What is Anticipatory Bail and How Does it Protect You?

What is Anticipatory Bail?

Section 438 of the Criminal Procedure Code (CrPC), 1973 says about the law of anticipatory bail, sets a limit on the period within which an arrest can be made. It empowers the Magistrate to direct the investigating agency not to arrest an accused before the investigation is completed by the agency. “The time limit prescribed for arrest shall be the shortest possible, and not extending beyond 24 hours after the time the offence has been committed,” says section 438.

It requires the investigating agency to obtain an anticipatory bail from a court of law before arresting anyone. If the investigating agency arrests someone even before the period prescribed for arrest, he may be arrested under section 181 of the CrPC, the order for which may be sought by the magistrate, as per section 438(1)(b).

Why does Section 438 exist and what are its goals?

After the enactment of the SC/ST Act, against certain of the crimes listed in Section 17 of the said Act (which many of you must be familiar with), section 438 was added by the Law Commission to the Code of Criminal Procedure. While this attempt to reach out to the SC/ST communities was lauded, many hoped that with the SC/ST Act in place, this section would never come to be implemented.

Section 438 is aimed at giving to the accused protection against frivolous complaints of heinous crimes against SC/ST communities while providing anticipatory bail to the SC/ST accused if the case is barred from being considered under section 175 of the Code of Criminal Procedure.

anticipatory bail
Anticipatory Bail

What protections do you get from Section 438?

People often question as to what protections are there for the person who is arrested under this section, with the Supreme Court pointing out that the Code of Criminal Procedure has made this section in Section 438. This section has two provisions. The first provision empowers the magistrate to grant anticipatory bail on the condition that: The accused undertakes that he shall not directly or indirectly instigate any person or incite him to commit any cognisable offence.

The accused shall appear before the magistrate and give an undertaking that he shall not directly or indirectly instigate any person or incite him to commit any cognisable offence, unless he pleads guilty or the police file a chargesheet against him.

How can you fight back against a false case?

Resisting an accusation based on a mere suspicion or based on what your friends and relatives think is futile. If your answer is to maintain calm and not react, think again. As this crackdown on crimes by SC/ST is now extending to categories that are not as prominent like unauthorised construction of homes, political protests and those fighting for land rights, and under the code for rioting, these acts are now under the ambit of Section 438.

The consequences of resisting an accusation under this section are real and can potentially mean severe consequences, even jail time. What you need to do to combat this move is to seek legal recourse as early as possible and also know what is the recourse available. What are the provisions that can be used by an accused person?

Who can apply for anticipatory bail?

The guidelines state that the courts can give anticipatory bail to the person under the following conditions

a. He is within the age of 18 years and is not accused of a case which can attract a punishment ranging from 2 years to 10 years imprisonment.

b. He is not a person against whom any contempt of court proceedings have been framed.

c. The applicant is willing to cooperate with the law enforcement agencies in the case.

d. The applicant has no criminal record.

What are the conditions to be fulfilled before granting anticipatory bail?

  1. Alibi. To prove one’s alibi, a person has to be sure that the prosecutor/ the police don’t have strong evidence against him.
  2. Police verification of witnesses.
  3. Compelling statement of complainants.
  4. Police verification of the anticipatory baile-blk- along with the prosecution
  5. The court to make sure that no pretence is made to support the accusation.
  6. The police verification of the victim. But these conditions cannot be fulfilled till the bail is granted. The provisions of the Code of Criminal Procedure,which mandates police to submit such evidence ,are NOT applicable.

When can Anticipatory Bail be cancelled or revoked?

While bail can be granted or denied based on valid grounds, and there is no special reason for holding an accused in custody, there is no established criteria for cancelling bail and revoking it. At best, one may look at whether the judge thinks the accused person is a flight risk or not.

For this, the judge would have to keep in mind the nature and circumstances of the offence and his age at the time of apprehension or, in the case of minors, their chronological age and status as minors. There are, however, certain clear circumstances in which the judge is bound to cancel or revoke the bail. What has been the response to the judgement?


As a criminal justice system that has already failed to bring even a single person to justice under the 1st Scheduled Caste and Scheduled Tribes cases, failing to provide anticipatory bail even as a means to fight crime is a draconian step that the Code of Criminal Procedure has taken. India has taken a huge step towards empowering women, which is long overdue.

However, this code has done little to improve the gender ratio. Without changing the strict procedure of a single case, the law in our land still does not see the seriousness of the issue and instead uses it to seek revenge on women. Author: Vandita Thakur Disclaimer: The opinions expressed within this article are the personal opinions of the author.

This entire system revolves around adhering to the constitutional provisions as stipulated in the United Nations’s Universal Declaration of Human Rights. However, as per our case study, it is clear that even the Indian constitution cannot guarantee protection to all sections of society as any move towards a holistic and inclusive policy that includes human rights as a target is dismissed as an infringement on the rights of one class or community.

In fact, anyone from any caste or religion should be willing to face the consequences of a crime for whatever they have done. There is no higher value or worth than one’s life, no matter what one’s socio-economic standing or caste/religion is.

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