Anticipatory bail is a provision given under the Criminal Procedure Code under section 438. This provision allows a person seeks a bail-in advance from the sessions court or high court whenever there is an anticipation of arrest. 

Anticipatory bail is a direction by the court to release a person on bail; it is issued even before the person is arrested. An application for anticipatory bail filed by the person should be based on facts relating to the offences on which he might be allegedly arrested and not vague or general allegations. 

When an application for anticipatory bail is filed, the opposing party (i.e. the public prosecutor) is to be notified about the bail application made by the person and the prosecutor can then contest the bail application filed in the court.


On 29th January 2020, in a unanimous judgement by the Constitution bench of Supreme Court consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat held that the protection of arrest by the provision of anticipatory bail should not be time-barred or limited but could rather be available to the person till the end of the case.

The bench said life of anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing of charges, but can also continue till the end of the trial. “However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so,” the bench said.

The Supreme Court observed that the protection granted to a person by the provision of anticipatory bail under Section 438 of CrPC should not invariably be limited to a fixed period or be barred by time. Instead, it should be in favour of the accused without time-barred condition as it is not in larger societal interest to limit the liberty of citizens, and it could continue until the end of the trial.

There were two crucial aspects on which the court based its verdict were:-

•    Should protection through an anticipatory bail be time-bound and,

•    What should be the time span of the bail granted 

The court in its verdict said, "It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest), to issue a notice to the public prosecutor and obtain facts, even while granting limited, interim anticipatory bail."

However, the court also held that the court in which, the person apprehending arrest have approached for the grant of anticipatory bail, will have the discretion on to impose specific condition while granting bail based on the facts of the each case and also, the court must take into account the seriousness of the threat of arrest and issue a notice to public prosecutor to obtain the facts of the case.


The protection granted by the court under the section 438 of CrPC,1973 i.e. the provision for anticipatory bail should not be a ‘blanket’ protection but rather be available to the person only for the offences for which he is apprehending arrest. Also, it is open for police to move to the court to arrest the person if there is any violation of the bail granted to him.


eStartIndia Team

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