About the Anticipatory Bail (#GS II)

Anticipatory Bail: What is it and how does it operate?

  • Section 438 was added to the CrPC when it was updated in 1973, permitting for anticipatory bail.
  • Section 438 is a procedural provision that ensures that each person's right to personal liberty is safeguarded by the assumption of innocence.
  • Unlike conventional bail, which is granted after someone has been detained, anticipatory bail enables someone to be released on bond before they are arrested.

Who are eligible to apply are:

  • Section 438 of the Code of Criminal Procedure of 1973 states: "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," according to sub-section (1).
  • Under this law, either the Sessions Court or the High Court have the ability to grant anticipatory bail.


  • The inclusion of Section 438 in the Code was based on parliamentary acknowledgement of the value of personal liberty in a democratic state.
  • Parliament aimed to enhance personal liberty and give priority to a fundamental principle of criminal law: everybody is considered innocent until guilty.
  • Life and liberty are the most valued possessions of every individual. Each human being has an inborn desire for independence.
  • In the 1980 case Gurbaksh Singh Sibbia vs. State of Punjab, a five-judge Supreme Court panel led by then Chief Justice Y V Chandrachud decided that S. 438 (1) should be construed in sight of Article 21 of the Constitution (protection of life and personal liberty).


  • Because arbitrary arrests remain a concern in the country, the judiciary' unilateral authority to issue anticipatory bail should not be restricted, and safeguard should be provided until the trial is completed.
  • Besides that, there's the danger of arbitrary and severe arrests, which are much too routinely employed to intimidate and insult individuals.
  • Judiciary Opinions on Anticipatory Bail:
  • A Supreme Court constitutional panel has ruled that anticipatory bail cannot be limited to a specific period of time and can continue until the trial is completed.
  • Sushila Aggarwal v. State of NCT of Delhi was the case in question, and a three-judge panel was requested to rule on the extent of Section 438 of the Code of Criminal Procedure (CrPC), which permits for anticipatory bail.
  • The following observations were made by the Court:
  • The court has the ability to limit the length of anticipatory bail if there are any unusual circumstances. Courts are neither required or obligated to impose time limits on remedies under the Criminal Procedure Code (CrPC).
  • Why The Supreme Court should not limit the jurisdiction granted to courts in the field of anticipatory bail when Parliament has concluded that it is not appropriate to limit people's rights.
  • Even before the FIR is filed, a person might make an anticipatory bail request.
  • Before putting any conditions on the petitioner, the court should assess the nature and degree of the offence while granting anticipatory bail.

Source : THE HINDU. 

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