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What is Anticipatory bail?

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What is Anticipatory bail?

What to study?

For Prelims and Mains: Meaning, features, significance and issues involved.

Context: A constitution bench of the Supreme Court has ruled that an anticipatory bail cannot be limited to a fixed time period and can continue till the end of the trial.


The judgment came in a reference made by a three-judge bench in the case of Sushila Aggarwal v. State of NCT of Delhi regarding the scope of Section 438 of the Code of Criminal Procedure (CrPC) which provides for grant of anticipatory bail.

Observations made by the Court:

  1. If there are any special circumstances necessitating a limit on the tenure of anticipatory bail, it is open for the court to do so. Nothing in Section 438 CrPC compels or obliges courts to impose conditions limiting relief in terms of time.
  2. When Parliament has not thought it appropriate to curtail the rights of the citizens, it would be not appropriate for the SC to curtail powers granted to courts with regard to anticipatory bail.
  3. Anticipatory bail application could be moved by a person even before filing of FIR.
  4. The court, while granting anticipatory bail, should examine seriousness and gravity of the offence to impose any condition on the petitioner, if necessary.


Arbitrary arrests continue to be a pervasive phenomenon in the country and therefore, discretionary power of courts to grant anticipatory bail should not be curtailed and the protection should continue till end of trial.

Besides, the spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens.

What is Anticipatory Bail?

The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
Section 438 is a procedural provision concerned with personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.

As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.

Who can apply?

  1. 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail.

Sub-section (1) of the provision reads: “When any person has reason to believe that he may be arrested on an 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

The provision empowers only the Sessions Court and High Court to grant anticipatory bail.


The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.

Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.

Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being.

In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).

Sources: the Hindu.