Anticipatory Bail

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Anticipatory Bail

  • Recently, A Delhi court has granted anticipatory bail to a man, a government employee, after noting that the allegations of rape made against him by his wife have come after a lapse of considerable time.

What is Anticipatory Bail?

  • The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.
  • Section 438 is a procedural provision concerned with personal liberty of each individual, who is entitled to the benefit of the presumption of innocence.
  • As opposed to ordinary bail, which is granted to a person who is under arrest, in anticipatory bail, a person is directed to be released on bail even before arrest made.

Who can apply?

  • 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail.
  • Sub-section (1) of the provision reads: “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.”
  • The provision empowers only the Sessions Court and High Court to grant anticipatory bail.


  • The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country.
  • Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty.
  • Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being.
  • In the 1980 Gurbaksh Singh Sibbia vs State of Punjab case, a five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud ruled that S. 438 (1) is to be interpreted in the light of Article 21 of the Constitution (protection of life and personal liberty).