ANTICIPATORY BAIL

INTRODUCTION

 Section 438 of the Code of Criminal Procedure, 1973 deals with ‘Direction for grant
of bail to person apprehending arrest’.
 The expression ‘anticipatory bail’ is not explicitly defined under the Code, it is a
convenient mode of conveying that it is possible to seek bail even during
apprehension of Arrest.
 Section 438 of the Code clearly stipulates in the beginning statement itself that when a
person has a reasonable apprehension to believe that they can be arrested on an
accusation for commitment of a non-bailable offence they can move to the High Court
or the Court of Sessions for grant of an “anticipatory bail”.

OBJECTIVE

 According to the 41st Law Commission Report, 1969, it was necessary to introduce
the concept of anticipatory bail in order to protect people from false implications that
in turn taints the person’s reputation.
 In the 1980 Gurbaksh Singh Sibbia vs State of Punjab 1 case, a five-judge Supreme
Court bench led by then Chief Justice Y V Chandrachud ruled that 438 (1) is to be
interpreted in the light of Article 21 of the Constitution (protection of life and
personal liberty).
 The legislature in its wisdom incorporated this provision for grant of bail to a person
apprehending arrest is to prevent disgrace of being jailed or remaining in custody
before he can be released on bail.
 The mechanism of anticipatory bail was introduced to prevent undue harassment and
disgrace from arrest and detention.
SITUATIONS FOR GRANTING ANTICIPATORY BAIL

The courts may take following situations into account in granting anticipatory bail: -
1
1980 (2) SCC 565 12.
  Nature and gravity of the accusation.
 Antecedents of the applicant including past convictions in cognizable offences.
 Possibility of applicant to flee from justice.
 Accusation made with the object of injuring or humiliating the applicant.
Conditions

The Supreme Court in Sushila Aggarwal v. State (NCT of Delhi)2 held that S. 438 of the
Code does not compel or oblige the courts to impose conditions limiting the relief in terms of
time, or upon filing of FIR, or recording of statement of any witness, by the police, during
investigation or inquiry, etc. The court would be justified in imposing conditions laid under
S. 437(3) by virtue of S. 438(2). The following conditions may be imposed-

 The person shall make himself available for interrogation by the police officer.
 The person shall not, directly or indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case.
 The person shall not leave India without prior permission of the Court.
PROCEDURE FOR ANTICIPATORY BAIL

 Under 438 (1) of CrPC, a person can approach the High Court or the Sessions Court
to apply for an Anticipatory Bail for a non-bailable offence.
 Anticipatory bail can be granted in situation where FIR is registered and even in
situations where no FIR is registered.  It was held in both, Gurbaksh Singh Sibbia v.
State of Punjab as well as Sushila Aggarwal v. State that an FIR is not a condition
precedent to file an anticipatory bail. 
 Since granting an anticipatory bail is a power that is ‘extraordinary’ in nature, the
Court may only grant the bail if there is sufficient proof of the apprehension of arrest
and a reason to believe that the applicant is not guilty of the crime, although the Court
cannot go into the merits of the case. 
 The Gurbaksh Singh Sibbia v. The State of Punjab mandated the provision of a notice
to the Public Prosecutor or Government Advocate. With a reasonable justification for
the ex-parte interim order and the approval of the Public Prosecutor, the final order
may be passed.
When can Supreme court interfere
2
(2018) 7 SCC 731.
In case of refusal of Anticipatory bail by Session Court then petition before High Court lies
and in case both courts reject the petition for anticipatory bail, then against the rejection order
by Hon’ble High Court, the remedy lies by filing Special leave petition under Article 136 of
Constitution of India before Apex Court.

CONDITIONS WHICH MUST EXIST FOR GRANT OF ANTICIPATORY BAIL

In Gurbaksh Singh v. State3 , the court held that following two conditions must exist before
the power of the court under section 438 can be invoked: -

(i) There must be an accusation of the petitioner having committed a non-bailable offence.

Obviously, this accusation must be an existing one or in any case stemming from the facts
already in existence.

(ii) There must be reasonable apprehension or belief in the mind of the petitioner that he

would be arrested on the basis of such an accusation. The simultaneous existence of both
these conditions is a sine qua non for invoking court’s jurisdiction.

In Onkar Nath Agrawal v. State4, it was held that the power under section 438 is not to be
exercised in vacuum but only on the satisfaction of the conditions spelled out in the section
itself. The court further held in following terms:

“It is obvious that the provision comprises of two parts. The first part
envisages of the conditions under which a person is entitled to make an
application for anticipatory bail in the Court of Session or in the High Court. There are only
two conditions which must exist before he can move such an application. In the first place
there must exist a ground to believe that he may be arrested and secondly there must be an
accusation of his having committed a non-bailable offence.”

While dwelling on the meaning of ‘reasonable apprehension’, Barooah, J., of the Calcutta

High Court in Shyam Sunder Beriwala v. State5 made the following observations:

“A person applying for anticipatory bail must have a reasonable apprehension of his being

arrested on an accusation of having committed a non-bailable offence although no cases may
actually have been started against him. For instance, if an order for investigation is passed by

3
1978 Cr. L.J. 20 (P. & H.) (F.B.).
4
1976 Cr. L.J. 1142 (All.).
5
82 C.W.N. 428 (1977-78).
a Magistrate under Sec. 156(3) of the Code, the person concerned must necessarily have a
reasonable apprehension that he may be arrested though no formal F.I.R. has been filed. In
the instant case, even if the police had threatened the petitioners…. that they may start fresh
case against the petitioners, it cannot be said that their apprehension or anticipation of their
being arrested is reasonable.”

ANTICIPATORY BAIL WHEN FIR IS NOT REGISTERED

Anticipatory bail is granted under Section 438 of the Criminal Procedure Code (Cr.P.C.). It is
not a condition precedent for invoking the provisions of this section that FIR should have
been registered first. What Section 438 Cr.P.C. requires is that the applicant is apprehending
his arrest on accusation of having committed a non-bailable offence. It is not necessary that at
the time of applying for anticipatory bail, the police must have already registered the FIR.
Anticipatory bail can be applied even before registration of FIR, provided there is a real
apprehension of arrest on accusation of having committed a non-bailable offence.

I. In the case of Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p.
16486 : a Constitution bench of the Supreme Court has held that the filing of a First
Information Report is not a condition precedent to the exercise of the power to grant
anticipatory bail under S. 438 Cr.P.C. and that the imminence of a likely arrest founded on
a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

The Bench of the Hon’ble Supreme Court dealt with Section 438 of the Cr.P.C and has
enunciated the principle of law of anticipatory bail in paragraphs 40 to 44, which may be
set out hereunder:-

“40. Section 438(1) of the Code lays down a condition which has to be satisfied before
anticipatory bail can be granted. 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
someone 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
6
1980 Cri LJ 1125 : (1980) 2 SCC 565
 has reason to believe that he may be so arrested. Section 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. Otherwise, the number of applications for anticipatory bail H
will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure
the individual’s liberty; it is neither a passport to the commission of crimes nor a shield
against any and all kinds of accusations, likely or unlikely.

41. Secondly, if an application for anticipatory bail made to the High 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 granting such relief. It cannot leave the question for the decision of the
Magistrate concerned Under Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.

42. Thirdly, the filling of a First Information Report is not a condition precedent to the
exercise of the power Under Section 438. The imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

43. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the
applicant has not been arrested.

44. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused.
The grant of “anticipatory bail” to an accused who is

under arrest involves a contradiction in terms, in so far as the offence or offences for
which he ‘is arrested, are concerned. After arrest, the accused must seek his remedy
Under Section 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.”

II. In the case of In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2199 (Cal)7 : it was
held that the provision for the anticipatory bail in Section 438 of the Code applies
even when there is no “First Information Report” and no case for commission of a
non-bailable offence has been registered against a person. If a person has reason to
believe that he may be arrested on an accusation of having committed a non-
bailable offence, although no “First Information Report” was filed against him, he
may appear before the Court and apply for an order for his release on bail in the
event of his arrest. The filing of a “First Information Report” is not a condition

7
1982 (2) Cal HN 317
 precedent to the application for anticipatory bail and in such a case, the person
having reason to believe that he may be arrested on an accusation of non-bailable
offence may appear before the High Court or the Court of Session, not for the
purpose of being taken into custody of the Court but for getting an order for his
release in case he is arrested. No doubt, even after a “First Information Report” is
lodged against such a person, he will be at liberty to appear before the High Court
or Court of Session and apply for anticipatory bail without surrendering himself to
the jurisdiction and orders of the Court in the matter of his custody as an accused;
but although such a course is left open to the person, he may as well appear before
the Magistrate having jurisdiction and submit himself to the orders of the Court
regarding grant of bail to him or taking him into custody.

III. In Siddharam Satlingappa Mhetre8 (supra), it has been observed by the Apex Court
in paragraphs 112 and 113 as follows:

“112. The validity of the restrictions imposed by the Apex Court, namely, that the accused
released on anticipatory bail must submit himself to custody and only thereafter can apply
for regular bail. This is contrary to the basic intention and spirit of Section 438 Code of
Criminal Procedure. It is also contrary to Article 21 of the Constitution. The test of
fairness and reasonableness is implicit under Article 21 of the Constitution of India.
Directing the accused to surrender to custody after the limited period amounts to
deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution Bench of this Court in
Sibbia’s case (supra) that the courts should not impose restrictions on the ambit and scope
of Section 438 Code of Criminal Procedure which are not envisaged by the Legislature.
The Court cannot rewrite the provision of the statute in the garb of interpreting it.”

IV. In the matter of Siraj Roy V State9, the court held that the application for anticipatory
bail is tenable even if FIR is not registered. The aforesaid decision is an authority for the
proposition that even filing of an FIR is not a condition precedent to the exercise of power
under Section 438 of the Cr.P.C. The imminence of likely arrest founded on a reasonable
belief can be shown to exist, even if an F.I.R. is not yet filed.
8
(2011) 1 SCC (Cri) 514
9
(
 Facts: Apprehending arrest in connection with Amherst Street Police Station FIR No. 343
of 2016 dated 25.10.2016 under sections 506/509/114 of the Indian Penal Code (hereafter
the IPC), with added Section 376 of the IPC, the petitioner has approached this Court for a
pre-arrest direction of bail under Section 438 of the Code of Criminal Procedure (hereafter
the Cr. P.C.).

V. In the case of K. Rajasekhara Reddy v. State of A.P. 10 at p. 1935 (AP), it has been
held that the filing of an F.I.R. and registration of a crime by the police is not a condition
precedent to the exercise of the power under S. 438 of Cr.P.C. Jurisdiction of the High
Court can be invoked by any person even in the absence of registration of a crime and
there is no requirement of furnishing the crime number as such. There is also no
requirement that a copy of the F.I.R. should be made available for the purpose of
considering the application under S. 438 of Cr.P.C.

VI. In the case of Suresh Vasudeva v. State11, at pp. 681-82 (Del), it was observed that S.
438(1) of Cr.P.C. applies only to non-bailable offences. The section itself especially
prescribes that any order passed under this section would be effective only after the person
concerned has been arrested. It does not require that the offence must have been
registered. All that this section contemplates is that the person applying has reasonable
belief that he may be arrested on accusation of having committed non-bailable offence. It
will depend on the facts of each case whether the person applying could have the
necessary “reason to believe”. This “reason to believe” is not dependent upon the
registration of the case only.

OTHER REMEDIES WHEN FIR IS NOT REGISTERED

1. Right to meet an advocate of his choice during the interrogation

If any person arrested by police officers under Section 411 of the IPC, then Section 41-D of
the Code of Criminal Procedure (CrPC), says “an arrested person shall be entitled to meet an
advocate of his choice during the interrogation, but not throughout the interrogation.”

2. Right of no unnecessary restraint

10
1999 Cri LJ 1933
11
1978 Cri LJ 677
Section 49 of the Code of Criminal Procedure defines that “the person arrested shall not be
subjected to longer restraints than it is necessary to prevent his escape.”

So, if a person arrested under section 411 of the IPC the police officers may not unnecessarily
restraint him or her for a longer period of time.

3. Right of Health and Safety of the arrested person

Section 55-A says it is the responsibility of the police officer to take care of the health and the
safety of the arrested person.

4. Right of arrested person to be taken before i in charge of the police station

Section-56 of the Code of Criminal Procedure defines that “it is the duty of the police station
in-charge that a person arrested under IPC 411 without a warrant shall be taken before the
judicial Magistrate without unnecessary delay and subject to the provisions herein bail, take
or send the person arrested before a Magistrate.

5. Right of the arrested person not to be detained for more than 24 hours

If a person arrested under Section 411 of the Indian Penal Code, then section 58 of the CrPC
defines that “If a person arrested under Section 411 of the Indian Penal Code, then the police
officer does not have right to keep the person in wool custody for more than 24 hours.” Also,
“it is the responsibility of the police officers that the person should be taken before the
Magistrate and should not be kept in custody for a period of more than 24 hours.” where the
Magistrate have right to send the person for remand, grant bail or take necessary action under
the law where members seeking court assistance should not be included in it.”

6. What should be done if a person detained for more than 24 hours

While any stolen property has not been recovered from the person and the arrest was made
only on the basis of the conveyed message then the lawyer of the arrested person can file an
application of the remand of the arrested person from the court/ judge while the judge will go
through the merits of the case and may grant the remand. In the case of the remand, the
arrested person will be sent to jail, which will protect him from any kind of torture by the
Police.

7. Rights of the arrested person in case the investigation could not be completed in 24
hours
Section 167 of the CrPC says, “Procedure when investigation cannot be completed in 24
hours, then the police cannot keep any person in custody for more than 15 days, but that too
with the permission of the magistrate.” Also, in the cases when the Police cannot investigate
further than the Police have no right to keep the person in custody without permission from
the Magistrate.

8. Right to release of an arrested person when evidence is deficient

Police have the right to release when investigation officers find that there is no sufficient
evidence or reasonable ground to justify.

ANTICIPATORY BAIL WHEN CHARGE SHEET IS NOT FILED

In the case of Shri Gurbaksh Singh Sibba and others v. State of Punjab, (1980)2 SCC 565, the
Hon'ble Supreme Court has observed that anticipatory bail is " basically release from
restraint, more particularly, release from the custody of the police" The Hon'ble Supreme
Court further observed that "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", and further that "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 favour it is issued is thereafter
arrested on the accusation in respect of which the direction is issued, he shall be released on
bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be
made, provides that in making the arrest, the police officer or other person making the arrest
"shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action". A direction under Section 438 is intended to
confer conditional immunity from this 'touch' or confinement."‘

In following cases, the Hon'ble Supreme Court has considered anticipatory bail despite
chargesheet having been filed:-

(i) Bharat Chaudhary and another v. State of Bihar and another, (2003) 8 SCC 77

(ii) Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684

(iii) Vinod Kumar Sharma and another v. State of Uttar Pradesh and another, 2022 (1) Crimes
(SC)

In the case of Bharat Chaudhary (supra), the Hon'ble Supreme Court observed that " This
judgment in our opinion does not support the extreme argument addressed on behalf of the
learned counsel for the respondent State that the courts specified in Section 438 of CrPC are
denuded of their power under the said section where either the cognizance is taken by the
court concerned or a charge-sheet is filed before the appropriate court".

In the case of Ravindra Saxena (supra), the Hon'ble Supreme Court observed that " In our
opinion, the High Court ought not to have left the matter to the Magistrate only on the ground
that the challan has now been presented."

In the case of Vinod Kumar Sharma (supra), the Hon'ble Supreme Court observed that
"Merely because it was kept open for the petitioners to surrender and apply for Regular Bail
after filing of the charge sheet, the same does not preclude the petitioners to apply for
anticipatory bail under Section 438 Cr.P.C. after filing of the chargesheet".

Also in the cases of Adil v. State of U.P., 2020 12 ADJ 590 and Shivam v. State of U.P. and
another (Criminal Misc. Anticipatory Bail Application U/S proposition that even after filing
of the charge sheet, an application for anticipatory bail may be maintained.

In the case of Shivam (supra), the Hon'ble Allahabad High Court has held that in appropriate
cases, anticipatory bail can be granted in cases where charge sheet has already been
submitted and processes issued by the court. In Para 40, the Hon'ble Allahabad High Court
dealt with the proposition as hereunder:-

"40. After consideration of the above legal provisions with regard to the investigation and
submission of charge-sheet and also the judgments of the Apex Court in this regard, this
Court finds that the "appropriate cases" wherein anticipatory bail can be granted are those
cases where charge-sheet submitted by the Investigating Officer and process issued by the
Court after taking cognizance under Section 204 Cr.P.C. can be quashed by the High Court in
exercise of its jurisdiction under Section 482 Cr.P.C. and also some more cases. Therefore,
non-grant of anticipatory bail to an accused only on the ground that charge-sheet has been
submitted by the Investigating Officer or cognizance has been taken by the Court against him
u/s 204 Cr.P.C. without considering the prima facie veracity of the same, will not be in the
larger interest of justice."

In the case of Adil (supra) also, the Allahabad High Court has held that the power to grant
anticipatory bail vested in the High Court does not come to an end after submission of the
chargesheet

Once charge sheet is filed, the court ensures the presence of the accused before the court.
How to deal bail of such accused persons after their appearance, it has been dealt with by the
Hon'ble Supreme Court in the case of Satender Kumar Antil v. Central Bureau of
Investigation and another, (2021) 10 SCC 773. In this case, the Hon'ble Supreme Court
categorized the cases into four categories and issued the following directions: We are inclined
to accept the guidelines and make them a part of the order of the Court for the benefit of the
courts below. The guidelines are as under:

"Categories/Types of Offences

(A) Offences punishable with imprisonment of 7 years or less not falling in Categories B and
D.

(B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7
years.

(C) Offences punishable under Special Acts containing stringent provisions for bail like
NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section
212(6)], etc.

(D) Economic offences not covered by Special Acts.

Circumstances

In all these anticipatory bail applications, it has been submitted that the charge sheet has
already been filed. The question which arises for consideration is as to whether after filing of
the charge sheet, an application for anticipatory bail is maintainable.
In these circumstances, the mere fact that an accused is given relief under Section 438 at one
stage, per se does not mean that upon the filing of a charge- sheet, he is necessarily to
surrender or/and apply for regular bail. The analogy to "deemed bail" under Section 167(2)
with anticipatory bail leads the Court to conclude that the mere subsequent event of the filing
of a charge sheet cannot compel the accused to surrender and seek regular bail. As a matter of
fact, interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory
bail, the normal implication would be that there was no occasion for the investigating agency
or the police to require his custody, because there would have been nothing in his behaviour
requiring such a step. In other words, an accused, who is granted anticipatory bail would
continue to be at liberty when the charge-sheet is filed, the natural implication is that there is
no occasion for a direction by the court that he be arrested and further that he had cooperated
with the investigation."

In the case of Shamim Ahmed (supra), the Hon'ble Calcutta High Court has observed "So
after a careful scrutiny of the different case laws and on perusal of the structure of the Code
of Criminal Procedure, we hold and conclude, that there is no bar in filing an application
under Section 438 after the filing of the charge-sheet or after the issuance of a process under
Section 204 of the Code or after the issue of warrant of arrest in a complaint case."

The Law Commission in its 41st report had recommended the incorporation of the provision
of anticipatory bail and had observed that "The necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes by getting them detained in jail for some
days." It manifests the intent of the legislature in incorporating Section 438 of the Code. It is
against arrest with some motive.