Anticipatory Bail

 Anticipatory Bail is a legal provision in Indian law under Section 438 of the Code of Criminal Procedure (CrPC), 1973 that allows a person to seek bail in anticipation of arrest on accusation of having committed a non-bailable offence.

Definition:

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. It is a pre-arrest legal protection against possible arrest.

Key Features:

Aspect	Description
Applicable Law	Section 438 CrPC
Who can apply?	Any person who apprehends arrest in a non-bailable offence
Where to apply?	High Court or Court of Session
Nature of Offence	Must be a non-bailable offence
Timing	Before actual arrest
Discretionary Power	Granted at the discretion of the court
Conditions (as per court)	May include surrendering passport, not leaving the country, cooperating in investigation, etc.

Important Case Law:

Gurbaksh Singh Sibbia v. State of Punjab (1980)– The Supreme Court laid down that anticipatory bail is a constitutional right under Article 21 (Right to Life and Personal Liberty) and should be granted liberally depending on circumstances.

Typical Conditions Imposed by the Court:

1. The person shall make himself available for interrogation by the police.
2. Shall not tamper with evidence or influence witnesses.
3. Shall not leave India without prior permission.
4. May be required to furnish sureties or a bond.

Important Notes:

• It is not an absolute right; the court may refuse it if it believes the accusation is serious or genuine.
• The protection is only until the trial starts or until regular bail is granted.
• It does not mean immunity from arrest, but protection subject to conditions.

In 2025, significant changes have been introduced to the concept of anticipatory bail in India through the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC), 1973.

Key Changes in Anticipatory Bail under BNSS, 2023

Section Renumbering: The provision for anticipatory bail, previously under Section 438 of the CrPC, is now encapsulated in Section 482 of the BNSS, 2023.

Removal of Specific Guidelines: The BNSS omits certain guiding factors that were previously considered by courts when granting anticipatory bail, such as the nature and gravity of the accusation, the applicant's criminal antecedents, and the possibility of the accused fleeing from justice. This change grants courts broader discretion in deciding anticipatory bail applications.

Elimination of Mandatory Timelines: The earlier requirement under Section 438(5) of the CrPC to decide anticipatory bail applications within 30 days has been removed. Similarly, the mandate to issue a seven-day notice to the Public Prosecutor before granting interim bail has been dispensed with under the new law.

Enhanced Judicial Discretion: With the removal of specific statutory guidelines, courts now have increased flexibility to impose conditions tailored to each case, aiming to prevent misuse of the anticipatory bail provision while safeguarding individual liberties.

Courts Empowered to Grant Anticipatory Bail

Under Section 482 of the BNSS, both the Sessions Court and the High Court have the authority to grant anticipatory bail. Applicants can approach either court, depending on the jurisdiction and specifics of their case. 

Recent Judicial Interpretation

In the landmark case of Munnesh v. State of UP (2025 SC), the Supreme Court provided new guidelines on the grant of anticipatory bail, emphasizing the need for a balance between individual rights and societal interests. The Court highlighted that while the protection of personal liberty is paramount, it must be weighed against the potential impact on the investigation and the rights of victims.

IN THE COURT OF SESSIONS/ HIGH COURT AT [City Name]

Anticipatory Bail Application Under Section 438 CrPC

In the matter of:

Mr./Ms. [Applicant's Name]

S/o or D/o [Father's/Mother's Name]

R/o [Address]

… Applicant

VERSUS

The State of [Name of State]

… Respondent

APPLICATION UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE FOR GRANT OF ANTICIPATORY BAIL

MOST RESPECTFULLY SHOWETH:

That the applicant apprehends arrest in connection with FIR No. [FIR number], dated [Date], registered at [Police Station Name], under Sections [mention IPC sections].

That the applicant is innocent and has been falsely implicated due to [mention reason, e.g., personal enmity, property dispute, etc.].

That the offence alleged is non-bailable, and the applicant has reason to believe that he/she may be arrested by the police.

That the applicant is a law-abiding citizen and undertakes to cooperate in the investigation and abide by any condition imposed by this Hon'ble Court.

That the applicant is willing to furnish surety and abide by any directions of this Hon’ble Court.

PRAYER:

It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to:

a) Grant anticipatory bail to the applicant in connection with the above-mentioned FIR.

b) Pass any other order(s) as deemed fit and proper in the interest of justice.

Place: [City]

Date: [DD/MM/YYYY]

Applicant Through Counsel

[Advocate’s Name & Signature]

[Enrollment Number]

[Contact Details]