Anticipatory Bail

Oct 20, 2020

An order issued to free a citizen on Parole right before they apprehend the citizen. There's a fear of detention in this case, and the guy is not detained until the Bail is issued. An individual can apply for such Bail under Section 438 of the Criminal Procedure Code (CrPC). Only the Sessions Court and the High Court shall question it.

Section 438 of the CrPC lays down the provisions on anticipatory Bail:

Section 438(1)

"If any party anticipates that he/she will be detained on charges of committing a non-refundable offence, he/she will apply for guidance under this provision to the High Court or the Court of Session. The Court can order (if it deems fit) that he/she shall be released on Bail in the event of such arrests even before an arrest is made without subjecting him/her to further restrictions."

Historical Background

Anticipatory Bail became part of the CrPC in 1973 after having proposed the incorporation of such provision in the 41st Law Commission Report (1969). It was added to prevent the person's unlawful abuse of his right to personal liberty.


  • Often prominent people attempt to trap their competitors in mock trials by having them put in prison for the intention of disgracing them or otherwise.
  • Apart from fake cases, where there are fair reasons to assume that a person convicted of a crime is unable to abscond or abuse his or her freedom while on Parole, then there is no need to place him or her in prison first, keep him or her in gaol and then apply for Parole. In such cases, Bail may earlier be issued.
  • As arbitrary arrests (often resulting in abuse and embarrassment of citizens) continue to be a widespread occurrence in the region, the security of individuals should therefore be guaranteed. And this was the fundamental justification for the CrPC 's enactment of Section 438, which also earned parliamentary approval as "crucial underpinning the protection of the personal rights of the citizen in a free and democratic society."