Anticipatory Bail along with the Case Laws – All you need to know!!

Anticipatory Bail

Bail means the temporary release of an accused person awaiting trial, sometimes on the condition that a sum of money is lodged to guarantee their appearance in court. In other words, release or secure the release of a prisoner on payment of bail.

It may be defined as Security. Bail is money or some property that is deposited or pledged to a court, in order to secure the release from custody or jail of a suspect who has been arrested, with the understanding that the suspect will return for their trial and required court appearances.

The concept of bail flows from the right to liberty which is sanctified as one of the fundamental rights in the Constitution of India in Article 211 and its practice prescribed in Article22(2) as a working theorem and its corollaries in the provisions of Sections 436, 437 and 439 of the Code of Criminal Procedure, 1973 with a new multiple of Anticipatory Bail thrown in to be resolved into infinite kindly factors by the developed minds of judges imagining what the true state of facts would have been to balance for the time being the agonies of the supposed wrong-doer and the wronged.


Section 438 of the Criminal Procedure Code deals with the Anticipatory Bail. This provision allows a person to seek bail in anticipation of an arrest on accusation of a non-bailable offense having been committed by him. It is a direction to release a person on bail, issued even before the person is arrested.

In general words, it is a direction to release a person on bail, issued even before the person is arrested. If the accused has a reason to believe that he or she may be arrested on accusation of having committed a non-bailable offense then he or she has the right to apply for an anticipatory bail in the Sessions Court or High Court.

In the case of “Balchand Jain V. State of M.P.,” the court has defined anticipatory bail as ‘bail-in anticipation of arrest’. Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. An explanation of Anticipatory bail is given by the Supreme Court in the case of “Gurbaksh Singh Sibbia v The State of Punjab” that under sub-section (1) of Section 438 of the Code, 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 offense 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.


  1. Sushila Agarwal v. State of Delhi 

The Hon’ble Court was pleased to frame 2 questions while deciding the landmark judgment:

  • Whether the protection granted to a person under Section 438 of Cr.PC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail.
  • Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to court.

The Constitutional Bench of the apex court was pleased to answer the first question by holding that there can be no time limit set for the Anticipatory Bail by the court granting the same. The five-judge bench was pleased to unanimously hold that ” the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favor of the accused without any restriction on time.”

Answering the second question the Hon’ble court held that “The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial. Again, 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. Not granting Anticipatory bail may cause a violation of the fundamental rights of an individual under Article 21 of the Constitution of India

2. Rajesh Kumar & Others v. State of U.P. (2017 SCC Online SC 821)


In the present case, the husband, along with other relatives, was accused of causing cruelty to the wife in lieu of demand for dowry. However, the other relatives demanded that there should be certain guidelines to prevent over-implication. Thus, in most of the cases, the relatives of the husband are also being dragged into Court in cases of Section 498A. However, it is not necessary that they have been party to the offense. Thus, a question with respect to the need for directions to prevent misuse of Section 498A, IPC was raised in the appeal.


The Supreme Court laid down comprehensive directions to prevent the misuse of the provision of Section 498A, IPC.

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(MARCH – APRIL 2022)


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