Anticipatory Bail

What is anticipatory bail?

Before understanding the concept of anticipatory bail, it is important to know the meaning of bail. In common parlance, bail means the release of a person confined to jail in a criminal case. In bailable offenses, bail is granted to a person as a matter of right and in case of non-bailable offenses, bail is granted by the Court if it is satisfied that the person shall abide by the terms and conditions so imposed. Bail in legal language means regular bail and anticipatory bail. Regular bail means that the person is already confined to jail and anticipatory bail means when a person apprehends that he might be arrested in a criminal case, he can apply either in District and Session Court or in High Court for protection against his arrest and detention.


The term “Anticipatory” in literal sense means to have apprehension or to have foresightedness, thus the term anticipatory bail means to have immediate protection from arrest when a person apprehends his arrest in the future.

In India, the provision of anticipatory bail has been enshrined under section 438 of Criminal Procedure Code, 1973. Under Cr.P.C., the court while granting the relief considers certain things such as the nature and gravity of the offense a person is charged with, whether the person has been earlier charged with any offense, whether the person if granted concession of anticipatory bail is likely to abscond or influence witnesses. If the above-said conditions are fulfilled, then the court upon its discretion grants the person the concession of anticipatory bail.

How to get anticipatory bail?

The first and foremost step towards getting anticipatory bail is to engage the services of an Advocate who is well versed with the laws dealing with anticipatory bail. Secondly provide the advocate with all the requisite documents pertaining to the case, such as a copy of FIR, notices issued by police, etc. Thirdly honestly disclose the true story and facts leading to registration of FIR, enabling the advocate to present the case to the best of his abilities.

Once the anticipatory bail is filed, the courts in a procedural manner issue notice to the police and seeks their opinion as to why not the concession of anticipatory bail should not be given, however, it is always advisable to insist the Court grant ad-interim anticipatory bail, during the time granted by the Court to the police.

When to apply for anticipatory bail?

This is the most asked question asked by litigants who are not aware of the legal prepositions. As a popular belief and practice, majority of the people think that registration on FIR is a pre-requisite for seeking anticipatory bail, however, the provisions of section 438 of Cr. P.C. and in catena of judgments, it is established that for seeking a relief of anticipatory bail, registration of an FIR is not an embargo to it. It can also be sought even if the complainant has made a complaint to the police, this was laid down in the case of Gurbaksh Singh Sibbia versus State of Punjab, AIR 1980 SC 1632. While granting anticipatory bail at the complaint stage, the common practice adopted by the Court is that the police is directed to issue a 7 days advance notice to the person before arresting the accused after registration of FIR. Once the FIR is registered it is always advisable to seek the relief of anticipatory bail again as once the period of 7 days is over, there is a high probability that the police might arrest such person.

When anticipatory bail cannot be filed?

After the recent enactment of The Criminal Law (Amendment) Act, 2018, sub-section 4 has been inserted in section 438 wherein it is made clear that for the offenses punishable under section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, no concession of anticipatory bail can be granted.

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For further clarification on the concept of anticipatory bail and the recent Criminal Law (Amendment) Act, 2018, contact our reputed criminal lawyers in Chandigarh.