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438 CrPC - Code of Criminal Procedure

Anticipatory Bail under Section 438 of CrPC for direction to grant bail to person apprehending arrest.

Section 438 of the Code of Criminal Procedure, 1973 has a provision, which confers on the Court of Session & the High Court the power to grant anticipatory bail. The Petitioner can move the Court/ High Court if he has a 'reason to believe' that he may be arrested on accusation of having committed a non-bailable offence.

Grant of anticipatory bail under Section 438 Cr PC is however a matter of a judicial discretion. We have numerous Judgments and Orders, passed by High Courts all over India and by the Hon'ble Supreme Court Of India, granting, as also rejecting the Bail and Anticipatory Bail Applications.

Where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that Court, the Court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within its jurisdiction. The Court has to record its satisfaction that there is not any camouflage or facade to evade the process of law.

In the light of the directions passed by the Apex Court from time to time, parameters to be considered by the Courts for grant of anticipatory bail in India are:


Vital Parameters/Considerations for Anticipatory Bail


Section 438 of CrPC 438 - Direction for grant of bail to person apprehending arrest

(1) 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.

(2) 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.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).



Report of Law Commission in July, 2012 on bail and Anticipatory Bail

The Law Commission severely criticized the police of our country for arbitrary use of power to arrest, raising following substantial questions of law:

(i) Bail, not jail, is the rule

Arrest should be the option, and it should be restricted to those cases where arresting the accused is imperative in the facts and circumstances of the case and based on the available material- substantiality of the accusation & evidence.

(ii) S-438 (1), got to be interpreted in the light of Article 21 of Constitution

Entitlement of Police to arrest is different from justification of arrest.- While granting bail balance has to be struck between two factors, the right of Police to conduct investigations and right of the Accused. On the one hand, no prejudice should be caused to the free and fair investigation and on the other, there should be prevention of harassment, humiliation, and unjustified detention of the accused.

(iii) There is no straight jacket formula for granting or rejection of Bail Applications

The Powers of granting Bail, being discretionary, have to be exercised/ applied in the light of the circumstances of each Case, as each case depends upon its own facts and circumstances.

(iv) Frivolity in prosecution

In the event of there being some doubt to the genuineness of the, the accused is entitled for bail

(v) The Courts to consider the following factors on the touchstone of reasonableness, the factors namely:

(a) the apprehensions of tempering witnesses; or (b) apprehension of threat to the Complainant; or (c) post Arrest Factors, namely: (i) flee from justice (ii) tempering with the witnesses (iii) repeat of the offence, etc.



Which Court to be moved for Anticipatory bail.

The accused seeking bail can move the following court for anticipatory bail.

1. The District & sessions Judge;
2. The Concerned High Court; And
3. The Honble Supreme Court of India


Case Laws and Judgments related to Anticipatory Bail under Section 435 of CrPC

Gurbaksh Singh Sibbia & Ors., Vs. State of Punjab Supreme Court Of India Constitution Bench Judgment dated 09.04.1980 in Criminal Appeals Nos.335 Of 1978- (1980) 2 SCC 565 1980 AIR 1632. Anticipatory Bail- Judicial Balancing of Personal Liberty of Investigational Powers  Judgment.

D. K. Basu Vs. State of West Bengal Supreme Court Of India Judgment dated  18.12.1996, 01.08.1997,  24.07.2015, 1997 (1) SCC 416- 2015 (8) SCC 744. Arrest, Detention, Custodial Death & Torture-Damages & Compensation.

Anil Sharma - State Rep. By The C.B.I. Vs. Anil Sharma Supreme Court Of India Judgment dated 03.09.1997- 1997 (7) SCC 187. K T Thomas, J - Cancellation of Anticipatory Bail.

 Sidhartha Vashisht @ Manu Sharma, Criminal Appeal No. 179 Of 2007- Supreme Court Of India Judgment dated 12.05.2008, Bench: Justice P. Sathasivam and Justice Swatanter Kumar. Post Conviction Bail U/S-389 Cr.P.C.

Sidharam Satlingappa Mhetre vs. State of Maharashtra Supreme Court Of India Judgment dated 02.12.2010, 2011-1 SCC 694, AIR-2011-SC 312. Anticipatory Bail- Bail Laws Internationally- Factors And Parameters.

Sanjay Chandra v. Central Bureau of Investigation Criminal Appeal No.2178 of 2011. Supreme Court Of India Judgment dated 23.11.2011- (2012) 1 SCC 40, Bail in PMLA, ED, and Analogous Crimes.

Suresh Kalmadi Vs. CBI- Delhi High Court Judgment- 19.01.2012- Bail Application 1692 of 2011.

Arnesh Kumar Vs. State Of Bihar Supreme Court Of India Judgment dated 02.07.2014. Criminal Appeal No. 1277 of 2014 - (2014) 8 SCC 273. Anticipatory Bail- U/S-438 CrPC- Offence- IPC-S-498A- S-4 of the Dowry Prohibition Act, 1961.

Gautam Kundu Vs. Directorate of Enforcement (Prevention of Money Laundering Act), Government of India- Criminal Appeal No. 1706 OF 2015. Supreme Court Of India Judgment dated 16.12.2015, (2015) 16 SCC 1. Bail in PMLA, ED, and Analogous Crimes.

Rajesh Sharma Vs. State of U.P Criminal Appeal No. 1265 OF 2017. Supreme Court Of India Judgment dated 27.07.2017. 498A Bail Guidelines Qua Welfare Committee Family Members Personal Appearance .

Rohit Tandon Vs. The Enforcement Directorate, Criminal Appeal Nos.1878-1879-3JB-Supreme Court Of India Judgment dated 10.11.2017-Bail in PMLA, ED, and Analogous Crimes- Prevention of Money Laundering Act, 2012 (PMLA).

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