What is bail? What does an anticipatory bail mean?


The offences that are committed by the criminals leads to the punishment of being arrested or imprisoned. The time period of imprisonment differs fromcase to case. The term can also exceed to lifetime and can also turn into death penalty. The remedy to imprisonment is bail. Bail refers to release of a person from the custody or imprisonment either before the end of time period of punishment or at the end of it. The concept of bail is stated under Code of Criminal procedure. Sections 436- 439 explains bail. The bail can be granted by magistrate and police.

Bail by Police

The power of a police officer to grant bail is mainly divided into two categories:

 (a) when the arrest was made without any warrant;

 (b) when the arrest was made in pursuance of warrant of arrest.

Power of police to grant bail under head (a) are gathered from sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC. The powers of police to grant bail under head (b) are controlled by directions stated in Section 71 of the Code. Section 81 of the Code states that, a police officer can grant bail to a person if he is arrested or produced before him has been accused of the commission of a bailable offence even though warrant of arrest does not contain any direction to that effect. In case of non- bailable offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant however should be by name.[i]

Bail by Magistrate

The Code of Criminal Procedure provides that a person who is suspected of having committed a cognizable offence can be remanded to police custody. In case of arrest without warrant, the request for remand in case of a suspect begins with a formal arrest. Any person who is arrested by a police officer is required to be produced before the Judicial Magistrate within 24 hours from the time of his arrest. If a person commits a bailable offence, then the magistrate can grant bail but if he commits any non-bailable offence, then it is on the discretion of the Magistrate that whether bail should be granted to him or not. Section 59, 44 (1), 88, 167, 436, 437 etc. deals with powers of Judicial Magistrate to grant bail.

Anticipatory Bail

Under Section 438 of the Criminal Procedure Code there’s a provision for an individual to take help of ‘Anticipatory Bail’. This means that a private can seek or request to urge bail in anticipation or in expectation of being named or accused of getting committed a non-bailable offence.

Anticipatory bail is supposed to be a safeguard for an individual who has false accusation or charges made against him/her, most ordinarily thanks to professional or personal enmity, as it ensures the discharge of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the supreme court and citing section 438 of the Criminal Procedure Code also as giving proper reason, apply for it. If the court, supported variety of conditions and therefore the nature of the case, sees merit within the petition the bail is granted. Hence if and when the person is arrested, he/she are going to be immediately released on the idea of the anticipatory bail.


The words anticipatory bail’ are notdefined in S. 438.

In the case of Balchand Jain vs. State of M.P.[ii], it was stated that, anticipatory bail is a misnomer as it is not bail presently granted in anticipation of arrest. When the court grants anticipatory bail, what it does is to make an order that in the event of arrest a person shall be released on bail. Manifestly there is no question ofrelease on bail unless a person is arrested and, therefore, it is only upon arrest that an order granting ‘anticipatory bail’ becomes operational.


1. The section applies to all non- bailable offences.

2. The cases where the punishment extends to death penalty or lifetime imprisonment, the applicability is not confined.[iii]

3. The section is applicable to all bailable and non- bailable offences.[iv]

Conditions for granting Anticipatory bail

  • The person must be in apprehension of getting arrested. The apprehension must be reasonable.
  • The person must appear in the court whenever called or required.
  • The person must not at any stage disagree to introduce the facts of the case.
  • The person must no leave the territory of India without the permission of the court or whatever the case maybe.
  • The person must not cause threat to someone for telling the facts of the case.

Case Laws

In the case of Amiya Kumar v. State of West Bengal[v], it was held that section 438 of the code empowers both high court and session’s court to grant the anticipatory bail. Both the courts have the competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail, he can’t file the petition for the same in the high court.

In the case of D. R. Naik v. State of Maharashtra[vi], it was held if a person files an application for anticipatory bail and it is rejected by Sessions court, it will not put the bar over the person filing the petition to approach High court. But if the person first approaches the high court and petition filed by him gets rejected, then he can’t approach the session’s court for filing the petition on same ground.


The terms bail and anticipatory bail are correlated but different from each other. The bail can be granted at different stages but, anticipatory can be asked for before the complaint is filed. Both have different condition imposed along with them. Anticipatory bail is a kind of bail provided under CrPC but, has a different applicability and conditions to be filed.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 



[ii]BalchandJain v. State ofM.P., AIR 1977 SC 366 (1977) 2 SCR 52

[iii]State ofAndhraPradesh v. BtrnalKnishna Kundu, AIR 1997 SC 3589

[iv]Sunesh Vasudeva v. State, 1978 Cr. LJ 677 (Del)

[v]Amiya Kumar v. State of West Bengal 1978 Cri.LJ 288

[vi]D. R. Naik v. State of Maharashtra 1989 Cri.LJ 252

Sejal Makkad
I am Sejal Makkad, a student of Amity Law School, Amity University Chhattisgarh, pursuing BA LLB(H), currently in Semester VI. Apart from the daily routine of assignments and tests in college, I indulge myself in writing research papers. I look forward for conferences in different colleges to be a part of them. The research which I do in various topics increases my knowledge in such subjects which are not in the syllabus. This is a bonus point of writing articles and papers. Apart from the academics, I love to sketch and paint in my free time. I am also a cynophilist. I am interested in criminals laws, human rights mostly. The most favourite task for is to eat whole day because food is what makes me the happiest.