Section 438 of Code of Criminal Procedure, 1973 (Cr.P.C.) – (Bail)

Legal Provisions of Section 438 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.

This new provision is incorporated in the Code which empowers the High Court and the Court of Session to grant anticipatory bail to a person who has a reasonable apprehension that he is likely to be arrested for accusation of having committed a non- cognizable offence.


Thus anticipatory bail is a direction to release a person on bail issued even before he is arrested. The higher Court under this section is to pass an order that the applicant for anticipatory bail be released on bail in the event he is arrested. Therefore, the order is operative only before the arrest of the applicant and not after he has already been arrested.

Commenting on the necessity of the provision relating to grant of anticipatory bail to persons who reasonably apprehended their arrest for a non-bailable offence, the Law Commission of India observed:

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“The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail. In recent times, with the accentuation of political rivalry this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of a crime is not likely to abscond, or otherwise misuse the liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.”

Thus the object of this provision is to see that the liberty of a person is not put in jeopardy on frivolous grounds at the instance of influential or irresponsible persons or officers who are in-charge of the prosecution.


However, with a view to ensure that the provision of anticipatory bail is not misused by unscrupulous applicants, the section provides that Court should grant such bail only in exceptional cases and that too after issuing notice to the prosecution. It should also record reasons for granting the anticipatory bail in writing.

The Court, before granting anticipatory bail must ensure that the applicant would not abscond or hamper the cause of justice or otherwise misuse his liberty. Mere possibility of an accusation of some non-bailable offence will not justify grant of anticipatory bail unless specific accusation based on reasonable ground to apprehend arrest are brought before the Court by the applicant.

The Supreme Court in State of Punjab v. Raninder Singh, held that Section 438 (2) (i) of Cr. P. C. makes it very clear that while granting anticipatory bail the Court can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. The purpose of such provision is that anticipatory bail is not permitted to be abused. It is therefore, implicit that whenever Court imposes such a condition in its order, and the accused called for investigation does not appear before the Investigation Officer, then it will be open for the state to move the High Court for cancellation of anticipatory bail.

The apprehension of arrest at the hands of the police or issuance of a warrant by the Magistrate against a person would justify his applying for an anticipatory bail under this section. So also issuance of a summons for appearance before a Court would be sufficient to entitle him to apply for such bail.


Non-cognizable offence:

The power of the Sessions Court or the High Court to grant anticipatory bail is limited only where the applicant apprehends the likelihood of his arrest for a non-bailable offence whether it is cognizable or non-cognizable. It is also not material whether it is under Indian Penal Code or any other statutory law such as Customs Act. Prevention of Corruption Act, Prevention of Food Adulteration Act etc. Anticipatory bail may be granted even for offences punishable with death or imprisonment of life. Anticipatory bail may also be granted for apprehension of charges under Section 304-B of IPC (Dowry death) but Court while entertaining such application must see whether prima facie case was made out or not which would clearly indicate that the charges were concocted.

Thus the Chhattisgarh High Court has dispelled the contention that anticipatory bail could not be granted to an ‘accused for the offence punishable under Section 304-B of IPC. But this is contrary to the Supreme Court’s directive given in Samunder Singh v. State of Rajasthan that anticipatory bail should not be granted to a person involved in dowry death cases as a matter of course.

Sub-section (1) lays down the conditions which must be satisfied before anticipatory bail can be granted. Firstly, the petitioner should show that he has “reason to believe” that he may be arrested and secondly, the offence for which he may be arrested should be non-bailable. It is the right as well as duty of the Court to apply its mind to the allegations averred in the petition and examine the materials available with the police and then consider the application for grant of anticipatory bail on merits. The section does not require that the Court should assess the prosecution evidence while considering the anticipatory bail application.

Thus the High Court of Delhi refused to grant anticipatory bail to the smuggler of hides and skins of wild animals as there was sufficient material on record that he had tried to flee leaving the skins on the spot.

The Supreme Court has expressed a view that anticipatory bail should not be given by the Courts to persons who are accused of economic offences and crimes involving atrocities.

The section also empowers the Court to grant interim anticipatory bail until the filing of the FIR in respect of matters covered by the order and the petitioner is directed to only by the High Court under Section 439 (2) and the Magistrate or even a Sessions Judge has no jurisdiction to cancel it. The M.P. High Court cancelled the anticipatory bail granted to a husband in a case allegedly involving dowry death.

Concurrent Jurisdiction of the High Court and the Court of Session.—The Section 438 (1) provides that an application for grant of anticipatory bail may be made to the High Court or the Court of Session. However, it would be appropriate to first move the Sessions Court and not the High Court directly.

But the section does not bar a person moving directly to the High Court without first moving the Sessions Court. Where an application for grant of anticipatory bail is rejected by the Court of Session, the applicant can approach the High Court under Section 438 (1) as there is no bar to do so. The appropriate Court to grant anticipatory bail is the Court in whose jurisdiction; the arrest is apprehended by the applicant even though FIR might have been registered at a place within the jurisdiction of some other High Court or Sessions Court.

The Orissa High Court has decided in the case of Padma Charan v. Ram Madhav Rao, that the Court cannot stay the arrest of the accused during the pendency of his application for anticipatory bail. In this wife burning case, the newly wedded wife sustained serious burn injuries and consequently died a little over a month of her marriage. First, a case was registered against the accused under Section 306, IPC and he had obtained anticipatory bail.

After the death of wife, the case was changed to Section 302, IPC and the accused moved the High Court once again for an anticipatory bail. One of the Judges stayed the arrest of the accused till the disposal of his anticipatory bail petition. But the Division Bench of the High Court ruled that interim order staying arrest pending disposal of bail application could not be passed under Section 438, CrPC.

The Court clarified that an order of anticipatory bail can be passed only before the arrest of a person and cannot be invoked after he is arrested. In such a situation it would be appropriate for the accused to seek bail under Section 437 or Section 439 of CrPC.

SC/ST (Prevention of Atrocities) Act, 1989 Excludes the application of Section 438 relating to Anticipatory Bail:

It must be stated that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 excludes the application of the provisions relating to grant of anticipatory bail to offences under the Act.

The reason being that there was a possibility of anticipatory bail being abused which would have been against the legislative intent and spirit of this Act. This exclusion has been held constitutional and not violative of Articles 14, 19 and 21 of the Constitution.

The High Court of Gujarat has also reiterated the non-applicability of Section 438 of Cr. P.C. relating to grant of anticipatory bail for an offence under Section 18 of the S.C./S.T. (Prevention of Atrocities) Act, 1989 in its decision in A.K. Chaudhary v. State of Gujarat.” Section 18 of the S.C./S.T. (Prevention of Atrocities) Act expressly bans the applicability of Section 438, Cr. P.C. to offences committed under that section.

The grant of anticipatory bail, being a discretionary remedy cannot be claimed by a person as a matter of right. It is the judicial discretion of the higher court to grant or to refuse to grant anticipatory bail keeping in view the circumstances of the case.

The State of Uttar Pradesh, by a State Amendment Act of 1976 has omitted the application of Section 438 of CrPC; the constitutional validity of which was challenged under Article 254(2) of the Constitution. But the full Bench of Allahabad High Court held this deletion valid, in so far as other States like Jammu and Kashmir had also not adopted the provision for grant of anticipatory bail in its Code of Criminal Procedure.

The Calcutta High Court refused to grant anticipatory bail to the Municipal Surveyor who had certified the newly constructed multi-storied building safe for occupancy though it collapsed killing three persons and seriously injuring many others who lived there. The Court held that certifying the building as safe for residence was with the knowledge that its collapse might result in death of occupants or persons living nearby.

The Supreme Court in Ravindra Saxena v. State of Rajasthan held that denial of anticipatory bail merely because allegation pertained to cheating or forgery of valuable security or solely on the ground that challan had already been presented was not proper.

The application seeking anticipatory bail was rejected by the High Court of Rajasthan, Jaipur Bench for the third time despite appellant’s submissions that in fact the dispute was of a purely civil nature but was filed in the form of a criminal complaint in order to pressurise him (appellant) for not to pursue the civil litigation pending between the parties.

The Apex Court held that the High Court committed a serious, error of law in not applying its mind to the facts and circumstances of the case. Quoting from Guruhaksh Singh v. State of Punjab, the Supreme Court observed that “since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438 especially when no such restrictions have been imposed by the legislature in the terms of that section. The beneficial provision contained in Section 438 must be saved, not jettisoned”.

Consequent to the decision in Maneka Gandhi v. Union of India, it has been made clear that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable and Section 438 of Cr. P.C. in the form in which it is conceived by the Legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought not read words in legislation which are not to be found in it.”

In State of Gujarat v. Narendra K. Amin the validity of grant of anticipatory bail by the Sessions Court to the Deputy Superintendent of Police, Dr. Amin in Soharabuddin Sheikh’s murder and disappearance of Sheikh’s wife case was directly challenged before the Supreme Court.

The State Government of Gujarat submitted that the Sessions Judge had travelled beyond the scope of an inquiry under Section 438 of Cr. P.C. and that he had dealt with the matter in such a way that it was almost like passing an order of acquittal. The learned amicus curiae also argued that the said order was unsupportable as it had adverse impact on investigation itself.

It was a case where custodial interrogation was a must and the Sessions Judge had ignored the apprehension expressed by the prosecution that the respondent (i.e. Dr. Amin) if granted bail, would be in a position to influence and coerce the witnesses to retract statements already made by them and not to disclose relevant information to the prosecution.

The Supreme Court held that the Sessions Court in granting anticipatory bail had grossly ignored the need for custodial interrogation of the respondent for finding out as to what exactly happened to Kausarbi, the wife of deceased. Soharabuddin or how she met with her end. The Court, therefore, set aside the bail order of the Sessions Judge but only to the limited extent that he should deal with the application de novo under Section 439, Cr. P.C. in accordance with law.

In Mahesh Chandra v. State of U.P. the High Court granted bail to petitioners imposing a condition that accused would pay to victim daughter-in-law a sum of Rs. 2,000 per month as maintenance. Applicants before the High Court were Jeth and Jethani of victim. Supreme Court failed to understand as to how they could be made liable to pay maintenance of Rs. 2,000 per month to the victim.

While deciding bail application it was not jurisdiction of Court to decide civil disputes as between parties. The matter was, therefore, remitted to High Court for fresh consideration to pass appropriate order without imposing any condition of nature imposed in the impugned order.