The  present section 438 of Crpc on Anticipatory bail or pre arrest bail was not present in old Crpc  of 1898 and there had been a lot of confusion and opinions  regarding inherent powers of high  court on granting pre arrest  bail hence in 1969 law commssion highlighted the need of a provision to prevent detention in false cases. Anticipatory Bail became part of the CrPC in 1973 after the 41st Law Commission Report (1969) recommended for the inclusion of such provision. It was included to protect the arbitrary violation of the right to personal liberty of the person.

Definition and types of Bail 

Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release

Types of Bail in India:

Regular Bail: It is a direction given by the Court (any Court within the country) to release a person who is already under arrest and kept in police custody. For such Bail, a person can file an application under Section 437 and 439 of the CrPC.

Interim Bail: Bail granted for a temporary and short period by the Court till the application seeking Anticipatory Bail or Regular Bail is pending before a Court.

Anticipatory Bail: A direction issued to release a person on Bail even before the person is arrested. In this situation, there is apprehension of arrest and the person is not arrested before the Bail is granted. For such Bail, a person can file an application under Sec. 438 of the Code of Criminal Procedure (CrPC)

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

  • Sec. 438(1) says : When any person anticipates that he/she may get arrested on an accusation of having committed a non-bailable offence, he/she may apply to the High Court or the Court of Session for a direction under this Section. The Court may direct (if it thinks fit) that in the event of such arrests, he/she shall be released on Bail even before an arrest is made without subjecting him/her to further restraints.
  • Sec. 438(2): When the High Court or the Session Court makes a direction under Sec. 438(1), it may lay down certain conditions in the light of the facts of the particular case, as it may think fit.

An application for anticipatory Bail can be filed in cases of both bailable and non-bailable offences. While in the former situation, the Bail is granted as a matter of right, the grant of Bail in the latter situation is not a matter of right but a privilege & is at the behest of the discretionary power of the Court. The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail.

  • . In Gurbaksh Singh Sibbiav. State of Punjab the Supreme Court held that: – “Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief 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.

Need of anticipatory bail  in situations when 

  • Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them ..
  • Apart from false cases, when there are reasonable grounds for believing that a person accused of an offence isnot likely to  misuse his liberty while on Bail, then there is no need to first submit him to custody, make him/her remain in prison and then apply for Bail. In such cases, Bail could be granted earlier
  • .

The Court has a power to put some conditions and restrictions while giving anticipatory bail  which  are:

  •  the person shall make himself available for interrogation by a police officer as and when required;
  • 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;
  • t the person shall not leave India without the previous permission of the Court;
  • Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

Conclusion :Though there is no specific provision in Section 439 regarding cancellation of bail, it is implicit that the Court which grants anticipatory bail is entitled upon appropriate consideration to cancel or recall that order.