Anticipatory bail : Some basic fact about anticipatory bail

Anticipatory bail : Some basic fact about anticipatory bail

Introduction : Anticipatory  bail

The salutary provision contained in Section 438 Criminal Procedure Code was introduced to enable the Court to prevent the deprivation of personal liberty. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has ‘reason to believe’ that he may be arrested in a non-bailable offence.

Anticipatory Bail : when  need to Apply

Use of the expression  ‘reason to believe’  that he may be arrested in a non-bailable offence. Use of the expression ‘reason to believe’ shows that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not ‘belief’ for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such ‘blanket order’ should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity.PARAMETERS OF GRANTING THE ANTICIPATORY BAIL IN INDIA. An order under Section 438 is a device to secure the individual’s liberty’ it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.



Arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code


The balance has to be struck between two things namely no prejudice is caused to the free, fair and full investigation and that there should also be prevention of harassment, humiliation and unjustifiable detention of the accused.

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