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Anticipatory Bail Under Crpc, 1973

Amrutha valli: Anticipatory Bail Under Crpc

  • Anticipatory bail in expectation of an arrest means bail.
  • In compliance with the provisions of section 438 of the CrPC, any person who apprehends arrest under a non-bailable offense can appeal to the High Court or to the Court of Sessions for Anticipatory Bail.
  • Basically, it is bail before arrest, an accused citizen does not request Anticipatory Bail. Rather he will have to move for a monthly bail.
  • Neither section 438 nor its marginal note finds the words anticipatory bail. Anticipatory bail, in fact, is a misnomer.
  • What it is is whether a judge issues anticipatory bail
  • To make an order that the person is released on bail in case of detention.
  • Consequently, those functions are delegated solely to the Court of Sessions and the High Courts.
Prerequisite conditions:
  • The criterion for considering the appeal for anticipatory bail is that the application for anticipatory bail must be considered.
  • The sentence must be non-bailable.
  • The applicant who applies for anticipatory bail shall be fairly apprehensive about becoming detained
  • Consideration by the Sessions Court or the Hon’ble Supreme Court
  • The essence and severity of an allegation,
  • Applicant’s precedent,
  • The opportunity to escape and run from justice
  • If the charge was alleged to be the target of harm or to humiliate the claimant by arresting him, then the applicant may either refuse the appeal or issue a temporary order granting anticipatory bail.
  • If no temporary order has been passed by the respective court or the appeal has been refused, so the officer in charge of the police station has the authority to apprehend the accused without a warrant.
  • The temporary order must be served, along with a seven-day notice, to the General Prosecutor and the Chief of Police in order to give them an opportunity to hear the appeal.
  • At the time of the final hearing of the appeal and of the final order issued by the Judge, the attendance of a claimant seeking anticipatory bail is compulsory. But the public prosecution needs to ask for the same thing.

Cr.P.C. section 438(2) notes that while approving the application, the High Court or the Court of Sessions can also attach those conditions.

The circumstances may be the following:

  • That the people make themselves available to the police officer for questioning, if and when requested;
  • That the person does not make any inducement, threat or guarantee to any witness, directly or indirectly;
Sushila Agarwal v. The Delhi State

When issuing anticipatory bail, no time limit may be fixed.

When determining the seminal judgment viz., the Hon’ble Court was delighted to raise 2 questions.:

  • If the immunity is given to a person under Cr. P.C Section 438 should be limited to a set time in order to cause the applicant to surrender before the court of trial and obtain normal bail & bail
  • If the life of anticipatory bail should end when the suspect is called to the court at the time and stage.

The supreme court’s Constitutional Bench was pleased to answer the first question by holding that no time limit can be imposed by the court granting the same for the Anticipatory Bail.

  It was satisfied that the five-judge bench unanimously held that:

‘The security given to an individual pursuant to Section 438 of the Cr.PC should not invariably be limited to a defined amount of time; he should act in favour of the accused without any time limit.’

  • The Hon’ble Court, referring to the second question, held that:

“The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”

When addressing the second question, the Supreme Court was prudent in giving the court discretionary powers to limit the tenure of the Anticipatory Bail in the event of special or unusual evidence.

Badresh Bipinbai Seth v. The Gujarat State

Failure to issue Anticipatory bail can cause a person’s fundamental rights to be violated pursuant to Article 21 of the Constitution of India

Amiya Kumar v. West Bengal Province, 1978 Cri.LJ 2888

In the instant event, it was held that both the high court and the court of the session were allowed by section 438 of the code to issue the anticipatory bail. It is the competence of both the High Court and the Sessions Court to issue this bail. If the Sessions court refuses the petition submitted by the petitioner for the anticipatory bail, he will not be allowed to file the high court petition for the same.

Report from Malimath Committee

In relation to the provision of anticipatory bail, the Malimath committee issued its observation. They claimed that the section 438 clause is sometimes misused by individuals. Such misuse of the clause is unconstitutional. Following the following finding, the committee recommended two provisions or criteria for the preservation of the clause.

The conditions set out below are as follows:

The court shall hear the public or the government lawyer prior to issuing the anticipatory bail

It must be heard by a court of appropriate jurisdiction when a person files a motion for anticipatory bail.

Distinction between bond and bail in expectation

It has been specified in section 437 of the Code that normal bail is available and given to a person after the arrest while he is in judicial or police custody. But, in the case of preliminary bail. Bail is available to a person before arrest or if the person has appropriate arrest.


It may be inferred that the essence of bail is that it serves as a defense offered by the convicted person on the grounds of which he can be released on a temporary basis, but once ordered by the judge, he must appear in court.

The bail process takes place while the convicted individual’s trial is still ongoing. Generally, in order to get himself released from police custody, an individual tries this alternative.

The brief relating to the provisions of the bail gives these provisions envisaged in the code. The bail operation is a legal operation.

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