Under Indian Criminal law, there is a provision for anticipatory bail under section 438 of the Criminal Procedure Code 1973. However, Old CrPC of 1898 did not have provisions for Anticipatory bail. The idea of anticipatory bail was first recommended to the Parliament  through  41st Law Commission Report, The provision of Anticipatory Bail  was incorporated in Chapter 33 of the new Cr.P.C 1973 under section 438.

Eligibility to obtain anticipatory bail:

When any person has a reason to believe that he may be arrested on false  accusation or due to enmity with someone or he fears that a false case is likely to be filed against him, he has the right to move to the District Court or High Court under section 438 of the Code of Criminal Procedure for grant of  bail in the event of his arrest. The Court may, If it thinks fit, direct that in the event of arrest , he shall be released on bail.

However, grant of anticipatory bail under section 438 CrPC is a matter of judicial discretion. There are number of judgements and orders passed by High Courts all over India and by the Hon’ble Supreme Court of India , granting also rejecting the anticipatory bail applications.

Provisions relating to Anticipatory Bail:

Based on the directions passed by the Hon’ble Supreme Court from time to time, the following factors  are considered by the Courts to grant anticipatory bail in India

  1. Whether there is any prima facie or reasonable ground to believe that the applicant  had or had not committed the offence.
  2. The nature and gravity of the accusation.
  3. The antecedents of the applicant including the facts as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence.
  4. The possibility of the applicant to flee from justice.
  5. Whether the accusation has been made with the object of injuring or humiliating the applicant  by having him so arrested.
  6. Whether a fit case for custodial interrogation.
  7. And  other considerations applicable in the Case of a regular Bail.

Which Court To Be Moved:

Though the section 438 CrPC confers concurrent jurisdiction on the Sessions Court and  the High Court, an anticipatory bail application should ordinarily be filed before the Session Court at the first instance and not directly before the High Court. However, when there exist exceptional, rare or unusual circumstances , such application can be directly filed before the High Court.

In case of filing an anticipatory bail application directly before the High Court, the applicant has to demonstrate and satisfy the High Court that there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

In gist, Anticipatory bail can be filed in the Court of the concerned District & Sessions Judge at the first instance.

It can also be filed in the High Court under the following  circumstances:

  • if one fails to get any relief from District Court.
  • If there exists exceptional, rare or unusual reasons for the applicant to approach the High Court directly.

The applicant can approach  Supreme Court of India for  appeal against the Order of the High Court.

Conditions for getting Anticipatory Bail:

While  granting anticipatory bail., the High Court or District Court may impose certain conditions and restrictions   which may include:

  • A condition that the person shall make himself available for interrogation by police as and when required.
  • A condition that 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 police or to the court.
  • A condition that the person shall not leave India without the previous permission of the court.


Anticipatory bail  is a device to secure individual’s liberty. was introduced in the criminal Code of Procedure to prevent he violation of personal liberty of people. It is a tool exercised by the people to escape from their criminal liability. Neither it is a token  for the commission of crimes nor a shield against any kinds of accusation. That is why, Courts while granting anticipatory bail take utmost care so as to prevent the abuse of this special privilege.




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