Anticipatory Bail

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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.

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.

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).