Anticipatory Law
Image Source:

This article is written by Nalini Moorthy, pursuing an Executive Certificate Course in Introduction to Legal Drafting from LawSikho.


The concept of Anticipatory Bail has been dealt with under Section 438 of the Code of Criminal Procedure 1973 through which both the High Court and Sessions Court have been equipped with the discretion to provide such bail.

History of the Provision

The sine qua non of this provision was highlighted in paragraph 39.9 of the Law Commissions’’ 41st Report which noted that such was required in the light of increasing numbers of false cases filed by persons of prominence against their foes; political or otherwise and also in other circumstances wherein there was no probable cause to believe that an accused would abscond or misappropriate his due liberties should be released prior on bail.

What does Section 438 of the Code of Criminal Procedure 1973 state?

Section 438 primarily states that when a person has an apprehension that he may be arrested by the police on a suspicion that he has committed a non-bailable offence, he may as a means of recourse apply to  either the High Court or the Court of Sessions for the relief that said courts are discretion to grant under this Section after a perusal of all the facts and if the person who has so applied qualifies all the requisite conditions to be granted such anticipatory bail.   

Section 438(2) empowers the High Court or the Court of Sessions to also impose conditions in respect of the grant of anticipatory bail and these conditions are inclusive of the following:

  • that such person who has been granted bail under this section ensure that he remains accessible to the police for interrogatory purposes.
  • that such person should not either first-hand or in a roundabout manner threaten or coerce any person who is knowledgeable in respect of the raison d’être of the case. 
  • that such person does not, without requisite Court permission, leave the territorial boundaries of the country.
  • or any other condition as may imposed by the Court in respect of regular bail granted for offences for offences for which punishment may extend up to 7 years or more or those that fall under the purview of Chapter VI, XVI and XVII or punishment for the abetment, conspiracy or attempt to commit such offence.

Section 438(3) provides that should a person after having succeeded his Application for anticipatory later be arrested by an officer and be in a position at the time of arrest or conversely later when under the custody of such officer, to pay the bail amount, he shall be freed on bail. Additionally, it states that if a Magistrate takes cognizance of the offence such person has been accused of and decides that the issue of a warrant in necessitated against said person, he must produce a bailable warrant that is in line with the order of the Court in respect of the Application earlier filed by the person.

Other Points of Note

It is to be noted that the conception of Anticipatory Bail only becomes effective following the arrest of a person. It is after a person has been granted a favourable order from the Court of application for such order, that he may be released on bail in the occasion of his arrest. 

What is the procedure for Anticipatory Bail? 

Essentially, the first decision that is to be made after the Accused has decided to file an Application for anticipatory bail is the forum which he has to file such application in. 

A careful reading of S. 438 suggests that there are 2 forums which may be chosen by the Accused to file his application in i.e. the High Court and that of the Court of Sessions.

It is often advised that the Accused choose the latter forum to file his application for he has a second chance to apply to the High Court should the former court reject the application so made. 

While there is no implicit rule that the Applicant must first approach the Sessions Court before approaching the High Court in respect of filing his/her application for anticipatory bail , as a rule of practice, several courts have taken the outlook that it is preferable for the Applicant to first approach the Sessions, and then the High Court, if the circumstances are such that the second application is necessary. Applicants however are to note that the latter court does not often encourage the practice of direct approach by Applicants excluding circumstances wherein the reasons of the Applicant to choose such approach are outstanding.

new legal draft

What is to be included in the application – a checklist 

  • Affidavit of the applicant.
  • Brief description in respect of who the applicant is, his occupation and related particulars and where he lives, which is important to determine jurisdictional issues that may arise
  • A list of all the relevant documents to support the case of the Applicant.
  • Copy of the FIR (should the same have been filed against the Applicant).
  • The number of the FIR which has been filed against the Applicant (should the same be made available to the Applicant). 
  • The offences for which the FIR has been filed against the Applicant. 
  • The case made against the accused must be summarized. 
  • The part played by the Applicant in respect of the case made against him must be explicated. 
  • The reasons as to why the Applicant is anticipating arrest in respect of the matter; a mere trepidation that he may be arrested is not reason enough to be granted bail in respect of application filed under this section.
  • The facts and reasons as to why the Applicant is in fact innocent and statements made to the effect that the case is a false and frivolous attempt to defame his reputation. 
  • The facts which have been misconstrued in respect of the circumstances of the case made by the complainant against the Applicant. 
  • The grounds as to why the Applicant has chosen to file the Anticipatory Bail Application
  • Undertaking to the effect that the Applicant will not partake in any evidence tampering or coerce witnesses whatsoever. 
  • Undertaking (if such is actually true) to the effect that the Applicant has had no prior convictions or rap sheets in his/her name. 
  • Undertaking to the effect that the Applicant is willing to comply with any conditions that the court of application sees fit to impose upon the Applicant. 
  • The reliefs which the Applicant seeks from the Court.
  • Whether or not the Accused has cooperated or acted otherwise with the authorities in respect of the matter under scrutiny, and why so, if it is the latter stance that has been adopted by the accused.

The Ahmedabad High Court vide notification on 01-07-2019 provided directions in respect of filing Anticipatory Bail applicants wherein provisions as regards the court fee for the application, requirement of affidavit and a paragraph by paragraph structure with respect to the other perquisites as necessitated were hashed out.

What are the factors that are to be adjudged by the Sessions or High Court when they are asked to exercise their discretion as to whether or not to grant Anticipatory bail to an Applicant? 

  • The categorization and the seriousness of the allegations that have been raised against the Accused 
  • External considerations in respect of the past rap sheets (if any) maintained by the Accused
  • The probability of the Accused escaping from the purview of the Court 
  • If or not it follows that the allegations levied against the Accused have been exacted to achieve ends of debasing or otherwise harming the accused.

Reason to Believe – What are the Parameters 

In the case K. Rajasekhara Reddy vs State Of A.P., the court noted that the phrase ‘reason to believe” essentially was meant to connote that there was to be a logical bedrock for an Accused to come to the conclusion that he had been accused of committing a non-bailable offence, for which his arrest was sought. A bare misgiving based on hearsay or guesses could not be sustained as a ‘reason to believe’ It must be based on clear evidence and rational inference that he comes to the conclusion that he is likely to be arrested. 

Is the filing of an FIR necessary? 

The filing of an FIR is not necessary by the Applicant before he approaches the Court to file an Application for Anticipatory bail – A likelihood of being arrested can be found upon other reasons that satisfy the criterion of ‘reason to believe.’

That court in a different case additionally held that reference to a specific crime number or an FIR number is not a statutory perquisite to be fulfilled in order for an Applicant to make an Application for Anticipatory Bail.


Section 438 may be summarized as a statutory codification of the fundamental right to life and liberty provided to persons under the Indian Constitution. The history of the provision which has been briefed above makes clear that the same was enacted as a cure for the systematic abuse of police or litigatory power by persons of repute and does not do much in the way of adequately addressing those issues directly. The prevalence of the provision in criminal procedure is mostly limited to Asian nations and has not yet caught steam in other parts of the world. 

The rules as to filing the Application for availing such anticipatory bail are quite flexible with few exceptions and the protection of the rights of the Applicant have often been favoured over other procedural issues that may have arisen while filing the application.  


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here