Anticipatory Bail

Section 438 of CrPC- Direction for grant of bail to person apprehending arrest. :

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

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2. When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
   • a condition that the person shall make himself available for interrogation by a police officer as and when required;
   • a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
   • a condition that the person shall not leave India without the previous permission of the Court;
   • such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cogniz-ance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1).

Reviewed and updated by Century Law Firm, Delhi – October 2026. Statutory references are to the Acts as in force on that date.

Anticipatory bail after 1 July 2024: Section 482 BNSS

Section 438 CrPC has become Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The structure is the same – an application to the Court of Session or the High Court by a person who apprehends arrest for a non-bailable offence, a direction that he be released on bail “in the event of such arrest”, and the power to impose conditions. The BNSS drops the list of factors the court “may” consider that the 2005 amendment had added to Section 438(1), and bars anticipatory bail for the aggravated offences of rape of a woman under sixteen or twelve (Sections 65 and 70(2) BNS – Section 482(4)), as Section 438(4) did for the corresponding IPC offences.

Because Section 85 BNS (formerly Section 498A IPC) is cognizable and non-bailable, the accused husband and in-laws usually apply for anticipatory bail first; see bail in a dowry case. Courts apply a stricter standard to bail in POCSO cases: the Special Court must hear the Special Public Prosecutor and the child’s family, and the presumption of guilt under Section 29 of the Act weighs against release.

What the Supreme Court has settled

• Gurbaksh Singh Sibbia v. State of Punjab (1980, Constitution Bench): the power is wide and should not be hedged with conditions the statute does not contain; the applicant need not show a special case; the order can be passed without waiting for an FIR; and it operates until the end of the trial unless the court limits it.
• Sushila Aggarwal v. State (NCT of Delhi) (2020, Constitution Bench): reaffirmed Sibbia – anticipatory bail need not be for a fixed period and does not automatically end when the charge-sheet is filed or the accused is summoned, though the court may limit it on the facts.
• Siddharam Satlingappa Mhetre v. State of Maharashtra (2011): listed the relevant considerations – nature and gravity of the accusation, antecedents, possibility of fleeing, whether the accusation is made to humiliate, the likelihood of tampering with witnesses – and stressed that personal liberty is the rule.
• Transit anticipatory bail: Priya Indoria v. State of Karnataka (2023) held that a Sessions Court or High Court may grant limited, interim protection to a person apprehending arrest in an FIR registered in another State, to enable him to approach the competent court there.
• Special statutes: Section 18 of the SC/ST (Prevention of Atrocities) Act bars anticipatory bail, but Prathvi Raj Chauhan v. Union of India (2020) confirmed that courts may still grant it where no prima facie case under the Act is made out. Economic-offence statutes and the UAPA have their own restrictions.

Practice in Delhi

• Applications are ordinarily filed first before the Sessions Judge of the district where the FIR is registered; the Delhi High Court is approached if the Sessions Court declines, or directly in exceptional cases.
• Interim protection (“no coercive steps”) is commonly granted on the first date with a direction to join investigation; the Investigating Officer files a status report and the matter is heard on the next date.
• Typical conditions: appear before the IO when called, do not contact witnesses, do not leave India without permission, surrender passport, furnish a personal bond with one or two sureties.
• Where Section 35(3) BNSS (formerly 41A CrPC) applies – offences punishable up to seven years – the police must issue a notice of appearance rather than arrest, and arrest in breach of the notice is itself a ground for bail (Arnesh Kumar v. State of Bihar, 2014; Satender Kumar Antil v. CBI, 2022).

Related reading: regular and anticipatory bail in India, rights of an arrested person, bail in matrimonial cases, rights of an arrested person and the Legal Sections Explained hub.

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