.

Section 438(2) provides for the application of certain conditions in the context of anticipatory bail, wherein, on the granting of anticipatory bail as mentioned in the previous paragraph, the Court in question may make such conditions as is deemed fit. Such conditions may include for example:

1. That the person in question must make himself available for interrogation by a police officer when it may be required.
2. That the person in question must not leave India, unless with the permission of the Court as previously obtained.
3. That the person in question must not, either indirectly or directly, make any threat, inducement, or promise to a person acquainted with the case’s facts in a manner as to dissuade such person from disclosing the facts to the Court or to any police officer.

Any appropriate Court, within the jurisdiction of whom the arrest has taken place, or the arrest is being apprehended, will be considered as having the appropriate jurisdiction in respect of granting anticipatory bail. The appropriate court would thus be the Court of Session or High Court which has jurisdiction over the place of apprehension of arrest by the applicant. It does not matter if the FIR has been registered at a place that falls within the jurisdiction of some other High Court.

Amendment to the Provision [Sub-section 1]vide The Code of Criminal Procedure (Amendment) Act, 2005:

1. This sub-section was amended in 2005 to include the factors to be considered by the courts before granting anticipatory bail, a non-exhaustive list of which was enumerated in 1(1) to (iv), laid as follows:
   • The nature and gravity of the accusation;
   • The antecedents of the applicant, which include whether he had previously undergone imprisonment on conviction by any Court of law in respect of any cognizable offence;
   • Possibility of the applicant to flee
   • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
2. The amended sub-section also provided that that an application can either be rejected, or an interim order granting anticipatory bail may be made.
3. Further, a proviso was inserted stating that where the High Court or the Court of Session has not passed any interim order or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. [However, the Hon'ble Supreme Court in M.C. Abraham and another v. State of Maharashtra held that when the anticipatory bail application of a person has been rejected, that does not mean that he may necessarily be arrested by the investigating officer; it depends on the facts and not on whether the grant of bail has been done or not.]
4. Sub-section 1(A) was inserted which provides that, if the court has prima facie found any merits in the application, and is not rejecting the relief for anticipatory bail then the application under this section cannot be disposed of until the Public Prosecutor is heard. Thus, a 7 days' notice shall be issued to the Public Prosecutor and the Superintendent of Police (SP) to give reasonable time to the prosecutor to defend the said application before it is finally heard.
5. Sub-Section 1(B) was inserted which provides that 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. Section 482, BNSS

These amendments concerning anticipatory bail, drew significant criticism from legal practitioners and scholars, with the key concerns being that these changes undermined judicial independence and compromised the rights of the accused. Specifically, the proviso to Section 438 allowed a police officer to arrest the applicant without a warrant while the anticipatory bail application was still pending. Additionally, sub-section (1B) enabled the arrest of the accused in court if the application was rejected. It was argued that these provisions defeated the very purpose of anticipatory bail.

Responding to this backlash, the Law Commission, in its 203^rd Report, examined the amended provisions and recommended that both the proviso and sub-section (1B) be removed. The Bharatiya Nagarik Suraksha Sanhita (BNSS) implemented this recommendation by omitting these controversial provisions.

Hence, the provisions for anticipatory bail, as they stand under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) differ from those laid down under Section 438 of the CrPC in the following ways:

1. Section 482(1) of the BNSS brought the original version of Section 438(1) of the CrPC, as it stood before the amendment of 2005 i.e. it removes the specific grounds that courts must consider when deciding on anticipatory bail, restoring the discretion upon the High Courts/ Sessions Court to grant the same as they think fit. [However, as these grounds were largely illustrative than exhaustive, their removal is unlikely to significantly alter judicial reasoning, given the robust existing jurisprudence on the matter, mentioned later (via the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others]
2. The proviso to Section 438(1) of the CrPC is excluded from Section 482 of the BNSS, which means the power of the police officer in-charge to arrest the applicant in cases where interim relief is not granted by the High Court or the Sessions Court, is not available under the new law. [Moreover, the BNSS eliminates the language in Section 438(1) CrPC that suggested anticipatory bail orders were merely interim.]
3. Sections 438 (1-A) and 438 (1-B) of the CrPC are also excluded from Section 482 of the BNSS. Under Section 438(1A), such interim orders were to be forwarded to the public prosecutor for objections before final consideration. [In practice, however, courts already tended to grant ad interim bail before deciding the application conclusively, a practice that predated the 2005 amendment. As such, this change is unlikely to materially affect how anticipatory bail applications are adjudicated.]
4. Section 438(4) of the CrPC and Section 482(4) of BNSS are similar, except that the offence of rape on a woman under the age of 16 has been increased to woman under the age of 18.

Anticipatory Bail as defined in Case Laws

Foundational Principles and Scope of Anticipatory Bail  

Gurbaksh Singh Sibbia v. State of Punjab [1980]

The judgement of Gurbaksh Singh Sibbia v. State of Punjab [1980] can be better understood through its standings in the following heads:

• Reasonable Apprehension of Petitioner: It was held that “The applicant must show that he has 'reason to believe' that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that 'some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.”
• Limitations on Judicial Discretion: The scope of judicial discretion in the matter of anticipatory bail and its importance was dealt in a comprehensive manner in this case. It was said that the courts can only frame broad guidelines on anticipatory bail and cannot compel blind adherence and that it has to apply it according to the circumstance of the case. The court cannot rewrite the provision of the statute in the garb of interpreting it. Also, it was held that if an application for anticipatory bail is made to the High Court or the Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the CrPC.
• Scope and Ambit of Anticipatory Bail: Following principles were laid down with regards to anticipatory bail:
  1. Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
  2. Filing of FIR is not a condition precedent to exercise of power under section 438.
  3. Order under section 438 would not affect the right of police to conduct investigation.
  4. Conditions mentioned in section 437 cannot be read into section 438.
  5. Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.
  6. Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

• Stage upto which Relief can be sought: In this regard, the Court held that “anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.” The verdict also clarified that the provisions of Section 438 could not be invoked after the arrest of the accused. It added, “The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”
• Difference between ordinary bail and anticipatory bail: It said “The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas 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. Police custody is an inevitable concomitant of arrest for non-bailable offences.  An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest  order of bail, it is a pre-arrest  legal process which  directs that if the person in whose favor it is is thereafter arrested on the accusation in respect of which the direction is  issued, he shall be released on bail.”

Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors [2010]

In the present case of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors [2010], the Court reaffirmed that any decisions delivered after Gurbaksh Singh Sibbia that deviate from the principles established therein are to be regarded as per incuriam, as they contradict the clear legislative intent upheld by the Constitution Bench. The Court further clarified that where there is an irreconcilable conflict between the two decisions, the ruling of the Constitution Bench must prevail over judgments rendered by benches of lesser strength. While doing so, it reiterated the principles laid down in the aforementioned case, signifying its importance while referring to the provision of anticipatory bail.

Further, the Court laid down ten factors and parameters that could be taken into consideration while dealing with the anticipatory bail :

1. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
3. The possibility of the applicant to flee from justice;
4. The possibility of the accused's likelihood to repeat similar or the other offences;
5. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
6. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
7. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
8. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
9. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
10. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

Rukmani Mahato v. State of Jharkhand [2017]

The Hon’ble Supreme Court in Rukmani Mahato v. State of Jharkhand [2017] held that no regular bail shall be granted when Interim Anticipatory Bail is granted by higher courts and matter is pending. The Court held that: “Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior Court meaningless”.

Duration and Conditions of Anticipatory Bail

Sushila Aggarwal v. State (NCT of Delhi) [2020]

The Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi) [2020] has authoritatively held that when a Court grants anticipatory bail under Section 438, Cr.P.C., the same is ordinarily not limited to a fixed period and would subsist till the end of the trial. However, it was clarified by the Court that if the facts and circumstances so warranted, the Court could impose special conditions, including limiting the relief to a certain period. This view expressed by the court reinstates the decision in the case of SS Mhetre vs State Of Maharashtra And Ors which held that the interim protection of anticipatory bail could be curtailed in case of its cancellation by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.

Limitations on Judicial Discretion: Blanket Orders of Bail

Savitri Agarwal & Ors vs. State of Maharashtra & Anr [2009]

In the case of Savitri Agarwal & Ors vs. State of Maharashtra & Anr [2009], the Apex Court cautioned the High Courts against passing any blanket order of protection while granting bail. The Apex Court made it clear that when a High Court passes orders granting anticipatory bail, it should mention the specific offences for which the bail is granted. It was also laid down in the judgement that the High Courts should also impose conditions that can ensure uninterrupted police investigations.

Neeharika Infrastructure Pvt. Ltd. vs. the State of Maharashtra [2021]

Neeharika Infrastructure Pvt. Ltd. vs. the State of Maharashtra [2021] is one of the important judgements when it comes to blanket bail. In this case, the Hon’ble Supreme Court had directed the High Courts to abstain from passing orders, refraining the investigative agencies from arresting or “no coercive steps to be taken” pending the investigation as it would prevent the investigating agencies from carrying on their duties laid down by the law. The Hon’ble Supreme Court stated that the High Courts can’t pass such orders, which act as a blanket order protecting an accused in cognizable offences and thus, defeating the investigation powers of the investigative agencies. This is also because granting such interim protection from arrest would then amount to an order of anticipatory bail, which would surpass the conditions prescribed under CrPC’s Section 438.

Circumstances Barring Grant of Anticipatory Bail

M.P vs. Pradeep Sharma [2013]

Hon’ble Apex Court in M.P vs. Pradeep Sharma [2013] held that “when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail”. In Gurbaksh Singh Sibbia v. State of Punjab, the Hon’ble Supreme Court held that “The distinction between an ordinary order of bail and an order of anticipatory bail is that where 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”.

Ramesh vs State [2022]

In this case of Ramesh vs State [2022] , The Karnataka High Court drew a hard boundary between the anticipatory bail stage and the post-appearance or post-summons stage. The case reinforces the principle that Anticipatory bail is a pre-arrest remedy (meant for someone who has not yet been arrested and fears arrest) and it cannot be invoked once a person has submitted to the jurisdiction of the court. Once a person appears (directly or through counsel) and the court takes cognizance, the pre-arrest stage ends. In such a case, the remedies available to the petitioner are to recall the Non-Bailable Warrant (NBW) and apply for regular bail under Section 439, CrPC.

State of M.P. vs Ram Krishna Balothia [1995]

The case of State of M.P. vs Ram Krishna Balothia [1995] involved a challenge on the constitutionality of Section 18, SC/ST (Prevention of Atrocities) Act, 1989 (which excluded the application of Section 438 CrPC (anticipatory bail) for offences under the Act), held by the Madhya Pradesh High Court to be violative of Articles 14 and 21 of the Constitution of India. With regards both challenges, following was held by the Supreme Court:

1. Article 14 Challenge:
   • Atrocities under Section 3(1) of the Act arise from the historical and systemic practice of untouchability, and the law aims to prevent such targeted crimes. Granting anticipatory bail in these cases could enable the accused to intimidate victims and obstruct investigations, especially given the power imbalance in society.
   • The Court emphasized that legislative intent, as seen in the Statement of Objects and Reasons, supports the need for strict provisions like Section 18 to protect vulnerable communities. These offences constituted a separate class and cannot be compared with offences under the Penal Code. Also, the Court drew a parallel with Section 20(7) of TADA, 1987, which similarly bars anticipatory bail and has been upheld as constitutional. Hence, it was held that "in these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14."
2. Article 21 Challenge:
   • Section 438 CrPC is a statutory provision, not part of fundamental rights, and can be reasonably excluded by special laws like the SC/ST Act. Anticipatory bail cannot be granted as a matter of right.
   • The mere availability of anticipatory bail for other grave IPC offences does not make its exclusion under a special Act arbitrary or unconstitutional. It cannot be considered as an essential ingredient of Article 21.

Lastly, The Supreme Court cited its prior ruling in Kartar Singh v. State of Punjab, where a similar exclusion of anticipatory bail was upheld. It also approved the Full Bench ruling of the Rajasthan High Court in Jai Singh v. Union of India which upheld Section 18.

Directorate of Enforcement vs Ashok Kumar Jain [1998]

In Directorate of Enforcement vs Ashok Kumar Jain [1998], The Enforcement Directorate (ED) conducted multiple raids on petitioner's properties and seized documents indicating serious violations of FERA involving millions of US dollars. Petition was filed before the Sessions Court for Anticipatory Bail, citing deteriorating health. However, it denied citing the gravity of the offence, national interest and potential obstruction of investigation for what they deemed "offence against the whole nation." Observing an overturn from the Delhi High Court, the issue stood before the Supreme Court which restored the order of Sessions Court. It denied the contention of respondent of being immune from arrest on even interrogation simply on account of his physical conditions. The authorities were directed to ensure adequate medical care upon arrest.

Statutory Compliance and Procedural Safeguards

Arnesh Kumar v. State of Bihar [2014]

In the case of Arnesh Kumar v. State of Bihar [2014], the Supreme Court held that while deciding an anticipatory bail application for offences u/s 498A, Cr.P.C, i.e. cruelty on women by her husband or any relative, it necessary that there should be a mandatory notice to the accused to appear before the police officer u/s 41A if he is booked for offence with punishment up to 7 years.

Offences Where Anticipatory Bail Cannot Be Granted

A significant feature of Bharatiya Nagarik Suraksha Sanhita (BNSS) lies in its treatment of offences excluded from the anticipatory bail framework under Section 438(4) of the CrPC [inserted by Criminal Law (Amendment) Act, 2018]. Under the CrPC, this sub-section disallows anticipatory bail for persons accused under Sections 376(3), 376AB, 376DA, and 376DB of the IPC — offences involving the rape of minor women. However, the corresponding BNSS provision, S.482(4), extends this exclusion to individuals accused of aggravated forms of rape under Sections 65, and 70(2) of the BNS, regardless of the victim’s age.

Furthermore, the offences precluding the grant of anticipatory bail can be classified under three verticals:

1. Offences Punishable with Death or Life Imprisonment:
   • Murder - Section 103, BNS
   • Rape - Section 63, BNS [Especially aggravated forms under Section 70(2) and 65(2)]
   • Terrorism Related Offences [Under UAPA]
   • Offences under NDPS Act involving commercial quantity
2. Offences under Special Acts:
   • SC/ST (Prevention of Atrocities) Act, 1989: Section 18 of the Act expressly bars anticipatory bail if an offence is committed under this Act.
   • Protection of Children from Sexual Offences (POCSO) Act, 2012: Courts remain reluctant to grant anticipatory bail in child sexual abuse cases.
   • Unlawful Activities (Prevention) Act, 1967 (UAPA): Anticipatory bail is rarely granted due to national security implications.
   • Official Secrets Act, 1923
   • Money Laundering cases under Prevention of Money Laundering Act, 2002
   • Dowry Death (Section 80, BNS): Bail is restricted and often denied.
   • Arms Act, 1959: In cases involving large or illegal arms.
   • NDPS Act, 1985: In cases where commercial quantity of drugs is involved (Section 37 of the Act restricts bail).
3. Certain Offences finding Application of Judicial Discretion:| Although anticipatory bail is not automatically barred, courts may refuse bail in the following-
   • Cases involving serious economic offences or fraud
   • Grave sexual offences or offences against women
   • Cases involving organized crime or habitual offenders

Regional Variations

Via amendment to the Code of Criminal Procedure, various States have their own particularities corresponding to the concept of anticipatory bail.

Uttar Pradesh

Anticipatory Bail was revived by the UP State's 2018 Amendment Act (with effect from June 6, 2019). The provision was removed by way of the CrPC (Uttar Pradesh Amendment) Act 1976, during the Emergency period. The bench of Justice Subhash Vidyarthi added that the 2018 Amendment Act merely restores the benefit of anticipatory bail to persons apprehending arrest, which was available to the persons in the State of UP till 1976 and hence, this being a beneficial legislation, cannot be restricted in its operation to offences committed after enactment of Act in 2019.

A recent (2022) amendment denied the granting of anticipatory bail in respect of those individuals who have been booked under the Protection of Children from Sexual Offences Act (the POCSO) Act, with the intention behind this being to increase the deterrent effect in respect of these offences.

Maharashtra

In a key judgment, the Bombay High Court laid down certain guidelines pertaining to anticipatory bail in consonance with the provisions of the CrPC as applicable to Maharashtra (i.e. as amended by Maharashtra). The guidelines included the following points, aiming at clarifying some discrepancies concerning the rules as specifically applicable to Maharashtra:

1. That the prosecutor must state cogen reasons when filing the application under Section 438(4) while seeking the accused’s obligatory presence before the Sessions Court upon the time of the final hearing of the Anticipatory Bail Application
2. That the Sessions Court must pass a reasoned order in regard to the presence of the accused being necessary, with regard to the interest of justice, after due consideration of the application by the prosecutor
3. If the application is rejected by the Sessions Court, the interim protection that may be operating in favor of the accused must mandatorily be extended for a period of a minimum of three working days, on the conditions as laid out on which the interim protection itself was granted during the pendency period, or on such other conditions as may be deemed fit by the Sessions Court, with due regard to the interests of justice.
4. If it is considered appropriate by the Sessions Court for extension of protection to be granted for more than three working days, reasons for the same may be recorded, but it should not be more than seven days
5. The conditions imposed by the Sessions Court should be followed by the accused, failing which the interim protection so decided on would instantly cease to operate

Official Database

The analysis of bail case data is incredibly valuable when it comes to understanding the criminal justice system.

DAKSH’s High Court Data Portal has among its various features a Bail Dashboard for the High Courts, which has within it various data points relevant to the assessment of bail-related data.

The following graphical representation indicates the types of bail cases that are heard in the various High Courts, with anticipatory bail clearly visible represented in terms of its proportion.

Anticipatory bail figures as compared against regular bail and cancellation of bail

In several High Courts, bail as a separate case type is not present and bail cases may be included under a general case type, such as ‘criminal appeal’.

The following High Courts have ‘anticipatory bail’ specifically mentioned as a case type.

High Courts with anticipatory bail mentioned as a case type