top of page
  • Writer's picturebrillopedia


Updated: Feb 12, 2022

Author: Ritu Bhardwaj, B.A.,LL.B from Guru Gobind Singh Indraprastha University.

Co-author: Rajat Gaur, B.A.,LL.B from Guru Gobind Singh Indraprastha University.


Anticipatory bail is called as pre arrest bail. Ordinary rule is that when a person gets arrested then only he applies for bail. But there are certain circumstances where a person applies for bail before the arrest is made. Application for anticipatory bail is made on mere apprehension of arrest. In such a case the person who is anticipating his arrest is released before arrest is made. Section 438 of Code of Criminal Procedure, 1973 deals provides the law on this issue. As it is said that prevention is better than cure likewise is the job of anticipatory bail. So, the Purpose of section 438 basically is to save a person, his reputation who is falsely implicated in a case.


As per section 438 of Code of Criminal Procedure, 1973 only session courts and high court has the power to grant the anticipatory bail. If any person has reason to believe that he might get arrested sooner or later for non- bailable offence then he can approach the court. It is the discretion of the court whether to release him or not.

If court is of opinion that on the prior release of such person there is no harm to society and to the case then it will grant the anticipatory bail. But if court believes that the accused may absond, temper the evidences of the case, influence the witnesses or may not cooperate in investigation process then it can deny the anticipatory bail. The court for this examines the gravity of the offence and the role of the applicant in the case. The court will even consider any material criminal involvement on the part of the accused.

The burden of prove will be on accused to prove that appears to be prima facie case against him in the matter. This necessarily does not mean that accused admits that he has committed the offence. Pre arrest protection via anticipatory bail to the accused is not granted for in any case that comes up in future. The accused has to clearly state in the application about specific case in which he seeks protection.

Even if the anticipatory bail has been granted the police officer’s power to investigate will not get affected. The accused is expected to cooperate with investigating officer.


In Gurbaksh Singh Sibbia case, first time a constitutional bench laid down the scope of section 438. The Supreme Court held that “section 438(1) should be interpreted in the light of article 21of the constitution that is protection of life and personal liberty and said that the court has absolute discretion to direct the duration of the time on the grant of anticipatory bail”. The court conclusively said the anticipatory bail should not be limited by time.

The Hon’ble Supreme court in the Sushila Aggarwal case, categorically held that the anticipatory bail need not to be for certain period rather it can be for unlimited period even until the trial.

So, once an anticipatory bail is granted it is for unlimited period unless it is cancelled by that court on the violations of some bail conditions or on expiration of court specified time period. Any superior court can also set aside the anticipatory bail order. Moreover the police can also move to the court for cancellation of anticipatory bail under section 439(2).


Unexpectedly the police is seen to be overly active in arresting accused when anticipatory application gets rejected. If police arrest the accused once the court has rejected the application, such arrest will be said to be legal. But rejection of the anticipatory bail does not imply mandatory arrest thereafter. Nor does it imply that accused is guilty in that case. Even though the police was not playing active role earlier in investigating the case, sudden worrying of the police and prosecution on the pre arrest release of accused is quite shocking. It usually arrest the applicant on rejection of application by court. It is never seen in the court of law that police agreed with pre arrest bail of accused. That’s why the preference of lawyer in a case of anticipatory bail can be called as double edge sword.


Anticipatory bail is a immunity from the custody. The application for anticipatory bail is filed on tangible ground of apprehension. Mere anticipation of arrest will form no ground. The anticipatory bail application and even the bail order can get cancelled by the court anytime. The police officers are at liberty to arrest the accused when application is rejected though it does not have the obligatory implication.


1 Gurbaksh Singh Sibbia v. State of Punjab, SC 1980.

2 Code of Criminal Procedure, 1973.

3 Sushila Aggarwal v. State (NCT of Delhi), SC 2020.


bottom of page